Commonwealth v. Ehiabhi

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SJC-12259

COMMONWEALTH vs. MOSES EHIABHI.

Suffolk. May 4, 2017. - October 13, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd,
& Cypher, JJ.1

Controlled Substances. Assault and Battery on Certain Public
Officers and Employees. Constitutional Law, Sentence,
Separation of powers, Search and seizure. Practice,
Criminal, Sentence, Motion to suppress, Instructions to
jury. Search and Seizure, Motor vehicle, Impoundment of
vehicle, Inventory.

Indictments found and returned in the Superior Court
Department on January 13, 2014.

A pretrial motion to suppress evidence was heard by Mary K.
Ames, J.; the cases were tried before Elizabeth M. Fahey, J.,
and the correctness of the sentence was reported by her to the
Appeals Court.

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

Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
Sarah E. Dolven for the defendant.

1
Justice Hines participated in the deliberation on this
case prior to her retirement.
 2

Patrick Levin, Committee for Public Counsel Services, &
Chauncy B. Wood, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.

CYPHER, J. This case examines a sentencing scheme that

punishes the same conduct with different mandatory minimum

sentences. See G. L. c. 94C, § 32A (b), (d). Both subsections

punish possession with intent to distribute a class B substance,

but § 32A (b) carries a mandatory minimum sentence of two years

while § 32A (d) carries a mandatory minimum sentence of three

and one-half years. In the law's current form, § 32A (a)

punishes first-time distribution of any of forty class B

substances, including phencyclidine (PCP), cocaine, and

methamphetamine; § 32A (b) punishes subsequent distribution of a

class B substance; § 32A (c) punishes first-time distribution of

PCP, cocaine, or methamphetamine; and § 32A (d) punishes

subsequent distribution of PCP, cocaine, or methamphetamine.

G. L. c. 94C, § 32A.2 The defendant, Moses Ehiabhi, was charged

2
In relevant part, G. L. c. 94C, § 32A, provides:

"(a) Any person who knowingly or intentionally
manufactures, distributes, dispenses, or possesses with
intent to manufacture, distribute or dispense a controlled
substance in Class B of [§ 31] shall be punished by
imprisonment in the [S]tate prison for not more than ten
years, or in a jail or house of correction for not more
than two and one-half years, or by a fine of not less than
[$1,000] nor more than [$10,000], or both such fine and
imprisonment.

"(b) Any person convicted of violating this section
 3

after one or more prior convictions of manufacturing,
distributing, dispensing, or possessing with the intent to
manufacture, distribute or dispense a controlled substance
as defined by [§ 31] of this chapter under this or any
other prior law of this jurisdiction or of any offense of
any other jurisdiction, [F]ederal, [S]tate, or territorial,
which is the same as or necessarily includes the elements
of said offense shall be punished by a term of imprisonment
in the [S]tate prison for not less than [two] nor more than
ten years. No sentence imposed under the provisions of
this section shall be for less than a mandatory minimum
term of imprisonment of [two] years and a fine of not less
than [$2,500] nor more than [$25,000] may be imposed but
not in lieu of the mandatory minimum term of imprisonment,
as established herein.

"(c) Any person who knowingly or intentionally
manufactures, distributes, dispenses or possesses with
intent to manufacture, distribute or dispense phencyclidine
or a controlled substance defined in clause (4) of
paragraph (a) or in clause (2) of paragraph (c) of class B
of § 31 shall be punished by a term of imprisonment in the
[S]tate prison for not less than two and one-half nor more
than ten years or by imprisonment in a jail or house of
correction for not less than one nor more than two and one-
half years. No sentence imposed under the provisions of
this section shall be for less than a mandatory minimum
term of imprisonment of one year and a fine of not less
than [$1,000] nor more than [$10,000] may be imposed but
not in lieu of the mandatory minimum one year term of
imprisonment, as established herein.

