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-988
COMMONWEALTH
vs.
XAVIE X.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted as a youthful offender in the Juvenile Court, the
juvenile appeals from his convictions and the denial of his
motion to suppress. Following a trial, a jury found him guilty
of armed robbery (G. L. c. 265, § 17), assault and battery with
a firearm (G. L. c. 265, § 15E [a]), carrying a firearm without
a license (G. L. c. 269, § 10 [a]), assault and battery by means
of a dangerous weapon (G. L. c. 265, § 15A [b]), and witness
intimidation (G. L. c. 268, § 13B). On appeal, he contends that
the motion judge failed to suppress evidence from an unlawful
investigatory stop, and he contends that the trial judge erred
regarding identification evidence and a related jury
instruction. We affirm. Background. As more fully set forth in the discussion
below, the juvenile is one of two people apprehended following a
shooting that occurred in Quincy at about 1:15 P.M., on March
17, 2017. After police officers responded to a report of shots
fired around Santander Bank on Hancock Street, Trooper Michael
Best, armed with a description of the suspects, found the
juvenile and his companion in a nearby parking garage and
engaged them in a brief conversation. When the trooper
attempted to patfrisk the juvenile, he dropped the backpack
(exposing the handle of a firearm inside), jumped off the second
floor of the parking garage, and fled. Officers later
apprehended him.
Discussion. 1. Threshold inquiry. "In reviewing a ruling
on a motion to suppress, our duty is to make an independent
determination of the correctness of the judge's application of
constitutional principles to the facts as found." Commonwealth
v. Mercado, 422 Mass. 367, 369 (1996). Here, the judge
concluded that Trooper Best had a reasonable suspicion to
conduct an investigatory stop and subsequent frisk of the
juvenile. On appeal, the juvenile takes no issue with the
judge's findings of fact but contends that the evidence did not
justify the stop or the frisk. We discern no error.
We disagree with the juvenile's contention that Trooper
Best's conversation in the parking garage constituted a seizure.
2 "[P]olice do not effect a seizure merely by asking questions
unless the circumstances of the encounter are sufficiently
intimidating that a reasonable person would believe he was not
free to turn his back on his interrogator and walk away."
Commonwealth v. Fraser, 410 Mass. 541, 544 (1991). See
Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228 (2006)
(police conversation with juvenile did not constitute seizure).
While "the age of a juvenile suspect, if known to the officer or
if objectively apparent to a reasonable officer, will be part of
the totality of the circumstances relevant to whether the
juvenile was seized under art. 14 of the Massachusetts
Declaration of Rights," Commonwealth v. Evelyn, 485 Mass. 691,
693 (2020), we discern nothing from the record to suggest that
the trooper used his police power to coerce the juvenile to stay
in the parking garage and speak with him. To the contrary, the
record suggests that the juvenile engaged in the conversation in
an effort to throw the trooper off the trail by saying the pair
were coming from Quincy College.
Even if the conversation with the juvenile was sufficiently
coercive to render it a seizure, something we do not conclude,
Trooper Best had ample justification for conducting an
investigative stop based on a reasonable suspicion that the
juvenile and his companion were engaged in criminal activity.
See Mercado, 422 Mass. at 369. See also Terry v. Ohio, 392 U.S.
3 1, 21 (1968). Officers responded to a report of shots being
fired near the bank, and they found a bullet hole in a window
and broken glass in the building next to the bank. One witness
at the scene said "two or three males" ran from behind a
building, and a second witness, who also saw "two or three
males," provided a detailed description of one (a white male
suspect wearing black clothing and carrying a backpack and a
silver handgun). A third witness provided a similar description
of two male suspects (one with a dark complexion and one white
or Hispanic with a backpack), saw the suspect with the backpack
drop an object and put it in his waistband, and noted they
jogged together toward a parking garage. Responding to the
descriptions and probable escape route of the suspects, Trooper
Michael Best went to the parking garage and spotted two suspects
clothed in black (one "black male" and one "white male" with a
backpack), generally matching the physical description, emerge
from a second-floor stairwell. Thus, based on the interception
of possible suspects along their escape route, Trooper Best had
"sufficient articulable facts" to warrant an investigative stop
of these two individuals. Mercado, 422 Mass. at 370 n.1.
Failure to make an inquiry on these facts "would have been poor
police work indeed." Mercado, 422 Mass. at 370, quoting Terry,
392 U.S. at 23.
4 Rather than dispelling suspicions, the trooper's
conversation with the suspects and his observations justified a
patfrisk. Upon questioning by the trooper, the white male
suspect said that they were coming from Quincy College, but
neither could produce college identification. The white male
suspect, however, did produce a debit card with the juvenile's
name on it. During the brief conversation, both suspects
continually looked around, placed their hands in their pockets,
and looked nervous. When asked if they had weapons, the
juvenile's companion acknowledged that he had a knife, and the
juvenile did not respond. Trooper Best became concerned for his
safety and asked about the contents of the backpack, and the
juvenile replied that it was not his. After Trooper Best asked
to look inside the backpack, the juvenile backed away, turned
the backpack from view, and placed his hands in his pockets.
