NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-142
COMMONWEALTH
vs.
MATTHEW DAVIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Superior Court jury trial, the defendant was found
guilty of unlawfully carrying a firearm, and after a jury-waived
trial, he was found to have been previously convicted of a
"serious drug offense" and thus subject to a sentence
enhancement under G. L. c. 269, § 10G (a), the Massachusetts
Armed Career Criminal Act (ACCA). On appeal, the defendant
makes four arguments: (1) his motion to suppress the firearm
found in his car was erroneously denied; (2) there was
insufficient evidence that he constructively possessed the
firearm; (3) at the sentence enhancement trial, the judge
erroneously admitted identification evidence; and (4) the judge
erred in denying him sentencing credit for certain "dead time" served in Federal custody. We affirm the judgment but reverse
the order on the defendant's motion for jail credits, vacate the
sentence, and remand the case for recalculation of the sentence.
1. Motion to suppress. Boston police officers patrolling
Columbia Road pulled over a car that was speeding and had
excessively-tinted windows. The officers, each with a body-worn
camera (BWC) activated, approached the car and found the
defendant in the driver's seat and a woman he identified as his
fiancé in the front passenger seat.1 As explained in more detail
infra, the officers eventually pat frisked the defendant,
performed a protective search of the car for weapons, and
located a firearm in a "fanny pack" on the floor behind the
front passenger seat. The defendant was arrested and charged
with, among other offenses, unlawfully carrying a firearm. The
defendant moved to suppress the fanny pack and firearm on the
ground that the car search was unjustified. After an
evidentiary hearing at which the officers testified and the BWC
footage was admitted, a judge denied the motion.
In reviewing a ruling on a motion to suppress, "we adopt
the motion judge's factual findings absent clear error,"
Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008), and
1 By the time of trial, the defendant and his fiancé were no longer engaged. For clarity, we refer to her as his fiancé throughout.
2 "conduct an independent review of his ultimate findings and
conclusions of law." Commonwealth v. Jimenez, 438 Mass. 213,
218 (2002). We "may supplement a motion judge's subsidiary
findings with evidence from the record that is uncontroverted
and undisputed and where the judge explicitly or implicitly
credited the witness's testimony . . . so long as the
supplemented facts do not detract from the judge's ultimate
findings" (quotations and citations omitted). Commonwealth v.
Jones-Pannell, 472 Mass. 429, 431 (2015).
A Terry-type protective search of a vehicle for weapons is
justified if officers have reasonable suspicion, based on
specific and articulable facts, that a recent occupant is
"dangerous" and might access the vehicle to "gain immediate
control of weapons." Michigan v. Long, 463 U.S. 1032, 1048-1050
(1983), citing Terry v. Ohio, 392 U.S. 1, 21 (1968). See
Commonwealth v. Torres-Pagan, 484 Mass. 34, 38-39 (2020);
Commonwealth v. Darosa, 94 Mass. App. Ct. 635, 645 (2019).
Here, the defendant contends that the officers lacked such
reasonable suspicion. We are unpersuaded. The factors
supporting reasonable suspicion here included the defendant's
delay in pulling over after police activated their blue lights,
which police called a "slow roll"; police knowledge of his
pending charges involving assault with a firearm; and the
3 unusual position of the front seats in his car, which could
support an inference that he was hiding contraband.
a. Slow roll. The motion judge found that when the
officers activated their cruiser's blue lights, despite there
being "plenty of space for the [defendant's] car to pull over,"
the defendant did not do so immediately, but instead kept
driving, slowly and for a significant distance, before stopping.
The officers believed that the occupants were using this slow
roll in order to gain time to hide contraband.
The defendant first argues that the record does not support
the finding that he could have pulled over earlier. The
officers testified, however, that it was 12:30 A.M., traffic was
not heavy, Columbia Road is "a very wide street . . . two lanes
of traffic with a bike lane and a lane for cars to park on the
side of it [with] ample amount of room for a vehicle to pull to
the right of the road," and so "[t]here was no reason that [the
car] did not pull over right away."2 Yet the defendant continued
driving for at least a full city block.
