Commonwealth v. Fletcher

• Decision Date: 02 March 2001
• Docket Number: P-1119
• Citation: 752 N.E.2d 754,52 Mass.App.Ct. 166
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. DAMON L. FLETCHER. 99-
• Court: Appeals Court of Massachusetts

752 N.E.2d 754 (Mass.App.Ct. 2001)

COMMONWEALTH vs. DAMON L. FLETCHER.

99-P-1119

Massachusetts Court of Appeals

March 2, 2001

July 27, 2001

County: Suffolk.

Present: Armstrong, C.J., Gillerman, Greenberg, Beck, & Berry, JJ.

Practice, Criminal, Assistance of counsel, Argument by prosecutor. Constitutional Law, Assistance of counsel, Search and seizure. Search and Seizure, Threshold police inquiry, Protective frisk.

Complaint received and sworn to in the Dorchester Division of the District Court Department on November 25, 1997.

The case was tried before Thomas J. May, J.

Richard P. Heartquist for the defendant.

Kajal Chattopadhyay, Assistant District Attorney, for the Commonwealth.

BERRY, J.

Following a jury trial, the defendant was convicted of unlawful possession of a firearm, G. L. c. 269, § 10(a), and disorderly conduct, G. L. c. 272, § 53.¹ The appeal raises two issues: (1) ineffective assistance of trial counsel in failing to file a motion to suppress the firearm based on the initial encounter with the police; and (2) improper statements in the prosecutor's closing. Neither issue warrants reversal. We affirm the conviction.

Background. During the evening rush hour on November 24, 1997, Massachusetts Bay Transportation Authority (MBTA) police Officers Orth and Haddad were on duty in the Ashmont transit station. Officer Orth was completing a drive through the station in his cruiser. As he was driving up the center lane restricted for bus traffic, Orth saw three men standing outside of and banging on the windows of the driver's side of a bus stopped in the restricted lane. The bus had no passengers; the record does not indicate whether the driver was present in the bus. Orth moved his cruiser near the back of the bus, sounded the horn, left the cruiser, and approached the three men. He said in a loud voice, "Excuse me," and told them to come over and "talk to me for a second." The defendant and Daryl Anthony walked toward Orth. The other man, Bertrand Scully, walked away. Because he "ha[d] a thing about people in that area and stuff and making sure that [he was] safe . . . as [the men] approached, [Orth] asked them if they had weapons on them." There was no answer. At that point, Orth conducted a patfrisk of both men. He found nothing.

Following the fruitless frisk of the two, Orth told the defendant and Anthony they could leave the MBTA station, and both walked away. Orth then called Scully, who had not responded to Orth's original inquiry but instead had walked away in the opposite direction. As Scully walked by the defendant, the two men "kind of leaned into each other," and Orth saw Scully pass a large caliber handgun to the defendant. Orth gave Scully a "real quick" pat down and told him to leave the station. Scully walked away. Even though Orth had observed the weapon, he did not make any arrest because of his concern that something untoward might happen in the crowded station. At this point, Orth noticed Haddad signaling him. Haddad then quickly approached Orth to relay information Haddad had obtained from a passerby.²

The focus of the defendant's ineffective assistance appeal is that trial counsel, in a suppression motion, should have challenged this initial police encounter as unconstitutional under Terry v. Ohio, 392 U.S. 1 (1968), and United States Supreme Court and Massachusetts cases decided in its wake. Accordingly, as to the subsequent events, it is enough to state that the three men did not leave the station, but instead, boarded a trolley car. Orth pulled the cruiser in front of the trolley, and the two officers entered the trolley and ordered the three men to stand with their hands up. All three were pat frisked inside the trolley, and then were taken outside and frisked again. No gun was found. The three men were handcuffed together, and Orth stayed with them. Haddad searched inside the trolley and seized a loaded .45 revolver from underneath a seat within inches of where the three men had been standing. The officer inspected the gun and observed it had a defaced serial number. Because possession of such a weapon is a criminal offense, all three were placed under arrest.