Given the nature of the crime under investigation, the
inconsistent answers to questions, the acknowledgement of the
companion that he was armed, the juvenile's unanswered question
about being armed, the nervous demeanor, and the concealing of
hands in pockets, Trooper Best had a "reasonable suspicion that
the suspect [was] armed and dangerous." Commonwealth v. Torres-
Pagan, 484 Mass. 34, 36 (2020). Because we conclude that the
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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-988
COMMONWEALTH
vs.
XAVIE X.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted as a youthful offender in the Juvenile Court, the
juvenile appeals from his convictions and the denial of his
motion to suppress. Following a trial, a jury found him guilty
of armed robbery (G. L. c. 265, § 17), assault and battery with
a firearm (G. L. c. 265, § 15E [a]), carrying a firearm without
a license (G. L. c. 269, § 10 [a]), assault and battery by means
of a dangerous weapon (G. L. c. 265, § 15A [b]), and witness
intimidation (G. L. c. 268, § 13B). On appeal, he contends that
the motion judge failed to suppress evidence from an unlawful
investigatory stop, and he contends that the trial judge erred
regarding identification evidence and a related jury
instruction. We affirm. Background. As more fully set forth in the discussion
below, the juvenile is one of two people apprehended following a
shooting that occurred in Quincy at about 1:15 P.M., on March
17, 2017. After police officers responded to a report of shots
fired around Santander Bank on Hancock Street, Trooper Michael
Best, armed with a description of the suspects, found the
juvenile and his companion in a nearby parking garage and
engaged them in a brief conversation. When the trooper
attempted to patfrisk the juvenile, he dropped the backpack
(exposing the handle of a firearm inside), jumped off the second
floor of the parking garage, and fled. Officers later
apprehended him.
Discussion. 1. Threshold inquiry. "In reviewing a ruling
on a motion to suppress, our duty is to make an independent
determination of the correctness of the judge's application of
constitutional principles to the facts as found." Commonwealth
v. Mercado, 422 Mass. 367, 369 (1996). Here, the judge
concluded that Trooper Best had a reasonable suspicion to
conduct an investigatory stop and subsequent frisk of the
juvenile. On appeal, the juvenile takes no issue with the
judge's findings of fact but contends that the evidence did not
justify the stop or the frisk. We discern no error.
We disagree with the juvenile's contention that Trooper
Best's conversation in the parking garage constituted a seizure.
2 "[P]olice do not effect a seizure merely by asking questions
unless the circumstances of the encounter are sufficiently
intimidating that a reasonable person would believe he was not
free to turn his back on his interrogator and walk away."
Commonwealth v. Fraser, 410 Mass. 541, 544 (1991). See
Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228 (2006)
(police conversation with juvenile did not constitute seizure).
While "the age of a juvenile suspect, if known to the officer or
if objectively apparent to a reasonable officer, will be part of
the totality of the circumstances relevant to whether the
juvenile was seized under art. 14 of the Massachusetts
Declaration of Rights," Commonwealth v. Evelyn, 485 Mass. 691,
693 (2020), we discern nothing from the record to suggest that
the trooper used his police power to coerce the juvenile to stay
in the parking garage and speak with him. To the contrary, the
record suggests that the juvenile engaged in the conversation in
an effort to throw the trooper off the trail by saying the pair
were coming from Quincy College.
Even if the conversation with the juvenile was sufficiently
coercive to render it a seizure, something we do not conclude,
Trooper Best had ample justification for conducting an
investigative stop based on a reasonable suspicion that the
juvenile and his companion were engaged in criminal activity.
See Mercado, 422 Mass. at 369. See also Terry v. Ohio, 392 U.S.
3 1, 21 (1968). Officers responded to a report of shots being
fired near the bank, and they found a bullet hole in a window
and broken glass in the building next to the bank. One witness
at the scene said "two or three males" ran from behind a
building, and a second witness, who also saw "two or three
males," provided a detailed description of one (a white male
suspect wearing black clothing and carrying a backpack and a
silver handgun). A third witness provided a similar description
of two male suspects (one with a dark complexion and one white
or Hispanic with a backpack), saw the suspect with the backpack
drop an object and put it in his waistband, and noted they
jogged together toward a parking garage. Responding to the
descriptions and probable escape route of the suspects, Trooper
Michael Best went to the parking garage and spotted two suspects
clothed in black (one "black male" and one "white male" with a
backpack), generally matching the physical description, emerge
from a second-floor stairwell. Thus, based on the interception
of possible suspects along their escape route, Trooper Best had
"sufficient articulable facts" to warrant an investigative stop
of these two individuals. Mercado, 422 Mass. at 370 n.1.