The defendant further asserts that, because there were cars
in the parking lane, he could not pull over until he found space
2 From the BWC footage and other evidence at the hearing, the judge could have found that the officer's description referred to one half of Columbia Road, i.e., that in the direction the defendant was driving, there were two travel lanes, a bicycle lane, and a parking lane.
4 directly adjacent to the curb. But neither officer testified
that this was what they meant by failing to pull over, nor is it
what State law provides.3 And the officers were not required to
identify some specific location where the defendant could have
pulled over earlier. This case is unlike Commonwealth v.
Teixeira-Furtado, 474 Mass. 1009, 1011 (2016), cited by the
defendant, where "conclusory" police testimony that a car was
traveling at "a speed greater than reasonable," although it
"tracked the statutory language," was not based on any
"articulate[d] specific facts" and thus was insufficient to
support a traffic stop. Here, specific police testimony
supported the judge's finding that police reasonably believed
the defendant could have pulled over earlier, even if not
completely out of the right-hand travel lane.
The defendant also argues that his actions were "consistent
with simply looking for a safe place to pull over" and therefore
were not suspicious. But that a particular action may be
3 By statute, "upon the approach of any . . . police vehicle . . . which is going to a fire or responding to call, alarm or emergency situation, every person driving a vehicle on a way shall immediately drive said vehicle as far as possible toward the right-hand curb or side of said way and shall keep the same at a standstill until such . . . police vehicle . . . has passed" (emphasis added). G. L. c. 89, § 7A. Although the defendant points out that stopping in a bicycle lane is prohibited, this is subject to an "except[ion] in a case of emergency." G. L. c. 89, § 4D.
5 "consistent with any number of innocent activities,"
Commonwealth v. Barreto, 483 Mass. 716, 721 (2019), does not
mean the action cannot contribute to reasonable suspicion.
"An officer does not have to exclude all the possible innocent explanations for the facts in order to form a reasonable suspicion [and we] do not examine each fact known to [the officer] at the time of the stop in isolation; instead [a court] view[s] the 'facts and inferences underlying the officer's suspicion . . . as a whole when assessing the reasonableness of his acts.'"
Isaiah I., 450 Mass. at 823, quoting Commonwealth v. Thibeau,
384 Mass. 762, 764 (1981).
The defendant next claims that the officers were required
to, but did not, testify to the specific training or experience
they relied on to conclude that the slow roll was a sign of an
attempt to hide contraband. For this the defendant cites the
statement in Commonwealth v. Matta, 483 Mass. 357, 366 n.8
(2019), that "ordinarily, when an officer relies on his or her
training and experience to draw an inference or conclusion about
an observation made, the officer must explain the specific
training and experience that he or she relied on and how that
correlates to the observations made." Yet in Matta, supra, it
was enough for an officer to testify "that in his experience
people carry unlicensed firearms in their waistband"; this
sufficed to allow "the fact that the defendant clutched his
waistband as he ran [to] be considered as part of the reasonable
6 suspicion calculus." Here, similarly, the officer testified
that in his experience, when a vehicle slow rolls on a street on
which there is nothing preventing the vehicle from pulling over
to the right, "it raises a red flag that someone may be trying
to conceal something in the vehicle." This had "occurred in the
past, in [the officer's] experience." Such testimony is little
different from that accepted in Matta.
Moreover, in the reasonable suspicion context no less than
when the question is the sufficiency of the evidence, "[a]n
inference, if not forbidden by some rule of law, need only be
reasonable and possible; it need not be necessary or
inescapable." Commonwealth v. Beckett, 373 Mass. 329, 341
(1977). It requires no special training or experience, but
instead only common sense, to draw the permissible (even if not
required) inference that a person who continues to drive slowly
for at least a block after police activate their blue lights is
a person who is seeking to delay or avoid an interaction with
police. We therefore conclude that the defendant's slow roll
could properly be considered as contributing to reasonable
suspicion that the defendant was hiding a weapon or contraband
in the car.
b. Recent activity with firearms. The motion judge found
that the officers were aware, before the patfrisk of the car,
7 that the defendant had "an open firearms case involving
violence." One officer had run the defendant's board of
probation (BOP) record and learned that only two weeks earlier,
the defendant had appeared in District Court in connection with
"a domestic violence issue involving him brandishing a firearm."
