Commw. v. Grandison, SJC-08247

• Decision Date: 01 May 2000
• Docket Number: SJC-08247
• Citation: 733 N.E.2d 1014
• Parties: (Mass. 2000) COMMONWEALTH vs. KENNETH GRANDISON. No.: Argued:
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

733 N.E.2d 1014 (Mass. 2000)

COMMONWEALTH vs. KENNETH GRANDISON.

No.: SJC-08247

Massachusetts Supreme Court

Argued: May 1, 2000.

Decided: August 15, 2000.

Hampden County.

Complaint received and sworn to in the Springfield Division of the District Court Department on November 13, 1997.

Summary: Constitutional Law, Search and seizure. Search and Seizure, Threshold police inquiry. Arrest. Controlled Substances. Practice, Criminal, Argument by prosecutor.

Paul C. Brennan for the defendant.

Deborah D. Ahlstrom, Assistant District Attorney, for the Commonwealth.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Present: Marshall, C.J., Abrams, Lynch, Greaney, Ireland, Spina, & Cowin, JJ.

A pretrial motion to suppress evidence was heard by Alphonse C. Turcotte, J., and the case was tried before Robert L. Howarth, J.

IRELAND, J.

The defendant was convicted of possession of a Class B controlled substance, and resisting arrest under G. L. c. 94C, 34D, and G. L. c. 268, 32B, respectively. He was found not guilty of assault and battery on a police officer, under G. L. c. 265, 13D. On appeal, the defendant raises several issues: (1) whether the motion judge erred in denying his motion to suppress evidence of possession of crack cocaine; (2) whether there was insufficient evidence to convict him of (a) resisting arrest and (b) possession of crack cocaine; (3) whether he is entitled to a new trial because the charge of resisting arrest was predicated on distinct factual episodes and because, in the absence of unanimity instructions to the jury, there was insufficient evidence to sustain a conviction based upon both episodes; and (4) whether the prosecutor's closing argument so prejudiced the defendant that it created a substantial risk of a miscarriage of justice. We transferred this case on our own motion from the Appeals Court and now affirm the convictions. We discuss the facts as they are pertinent to the specific issues raised.

1. Motion to suppress drug evidence. The essential facts before the motion judge were as follows.¹ At approximately 9 P.M., on November 12, 1997, two Springfield police officers were on patrol in the area of Worthington and Federal Streets, known as a high crime area for illegal drug activity. The officers observed the defendant, a black male wearing a red puffy winter jacket, who, on seeing the police cruiser, did an immediate "about face" and started walking in the opposite direction. The officers testified that, when the defendant turned to walk the other way, they became suspicious and decided to use their cruiser to follow the defendant as he walked into a driveway.

When the police followed the defendant, the defendant again reversed direction, so the officers turned on the cruiser's high beams and kept following the defendant, who then walked into an alley. The officer then turned on the cruiser's bright "alley lights." One officer (Peck) then saw the defendant appear to spit and saw a "small projectile" come out of the defendant's mouth and fall to the ground a few feet away from him. The officer testified that it is common for individuals to hide crack cocaine by carrying it in their mouths and then to spit it out or swallow it to avoid detection by police.

At that point, the officer yelled to the defendant to stop. The defendant stopped and the officers got out of the cruiser and approached the defendant.² One officer asked the defendant what he was doing and what he spit out. The other officer, given a general direction by his partner, searched the ground near the defendant and recovered a small, off-white item, wrapped in plastic, that the officers believed to be crack cocaine. They placed the defendant under arrest.

The defendant argues that the crack cocaine was obtained as the result of an illegal seizure and thus the motion judge erred in denying the defendant's motion to suppress the evidence. The motion judge, who has since retired, did not make any explicit factual findings. We have said that it is desirable and prudent to make a record of the facts, but a failure to do so is not reversible error. See Commonwealth v. Forrester, 365 Mass. 37, 45 (1974). See also Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981), and cases cited. Absent explicit findings, we "analyze[] the record to see if the findings implicit in the judge's ruling are supported." Id., citing Commonwealth v. Williams, 378 Mass. 217, 224 n.4 (1979).

The "judge's denial of the defendant's motion [to suppress] implies resolution of factual issues in favor of the Commonwealth." Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2, 588 (1984), citing Commonwealth v. Forrester, supra at 45. Commonwealth v. Quigley, 391 Mass. 461, 463 (1984), cert. denied, 471 U.S. 1115 (1985). Moreover, in reviewing a judge's ruling on a motion to suppress, an appellate court "may not rely on the facts as developed at trial" even where the testimony differed materially from that given at trial. Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 391-392 (1993), citing Commonwealth v. Singer, 29 Mass. App. Ct. 708, 709 n.1 (1991).

