Commonwealth v. Jones-Pannell

• Decision Date: 14 August 2015
• Docket Number: SJC–11737.
• Citation: 472 Mass. 429,35 N.E.3d 357
• Parties: COMMONWEALTH v. Olajuwan JONES–PANNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 429

35 N.E.3d 357

COMMONWEALTH

v.Olajuwan JONES–PANNELL.¹

SJC–11737.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 2015.

Decided Aug. 14, 2015.

John O. Mitchell, Cambridge, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, & LENK, JJ.

Opinion

DUFFLY, J.

The defendant, Olawajuwan Jones–Pannell, fled when two Boston police officers attempted to stop and question him on Norfolk Avenue, between East Cottage Street and Burrell Street, in the Roxbury section of Boston.² WHEN THE OFFICERS pursued and apprehended him, a handgun containing seven rounds of ammunition fell from his pants. The defendant was charged with several firearms offenses, as well as resisting arrest. Prior to trial in the Boston Municipal Court, the defendant moved to suppress all evidence derived from the encounter. After an evidentiary hearing, a Boston Municipal Court judge allowed the defendant's motion. A single justice of this court granted the Commonwealth's application for leave to pursue an interlocutory appeal. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The Appeals Court reversed the allowance of the motion to suppress, Commonwealth v. Jones–Pannell, 85 Mass.App.Ct. 390, 391, 10 N.E.3d 639 (2014), and we allowed the defendant's petition for further appellate review. We affirm the motion judge's order allowing the motion to suppress.

1. Background. We summarize the judge's factual findings, which were prefaced with his statement that “[t]he following facts are the only ones found by the court based on credible testimony presented at the hearing on the motion to suppress.”

At approximately 12:37 a.m. , two Boston police officers were on routine patrol along Norfolk Avenue in an unmarked police vehicle. The officers noticed the defendant, a black male, walking on the sidewalk ten to twelve feet away. Neither officer recognized the defendant, although they were “familiar with the gang members active in the area.” The judge found that, “[a]lthough the officers knew of some crimes that had been reported in the area, Norfolk [Avenue] between East Cottage Street and Burrell Street was not a high crime area or so-called ‘hot spot.’ ” One

officer observed the defendant's “ right hand in his pants between his waist and his crotch but didn't see any other bulge in his pants.” The defendant “looked towards the police vehicle, looked up and down the street and continued walking.” One of the officers twice asked to speak to the defendant, but he looked away and kept walking. The defendant accelerated his pace, keeping his hand in his pants, and the police vehicle kept pace with him. As the defendant turned a corner, the officers got out of the vehicle. One of the officers called, “Wait a minute,” in a loud voice. The defendant started jogging. The officer began chasing the defendant, who began running, with the officer in pursuit. The officer could see the defendant's left hand, but not his right hand. The defendant was apprehended twenty to thirty seconds later.

2. Discussion. “In reviewing a decision on a motion to suppress, ‘we accept the judge's subsidiary findings absent clear error “but conduct an independent review of [the] ultimate findings and conclusions of law.” ’ ” Commonwealth v. Ramos, 470 Mass. 740, 742, 25 N.E.3d 849 (2015), quoting Commonwealth v. Colon, 449 Mass. 207, 214, 866 N.E.2d 412, cert. denied, 552 U.S. 1079, 128 S.Ct. 810, 169 L.Ed.2d 611 (2007). Although an appellate court 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,” Commonwealth v. Isaiah I., 448 Mass. 334, 337, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008), it may do so only so long as the supplemented facts “do not detract from the judge's ultimate findings.” Commonwealth v. Jessup, 471 Mass. 121, 127–128, 27 N.E.3d 1232 (2015). See Commonwealth v. Scott, 52 Mass.App.Ct. 486, 492, 754 N.E.2d 728 (2001), S.C., 440 Mass. 642, 801 N.E.2d 233 (2004) (that appellate courts have been willing to supplement motion judge's findings of fact is based “not only upon the fact that the evidence was uncontradicted but also upon our conviction that the motion judge explicitly or implicitly credited the witness's testimony”).

