Commonwealth v. Scott, P-576

• Citation: 754 N.E.2d 728,52 Mass. App. Ct. 486
• Decision Date: 06 June 2001
• Docket Number: P-576
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. PERDITE SCOTT. <A HREF="#fr1-1" name="fn1-1">1 00-
• Court: Appeals Court of Massachusetts

754 N.E.2d 728 (Mass.App.Ct. 2001)

COMMONWEALTH vs. PERDITE SCOTT.¹

00-P-576

Massachusetts Court of Appeals

June 6, 2001

September 6, 2001.

County: Middlesex.

Present: Lenk, Doerfer, & Cohen, JJ.

Practice, Criminal, Motion to suppress, Findings by judge. Constitutional Law, Search and seizure. Search and Seizure, Probable cause, Threshold police inquiry.

Indictments found and returned in the Superior Court Department, two on September 30, 1998, and five on February 8, 1999, respectively.

A pretrial motion to suppress evidence was heard by Charles T. Spurlock, J.

An application for leave to prosecute an interlocutory appeal was allowed by John M. Greaney, J., in the Supreme Judicial Court for the county of Suffolk and the appeal was reported by him to the Appeals Court.

Marian T. Ryan, Assistant District Attorney, for the Commonwealth.

Randall K. Power for the defendant.

LENK, J.

The grand jury returned indictments against the defendant, Perdite Scott, in connection with separate incidents involving two different victims. The first incident took place on the evening of June 2, 1998; the defendant was charged with assault with intent to rape, rape, assault and battery, and indecent assault and battery, all upon Lucy Smith,² a woman over the age of fourteen.³ The second incident occurred on the evening of July 21, 1998, and the defendant was charged with assault and battery, and assault with the intent to rape Anne Donovan.

The defendant, asserting that the police did not have reasonable suspicion to justify an investigatory stop or probable cause to arrest, brought a motion to suppress all observations, evidence, and statements, including identifications made via photographic arrays, that were derived from the defendant's arrest on the evening of September 8, 1998. After an evidentiary hearing at which only one witness -- the arresting officer -- testified, the motion judge allowed the motion to suppress. The case was reported to us by a single justice of the Supreme Judicial Court, who allowed the Commonwealth's application for leave to appeal from the allowance of the suppression motion.

On appeal, the Commonwealth contends that the motion judge erred in allowing the motion. The judge determined that the initial encounter between the arresting officer and the defendant was an illegal warrantless seizure and that subsequent contacts between them were similarly improper. The Commonwealth asserts that certain of the motion judge's findings were clearly erroneous because they were either at variance with or failed to incorporate what the Commonwealth maintains was uncontroverted testimony, and that the erroneous findings, coupled with certain errors of law, require reversal.

The judge's findings. On September 8, 1998, at approximately 8:30 P.M., Sergeant David Benoit of the State police was driving in a marked cruiser on Greenborough Boulevard⁴ in Cambridge, toward Watertown, when he saw a black male walking in the opposite direction about 100 feet away. Benoit, believing that the defendant fit the general description (black male over six feet tall) of an assailant in two sexual assaults which took place in that general area at approximately the same time of night on June 2 and July 21, 1998, turned his cruiser around to follow the defendant. As he reversed direction, Benoit saw the defendant leave the sidewalk and go down a dirt path toward an area known to him as a place where homosexual men gather. Benoit drove onto the shoulder of the road and stopped about 40-50 feet away from the defendant. Wearing his State police jacket, Benoit stepped from his cruiser, turned the cruiser's spotlight on the defendant, and told the defendant to come back to him because he wanted to talk to him. After the defendant obeyed and began walking toward Benoit, and as he was approximately 20 feet away from the cruiser, Benoit ordered the defendant to stop and to remain there. Benoit ordered the defendant to place on the ground a black bag he was carrying. At all times, the cruiser spotlight was on the defendant.