Here, the testimony of Officer Peck, one of the arresting officers, was the only evidence presented at the motion hearing. The defendant argues that there was a stop when the police officers followed him into the alley, and that there was no reasonable suspicion, at that point, to justify the stop. We do not agree.

It is true that law enforcement personnel must have reasonable suspicion for pursuit to begin. See Commonwealth v. Watson, 430 Mass. 725, 731 (2000), and cases cited. But "pursuit begins only when action by police would 'communicate[] to the reasonable person an attempt to capture or otherwise intrude on [an individual's] freedom of movement.'" Id., quoting Commonwealth v. Williams, 422 Mass. 111, 116 (1996). "It occurs when police attempt to stop an individual 'to effectuate a threshold inquiry.'" Commonwealth v. Watson, supra, quoting Commonwealth v. Williams, supra at 117. "Following or observing someone without more, such as using a siren or lights, attempting to block or control an individual's path, direction, or speed, or commanding the individual to halt, is not pursuit." Commonwealth v. Watson, supra, quoting Commonwealth v. Williams, supra at 116-117. See Commonwealth v. Stoute, 422 Mass. 782, 788-789 (1996), discussing Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981). Following someone for the purpose of surveillance is not pursuit. Commonwealth v. Watson, supra, quoting Commonwealth v. Williams, supra at 116.

In this case, pursuit and a stop did not occur until Officer Peck commanded the defendant to stop and emerged from the cruiser.³ Before that time, the police officers did not activate the cruiser's blue lights, flashers, or sirens. See Michigan v. Chesternut, 486 U.S. 567, 575 (1987); Commonwealth v. Rock, 429 Mass. 609, 611 (1999). We conclude that a reasonable person would have believed he was free to leave at the time: the record here does not support that the police blocked the defendant's course or otherwise controlled the direction or speed of his movement. Michigan v. Chesternut, supra. There was no evidence that the defendant was trapped in the alley.⁴ We leave open the question whether shining bright alley lights on citizens could in some circumstances be a stop.

In the alternative, the defendant argues that, even if there was no pursuit, and the investigative stop did not occur until the police officer told the defendant to stop, there still was insufficient evidence for reasonable suspicion. We do not agree.⁵

A threshold inquiry is justified "where suspicious conduct gives the officer reason to suspect that a person has committed, is committing, or is about to commit a crime." Commonwealth v. Silva, 366 Mass. 402, 405 (1974). Reasonable suspicion may not be based on good faith or a hunch, but on specific, articulable facts and inferences that follow from the officer's experience. See Commonwealth v. Watson, supra at 729, citing Commonwealth v. Kennedy, 426 Mass. 703, 710-711 (1998); Commonwealth v. Williams, supra at 116, citing Commonwealth v. Willis, 415 Mass. 814, 187 (1993). "The test is an objective one." Commonwealth v. Helme, 399 Mass. 298, 301 (1987), quoting Commonwealth v. Silva, supra at 406. Just being in a high crime area is not enough to justify a stop, see Commonwealth v. Cheek, 413 Mass. 492, 496 (1992), nor is walking away from police officers. See Commonwealth v. Stoute, supra at 788, discussing Commonwealth v. Thibeau, supra at 763-764 (no reasonable suspicion where defendant sees police officers and turns away on his bicycle). However, "[s]eemingly innocent activities taken together can give rise to reasonable suspicion justifying a threshold inquiry." Commonwealth v. Watson, supra at 729, citing Commonwealth v. Alvarado, 420 Mass. 542, 549 (1995), and cases cited. "An attempt to avoid contact with or observation by the police . . . may be considered along with other facts. . . ." Commonwealth v. Wren, 391 Mass. 705, 708 n.2 (1984), and cases cited.

In this case, the officers stopped the defendant who was present in an area with a high incidence of illegal drug activity, only after he walked away after seeing the police, and, when under surveillance, again changed direction before one officer saw the defendant spit a projectile out of his mouth. Based on the officers' knowledge that individuals hide illegal drugs in their mouths, these facts, taken together were enough evidence to support reasonable suspicion that the defendant was carrying illegal drugs.⁶

2. Sufficiency of evidence. The defendant argues that there was insufficient evidence to convict him of either resisting arrest or possession of cocaine.⁷ We view the evidence at trial in the light most favorable to the Commonwealth, and "determine 'whether . . . any rational trier of fact could have found the essential elements of...