Commonwealth v. Jones-Pannell , 472 Mass. 429 ( 2015 )

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SJC-11737
COMMONWEALTH vs. OLAJUWAN JONES-PANNELL.1
Suffolk. April 6, 2015. - August 14, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
JJ.
Constitutional Law, Stop and frisk, Reasonable suspicion.
Search and Seizure, Protective frisk, Reasonable suspicion,
Threshold police inquiry. Threshold Police Inquiry.
Practice, Criminal, Motion to suppress, Findings by judge.
Firearms.
Complaints received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on August 8 and 25, 2011.
After transfer to the Central Division of the Boston
Municipal Court Department, a pretrial motion to suppress
evidence was heard by Raymond G. Dougan, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Spina, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. After review by that court, the Supreme
Judicial Court granted leave to obtain further appellate review.
John O. Mitchell for the defendant.
1
We follow our practice of spelling the defendant's name as
it appears in the complaints.
2
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
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 (2014), and we allowed the
defendant's petition for further appellate review. We affirm
2
The judge's findings refer to "Norfolk Street," but it is
clear from the transcript of the suppression hearing that the
judge and the parties were in agreement that the incident
occurred on Norfolk Avenue. We therefore refer to Norfolk
Avenue throughout this opinion.
3
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
4
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 (2015), quoting Commonwealth v. Colon, 449 Mass.
207, 214, cert. denied, 552 U.S. 1079 (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 (2007), S.C., 450 Mass. 818 (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 (2015). See Commonwealth v. Scott, 52 Mass.
App. Ct. 486, 492 (2001), S.C., 440 Mass. 642 (2004) (that
appellate courts have been willing to supplement motion judge's
findings of fact is based "not only upon the fact that the
5
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 (2013). Compare Commonwealth v.
Gentile, 466 Mass. 817, 820-822 & n.5 (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
3
The judge's prefatory statement does not, as the
Commonwealth contends, insulate his findings of fact from
appellate review. It is the motion judge's responsibility to
make credibility assessments, weigh the evidence, and make
findings of fact; it remains the responsibility of an appellate
court to evaluate whether those findings are clearly erroneous.
4
Where a party contends that a motion judge failed to make
findings warranted by the evidence, and that supplementation
with material facts would require reversal of the suppression
order, a reviewing court will not engage in fact finding, but
may remand so that the judge may consider whether additional
findings are warranted. See, e.g., Commonwealth v. Isaiah I.,
448 Mass. 334, 337-338 (2007), S.C., 450 Mass. 818 (2008);
Commonwealth v. Scott, 52 Mass. App. Ct. 486, 495-496 (2001).
6
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.
7
542, 547 (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 (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 (2011), cert. denied, 132 S. Ct. 1739 (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
5
Specifically, the Commonwealth contends that the judge's
finding that the defendant started "jogging," only after the
officer yelled, "Wait a minute," is clearly erroneous. We are
not convinced that there was clear error. While there is some
8
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 (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 (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. The
possibly equivocal testimony about when the defendant started
jogging, ample testimony in the record supports the judge's
finding, and the judge clearly indicated that he did not find
all of the testimony credible. The judge was not required to,
and apparently did not, credit equivocal testimony to the effect
that the defendant was already "jogging" prior to the moment the
officer yelled at him to "[w]ait," and merely speeded up
thereafter.
9
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. 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 police and holding one's hand at one's waist or
inside one's pants may sometimes indicate that an individual has
a weapon, it also is consistent with other, nonviolent
activities. Although acknowledging these two factors to be
"important," the judge determined that, without more, they were
"not enough to support a conclusion of reasonable suspicion."
10
The Commonwealth contends that testimony concerning the
character of the neighborhood as "high crime" added
substantially to the reasonableness of the officers' suspicions.
Although a characterization that an area is one of "high crime"
may be relevant in determining whether a police officer's
suspicion is reasonable, the accuracy of the characterization in
a particular case depends on specific facts found by the judge
that underlie such a determination, rather than on any label
that is applied. See Commonwealth v. Johnson, 454 Mass. 159,
163 (2009). And, as we cautioned in that case, whether a
neighborhood is a high crime area is a consideration that must
be applied with care.
"The fact that the officers were in a high crime area
is unquestionably a factor to consider, albeit with
caution; we recognize that so-called high crime areas are
inhabited and frequented by many law-abiding citizens who
are entitled to be protected against being stopped and
frisked just because of the neighborhood where they live,
work, or visit. See, e.g., Commonwealth v. Holley, 52
Mass. App. Ct. 659, 663 (2001). The term 'high crime area'
is itself a general and conclusory term that should not be
used to justify a stop or a frisk, or both, without
requiring the articulation of specific facts demonstrating
the reasonableness of the intrusion. See Commonwealth v.