"(d) Any person convicted of violating the provisions
of subsection (c) after one or more prior convictions of
manufacturing, distributing, dispensing or possessing with
the intent to manufacture, distribute, or dispense a
controlled substance, as defined in [§ 31] or of any
offense of any other jurisdiction, either [F]ederal,
[S]tate or territorial, which is the same as or necessarily
includes, the elements of said offense, shall be punished
by a term of imprisonment in the [S]tate prison for not
less than [three and one-half] nor more than fifteen years
and a fine of not less than [$2,500] nor more than
[$25,000] may be imposed but not in lieu of the mandatory
minimum term of imprisonment, as established herein."
 4

and convicted of possession with intent to distribute cocaine,

second offense, under § 32A (c) and (d), but the judge, over the

objection of the Commonwealth, sentenced pursuant to § 32A (a)

and (b).3

Pursuant to G. L. c. 231, § 111,4 and Mass. R. Crim. P. 34,

as amended, 442 Mass. 1501 (2004),5 the trial judge reported the

Section 31 defines cocaine as "[c]oca leaves and any salt,
compound, derivative, or preparation of coca leaves, and any
salt, compound, derivative, or preparation thereof which is
chemically equivalent or identical with any of these substances,
except that the substances shall not include decocainized coca
leaves or extraction of coca leaves, which extractions do not
contain cocaine or ecgonine." G. L. c. 94C, § 31 Class B (a)
(4).
3
The defendant faced three additional charges: resisting
arrest, in violation of G. L. c. 268, § 32B; operating a motor
vehicle while under the influence of a controlled substance, in
violation of G. L. c. 90, § 24 (1) (a) (1); and assault and
battery on a police officer, in violation of G. L. c. 265,
§ 13D. The defendant prevailed in his motion for a required
finding of not guilty as to the charge of resisting arrest; was
acquitted of the operating while under the influence of
marijuana charge; and was convicted of assault and battery on a
police officer.
4
General Laws c. 231, § 111, provides in relevant part: "A
justice of the [Superior Court] . . . , after verdict or after a
finding of the facts by the court, may report the case for
determination by the [A]ppeals [C]ourt."
5
In relevant part, Mass. R. Crim. P. 34, as amended, 442
Mass. 1501 (2004), provides:

"If, prior to trial, or, with the consent of the
defendant, after conviction of the defendant, a question of
law arises which the trial judge determines is so important
or doubtful as to require the decision of the Appeals
Court, the judge may report the case so far as necessary to
present the question of law arising therein."
 5

correctness of her sentencing decision to the Appeals Court, and

allowed the defendant's motion to stay the sentence pending his

appeal. The Commonwealth appeals from both the sentence and the

stay of sentence. The defendant also appeals, claiming error in

the denials of his motion to suppress evidence and his motion

for a required finding of not guilty on the assault and battery

charge, and in the jury instruction on self-defense as to that

charge. The Appeals Court consolidated the appeals, and we

transferred the case to this court on our own motion. For the

reasons detailed below, we affirm the convictions and remand to

the Superior Court for resentencing.6

1. The reported question and the Commonwealth's appeal.

After the Commonwealth moved for sentencing, the judge asked why

the Commonwealth had proceeded under the section of the statute

that provided a harsher minimum mandatory sentence where the

elements of both sections were identical. The prosecutor

explained that her office "typically" indicted cocaine charges

under the enhanced section because cocaine is "considered a more

dangerous substance than other items under [c]lass B, such as

pills." The prosecutor also justified her pursuit of harsher

penalties in this case by the fact that the defendant was on

Federal supervised release for the same crime when he committed

6
We acknowledge the amicus brief of the Committee for
Public Counsel Services and the Massachusetts Association of
Criminal Defense Lawyers.
 6

the new offense.

The judge rejected both arguments, concluding that

ambiguity existed in the conflicting mandatory minimum sentences

of two years for a repeat distributor of cocaine under § 32A (b)

and three and one-half years for a repeat distributor of cocaine

under § 32A (d). The judge read this conflict to require

application of the rule of lenity in favor of the less stringent

sentence, citing Commonwealth v. Gagnon, 387 Mass. 567, 569,

S.C., 387 Mass. 768 (1982), cert. denied, 464 U.S. 815 (1983);

United States v. Shaw, 920 F.2d 1225, 1228 (5th Cir.), cert

denied, 500 U.S. 926 (1991).