The charges against the defendant included assault with intent
to murder, assault with a dangerous weapon, and threatening.
The defendant rightly asserts that "a suspect's criminal
record alone will not justify a patfrisk." Commonwealth v.
Garner, 490 Mass. 90, 93 (2022). Nevertheless, "[k]nowledge
that a suspect's criminal record includes weapons-related
offenses may factor into the reasonable suspicion calculus."
Id. at 92. Although the defendant here had not been convicted,
arrests may be considered in determining reasonable suspicion.
Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 841-842 (2010).
We conclude that the officers' knowledge of the pending charges
contributed to reasonable suspicion that the contraband the
defendant was hiding was a firearm and that he might use it in a
dangerous manner.
c. Seat positions. The unusual, sharply reclined
positions of both the driver's and front passenger seats, as
shown in video and photographs introduced at the suppression
hearing, further contributed to reasonable suspicion that the
8 defendant had just hidden a weapon or contraband. Although the
officers did not testify that they considered this factor, and
the judge made no findings about it, the existence of reasonable
suspicion "is a question of law," one "that we can answer in the
first instance" where the subsidiary facts are undisputed.
Commonwealth v. Ford, 100 Mass. App. Ct. 712, 718-719 (2022).
Our inquiry is objective, focusing on what the officers
reasonably could have believed, rather than on their subjective
beliefs or motivations. See Commonwealth v. Buckley, 478 Mass.
861, 867 (2018); Commonwealth v. Santana, 420 Mass. 205, 208
(1995). We may supplement the motion judge's findings with
evidence from the record that is uncontroverted and undisputed,
Jones-Pannell, 472 Mass. at 431, and we may undertake an
independent review of video footage or other documentary
evidence in the record. Commonwealth v. Yusuf, 488 Mass. 379,
380-381 (2021); Commonwealth v. Tremblay, 480 Mass. 645, 646
(2018). We are "free to affirm a ruling on grounds different
from those relied on by the motion judge if the correct or
preferred basis for affirmance is supported by the record and
the findings." Commonwealth v. Va Meng Joe, 425 Mass. 99, 102
(1997).
Here, both the driver and front passenger seats were pushed
to the rear and sharply reclined backward to such an extent
9 that, it could reasonably be inferred, driving or riding in such
a seat would have been unnatural and uncomfortable. It could
further be reasonably inferred that the purpose of positioning
the seats in this manner was, first, to facilitate the driver's
placing of an object on the floor behind the passenger seat and,
second, to conceal that object from the view of someone outside
the car looking in. This factor further supports -- and, when
combined with the factors already discussed, establishes --
reasonable suspicion to pat frisk the car for a weapon.4 The
motion to suppress was properly denied.
2. Sufficiency of evidence of possession. The defendant
argues that the evidence at trial was insufficient to prove that
he constructively possessed the firearm found in the car he was
driving. We review to determine "whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979). We keep in mind that
4 We therefore need not consider the parties' arguments regarding whether reasonable suspicion could be based on additional factors, such as the defendant's demeanor on this occasion as compared to a prior interaction with one of the officers, or one officer's belief that the defendant had an unspecified "history with drugs and firearms."
10 inferences need only be reasonable and possible, not necessary
or inescapable. Beckett, 373 Mass. at 341.
Constructive possession requires proof beyond a reasonable
doubt that the defendant had "knowledge coupled with the ability
and intention to exercise dominion and control" of the
contraband (citation omitted). Commonwealth v. Brzezinski, 405
Mass. 401, 409 (1989). "Presence alone cannot show the
requisite knowledge, power, or intention to exercise control
over the firearm, but presence, supplemented by other
incriminating evidence, 'will serve to tip the scale in favor of
sufficiency.'" Commonwealth v. Albano, 373 Mass. 132, 134
(1977), quoting United States v. Birmley, 529 F.2d 103, 108 (6th
Cir. 1976). Such other incriminating evidence may be referred
to as a "plus factor." Commonwealth v. Ortega, 441 Mass. 170,
174 (2004), quoting Commonwealth v. Velasquez, 48 Mass. App. Ct.