Framework for review of ineffective assistance in the search and seizure context. The governing standards of Commonwealth v. Saferian, 366 Mass. 89 (1974), are directed to determining whether inadequate representation by an attorney deprived a defendant of an "otherwise available, substantial ground of defence." Id. at 96. Where the claimed omission in ineffective representation is the failure to file a suppression motion, posttrial analysis of whether there was a lost defense depends, in turn, upon post hoc analysis of whether a hypothetical suppression motion would have been allowed had one been filed. "The failure of counsel to litigate a viable claim of an illegal search and seizure is a denial of the defendant's Federal and State constitutional right to the effective assistance of counsel" (emphasis in original). Commonwealth v. Pena, 31 Mass. App. Ct. 201, 204 (1991), citing Kimmelman v. Morrison, 477 U.S. 365, 382-383 (1986). The determination of whether such a suppression claim is viable involves dual assessments. "When a claim of ineffective assistance of counsel concerns an attorney's failure to raise a Fourth Amendment or an art. 14 issue, the defendant must show that the constitutional claim has merit and that there was a reasonable possibility that the verdict would have been different without the excludable evidence" (emphasis added). Pena, 31 Mass. App. Ct. at 205, citing Kimmelman, 477 U.S. at 375. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983). If a defendant meets the burden of establishing both elements, the alleged attorney ineffectiveness in not litigating the constitutional search and seizure issue warrants reversal on the affected counts encompassed in the verdict; conversely, if either element is not established, the verdict will stand. "We should recall that in a case where ineffective assistance of counsel is charged, there ought to be some showing that better work might have accomplished something material for the defense." Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). We turn, then, to the question whether a suppression motion directed at the initial encounter would have prevailed.

Analysis of the initial encounter with the police. The defendant contends that the complex of actions consisting of the officer sounding the cruiser horn, alighting from the cruiser, approaching the three men standing in a public transit station, and loudly asking them to come over to him constituted an unconstitutional seizure. See Terry v. Ohio, supra. We disagree. Caselaw, both State and Federal, does not support the proposition that the initial exchange between Officer Orth and the defendant was an unconstitutional stop or seizure. See Commonwealth v. Fraser, 410 Mass. 541, 543 (1991) (officer did not seize the defendant within the meaning of the Fourth Amendment merely by approaching the defendant, identifying himself as a police officer, and asking that the defendant take his hands out of his pockets). See also Commonwealth v. Doulette, 414 Mass. 653, 655 (1993) ("trooper had every right to be in that public parking lot and to get out of his cruiser"). The actions of Officer Orth were proportional³ to the circumstances presented: it was reasonable for the officer to undertake a brief threshold inquiry of the three men who were engaging in the disorderly and unorthodox conduct of pounding on the side of a stopped bus in a public transit station crowded with people during the evening rush hour commute; and it was reasonable for the officer, standing alone during the initial encounter with three individuals, to ask if the men had weapons on them. "Particularly in a modern urban setting, where the carrying of guns in public is, if not by itself indicative of crime, . . . at least a matter of serious public safety concern to the police." Commonwealth v. Johnson, 36 Mass. App. Ct. 336, 337 (1994) (citations omitted). See Commonwealth v. Toole, 389 Mass. 159, 163 (1983); Commonwealth v. Couture, 407 Mass. 178, 180-181, cert. denied, 498 U.S. 951 (1990).⁴ Nothing in the State or Federal Constitution prohibits the police from conducting such a brief inquiry in these circumstances. Having observed the disruptive actions of the men, Orth's actions to this point -- stopping and stepping out of a cruiser that was properly patrolling a public transit station, calling over to the men, approaching them, and asking about a weapon -- did not constitute a stop or seizure. "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry, 392 U.S. at 19 n.16. No constitutional prohibition "prevents a policeman from addressing questions to anyone on the streets." Id. at 34. Accord United States v. Mendenhall, 446 U.S. 544, 554 (1980), setting forth the analysis that police have seized a person in the constitutional sense "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." See also Florida v. Royer, 460 U.S. 491 (1983). "Massachusetts courts have adhered to the test set forth in the Mendenhall-Royer line of cases." Commonwealth v. Stoute, 422 Mass. 782, 786 (1996).⁵ To state this court's application of the standard: "Under the Mendenhall test, the police 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." Fraser, 410 Mass. at 543-544. Our conclusion that the initial actions of Officer Orth did not constitute a stop or seizure and that the defendant and Daryl Anthony were not restricted from walking away from the officer is supported by the fact that the third individual did...