The Commonwealth argues that the trial judge erred in

sentencing the defendant pursuant to G. L. c. 94C, § 32A (b),

where he had been charged and convicted pursuant to § 32A (d),

and where the prosecutor retains the discretion to charge under

either subsection. The defendant contends that the judge

properly applied the rule of lenity where the statute is

ambiguous in its provision of inconsistent penalties for the

identical offense. We agree with the Commonwealth that the

statute is unambiguous, and preserves the prosecutor's

discretion to choose among its subsections.

a. Ambiguity. The levels of punishment upon conviction of

possession with intent to distribute a controlled substance are

determined with reference to which of the five classes of
 7

controlled substances the particular controlled substance

belongs. G. L. c. 94C, § 31. "Such disparate sentences embody

the legislative judgment differentiating certain classes of

controlled substances as more detrimental to the mind or the

body than others." Commonwealth v. Chavis, 415 Mass. 703, 709

n.9 (1993).

Cocaine is listed as a class B controlled substance, with

penalties provided at G. L. c. 94C, § 32A. Section 32A was

inserted into the General Laws by St. 1980, c. 436, "as part of

a major revision of the Controlled Substances Act."

Commonwealth v. Neiman, 396 Mass. 754, 758 (1986). As

originally enacted, § 32A had two paragraphs. Paragraph (a)

provided a penalty of from one to ten years for first-time

distribution of a class B substance, without requiring a

mandatory minimum sentence, and paragraph (b) provided a

mandatory minimum of three years for subsequent offenses,

St. 1980, c. 436, § 4, later reduced to two years. St. 2012,

c. 192, § 13.

In the years following the enactment of § 32A, the

Legislature singled out three drugs for harsher punishment than

other class B substances: PCP in 1981, St. 1981, c. 522 (adding

paragraph [c] to impose one-year mandatory minimum sentence for

distribution of PCP); cocaine in 1988, St. 1988, c. 125, § 1

(amending paragraph [c] to impose same penalty for distribution
 8

of cocaine); and methamphetamine in 1991, St. 1991, c. 391

(same, for distribution of methamphetamine). See Commonwealth

v. Bradley, 35 Mass. App. Ct. 525, 526 n.1 (1993) (discussing

statutory history of § 32A). When the Legislature added cocaine

to paragraph (c), it also inserted paragraph (d), which provided

a five-year minimum sentence for subsequent offenders "convicted

of violating the provisions of subsection (c)," St. 1988, c.

125, §§ 1-2; that minimum was later reduced to three and one-

half years. St. 2012, c. 192, § 14. The language of paragraph

(b) remained unaltered, and continues to apply to "[a]ny person

convicted of violating this section." See Bradley, supra (§ 32A

[b] was "[a] repeat offender provision that applied to all

offenses outlined in the statute"). Cocaine, as well as PCP and

methamphetamine, remain among the forty enumerated class B

substances. G. L. c. 94C, § 31 Class B 2 (a) (4).

The statutory scheme, when read as a whole and in the

context of its history, is not ambiguous, and therefore the rule

of lenity is not applicable. "It is a fundamental tenet of due

process that '[n]o one may be required at peril of life, liberty

or property to speculate as to the meaning of penal statutes.'"

Gagnon, 387 Mass. at 569, quoting United States v. Batchelder,

442 U.S. 114, 123 (1979). "Under the rule of lenity, 'if we

find that the statute is ambiguous or are unable to ascertain

the intent of the Legislature, the defendant is entitled to the
 9

benefit of any rational doubt.' . . . 'This principle applies

to sentencing as well as substantive provisions.'" (Citations

omitted). Commonwealth v. Richardson, 469 Mass. 248, 254

(2014).