147, 149 (1999).
Here, the plus factors include the slow roll and the
unusual seat positions, both of which were shown by trial
evidence. Both factors supported a reasonable inference that
the defendant was aware of and sought to conceal the firearm in
the car.5 Accordingly, we need not resolve the parties' dispute
5 Contrary to the defendant's argument, even if it was also plausible that the defendant engaged in the slow roll solely to find a safe place to pull over, the slow roll was not the only
11 whether it was also reasonable to infer that the defendant had
been wearing the fanny pack and reclined his seat to take it off
before being pulled over.
Another plus factor was the defendant's calm, unsurprised
demeanor when asked if he had a license to carry; he responded
that he did not and asked only if his fiancé was going to be
locked up. This permitted an inference that he knew of the
firearm in the car. That there could be other, less inculpatory
explanations for the defendant's attitude did not bar the jury
from considering it. See Beckett, 373 Mass. at 341.
Although the defendant did not own the car, but had merely
borrowed it from his uncle, the uncle testified that he had last
driven it a few days before the defendant's arrest, he had not
loaned it to anyone else since that time, and the firearm and
fanny pack were not his. The fiancé, likewise, testified that
the firearm and fanny pack were not hers. The jury could have
credited this evidence, which permitted, even if it did not
require, the inference that the firearm belonged to the
plus factor supporting a finding of constructive possession, and thus was not by itself required to "bear the weight of proof beyond reasonable doubt." Commonwealth v. Rodriguez, 456 Mass. 578, 583 (2010).
12 defendant. Taking the plus factors together, the evidence of
constructive possession was sufficient.6
3. Identification evidence. At the jury-waived ACCA
sentence enhancement trial, the Commonwealth sought to prove
that the defendant was the same Matthew Davis who, the evidence
showed, had been convicted in Federal court in 2009 of
possession of cocaine base with intent to distribute.7 "Mere
identity of name is not sufficient" for such purposes.
Commonwealth v. Koney, 421 Mass. 295, 302 (1995). The
Commonwealth therefore relied on the testimony of Boston police
Officer Michael O'Rourke, who participated in the 2008 warrant
arrest of a Matthew Davis for operating with a suspended
driver's license. During the booking that followed, that
Matthew Davis was searched and drugs were found, leading to the
Federal drug conviction. O'Rourke testified, over objection,
that he recognized the defendant in the courtroom at the ACCA
trial as the same person he had helped arrest in 2008. The
6 We therefore need not consider the parties' arguments regarding other possible plus factors, such as the defendant's changed demeanor since his last interaction with one of the officers, his statement that he drove with tinted windows because he did not want to be seen, and his "big step" away from the car, cited by the Commonwealth as evidence of flight.
7 The defendant does not contest that this was a "serious drug offense" under the ACCA, G. L. c. 269, § 10G (e).
13 defendant now challenges the admission of two aspects of
O'Rourke's testimony.
a. In-court showup identification. The defendant argues
that because O'Rourke had not identified him before the ACCA
trial as the same Matthew Davis he had helped arrest many years
earlier, O'Rourke's in-court identification of him was
unnecessarily suggestive and impermissible under Commonwealth v.
Crayton, 470 Mass. 228 (2014). In that case, the court held
that "[w]here an eyewitness has not participated before trial in
an identification procedure, [a court] shall treat the in-court
identification as an in-court showup, and shall admit it in
evidence only where there is 'good reason' for its admission."
Id. at 241. This rule "appl[ies] only to in-court
identifications of the defendant by eyewitnesses who were
present during the commission of the crime." Id. at 242. It
does not apply to "a witness who was neither a percipient
witness to the crime nor present at the scene of the crime."
Commonwealth v. Chin, 97 Mass. App. Ct. 188, 199 (2020). See
Commonwealth v. Collins, 470 Mass. 255, 265 (2014); Commonwealth
v. Galipeau, 93 Mass. App. Ct. 225, 232 (2018).