In this case, it appears from the judge's prefatory statement that he intended to credit only those portions of the testimony that were reflected in his findings.³ “It is therefore not implicit in the judge's findings that [the judge] found the entirety of the officer's

testimony credible.”⁴ Commonwealth v. Daniel, 464 Mass. 746, 749, 985 N.E.2d 843 (2013). Compare Commonwealth v. Gentile, 466 Mass. 817, 820–822 & n. 5, 2 N.E.3d 873 (2014) (supplementing judge's findings with testimony that “was controverted and disputed,” where judge found witness's testimony “credible in its entirety,” but reversing judge's denial of motion to suppress because “even if the judge had explicitly made findings adopting every factual assertion in [witness's] testimony, the findings would still fall short of establishing a reasonable belief that the defendant was in the home at the time of entry”).

The Commonwealth essentially asks us to do what our case law proscribes: to rely on testimony that was neither explicitly nor implicitly credited by the motion judge, otherwise put, that we in essence make additional findings, and reach a different result, based on our own view of the evidence. The Commonwealth argues that the judge wrongly determined the points at which the defendant began to jog and run, and therefore erred in deciding when the defendant was seized. The Commonwealth asks also that we consider the officer's testimony anew and conclude, contrary to the judge's finding, that the neighborhood was in fact a “high crime” area. The Commonwealth suggests further that we should supplement the judge's findings with additional evidence concerning the officer's training, in order to conclude that the officer reasonably suspected the defendant was carrying a firearm unlawfully. This we cannot do. After review of the judge's findings and rulings and the record, we conclude that the judge's subsidiary findings are not erroneous; they amply “support his general findings [and] conclusions based thereon.” Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972).

a. Point at which the defendant was seized. Identifying the moment of seizure is a critical question for purposes of deciding a motion to suppress. “A person is seized by the police only when, in light of all of the attending circumstances, a reasonable person in that situation would not feel free to leave.” Commonwealth v. DePeiza, 449 Mass. 367, 369, 868 N.E.2d 90 (2007).

Here, the judge concluded that the defendant was seized when an officer “exclaimed ‘Wait a minute!’ and then began chasing the defendant.” The Commonwealth contends that the defendant was not seized until he was physically apprehended. It argues that “the defendant's flight was not prompted by anything the police did,” Commonwealth v. Powell, 459 Mass. 572, 578, 946 N.E.2d 114 (2011), cert. denied, ––– U.S. ––––, 132 S.Ct. 1739, 182 L.Ed.2d 534 (2012), because he already was running when the officer began to chase him. The judge found otherwise, and his findings are not clearly erroneous; although the officer's testimony characterized the defendant's pace in a number of ways, the judge's factual findings resolve the differences.⁵ In any event, regardless of when the defendant started “jogging”, or what rate of speed was meant by that term, the judge found that the defendant increased his pace after the officers initially asked to speak to him, and that the defendant started to run when the officers got out of the vehicle, one officer called out loudly to “[w]ait a minute,” and the officer then gave chase. See Commonwealth v. Barros, 435 Mass. 171, 174–176, 755 N.E.2d 740 (2001). Contrast Commonwealth v. Powell, supra (no seizure where flight not prompted by police activity).

The defendant was free to reject the police officer's multiple requests to speak with him, just as he was free to respond to the requests by increasing his pace. Unlike the situations in Commonwealth v. Powell, supra, and Commonwealth v. Sykes, 449 Mass. 308, 313–314, 867 N.E.2d 733 (2007), the judge's findings in this case, which are supported by the evidence, support the conclusion that the defendant's eventual running was prompted by the officers' actions. The officer's loud command to “[w]ait,” and his pursuit, had compulsory aspects that his prior requests did not. See Commonwealth v. Barros, supra at 174–176, 755 N.E.2d 740. The evidence amply demonstrated that the defendant was not free to leave at that point. Id.

b. Suspicion of criminal activity. The legal question then becomes whether, at the time the defendant was seized, the officers

“had an objectively reasonable suspicion of criminal activity, based on specific and articulable facts.” Commonwealth v. Barros, supra at 176, 755 N.E.2d 740. The judge found that the factors relevant to the reasonableness of the officers' suspicion were:

“flight from police officers and keeping his right hand in his pants between his waist and his crotch. That it was just after midnight adds little if anything to the calculus of reasonable suspicion. Other factors that in some cases support a finding of a reasonable suspicion are missing: this was not a high crime area; the police didn't know the defendant; there were no reports or radio calls of a crime having been recently committed in the area; the officers were on routine patrol.”

The judge concluded that the defendant's refusal to respond to the officer's initial requests to speak with him did not generate an objectively reasonable suspicion and that, while flight from...