We have previously rejected the argument that § 32A is

unconstitutionally void for vagueness, reasoning that "[w]e

simply see no significant ambiguity in the legislative intent

expressed in § 32A (a) and § 32A (c)." Cedeno v. Commonwealth,

404 Mass. 190, 194 (1989). We reaffirm the view that "[i]f

there is a problem in a constitutional sense in the coexistence

of § 32A (a) and § 32A (c), it does not lie in any uncertainty

about what those sections mean." Id. at 196. For similar

reasons, the United States Supreme Court upheld two firearm

statutes that punished the same conduct with different

sentences. Batchelder, 442 U.S. at 116, 123 ("The provisions in

issue . . . unambiguously specify the activity proscribed and

the penalties available upon conviction. . . . That this

particular conduct may violate both [t]itles [of the United

States Code] does not detract from the notice afforded by each.

Although the statutes create uncertainty as to which crime may

be charged and therefore what penalties may be imposed, they do

so to no greater extent than would a single statute authorizing

various alternative punishments" [citation omitted]). Where the

statute is unambiguous, the rule of lenity is inapposite. See
 10

Richardson, 469 Mass. at 254.

b. Prosecutorial discretion. Because we find the rule of

lenity inoperative here, we proceed to the separation of powers

challenge. Verrochi v. Commonwealth, 394 Mass. 633, 638 (1985)

(construing statute to avoid constitutional difficulties).

Article 30 of the Massachusetts Declaration of Rights forbids

the legislative and executive branches from exercising powers

entrusted to the judicial branch if that exercise "restrict[s]

or abolish[es] a court's inherent powers." Commonwealth v.

Cole, 468 Mass. 294, 301 (2014).7 Although "[a]n absolute

division of the [executive, legislative, and judicial] functions

is neither possible nor always desirable," Opinion of the

Justices, 365 Mass. 639, 641 (1974), a statute impermissibly

allocating a power held by only one branch to another violates

art. 30. Cole, supra at 302.

Within these constitutional confines, prosecutors enjoy

considerable discretion. See Commonwealth v. Rivas, 466 Mass.

184, 188 n.4 (2013), quoting Commonwealth v. Johnson, 75 Mass.

7
Article 30 of the Massachusetts Declaration of Rights
provides:

"In the government of this commonwealth, the
legislative department shall never exercise the executive
and judicial powers, or either of them: the executive
shall never exercise the legislative and judicial powers,
or either of them: the judicial shall never exercise the
legislative and executive powers, or either of them: to
the end it may be a government of laws and not of men."
 11

App. Ct. 903, 906 (2009) ("The Commonwealth retains the

authority to make the determination in the first instance of the

offense with which a person in the defendant's circumstance

should be charged"). Indeed, a prosecutor has the discretion to

charge a defendant under multiple enhancement statutes,

retaining that discretion up to the sentencing stage, where, if

the prosecutor chooses, he or she may file a nolle prosequi on

all but one charge. Richardson, 469 Mass. at 254-255. See

Bynum v. Commonwealth, 429 Mass. 705, 707 (1999) (§ 32A [d] is

sentence enhancement provision rather than separate crime).

Moreover, the decision to prosecute is "particularly ill-suited

to judicial review." Commonwealth v. Latimore, 423 Mass. 129,

136 (1996), quoting Wayte v. United States, 470 U.S. 598, 607

(1985).

Accordingly, a prosecutor does not infringe on the court's

sentencing power merely by selecting charges from among multiple

applicable subsections. See Cedeno, 404 Mass. at 196-197

("Prosecutors have wide ranges of discretion in deciding whether

to bring criminal charges and in deciding what specific charges

to bring"). See also Commonwealth v. Zwickert, 37 Mass. App.

Ct. 364, 367 (1994) ("the grand jury, having before it evidence

of the defendant's possession of cocaine with intent to

distribute, might have framed the indictment as possession of a

[c]lass B substance with intent to distribute, thus exposing the
 12

defendant only to the lesser penalty of § 32A [a]); but because

the indictment identified the Class B substance as cocaine, it

was a charge under § 32A [c]"). The Batchelder Court similarly

rejected the concern that legislative overlap had endowed the

prosecutor with "unfettered" discretion:

"[T]here is no appreciable difference between the
discretion a prosecutor exercises when deciding whether to
charge under one of two statutes with different elements
and the discretion he exercises when choosing one of two
statutes with identical elements. In the former situation,
once he determines that the proof will support conviction
under either statute, his decision is indistinguishable
from the one he faces in the latter context."

