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Commonwealth v. Shoulders

Appeals Court of Massachusetts.
Jun 18, 2012
969 N.E.2d 185 (Mass. App. Ct. 2012)

Opinion

No. 11–P–1104.

2012-06-18

COMMONWEALTH v. Carl A. SHOULDERS.


By the Court (CYPHER, GRASSO & SIKORA, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On appeal from convictions of trafficking cocaine and conspiracy, the defendant contends that (1) the motion judge erred in denying his motion to suppress evidence, and (2) his trial attorney rendered ineffective assistance of counsel. We affirm.

Although the Commonwealth filed motions to stay and to dismiss the defendant's appeal, its brief contains no reasoned argument challenging the timeliness of the defendant's appeal. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See also our docket entry dated January 24, 2012, permitting the Commonwealth to address the timeliness of the defendant's appeal in its brief. We pass over the question and assume that the defendant's appeal is timely, and filed in conformity with the order of the court.

1. The motion to suppress. We discern no error in the denial of the defendant's motion to suppress. The motion judge's factual findings, which are fully supported by the evidence, establish that the information provided by the confidential informant (identified at trial as Robert Brooks ) satisfies the basis of knowledge and veracity prongs of the Aguilar–Spinelli test. See Commonwealth v. Upton, 394 Mass. 363, 374–375 (1985).

A pseudonym.

At 10:00 A.M. on the day in question, the informant telephoned Braintree police Detective Jeff Jernegan and told Jernegan that at 1:00 P.M. a black male named Anthony would be arriving at the South Shore Plaza driving a black Dodge Charger or a black Mitsubishi Galant with two ounces of crack cocaine intended for sale, and would park directly in front of Joe's American Bar and Grill. The informant told Jernegan that he had purchased cocaine from Anthony, who worked at a particular drug rehabilitation center in Foxborough, on at least ten prior occasions. He described Anthony as thirty years old, six feet tall, weighing 200 pounds, with scars on his neck, and provided Jernegan with Anthony's cellular telephone number. At 12:45 P. M., the informant made a second telephone call to Jernegan and advised that Anthony would be driving the Mitsubishi Galant and that a second man would be with him. As the police conducted surveillance, the scenario unfolded exactly as predicted. Here, the information provided was so precise, detailed, and predictive as to permit the inference that it was based upon the informant's firsthand knowledge of the defendant and his activities. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 103–104 (1997).

The previous instances in which the informant provided information leading to drug convictions established his credibility and the reliability of his information. See Commonwealth v. Byfield, 413 Mass. 426, 431 (1992). Within the previous three months, he had furnished Jernegan with information that led to an admission to sufficient facts in a drug case in the Quincy District Court. Prior to that, the informant had provided information to the Canton police that led to a drug conviction.

Although not found specifically, the judge appears to have credited Jernegan's testimony that drugs were seized in a number of other pending cases based upon information provided by the informant.

We agree with the motion judge that the information provided, together with the observations of the police, established probable cause to believe that drugs would be present in the car when the police stopped it. Even were we to hypothesize that probable cause did not arise until Braintree police Detective Michael Reynolds pat frisked the codefendant, Kuiyon Stockman, the result would be no different. The police possessed ample justification to box the vehicle in as it was parked in front of Joe's American Bar and Grill. We also agree that the defendant's and Stockman's repeated failure to show their hands upon command justified exit orders and patfrisks, and that the discovery of crack cocaine on Stockman would fall within the ambit of “plain feel.” See Commonwealth v. Wilson, 441 Mass. 390, 396–397 (2004); Commonwealth v. Hernandez, 77 Mass.App.Ct. 259, 269 n. 13 (2010).

2. Ineffective assistance of counsel. We reject the defendant's various claims of ineffective assistance of counsel, which are of the weakest sort, relying on the trial record alone. See Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002) (“ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight”).

The trial record falls far short of establishing “indisputably” the ineffectiveness of counsel. See Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344 (1994). Indeed, defense counsel specifically advised the judge that his willingness to permit the Commonwealth to elicit prior incidents in which Brooks had provided information to the police and to introduce predisposition evidence before the defendant presented his entrapment evidence were tactical decisions undertaken to demonstrate that Brooks was a “career confidential informant.” Nothing advanced by the defendant convinces us that such a strategy was manifestly unreasonable, especially where the predisposition evidence was ultimately admissible against the claim of entrapment. See Commonwealth v. DeCastro, 24 Mass.App.Ct. 937, 938 (1987).

Also without merit is the defendant's generic contention that defense counsel was ineffective in failing “to conduct effective examinations of the informant and the defendant.” See Commonwealth v. Bart B., 424 Mass. 911, 916 (1997) (in general, failure to impeach a witness does not prejudice defendant or constitute ineffective assistance of counsel); Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) (same). See also the Commonwealth's brief at pages fifteen through sixteen.

Our disposition of the merits of the defendant's appeal effectively resolves his claim of ineffectiveness based on defense counsel's failure to file a timely notice of appeal.

Judgments affirmed.


Summaries of

Commonwealth v. Shoulders

Appeals Court of Massachusetts.
Jun 18, 2012
969 N.E.2d 185 (Mass. App. Ct. 2012)
Case details for

Commonwealth v. Shoulders

Case Details

Full title:COMMONWEALTH v. Carl A. SHOULDERS.

Court:Appeals Court of Massachusetts.

Date published: Jun 18, 2012

Citations

969 N.E.2d 185 (Mass. App. Ct. 2012)
82 Mass. App. Ct. 1101