Here, because O'Rourke was not testifying as an eyewitness
to any crime committed by any Matthew Davis, Crayton did not bar
O'Rourke's in-court identification. O'Rourke did not witness
14 the traffic offense for which he helped arrest a Matthew Davis
in 2008, nor did he witness the defendant's possession of a
firearm that led to the present case. When Davis was booked
after the 2008 arrest, a booking officer found drugs on Davis's
person, and the possession of those drugs was the basis for the
2009 Federal conviction. But O'Rourke was not the booking
officer and was unsure whether he himself had witnessed the
discovery of the drugs -- initially testifying that he was, but
on cross-examination repeatedly saying, "most likely not." He
did "[n]ot . . . recall" being there.8 Crayton therefore does
not apply.
8 Even if O'Rourke happened to see the discovery of the drugs, and even if that made him an eyewitness to a crime, there was "good reason" for his in-court identification here. O'Rourke having earlier participated in the warrant arrest, he was "not identifying the defendant based solely on his or her memory of witnessing the defendant at the time of the crime, [and so] there is little risk of misidentification arising from the in-court showup despite its suggestiveness" (emphasis added). Crayton, 470 Mass. at 243. "'Good reason' might also exist where the witness is an arresting officer who was also an eyewitness to the commission of the crime, and the identification merely confirms that the defendant is the person who was arrested for the charged crime." Id. at 242. The fortuity of O'Rourke's possible presence when the drugs were found cannot logically create additional barriers to his making an in-court showup identification of the defendant here as the same person he had earlier helped arrest on the essentially unrelated charge of operating with a suspended license. And the defendant agrees in his appellate brief that "[b]ased on [O'Rourke's] testimony, the judge could have found that the person convicted in [F]ederal court was the same person Officer O'Rourke arrested."
15 The defendant nevertheless points us to the gloss placed on
Crayton in Commonwealth v. Dew, 478 Mass. 304, 313 (2017), where
the court, quoting Crayton, 470 Mass. at 242, said: "A 'good
reason,' in this context, consists of circumstances where an in-
court identification is not material to a determination of guilt
or innocence, and serves merely to inform the jury that 'the
person sitting in the court room is the person whose conduct is
at issue.'" The defendant suggests that O'Rourke's in-court
identification of him here was material to his guilt or
innocence at his ACCA trial, and so there could be no "good
reason" under Crayton, supra.
Even if "good reason" were required here, however, Dew does
not aid the defendant. The point of the ACCA trial was not to
make "a determination of [Matthew Davis's] guilt or innocence"
of a serious Federal drug offense, Dew, 478 Mass. at 313, but
merely to determine whether the defendant here was the same
Matthew Davis who had already been found guilty of such an
offense in 2009.9 O'Rourke's testimony served merely to inform
the fact finder that the person in the courtroom at the ACCA
trial (the defendant) was the person whose conduct was at issue
9 Cf. Commonwealth v. Johnson, 447 Mass. 1018, 1019 (2006) ("statutory provisions [such as G. L. c. 269, § 10G, i.e., ACCA] do not create independent crimes, but enhance the sentence for the underlying crime").
16 in the 2009 Federal proceedings. Whether O'Rourke witnessed
that person possessing drugs was immaterial. Cf. Commonwealth
v. Matos, 95 Mass. App. Ct. 343, 350 (2019) (arresting officer's
in-court identification of defendant intended merely to show
that defendant was person officer arrested and person in booking
photo, not to show defendant was perpetrator).
We decline to give a literal interpretation to the language
in Dew, 478 Mass. at 313, suggesting that, if identification is
material to guilt or innocence, good reason cannot exist.
Identification is always material; it "is a key element in every
criminal trial," and its absence "require[es] acquittal."
Koney, 421 Mass. at 302. Interpreting Dew literally would thus
entirely nullify Crayton's "good reason" provisions.
