Commonwealth v. Jones-Pannell

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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).