Gomes, 453 Mass. 506, 513, (2009)."
Commonwealth v. Johnson, supra.
The judge's finding that the stop here did not take place
in a "high crime" area was not clearly erroneous. In some
circumstances, locations where firearms offenses are common, or
11
where rival gang activity occurs, have been considered "high
crime" areas. See, e.g., Commonwealth v. Pagan, 63 Mass. App.
Ct. 780, 781-783 (2005). Compare Commonwealth v. Sykes, supra
at 314-315 (in high crime area where large group congregated,
attempting to avoid contact with police and clenching waistband
while running contributed to reasonable suspicion). Isolated
incidents of nearby gun activity, or the mere presence of gangs
in the vicinity, however, does not require a finding that a
particular street is a "high crime area." In this case, there
was no testimony concerning arrests in the area of Norfolk
Avenue; no testimony about any crime on the street in question;
and no testimony that police patrolled Norfolk Avenue because of
any specific criminal activity occurring there. Indeed, at the
time of the stop, the officers were on routine patrol and were
not responding to any radio call. One officer stated that he
"knew of some crime that had been reported in the neighborhood,"
but this testimony was supported by few specific facts: he
testified only to a radio call of "shots fired" about two weeks
previously, and a shooting and recovery of a gun sometime in the
preceding several months. With respect to his testimony that
there was "undescribed gang activity in the area," the officer
articulated no specific facts, and made no statement that
firearms or violence were involved.
12
That one or more "crimes" occurred at some point in the
past somewhere on a particular street does not necessarily
render the entire street a "high crime area," either at that
time or in perpetuity. Here, on the evidence before him, the
judge's determination that "Norfolk [Avenue] between East
Cottage Street and Burrell Street was not a high crime area" was
not clear error.6
The same can be said with respect to the judge's findings
concerning the officer's training and experience. The judge
credited the officer's testimony that, nine years earlier, he
had completed an eight-hour training class titled
"Characteristics of Armed Gunmen." The judge was not required
to conclude that this training -- by itself or in combination
with other factors -- made the officer's suspicion objectively
reasonable. Likewise, the judge was not required to make
detailed findings about the content of the course. The judge's
findings accurately reflect that, apart from the eight-hour
6
Nor was there error, as the Commonwealth contends, in the
judge's determination that the time of night added "little if
anything to the calculus of reasonable suspicion." The
defendant was stopped just after midnight on a summer evening.
Nothing in the judge's decision suggests that he ignored the
time or declined to consider it. To the contrary, the judge
addressed the question of the time of night explicitly,
apparently having concluded that, in light of the other evidence
before him, the time at which these events took place was not a
significant factor with respect to the reasonableness of the
officer's suspicion.
13
training class about which there was testimony, there was "no
other testimony about [the officer's] training."
c. Supplementation of judge's findings in future cases.
We recognize that our decisions have engaged in (and condoned) a
practice of "minor" or "interstitial" supplementation of a
motion judge's findings with uncontroverted facts. At times,
that practice is benign, simply serving to fill out the story.
See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), citing
Commonwealth v. Butler, 423 Mass. 517, 526 n. 10 (1996). This
practice also may be appropriate where a judge's findings are
sparse and additional facts are needed to provide context. See,
e.g., Commonwealth v. Silva, 61 Mass. App. Ct. 28, 30 (2004);
Commonwealth v. Hecox, 35 Mass. App. Ct. 277, 278 (1993);
Commonwealth v. Coy, 10 Mass. App. Ct. 367, 368 (1980). And, as
noted, we may affirm a judge's order on a motion to suppress
based not only on the facts as found, but also on evidence that
was "implicitly or explicitly credited" by the motion judge.
See Commonwealth v. Isaiah I., supra at 337. See Commonwealth
v. Jessup, 471 Mass. at 127-128 (appellate court may supplement
with additional undisputed facts that "do not detract from the
judge's ultimate findings"); Commonwealth v. Bostock, 450 Mass.
616, 617 n.1 (2008) (reviewing court may supplement "with
uncontested testimony presented at the hearing by a witness
14
whose testimony largely was credited by the judge and does not
contradict the judge's findings").