Failure to make an inquiry on these facts "would have been poor
police work indeed." Mercado, 422 Mass. at 370, quoting Terry,
392 U.S. at 23.
4 Rather than dispelling suspicions, the trooper's
conversation with the suspects and his observations justified a
patfrisk. Upon questioning by the trooper, the white male
suspect said that they were coming from Quincy College, but
neither could produce college identification. The white male
suspect, however, did produce a debit card with the juvenile's
name on it. During the brief conversation, both suspects
continually looked around, placed their hands in their pockets,
and looked nervous. When asked if they had weapons, the
juvenile's companion acknowledged that he had a knife, and the
juvenile did not respond. Trooper Best became concerned for his
safety and asked about the contents of the backpack, and the
juvenile replied that it was not his. After Trooper Best asked
to look inside the backpack, the juvenile backed away, turned
the backpack from view, and placed his hands in his pockets.
Given the nature of the crime under investigation, the
inconsistent answers to questions, the acknowledgement of the
companion that he was armed, the juvenile's unanswered question
about being armed, the nervous demeanor, and the concealing of
hands in pockets, Trooper Best had a "reasonable suspicion that
the suspect [was] armed and dangerous." Commonwealth v. Torres-
Pagan, 484 Mass. 34, 36 (2020). Because we conclude that the
trooper had the requisite reasonable suspicion, we need not
5 address the judge's alternative conclusion that the juvenile
abandoned the backpack.
2. Identification evidence. Prior to trial, the parties
filed competing motions in limine with respect to Officer
Stephen Cleary making an in-court identification of the
juvenile. The trial judge denied the defense motion and allowed
the Commonwealth's motion. The evidence at trial showed that
Officer Cleary ran up the parking garage ramp and saw the
juvenile flee from Trooper Best and suddenly disappear by
jumping off the second floor of the parking garage. Officer
Cleary looked over the garage wall and saw the juvenile running
down the street about thirty feet below. Later, Officer Cleary
went to another location less than a mile away and identified
the juvenile, who had been apprehended, as the person he saw
disappear from the parking garage. Over an objection, Officer
Cleary identified the juvenile in court as the person who was in
custody.
On appeal, the juvenile contends that the judge erred by
allowing Officer Cleary to identify him in court. He argues
that the in-court identification was irrelevant and unduly
prejudicial. He further argues that because the showup was
suggestive, the in-court identification was rendered
inconsistent with Commonwealth v. Crayton, 470 Mass. 228, 242
(2014) (requiring "good reason" for admitting in-court
6 identification without prior out-of-court nonsuggestive
identification). We discern no error as we rejected a similar
claim in Commonwealth v. Matos, 95 Mass. App. Ct. 343, 350
(2019), where an officer who "was not an eyewitness to the crime
and had no firsthand knowledge of the perpetrator's identity"
was properly allowed to testify that the juvenile was the man
the police arrested. We also note that unlike the situation
here, Crayton applies to a "first-time in-court identification"
and does not, as the juvenile implies, prohibit out-of-court
showups. Crayton, 470 Mass. at 235, 238 ("suggestiveness alone
is not sufficient to render a showup identification
inadmissible").
3. Identification jury instruction. Finally, we discern
no error and no substantial risk of a miscarriage of justice
stemming from the jury instruction on identification evidence.
As the juvenile concedes, the judge's instruction "largely
mirrors the model jury instruction." For the first time,
however, he contends that with respect to Officer Cleary's
testimony the judge erred by not including optional instructions
from the model regarding (1) a photographic array or lineup and
(2) multiple identification procedures.
These optional instructions would not have assisted and may
have confused the jury when evaluating Officer Cleary's
testimony because he did not view an array or a lineup, and he
7 only participated in one pretrial identification. See Model
Jury Instructions on Eyewitness Identification, 473 Mass. 1051
(2015) (optional instructions "need only be given under the
circumstances described"). With respect to the evidence
presented, we also note the judge cautioned that a showup may be
particularly suggestive, that witnesses may be truthful but
mistaken, that witnesses may have greater difficulty identifying
persons of other races or ethnicities, and that witnesses may
have been influenced by other information in making an
identification. The judge's fulsome instructions on
identification, which carefully discussed numerous factors to
consider when evaluating identification evidence, enabled jurors
"to capably evaluate the accuracy" of Officer Cleary's
identification and echoed similar factors in the optional
instructions. Commonwealth v. Gomes, 470 Mass. 352, 365 (2015).
Order denying motion to suppress affirmed.
Judgments affirmed.
By the Court (Blake, C.J., Walsh & Hodgens, JJ.1),
Clerk
Entered: November 26, 2024.
1 The panelists are listed in order of seniority.