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
23-P-1511
COMMONWEALTH
vs.
NEIL E. TOM, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Boston Municipal Court judge denied a motion to
suppress filed by the defendant, Neil Tom, Jr., a jury found him
guilty of driving with a suspended license. He appeals from the
denial of his motion to suppress and his conviction. We affirm.
Background. The motion judge's findings, as supplemented
by testimony from the suppression hearing transcript, show that
on October 3, 2020, at about 11:53 A.M., Officers Lorenzo Monzon
and Peter Lekaditis patrolled the Mattapan and Dorchester
section of Boston in a marked cruiser. While driving in
Dorchester along Norfolk Street, which had been the subject of
speeding complaints from the community, Officer Monzon spotted a
gray SUV missing a front registration plate approaching from the opposite direction. Officer Monzon could "not remember whether
he noticed the person inside the SUV." Because Massachusetts
registration plates bearing green numbers do not have to be
affixed to the front of vehicles, Officer Monzon made a U-turn
and drove behind the SUV and verified that the plate numbers
were red -- indicating a motor vehicle violation for the missing
plate. Given the motor vehicle violation, Officer Monzon
signaled the SUV to stop with lights and siren, and the SUV
stopped in a bus lane. The officers walked up to the SUV, and
Officer Monzon told the defendant that he stopped him due to the
missing plate and asked for his license and registration. The
defendant produced the registration and a Massachusetts
identification card and said that his mother had the
registration plate on a car she just purchased. He said his
license had been suspended, and Officer Monzon verified the
suspension through a computer check.
At Officer Monzon's request, the defendant exited the
vehicle but was neither arrested nor handcuffed at this point.
The officers decided to tow the vehicle given the obstruction of
the bus lane, the defendant's license suspension, and the
absence of anyone else who could drive. The officers arrested
the defendant after finding a firearm and drugs in the SUV
during an inventory search in preparation for towing. A
complaint issued in connection with the incident.
2 The defendant filed a motion to suppress the evidence
obtained from the motor vehicle stop and included an allegation
that the stop was "motivated by race." In a supporting
memorandum of law, the defendant claimed that race was a
motivating factor because the motor vehicle offense was minor
and rarely enforced, the vehicle (a BMW) was a "potential flag
for discrimination," the stop was pretextual "where the police
were fishing for evidence," and a statistical analysis of the
officers' prior interactions with the public "raise[d] a strong
inference of racial discrimination." The motion judge
determined that the statistical analysis raised a reasonable
inference of racial profiling and conducted an evidentiary
hearing.
At the evidentiary hearing, the officers testified to the
details of the stop as summarized above, and the defense
presented statistical data as well as testimony from a college
professor "specializ[ing] in racial profiling broadly" with
particular "expertise in consumer racial profiling" or
"discrimination against shoppers of color." The defendant
presented several exhibits, including the professor's report on
the racial and ethnic disparities in traffic citations issued by
the officers involved in the stop. After considering the
testimony and exhibits, the judge denied the motion to suppress
in a memorandum of decision dated January 26, 2023.
3 The case proceeded to trial on August 17, 2023, with a
different judge presiding, and a jury found the defendant guilty
of driving with a suspended license and acquitted him of other
charges in connection with the motor vehicle stop.
Discussion. 1. Equal protection. When claiming a traffic
stop violated principles of equal protection, a defendant must
initially establish through the totality of the circumstances "a
reasonable inference that the officer's decision to initiate the
stop was motivated by race or another protected class."
Commonwealth v. Long, 485 Mass. 711, 713 (2020). The defendant
"must produce evidence upon which a reasonable person could rely
to infer that the officer discriminated on the basis of the
defendant's race or membership in another protected class.
Conclusive evidence is not needed." Id. at 723-24. If the
defendant meets the initial burden of showing an inference of
discrimination, then the burden shifts to the Commonwealth to
rebut that inference, and the Commonwealth cannot merely rely on
the validity of the traffic violation as the reason for the
stop. Id. at 724, 726. The Commonwealth must "grapple with all
of the reasonable inferences and all of the evidence that a
defendant presented, and would have to prove that the stop was
not racially motivated." Id. at 726. On appeal, we review
"whether there was error in the judge's conclusion that the
Commonwealth met its burden of rebutting an inference of
4 selective enforcement by articulating an adequate, race-neutral
reason for the stop." Commonwealth v. Robinson-Van Rader, 492
Mass. 1, 16 (2023). We discern no error.