Batchelder, 442 U.S. at 125. Compare Cole, 468 Mass. at 304

(invalidating under art. 30 statute authorizing parole board to

impose new mandatory sentences).

Section 32A thus does not represent an executive usurpation

of judicial sentencing powers, but an appropriate exercise of

prosecutorial discretion. That discretion, although broad,

remains constitutionally constrained by the equal protection

clause of the Fourteenth Amendment to the United States

Constitution.

The equal protection clause prohibits selective enforcement

"based upon an unjustifiable standard such as race, religion, or

other arbitrary classification." Oyler v. Boles, 368 U.S. 448,

456 (1962). To prevail on a claim of selective prosecution, a

defendant must demonstrate "that a broader class of persons than
 13

those prosecuted has violated the law, . . . that failure to

prosecute was either consistent or deliberate, . . . and that

the decision not to prosecute was based on impermissible

classification such as race, religion, or sex" (citations

omitted). Commonwealth v. Franklin, 376 Mass. 885, 894 (1978).

Unless the defendant makes that prima facie showing, "we presume

that criminal arrests and prosecutions are undertaken in good

faith, without intent to discriminate." Commonwealth v. King,

374 Mass. 5, 22 (1977). At oral argument, the defendant urged

us to consider the issue of selective prosecution, but did not

argue it in his brief or present us with a record that would

allow us to evaluate such a claim.

The judge's decision not to sentence the defendant

pursuant to the statutes under which he was properly charged and

convicted -- § 32A (c) and (d) -- was error.

2. The defendant's appeal. a. Motion to suppress. After

an evidentiary hearing, the motion judge found the following

facts, which we supplement where necessary by uncontroverted

testimony. See Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007), S.C., 450 Mass. 818 (2008). At approximately 2 A.M. on

June 27, 2013, Boston police Officers Steven Dodd and Andrew

Hunter were patrolling the Roxbury neighborhood of Boston.8 The

8
Dodd was the Commonwealth's only witness at the hearing,
and the motion judge credited his testimony in its entirety.
 14

officers were traveling in an unmarked cruiser on Norfolk

Avenue. As they approached the Burrell Street intersection,

Dodd observed a motor vehicle turn onto Norfolk Avenue, veer

slightly into the opposite lane, and begin traveling in the

opposite lane on a two-way street. Dodd activated his lights to

initiate a traffic stop.

Although Norfolk Avenue is a two-way street, the vehicle

pulled over to the street's left side. When Dodd approached, he

observed the defendant's eyes to be red and glassy, and smelled

the odor of burnt marijuana. In initial conversation with the

defendant, who was driving, Dodd observed the defendant's speech

to be slurred. A female passenger, not wearing a seat belt,

also appeared impaired. Dodd further observed on the front

center console a plastic soda bottle containing a rolled-up

sandwich bag.

Upon request, the defendant produced a valid driver's

license and an expired rental agreement for the motor vehicle.9

When Dodd asked whether anyone had been smoking marijuana, the

passenger responded that they had been smoking before leaving

The defendant's only witness was his father. The judge made no
credibility findings about the father.
9
The one-week rental agreement was dated June 4, 2013.
Therefore, by the time of the traffic stop, the vehicle should
have been returned at least two weeks earlier. The motion judge
did not credit testimony to the effect that the defendant had
extended the agreement by telephone, where he produced no
documentation in support of the claim.
 15

Burrell Street. The passenger produced a Massachusetts

identification card but no driver's license, and was cited for

failure to wear a seat belt.

In the course of this preliminary investigation, Dodd

formed the opinion that the defendant was operating a motor

vehicle while under the influence of marijuana, and that his

driving was impaired as a result. Dodd concluded that he would

not permit the defendant to resume operation of the vehicle,

because he determined that to do so would create a danger to the

public. Without having yet decided whether he would make an

arrest, Dodd ordered the defendant out of the vehicle in order

to further assess his intoxication level. No field sobriety

tests were performed.

