Opinion
10-P-1838
12-09-2011
COMMONWEALTH v. CHARLES D. GALES.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Boston Municipal Court, the defendant was convicted of possession of marijuana with intent to distribute and acquitted of various firearms charges. He appeals, claiming error in the denial of his motion to suppress evidence (marijuana). In addition, he maintains that his counsel was ineffective by failing to file a motion to suppress a statement, which the defendant made to the police, admitting that he had marijuana ('weed ') on him at the time of his arrest. We affirm.
1. Motion to Suppress. We summarize the facts found by the judge at the suppression hearing, which we have supplemented with other uncontested testimony. See Commonwealth v. Gomes, 453 Mass. 506, 507 (2009). On the evening of March 20, 2009, Trooper William Cameron and two Boston police officers were on routine patrol when, at approximately 8:00 P. M., they observed a car drive through a red light. The officers turned on their cruiser's lights and siren with the intent to stop the car, but the driver accelerated and a car chase ensued. During the chase, Trooper Cameron observed that a dark object, later identified as a firearm, was thrown from the passenger side of the car. Soon afterward, the police found the car parked at the end of a dead-end street. As the officers approached, the occupants of the car (the driver and two men), all of whom were dressed in dark jackets and 'hoodies,' started to run. Less than thirty seconds later, Trooper Cameron observed two men wearing similar clothing in the area and approached them. The men, one of whom was the defendant, fled. After the men were apprehended, frisked, and handcuffed, the defendant identified himself, stating, '[i]t's Charles.' Trooper Cameron, who was familiar with the defendant, asked why he was running. The defendant replied that 'he ha[d] weed on him.' At this point, Trooper Cameron was informed that other officers had recovered a firearm in the vicinity, and the defendant was arrested. During the subsequent booking search of the defendant, the police retrieved twenty-two bags of marijuana.
At the hearing on the motion to suppress, the defendant claimed that the police lacked reasonable suspicion to conduct an investigatory stop and, therefore, his subsequent arrest and search of his person were unlawful. The judge rejected this argument, concluding that Trooper Cameron acted reasonably in stopping the defendant.
When reviewing a decision on a motion to suppress, 'we accept the judge's subsidiary findings of fact absent clear error 'but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Powell, 459 Mass. 572, 574 (2011), quoting from Commonwealth v. Scott, 440 Mass. 642, 646 (2004). 'To meet the 'reasonable suspicion' standard . . . the officer's suspicion must be grounded in 'specific, articulable facts and reasonable inferences [drawn] therefrom' rather than on a 'hunch." Commonwealth v. Cheek, 413 Mass. 492, 494 (1992), quoting from Commonwealth v. Lyons, 409 Mass. 416, 419 (1990). This standard was amply met here. As the judge noted, Trooper Cameron had observed the defendant run from the car after a high-speed chase and after a dark object had been thrown from the car. Because these facts were sufficient to support a reasonable suspicion of criminal activity, the motion to suppress was properly denied. See Commonwealth v. DePeiza, 449 Mass. 367, 371 (2007) ('[A]n investigatory stop is constitutionally justified if it is conducted on reasonable suspicion that the person seized has committed, is committing, or is about to commit a crime').
The defendant also contends, for the first time, that Trooper Cameron lacked reasonable suspicion to conduct a preliminary investigation because the evidence that the defendant had been one of the passengers in the car was insufficient. Specifically, relying on Cheek, supra at 495-496, he contends that the description of the defendant as wearing dark clothing was too vague to justify the stop. Passing on whether this argument is properly before us, see Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 374 (2010), it suffices to note that the basis for Trooper Cameron's reasonable suspicion was his own observation of suspected criminal activity. In these circumstances, the accuracy or detail of the description of the defendant's clothing is not a relevant consideration.
2. Ineffective assistance of counsel. Trooper Cameron testified at trial that he asked the defendant -- without first giving Miranda warnings -- why he ran and the defendant replied that he had marijuana on him. The defendant contends that trial counsel was constitutionally ineffective for failing to file a motion to suppress the defendant's response to Trooper Cameron's question. '[I]n order to prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.' Commonwealth v. Comita, 441 Mass. 86, 91 (2004). As with any ineffective assistance of counsel claim, the defendant must also prove that admission of the contested evidence 'deprived [him] of an otherwise available, substantial ground of defence.' Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Although the defendant failed to file a motion for a new trial, thus limiting our review to the trial record, his claim falls 'within that narrow category of claims that an appellate court can resolve on the trial record alone.' Commonwealth v. Zinser, 446 Mass. 807, 811-812 (2006).
Here, even if trial counsel had filed a motion to suppress that had been allowed, the absence of the statement at trial did not deprive the defendant of an otherwise available, substantial defense because there was other compelling evidence establishing the defendant's possession of marijuana, namely that the marijuana was found on his person when he was being booked. Cf. Commonwealth v. Greineder, 458 Mass. 207, 254 (2010) (declining to 'decide the question of the motion to suppress because [the court] agree[d] that regardless of its resolution, there was no substantial likelihood of a miscarriage of justice').
Moreover, the defendant relied on the statement at trial to support his defense that he ran from Trooper Cameron because he was carrying marijuana and not because he had a connection to the discarded firearm. This was a successful strategy as the jury acquitted the defendant of the firearm charges. Thus, we cannot say that counsel's conduct in declining to move to suppress the statements was 'manifestly unreasonable.' Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979) (citation omitted).
Judgment affirmed.
By the Court (Rapoza, C.J., Smith & Vuono, JJ.),