Benoit then radioed for assistance and, upon the other nearby trooper's arrival, the two officers approached the defendant. As Benoit questioned the defendant, the other trooper searched the defendant's bag; he found a number of condoms. The defendant gave his name when asked. When asked his middle name, he told Benoit it was "Lee," a name matching the middle name given by the assailant to one of the victims in the sexual assault cases that Benoit then had under investigation. Benoit then had the defendant sit in the rear of the other trooper's cruiser, and, once seated there, the defendant was advised of his Miranda rights and signed a Miranda form. The defendant then answered Benoit's questions, telling him (1) that he lived in Cambridge with his sister; (2) that he had taken the bus from Central Square; and (3) that he had a criminal record including a conviction for rape. The defendant denied that his mother was Indian or that he had ever used the name Barnes.⁵ Benoit then asked the defendant whether he would be willing to be viewed by a couple of women for identification purposes, and the defendant replied that Benoit was trying to "jam him up." When asked if he wanted a lawyer, the defendant said that he was not sure. Benoit then told the defendant he was under arrest for rape and the defendant was thereafter transported to police barracks where he was photographed. The photo taken, as part of an array, was shown to the July victim and she identified the defendant as her assailant.

On the basis of these findings, the judge concluded that the defendant was seized the moment that Benoit "stopped him from 40-50 feet away and told the defendant to come back and talk to him. This was not a situation where a police officer approached a defendant and ask[ed] him if he would be willing to answer a few questions. A uniformed sergeant turned his cruiser spotlight on the defendant and told him to walk back forty to fifty feet to speak with him. At all times, Sergeant Benoit directed the defendant's movement, leaving the defendant no choice but to submit to his clear show of authority." The judge characterized what the sergeant had said to the defendant as a "command" that the defendant "obeyed." At the time of this seizure, the judge found, the basis of Benoit's suspicion was his belief that the defendant fit the general description of a black man over six feet tall who was walking in the same vicinity where the two prior sexual assaults had occurred. The judge determined that, prior to the stop, Benoit had neither ascertained any additional physical characteristics of the defendant along the lines that had been described by the victims that would serve to distinguish him from any other black man in the area, nor observed the defendant engaging in any suspicious or criminal activity. Accordingly, the judge ruled, the Commonwealth failed to show that Benoit had sufficient articulable facts on which he could have based a reasonable suspicion that the defendant had committed a crime. Absent a showing of reasonable suspicion to justify the stop, the judge concluded that all evidence obtained as a result of the illegal seizure must be excluded.⁶

Benoit's testimony. The judge's findings do not track Benoit's testimony in at least the following respects, as to which the Commonwealth asserts critical errors in such findings. First, Benoit testified that, when he first saw the defendant from about 100 feet away, Benoit could see that, consistent with descriptions provided by the victims of their assailant, the defendant was very muscular, as well as at least six feet tall, over 200 pounds, black, male, with short hair, and wearing a tee shirt and shorts.⁷ The judge found that, at that point, Benoit saw only that the defendant was a black male over six feet tall. Second, Benoit testified that when he saw the defendant from about 20 feet away, he also observed that the defendant had thick lips and facial markings similar to pock marks or freckles as described by one of the victims. In contrast, the judge made no findings as to what, if anything, Benoit observed about the defendant's physical characteristics from 20 feet away. Third, Benoit testified, contrary to the judge's finding, that he did not ask the defendant to put his bag on the ground when he stopped about 20 feet from the cruiser. Fourth, Benoit testified that when the defendant was seated in the cruiser he stated that he had taken the Central Square to Watertown Mall bus, consistent with the statement made to the first victim by her assailant, who mentioned taking the Watertown Mall bus. In contrast, the judge found only that the defendant told the police he had taken a bus from Central Square.

The divergence of the judge's findings from Benoit's testimony in these particulars is of importance, contends the Commonwealth, since the latter would establish, first, that the initial interaction (from 40-50 feet away) was an encounter only and, in any event, that Benoit had reasonable suspicion to justify a threshold inquiry; second, that the stop (from 20 feet away) was a threshold inquiry based on specific, articulable facts and reasonable inferences drawn therefrom that the defendant had committed a crime; third, that asking the defendant to sit in the cruiser was not an arrest and that, after sitting there and receiving his Miranda warnings, the defendant's disclosures provided sufficient additional information to form the requisite probable cause to arrest the defendant.

Discussion. It is well established that, when reviewing action on a motion to suppress, "we accept the motion judge's subsidiary findings of fact absent clear error." Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001), quoting from Commonwealth v. Sanna, 424 Mass. 92, 97 (1997). Also, "[t]he determination of the weight and credibility of the testimony is the function and...