At this time, Dodd also decided to have the vehicle towed

and impounded for safekeeping. He deemed the tow necessary

because neither the defendant nor the passenger could safely

operate the vehicle; the expired rental agreement created some

question whether the defendant had lawful authority to operate

the vehicle; and leaving the vehicle unattended in the stop's

location could have left it vulnerable to larceny, given the

known prevalence of break-ins in the area.

When the defendant stepped out of the vehicle, Dodd

observed him to be approximately six feet, five inches tall and

300 pounds. Dodd asked the defendant to step to the rear of the
 16

vehicle for a patfrisk, which yielded nothing. Dodd then

informed the defendant that the officers would begin an

inventory search of the vehicle.

By this time, Boston police Sergeant Paul Quinn had arrived

on scene to assist. Dodd observed in the passenger's open purse

a glass pipe, which he knew to be used in the smoking of

marijuana. He also saw in the purse a box of sandwich bags of

the kind used in street-level drug distribution. Inside the

box, officers found a thumbtack, which they knew to be used to

break off pieces of "crack" cocaine; they also observed a white

residue on the tack's metal point.

As Dodd and Quinn performed the search, Hunter stood with

the defendant. Through the silky material of the defendant's

shirt, Hunter perceived several bumps protruding from the front

shirt pocket. When Hunter asked the defendant what they were,

the defendant shoved Hunter and ran from the scene. All three

officers gave chase, shouting the command to stop.

Crossing Norfolk Avenue, the defendant approached a field.

The officers observed him reach into his pocket and throw items

on the ground before they were able to overtake him in the

field. As they attempted to handcuff the defendant, he ignored

orders to comply, pushed Hunter away, and kept one hand

underneath his body. During this struggle, the defendant spat

from his mouth a small, knotted plastic bag containing crack
 17

cocaine. Dodd struck the defendant's face while holding a

flashlight, and the blow lacerated the defendant's nose and

subdued him such that the officers were able to handcuff and

arrest him.

Retracing their steps along the path of flight, officers

later recovered keys to the defendant's vehicle and seventeen

bags of crack cocaine. These small bags were distinctively

knotted like the one the defendant had spat from his mouth, and

consistent with the packaging officers knew to be used in

street-level sales. A close-up photograph of the defendant at

booking revealed glassy eyes and an intoxicated appearance

consistent with Dodd's initial impression.

The motion judge denied the defendant's motion to suppress,

concluding that the officers had reasonable suspicion for the

traffic stop and probable cause to arrest the defendant for

operating a motor vehicle while under the influence; the search

of the vehicle was a lawful inventory search; it was properly

conducted within the scope of the Boston police motor vehicle

inventory search policy; and the bags of crack cocaine were

properly seized as abandoned by the defendant.

The defendant challenges the denial of his motion to

suppress, arguing that the evidence was obtained in violation of

his rights under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of
 18

Rights. Specifically, he contends that the inventory search was

pretextual and investigatory, and that any evidence subsequently

seized is thus fruit of the poisonous tree.10,11 In reviewing a

ruling on a motion to suppress, we accept the judge's findings

of fact absent clear error, but review independently the judge's

ultimate findings and conclusions of law. Commonwealth v.

Campbell, 475 Mass. 611, 615 (2016).

Although a well-established exception to the warrant

requirement, an inventory search must hew closely to written

police procedures and may not conceal an investigatory motive.