But the mere absence of contradiction is not enough to
permit supplementation with facts not found by the judge. A
reviewing court should exercise caution in supplementing a
motion judge's findings of fact with evidence in the record that
was not included in the judge's findings, and as to which the
judge made no statement of credibility, on the assertion that
the judge implicitly credited that testimony. While, for
instance, a judge's denial of a defendant's motion to suppress
may in some circumstances imply resolution of "factual issues in
favor of the Commonwealth," see Commonwealth v. Hinds, 437 Mass.
54, 57 (2002), cert. denied, 537 U.S. 1205 (2012), quoting
Commonwealth v. Grandison, 433 Mass. 135, 137 (2001), where a
judge made "careful and detailed findings," we may have "no way
to tell whether, or to what extent," the judge believed the
testimony as to which he or she made no findings. See
Commonwealth v. Correia, 381 Mass. 65, 76 (1980). See also
Commonwealth v. Cataldo, 69 Mass. App. Ct. 465, 472 (2007)
(judicial silence, reflected in absence of finding supportive of
witness, can suggest that judge rejected witness's testimony).
Where a motion judge's findings of fact are insufficient to
support the judge's conclusions of law, and it is not apparent
15
from the judge's decision or the record that the judge credited
other testimony as to which no findings were made, ordinarily a
reviewing court will reverse the judge's decision. See, e.g.,
Commonwealth v. King, 71 Mass. App. Ct. 737, 741-742 (2008). We
have on occasion supplemented a judge's findings with additional
facts necessary to support the judge's conclusion, such as where
the judge found the witnesses' testimony "truthful and
accurate." See, e.g., Commonwealth v. Anderson, 461 Mass. 616,
619 n.3, cert. denied, 133 S. Ct. 433 (2012). See also
Commonwealth v. Scott, 52 Mass. App. Ct. 486, 492 (2001). In
the absence of findings on a critical issue, however, or where
the facts as found are "susceptible of more than one
interpretation," and there is additional evidence in the record,
neither implicitly credited nor discredited by the judge, remand
may be appropriate. See Commonwealth v. Isaiah I., supra at
338-339 (remanding for further findings where judge made no
credibility determination concerning detective's testimony, and
we thus were unable to determine whether omission was error or
testimony was not credited). A judge may resolve any
uncertainty by including in the decision a statement as to
whether the judge credits, or does not credit, all or a portion
of a particular witness's testimony. See, e.g., Commonwealth v.
Daniel, 464 Mass. 746, 749 (2013) (where judge stated that her
16
findings were based on "credible testimony" of police officer,
but stated also that she did not find credible officer's
testimony that he had heightened awareness of danger, "[i]t is
therefore not implicit in the judge's findings that she found
the entirety of the officer's testimony credible").
But, as our long-standing jurisprudence makes plain, in no
event is it proper for an appellate court to engage in what
amounts to independent fact finding in order to reach a
conclusion of law that is contrary to that of a motion judge who
has seen and heard the witnesses, and made determinations
regarding the weight and credibility of their testimony. See,
e.g., Commonwealth v. Clarke, 461 Mass. 336, 340-341 (2012) and
cases cited; Commonwealth v. Stephens, 451 Mass. 370, 381
(2008), and cases cited. A motion judge cannot be deemed
implicitly to have credited testimony that is contrary to the
judge's ultimate findings and conclusions simply because, as is
often the case in a criminal proceeding, only one witness
testified at the hearing, so the testimony is "uncontroverted."
Here, the judge's decision included a detailed statement of
facts, prefaced by a statement that the facts stated were based
on the only testimony that the judge found credible. Such a
statement leaves no room for supplementation of the judge's
findings of fact. Because the judge's findings of fact were not
17
clearly erroneous, we must accept the judge's subsidiary
findings of fact, and consider only whether they support the
judge's ultimate findings and conclusions of law.7 See
Commonwealth v. Thomas, 429 Mass. 403, 405 (1999) ("motion
judge's findings of fact are binding in the absence of clear
error"). "We cannot properly be asked to revise a judge's
subsidiary findings of fact, where they are warranted by the
evidence, or to review the weight (or credibility) of the
evidence related to the findings." Commonwealth v. Moon, 380
Mass. 751, 756 (1980), quoting Commonwealth v. Murphy, 362 Mass.
542, 550 (1972) (Hennessey, J., concurring).
Order allowing motion
to suppress affirmed.
7
An appellate court is, of course, "free to affirm a
ruling on grounds different from those relied on by the motion
judge if the correct or preferred basis for affirmance is
supported by the record and the findings." Commonwealth v. Va
Meng Joe, 425 Mass. 99, 102 (1997). See Commonwealth v.
Bartlett, 465 Mass. 112, 117 (2013).