Accordingly, the judge did not err or otherwise abuse his
discretion in allowing the in-court identification.10
10The defendant further suggests that, on this record, the judge should not have allowed the identification because O'Rourke's previous involvement with the arrest of a Matthew Davis occurred fifteen years earlier, and "it was evident from the officer's testimony that he did not remember what the arrestee looked like." In this jury-waived trial, where Crayton did not bar the identification, the passage of time and O'Rourke's testimony about his memory of the arrestee's appearance went to the weight of his identification, not its admissibility. Regardless of what we might do were we finders of fact, we do not second guess the judge's decision to credit O'Rourke's testimony. Although the defendant's brief also argues that the identification evidence was substantially more prejudicial than probative, that argument was not made below, and any abuse of discretion in that regard did not create a
17 b. Evidence of arrestee's birthdate. The defendant
challenges the admission of O'Rourke's testimony regarding the
birthdate of the Matthew Davis he arrested in 2008. O'Rourke
was initially unable to recall that information but testified
without objection that looking at a police report would refresh
his recollection. After viewing the report, he testified
without objection that his recollection was refreshed and then,
over objection, testified regarding the arrestee's year of birth
and then his exact date of birth. The defendant now argues, on
two grounds, that this testimony was not admissible as a present
recollection refreshed but instead was inadmissible hearsay:
(1) it was insufficiently "clear that . . . the witness [was]
testifying from present memory rather than reciting the contents
of the writing," Commonwealth v. Daye, 393 Mass. 55, 65 n.11
(1984); and (2) there having been no foundation laid that
O'Rourke ever knew the arrestee's birthdate, he should not have
been "allowed to refer to a paper to refresh his recollection
with reference to a matter about which he never had any
knowledge." Kaplan v. Gross, 223 Mass. 152, 156 (1916).
Even assuming arguendo that these particular objections
were preserved, any error was not prejudicial. The evidence
substantial risk of a miscarriage of justice, for the reason stated immediately infra regarding social security numbers.
18 here included a certified copy of a Federal court record of the
2009 conviction, showing that the Matthew Davis at issue there
was born in 1988 and had a social security number ending in four
specified digits. The evidence also included a certified copy
of a 2023 Registry of Motor Vehicles (RMV) record for a Matthew
Davis, showing a 1988 birthdate and a social security number
ending in the same four digits. The RMV record also included a
color photograph of Matthew Davis, which the judge could have
found matched the appearance of the defendant in court before
him. Taken together, this was ample evidence that the defendant
was the same person convicted of the Federal drug offense. We
are confident that the admission of further evidence regarding
the month and day of birth of the person at issue in the Federal
proceeding had no or but very slight effect.
4. Dead time. At sentencing, the defendant filed a motion
for jail credits requesting credit for fifty-nine days of dead
time -- the period from December 17, 2022, to February 13, 2023,
-- that he spent solely in Federal pretrial custody for an
unrelated offense (1) that he allegedly committed after the
firearm offense at issue here, but (2) of which he was
ultimately acquitted before the trial in this case. The judge,
while allowing credit for time spent in custody on both the
Federal charge and the firearm charge simultaneously, denied
19 credit for the requested fifty-nine days spent solely in Federal
custody, on the ground that he had no authority to grant it.
On appeal, the defendant argues that under decisions such
as Commonwealth v. Milton, 427 Mass. 18, 23-25 (1998), the judge
did have such authority, and that, "in the interest of fairness,
[the defendant] should not be required to serve 'dead time'
[where he is] not banking time or getting double credit for
time." Williams v. Superintendent, Mass. Treatment Ctr., 463
Mass. 627, 632 (2012). The Commonwealth agrees. Based on our
independent review, see Commonwealth v. Poirier, 458 Mass. 1014,
1015 (2010), we agree as well.
Conclusion. The judgment is affirmed. The order on the
defendant's motion for jail credits is reversed, the sentence is
vacated, and the case is remanded for recalculation of the
sentence to include credit for fifty-nine days of dead time.
So ordered.
By the Court (Meade, Sacks & Hodgens, JJ.11),
Clerk
Entered: March 31, 2025.
11 The panelists are listed in order of seniority.