See South Dakota v. Opperman, 428 U.S. 364, 376 (1976);

Commonwealth v. Rostad, 410 Mass. 618, 620 (1991). The

lawfulness of an inventory search turns on the threshold

propriety of the vehicle's impoundment, and the Commonwealth

bears the burden of proving the constitutionality of both. See

10
The defendant does not contest that police had reasonable
suspicion for the initial traffic stop. "Erratic" driving that
violates the civil motor vehicle code may give rise to a
reasonable suspicion that a driver is impaired, permitting an
investigatory stop. Commonwealth v. Daniel, 464 Mass. 746, 756
(2013). The motion judge explicitly credited the entirety of
Officer Dodd's testimony, which included observations of the
defendant's vehicle traveling on the wrong side of Norfolk
Avenue. It was 2 A.M., and police reasonably suspected driver
impairment. Id.
11
The defendant also contends that the police lacked
reasonable suspicion for the exit order and patfrisk. Because
the patfrisk yielded no evidence, and because the determination
to inventory the vehicle coincided with the exit order and
preceded the patfrisk, we do not address this argument.
 19

Commonwealth v. Eddington, 459 Mass. 102, 108 (2011);

Commonwealth v. Ellerbe, 430 Mass. 769, 772-774 (2000).

We have recognized three separate interests protected by

warrantless inventory searches: "the protection of the vehicle

and its contents; the protection of the police and the tow

company from false charges; and the protection of the public

from the dangerous items which might be in the vehicle."

Eddington, 459 Mass. at 108-109, quoting Commonwealth v. Garcia,

409 Mass. 675, 682 (1991). Against this backdrop, "[t]he

impoundment of a vehicle for noninvestigatory reasons is

generally justified if supported by public safety concerns or by

the danger of theft or vandalism to a vehicle left unattended."

Eddington, supra at 108, quoting Commonwealth v. Brinson, 440

Mass. 609, 612 (2003).

Boston police department rule 103, § 31, provides for

disposition of a vehicle in one of four ways:

"1. leave it with a person having apparent authority to
assume control of it; or

"2. park it legally, close the windows, lock it, if
possible, and attempt to notify the registered owner; or

"3. leave it at the side of the road with windows closed
and locked, if possible, if traffic is not obstructed and
arrangements can be made for its removal without undue
delay; or

"4. have it towed for safekeeping."

The department's motor vehicle inventory search policy further
 20

provides: "A vehicle will be disposed of in the manner

authorized in paragraph 4, when there is a danger to public

safety; a danger to the vehicle being left unattended; a danger

of theft or vandalism; or the possibility of false claims

exists. Therefore, an [i]nventory [s]earch will be performed."

Because officers had determined that neither the defendant

nor the passenger could safely operate the vehicle, the first

option was unavailable. Similarly, neither the second nor the

third option was viable given the circumstances. See Eddington,

459 Mass. at 110 (impoundment and inventory search of vehicle

parked on public street and vulnerable to larceny was

reasonable, where defendant had been arrested and passenger was

intoxicated). See also Ellerbe, 430 Mass. at 775-776 (same,

where defendant arrested and passenger not in possession of

driver's license). Contrast Commonwealth v. Oliveira, 474 Mass.

10, 15-16 (2016) (impoundment unreasonable where vehicle could

safely be left in parking lot for owner's retrieval).

We entrust credibility determinations to the motion judge,

Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and

discern no error in her finding that the inventory search was

not pretextual. Because the impoundment and attendant inventory

search were reasonable in scope and complied with written

policy, no basis exists for the defendant's argument that the
 21

evidence later seized was fruit of the poisonous tree.12

b. Motion for required finding of not guilty on assault

and battery charge. The evidence at trial was substantially the

same as at the evidentiary hearing on the motion to suppress,

augmented by the testimony of Officer Hunter and Sergeant Quinn,

Boston police Officer Robert England, the defendant, and the

defendant's father.13 The defendant argues that his motion for a

required finding of not guilty on the charge of assault and

battery on a police officer should have been allowed. In

reviewing the denial of a motion for a required finding of not

guilty, we view the evidence in the light most favorable to the

Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979). The defendant asks instead that we credit his testimony