Denying the motion to suppress, the judge concluded, "Upon
considering the totality of the circumstances, the Commonwealth
proved by a preponderance of evidence, that this stop was not
motivated by race. In addition, the actions occurring after the
initial stop, once they learned that the [d]efendant did not
have a valid license and had pulled over in a bus lane, were not
motivated by race." The record before us shows that the judge
based these conclusions on a careful review and weighing of the
evidence presented. Unpersuaded by the professor's testimony,
the judge found the statistical analysis relied on benchmarking
data for the entire city of Boston rather than the Mattapan and
Dorchester neighborhoods being patrolled by the officers and
failed to consider traffic on the road in question, the
particular shift assignments of each officer, the number of
verbal warnings made by the officers in contrast to the number
of citations issued, and the effect, if any, that the pandemic
shutdown played on skewing data collected on the number of
motorists on the roads and the number of tickets issued.
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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
23-P-1511
COMMONWEALTH
vs.
NEIL E. TOM, JR.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a Boston Municipal Court judge denied a motion to
suppress filed by the defendant, Neil Tom, Jr., a jury found him
guilty of driving with a suspended license. He appeals from the
denial of his motion to suppress and his conviction. We affirm.
Background. The motion judge's findings, as supplemented
by testimony from the suppression hearing transcript, show that
on October 3, 2020, at about 11:53 A.M., Officers Lorenzo Monzon
and Peter Lekaditis patrolled the Mattapan and Dorchester
section of Boston in a marked cruiser. While driving in
Dorchester along Norfolk Street, which had been the subject of
speeding complaints from the community, Officer Monzon spotted a
gray SUV missing a front registration plate approaching from the opposite direction. Officer Monzon could "not remember whether
he noticed the person inside the SUV." Because Massachusetts
registration plates bearing green numbers do not have to be
affixed to the front of vehicles, Officer Monzon made a U-turn
and drove behind the SUV and verified that the plate numbers
were red -- indicating a motor vehicle violation for the missing
plate. Given the motor vehicle violation, Officer Monzon
signaled the SUV to stop with lights and siren, and the SUV
stopped in a bus lane. The officers walked up to the SUV, and
Officer Monzon told the defendant that he stopped him due to the
missing plate and asked for his license and registration. The
defendant produced the registration and a Massachusetts
identification card and said that his mother had the
registration plate on a car she just purchased. He said his
license had been suspended, and Officer Monzon verified the
suspension through a computer check.
At Officer Monzon's request, the defendant exited the
vehicle but was neither arrested nor handcuffed at this point.
The officers decided to tow the vehicle given the obstruction of
the bus lane, the defendant's license suspension, and the
absence of anyone else who could drive. The officers arrested
the defendant after finding a firearm and drugs in the SUV
during an inventory search in preparation for towing. A
complaint issued in connection with the incident.
2 The defendant filed a motion to suppress the evidence
obtained from the motor vehicle stop and included an allegation
that the stop was "motivated by race." In a supporting
memorandum of law, the defendant claimed that race was a
motivating factor because the motor vehicle offense was minor
and rarely enforced, the vehicle (a BMW) was a "potential flag
for discrimination," the stop was pretextual "where the police
were fishing for evidence," and a statistical analysis of the
officers' prior interactions with the public "raise[d] a strong
inference of racial discrimination." The motion judge
determined that the statistical analysis raised a reasonable
inference of racial profiling and conducted an evidentiary
hearing.
At the evidentiary hearing, the officers testified to the
details of the stop as summarized above, and the defense
presented statistical data as well as testimony from a college
professor "specializ[ing] in racial profiling broadly" with
particular "expertise in consumer racial profiling" or
"discrimination against shoppers of color." The defendant
presented several exhibits, including the professor's report on
the racial and ethnic disparities in traffic citations issued by
the officers involved in the stop. After considering the
testimony and exhibits, the judge denied the motion to suppress
in a memorandum of decision dated January 26, 2023.
3 The case proceeded to trial on August 17, 2023, with a
different judge presiding, and a jury found the defendant guilty
of driving with a suspended license and acquitted him of other
charges in connection with the motor vehicle stop.
Discussion. 1. Equal protection. When claiming a traffic
stop violated principles of equal protection, a defendant must
initially establish through the totality of the circumstances "a
reasonable inference that the officer's decision to initiate the
stop was motivated by race or another protected class."
Commonwealth v. Long, 485 Mass. 711, 713 (2020). The defendant
"must produce evidence upon which a reasonable person could rely
to infer that the officer discriminated on the basis of the
defendant's race or membership in another protected class.
Conclusive evidence is not needed." Id. at 723-24. If the
defendant meets the initial burden of showing an inference of
discrimination, then the burden shifts to the Commonwealth to
rebut that inference, and the Commonwealth cannot merely rely on
the validity of the traffic violation as the reason for the
stop. Id. at 724, 726. The Commonwealth must "grapple with all
of the reasonable inferences and all of the evidence that a
defendant presented, and would have to prove that the stop was
not racially motivated." Id. at 726. On appeal, we review
"whether there was error in the judge's conclusion that the
Commonwealth met its burden of rebutting an inference of
4 selective enforcement by articulating an adequate, race-neutral
reason for the stop." Commonwealth v. Robinson-Van Rader, 492
Mass. 1, 16 (2023). We discern no error.
