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Commonwealth v. Suffolk.2/13/1998
he derringer pistol and had no memory of anything else until he woke up in the hospital.
A forensic expert presented by the defendant testified that when the van flipped over, the person in the driver's seat could be propelled out the passenger's side sliding door from the force of the impact and the shape of the console. He also testified that a person who received a wound from the derringer could nevertheless remain conscious and active, and possibly become even more aggressive.
Based on the evidence presented, the Commonwealth argued to the jury that the defendant had shot Doyle sometime after they left the cafJ together and that at the time of the accident the defendant was driving Doyle's van in order to dump the body. The defendant argued to the jury that Doyle was driving the van at the time of the accident and that Doyle and the defendant got into a struggle in the van during which the defendant shot Doyle in self-defense.
We now address the defendant's arguments.
1. Motion to suppress. The defendant argues that the Judge erred in denying his motion to suppress physical evidence, namely the derringer pistol and the defendant's clothing, because she relied upon evidence which was not part of the record. The Judge found that the gun fell out of the defendant's clothing as he was being placed in an ambulance and the emergency medical technician turned it over to the police. In doing so, the judge relied upon a police report which was attached to defense counsel's affidavit in support of the defendant's motion to suppress but which was not introduced in evidence at the hearing on the motion. While the defendant argues correctly that it is the Commonwealth's burden to prove that a warrantless search falls within a permissible exception to the warrant requirement and is, therefore, reasonable, Commonwealth v. Berry, 420 Mass. 95, 105-106 (1995), it is equally well settled that that burden only attaches to the Commonwealth after the defendant has first demonstrated that a "search and seizure" in the constitutional sense has occurred. Ibid. Here, the Judge could properly find that the defendant failed to do so where the uncontroverted materials presented to the Judge showed only that the gun fell from the defendant's clothing while he was being placed in an ambulance and the gun was turned over by the ambulance attendant to the police. There is no violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights when evidence is seized by private parties who are not acting as agents of the police and subsequently turned over to the police. Commonwealth v. Jung, 420 Mass. 675, 686 (1995). There was no showing that the ambulance attendants were acting as agents of the police and, thus, the judge properly denied the defendant's request to suppress as evidence the derringer pistol where the defendant failed to meet his preliminary burden of demonstrating that a warrantless search and seizure by the police occurred. Commonwealth v. Berry, 420 Mass. at 105-106.
The Judge also found that the police had seized the defendant's clothing but that the seizure was lawful because of exigent circumstances. See Commonwealth v. Martino, 412 Mass. 267, 276 (1992) (reasonable belief as to the potential loss or destruction of evidence created exigent circumstances and warranted warrantless seizure of evidence). Specifically, the Judge found that "iven the nature of an emergency room and in particular the BCH there is always a strong likelihood that the hospital personnel being concerned for the patient may not preserve evidence found on items such as clothing. There was a reasonable belief that potential evidence would b
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