Opinion
No. 15–P–1043.
06-28-2016
COMMONWEALTH v. Corey MOODY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this direct appeal from his convictions of possession of cocaine and heroin with the intent to distribute, G.L. c. 94C, § 32A(a ) (cocaine), G.L. c. 94C, § 32(a ) (heroin), the defendant argues that his motion to suppress was erroneously denied. He also appeals from the single justice's denial of his motion for a stay of the execution of his sentence. In view of our disposition of his direct appeal, the appeal from the single justice order is dismissed as moot.
Through its failure to file a brief, the Commonwealth waived any oral argument with respect to the defendant's appeal from the denial of the motion for a stay of execution. Mass.R.A.P. 19(c), 365 Mass. 867 (1974).
“When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error.” Commonwealth v. Watson, 455 Mass. 246, 250 (2009). However, we undertake “an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Ibid. “A finding is clearly erroneous if it is not supported by the evidence, or when the reviewing court, on the entire evidence, is left with the firm conviction that a mistake has been committed.” Commonwealth v. Hilton, 450 Mass. 173, 178 (2007).
We summarize the facts found by the judge, which the defendant has not shown to be clearly erroneous. Around 2:10 P.M. on May 12, 2014, in the Ashmont area of Boston, a car coming from Florida Street turned onto Msgr. Lydon Way and drove down the street the wrong way (i.e. against the designated direction of the street). When the car stopped near 106 Msgr. Lydon Way, Megan Thomas, who was the only passenger, alit. Thomas had a cellular telephone to her ear, and a bunch of grapes in a bag in her left hand. Detective Andrew Miskell, an experienced member of the Boston police, was parked about a car length's away on the opposite side of the street. Detective Miskell was on patrol that afternoon because there had been a recent shooting in the area, which was known for its high level of crime.
The driver went into 106 Msgr. Lydon Way.
The defendant, also driving the wrong way down the street, arrived shortly thereafter on a scooter to meet Thomas. A brief verbal exchange occurred, and Thomas placed currency into the scooter's seat. She also handed the grapes to the defendant, some of which fell to the ground. The defendant retrieved the currency. He and Thomas then picked up the fallen grapes and went behind a locked gate where they remained about thirty seconds and were sheltered from view. After this brief and businesslike exchange, the defendant began to mount his scooter. Detective Miskell approached, identified himself, and asked to speak with the defendant. At this point, the defendant started the scooter's ignition and made an attempt to flee rapidly. He managed to move the scooter three or four feet before the detective was able to stop him. The defendant and the detective fell to the ground, and the detective observed a plastic baggie containing what appeared to be heroin packaged for street-level sale on the ground near the defendant's head. In addition, multiple bags of heroin and cocaine were found in the defendant's mouth.
The parties agree that the defendant was seized, in a constitutional sense, at the moment the detective wrapped his arms around him to stop him from fleeing on his scooter. Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007) ( “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.”) The question raised is whether, at that moment, there were “specific and articulable facts to support a reasonable suspicion of criminality.” Commonwealth v. Bostock, 450 Mass. 616, 621 (2008) (quotation omitted). “The test is an objective one.” Commonwealth v. Grandison, 433 Mass. 135, 139, (2001), quoting from Commonwealth v. Helme, 399 Mass. 298, 301 (1987).
Here, the defendant met Thomas at a prearranged place and time to conduct a brief transaction involving the transfer of money from one to the other. The parties took pains to shield their activities from view. Although it is true, as the defendant argues, that the detective did not observe drugs pass from the defendant to Thomas, the absence of that direct observation did not preclude an inference from the remaining circumstances, combined with the officer's knowledge and extensive experience, that drugs were involved. See Commonwealth v. Kennedy, 426 Mass. 703, 710–711 (1998) (even though officer did not see what was exchanged, officer's training, education, and knowledge supported reasonable suspicion of drug deal); Commonwealth v. Thompson, 427 Mass. 729, 733 (1998) (presence in high crime area, together with other things, is a factor that may be considered); Commonwealth v. Watson, 430 Mass. 725, 729 (2000) (officer may base reasonable suspicion on inferences drawn in light of his or her experience); Commonwealth v. Wilson, 52 Mass.App.Ct. 411, 415 (2001) (flight is a relevant factor where not triggered by inappropriate police action); Commonwealth v. Cabrera, 76 Mass.App.Ct. 341, 346 (2010) (“Viewed through the eyes of experienced police officers and as a whole, even seemingly innocent activities may take on a sinister cast and give rise to reasonable suspicion”).
For these reasons, the defendant's motion to suppress was properly denied, and the convictions are affirmed. Because of our disposition, we leave the single justice's order denying the motion to stay undisturbed; it is now moot.
Judgments affirmed.
Appeal from order of single justice dismissed.