Denying the motion to suppress, the judge concluded, "Upon
considering the totality of the circumstances, the Commonwealth
proved by a preponderance of evidence, that this stop was not
motivated by race. In addition, the actions occurring after the
initial stop, once they learned that the [d]efendant did not
have a valid license and had pulled over in a bus lane, were not
motivated by race." The record before us shows that the judge
based these conclusions on a careful review and weighing of the
evidence presented. Unpersuaded by the professor's testimony,
the judge found the statistical analysis relied on benchmarking
data for the entire city of Boston rather than the Mattapan and
Dorchester neighborhoods being patrolled by the officers and
failed to consider traffic on the road in question, the
particular shift assignments of each officer, the number of
verbal warnings made by the officers in contrast to the number
of citations issued, and the effect, if any, that the pandemic
shutdown played on skewing data collected on the number of
motorists on the roads and the number of tickets issued.
Additionally, the judge found that the professor's analysis did
not account for evidence that the officers were specifically
assigned to address traffic enforcement, witnessed an
5 infraction, and were not simply running random license plate
checks. The judge further found that before initiating the
stop, the officers confirmed the color of the numbers on the
rear plate, and "the driver's race or skin color did not stand
out." Moreover, the judge found that the events that followed
the stop provided race-neutral reasons to search the SUV. See
Robinson Van-Rader, 492 Mass. at 23 ("There may be substantial
overlap between an inquiry into the reasonableness of a stop and
the officer's motivation for stopping a suspect"). Giving due
deference to the motion judge's evaluation of the weight of the
evidence presented, we discern no clear error. Id. at 9.
We also discern no error from the motion judge's legal
conclusions. To the extent that the defendant contends that the
Commonwealth can only meet its burden by presenting statistical
evidence of its own, we disagree. A judge must consider the
"totality of the circumstances," Long, 485 Mass. at 724-725,
which may include "the reasons the officer decided to target the
defendant." Robinson-Van Rader, 492 Mass. at 20. Without
relying on its own statistical evidence, the Commonwealth may
still meet its burden by showing race-neutral reasons for "the
sequence of events prior to the stop." Long, supra at 724.
See, e.g., Robinson-Van Rader, supra at 23-24 (Commonwealth met
burden without statistical evidence).
6 2. Evidence of suspension. The defendant raises one error
with respect to the trial. He contends that the Commonwealth
offered inadmissible hearsay to prove that the defendant's
license had been suspended, and the defendant's admission on the
roadside is insufficient to prove his guilt without
corroboration. Here, both officers testified that the defendant
admitted his license had been suspended, a fact verified through
a computer check. Because the defendant lodged no objection to
the testimony, we review only to determine whether an error
created a substantial risk of a miscarriage of justice.
Commonwealth v. Keevan, 400 Mass. 557, 562 (1987). Here, we
perceive no such risk.
We first address whether there was an error. We agree with
the defendant that the officers' testimony about the result of
the computer check constituted inadmissible hearsay. See
Commonwealth v. Royal, 89 Mass. App. Ct. 168, 169 (2016)
(hearsay where officer testified that he "ran . . . the
[defendant's driver] license number through the Registry of
Motor Vehicles" and it "came with a status of suspended"). We
disagree that his admission to the license suspension lacked
corroboration that a crime had been committed because the police
were percipient witnesses to the defendant driving the SUV. See
Commonwealth v. Costello, 411 Mass. 371, 375 (1991)
7 (corroboration rule "does not require corroboration of each
element of a crime").
Whether or not the admission of the evidence constituted an
error, the record reveals that the defendant did not object to
this testimony for evident strategic reasons. See Commonwealth
v. Delong, 72 Mass. App. Ct. 42, 46 (2008), citing Commonwealth
v. Beliard, 443 Mass. 79, 88-89 (2004). Through cross-
examination of the officers, the defendant sought to distance
himself from the firearm and drugs found in the SUV by
highlighting his courtesy and cooperation with the officers and
his candor about the license suspension. In closing argument,
defense counsel emphasized this theme of candor and cooperation
that would be logically inconsistent with someone who was aware
of a firearm and drugs stashed in the SUV with the police
standing nearby. See Commonwealth v. Pytou Heang, 458 Mass.
827, 852 (2011) ("Where inadmissible evidence is admitted
because of a defendant's reasonable tactical decision, there is
no substantial likelihood of a miscarriage of justice"). We
also note that this strategy met with success as the jury
acquitted the defendant of the possession offenses connected
with the SUV. Thus, we discern no substantial risk of a
miscarriage of justice.
Judgment affirmed.
8 By the Court (Singh, D'Angelo & Hodgens, JJ. 1),
Clerk
Entered: August 18, 2025.
1 The panelists are listed in order of seniority.