on self-defense. Because this view improperly casts the

12
Where we conclude that the judge correctly denied the
motion to suppress, we need not address the Commonwealth's
challenge to the stay of the sentence, which was based on the
sentencing judge's evaluation of the likelihood that the
defendant would prevail on appeal regarding the motion to
suppress. We note, however, that the judge erred in evaluating
the likelihood of success of the appeal regarding the denial of
the motion to suppress by relying on the evidence presented at
trial, rather than the evidence presented at the motion to
suppress hearing. See Commonwealth v. Grandison, 433 Mass. 135,
137 (2001) (when reviewing motion to suppress after trial, judge
is limited to considering testimony at hearing on motion to
suppress).
13
England did not investigate the defendant's case, instead
testifying as a drug expert that eighteen individually packaged
bags of crack cocaine were unlikely to have been for personal
use.
 22

evidence in the light most favorable to the defendant, we

decline to adopt it. Hrycenko v. Commonwealth, 459 Mass. 503,

510-511 (2011). Viewed in the light most favorable to the

Commonwealth, Officer Hunter's testimony that the defendant

pushed him after he asked about the bumps in the defendant's

shirt pocket was sufficient to support the conviction of assault

and battery on a police officer. See Commonwealth v. Deane, 458

Mass. 43, 52 (2010) (motion for required finding properly denied

where sufficient evidence supported jury's rejection of

defendant's version of events).

c. Self-defense instruction. Finally, the defendant

argues that his conviction of assault and battery on a police

officer must be reversed because the jury instructions on self-

defense impermissibly shifted the burden of proof to him. Where

the defendant raised no objection below, we review for a

substantial risk of a miscarriage of justice. Commonwealth v.

King, 460 Mass. 80, 85 (2011).

Here, the judge instructed to the effect that, if the jury

believed the defendant's testimony that police pushed him first,

the Commonwealth bore the burden of proving the absence of self-

defense beyond a reasonable doubt.14 She did not define

14
Specifically, the judge instructed as follows:

"Ladies and gentlemen, there's one additional point I
want to make on the charge of assault and battery on a
 23

reasonable self-defense, and the parties agree that her

instructions were thus incomplete.

"Where there is an erroneous jury instruction we review the

entire charge to the jury to determine the interpretation a

reasonable jury would place on the judge's words." King, 460

Mass. at 85. The instruction here, although erroneously

incomplete, did not prejudice the defendant by impermissibly

shifting the Commonwealth's burden to him. Instead, the judge's

prefatory language offered context for the instructions that

proceeded twice to state the correct burden of proof. Contrast

Commonwealth v. Mejia, 407 Mass. 493, 494-496 (1990)

(instruction that defendant had to show he had been assaulted as

police officer. I've told you that the second element is
that the defendant intended to touch and that the third
element is that the touching was either likely to cause
bodily harm to Officer Hunter or was done without his
consent.

"You have heard some testimony that the touching by
[the defendant] came after Officer Hunter pushed him. If
you believe that testimony, you may consider whether or not
[the defendant] acted in reasonable self-defense.

"So, if you find that the first pushing was done by
Officer Hunter and that [the defendant's] response was
reasonable self-defense, it is up to the Commonwealth to
prove the absence of reasonable self-defense beyond a
reasonable doubt.

"So, if you believe that Officer Hunter pushed first,
and any response by the defense was reasonable, the
Commonwealth is obligated to prove beyond a reasonable
doubt the absence of reasonable self-defense on the part of
[the defendant]."
 24

"precondition to assert[ing] the defense of self-defense" was

prejudicial error); Commonwealth v. Harrington, 379 Mass. 446,

454-455 (1980) (instruction that "[s]elf-defense is available to

a defendant only under [certain] circumstances" and is never

"available" to aggressor was prejudicial error). Here, the jury

would have considered reasonable self-defense only if they first

believed the defendant's version of events ("If you believe that

testimony, you may consider whether or not [the defendant] acted

in reasonable self-defense"), which they were free to discredit.

This instruction created no substantial risk of a miscarriage of

justice.

3. Conclusion. For the foregoing reasons, the denials of

the motion to suppress and motion for a required finding of not

guilty are affirmed. The defendant's convictions are also

affirmed, but we remand to the Superior Court for resentencing

on the counts of possession of cocaine with intent to

distribute, pursuant to G. L. c. 94C, § 32A (c) and (d).

So ordered.