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15-P-44                                               Appeals Court

                COMMONWEALTH   vs.   SEAN BRANTLEY.



                        August 18, 2016.


Arrest. Constitutional Law, Arrest, Investigatory stop, Stop
     and frisk, Assistance of counsel, Search and seizure.
     Search and Seizure, Arrest, Inventory, Automobile. Name.
     Practice, Criminal, Motion to suppress, Required finding,
     Instructions to jury, New trial, Assistance of counsel.


     The defendant, Sean Brantley, appeals from the judgments
after his convictions by a Superior Court jury of possession of
cocaine and furnishing a false name to a law enforcement
officer.1 The defendant contends that (1) his motion to suppress
evidence should have been allowed; (2) the evidence was
insufficient to establish beyond a reasonable doubt the elements
of furnishing a false name; (3) the jury instructions on
furnishing a false name were incorrect; and (4) defense counsel
was ineffective because he improperly conceded the defendant's
guilt to furnishing a false name. We discuss the facts where
relevant.

     1. Motion to suppress. The defendant filed a motion to
suppress evidence on the grounds that the search and seizure of

     1
       A grand jury indicted the defendant for possessing cocaine
with intent to distribute, subsequent offender; operating a
motor vehicle with a suspended license; furnishing a false name
to a law enforcement officer; and refusing to submit to a police
officer. At the close of the Commonwealth's case, the judge
allowed the defendant's motion for required findings of not
guilty on the charges of operating with a suspended license and
refusing to submit to a police officer.
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the defendant and his vehicle were not based on reasonable
suspicion or probable cause. After an evidentiary hearing, the
motion judge denied the motion and made the following findings:

    "In this matter, Commonwealth vs. Sean Brantley, the court
    finds Sgt. Toledo credible. I credit his testimony in its
    entirety. I adopt his testimony as the court's findings of
    fact. Based on those findings, I find that Sgt. Toledo
    ha[d] reasonable suspicions, based on specific and
    articulated facts, to stop the motor vehicle for its
    failure to stop for a stop sign.

    "I then find significantly that the officer on multiple
    occasions ordered the defendant to stop and that the
    defendant, in fact, fled from that particular location.

    "Consequently, I find that the search of his person was a
    valid search, incident to arrest, and that the inventory
    search was similarly valid, consistent with the written
    inventory policy of the Springfield Police Department."2

     The defendant argues that he did not commit an arrestable
offense and therefore the search could not be justified as a
search incident to arrest. Here, the initial stop of the
defendant's vehicle was valid as a routine traffic stop. The
stop was no longer routine once the defendant, after stopping,
backed up the vehicle three to five feet in the direction of the
officer. The officer could see the defendant staring at him in
the rearview mirror. Only when the officer activated two bursts
from his air horn did the defendant fully stop. The defendant
then "leapt" out of the vehicle. The officer immediately
ordered him back into the vehicle, but the defendant refused to
comply, and ran from the scene.

     Failure to stop a vehicle when ordered to do so by a police
officer is an arrestable offense. See G. L. c. 90, §§ 21 and
25. The defendant attempts to escape the application of § 25 by
arguing that he was no longer inside the automobile when ordered
to stop. The Supreme Judicial Court has held, however, that the
phrase "operating or in charge of a motor vehicle" in § 25
"connotes active control of a vehicle by a driver placed either
in the vehicle or in such physical proximity that he might drive

    2
       We accept the motion judge's findings of fact unless
clearly erroneous; credibility determinations are him to decide.
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 436-437
(2015).
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away." Commonwealth v. Schiller, 377 Mass. 10, 12 (1979).
Furthermore, the defendant's operation of the vehicle, backward
toward the officer after being pulled over, established probable
cause to support arrest for this offense. The motion to
suppress was properly denied.

     2. Sufficiency of the evidence: furnishing a false name.
Defense counsel conceded in his opening statement that the
defendant provided the police with a false name. The defendant
argues, however, that his motion for a required finding on this
charge should have been allowed because he provided the false
name prior to his arrest, while the statute contains the phrase
"following an arrest." G. L. c. 268, § 34A. A rational jury
could have found that the defendant furnished a false name
beginning with his capture and extending through the booking
procedure. Therefore, even if an arrest is viewed as occurring
only after a formal arrest and not at the point of seizure with
probable cause, the elements of the statute have been satisfied.
Moreover, as with the crime of resisting arrest, the appropriate
question is not whether there had been a formal arrest, but
rather, whether a reasonable person in the defendant's
circumstances would have understood that he was under arrest.
Cf. Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008).

     3. Jury instruction: furnishing a false name. The
defendant claims that the jury instruction was incorrect because
it did not distinguish between the use of the false name prior
to arrest and the use of the false name after arrest. The
defendant ignores the fact that the trial judge gave the model
jury instructions almost verbatim and they were correct. Even
if the instructions were incorrect, where the defendant conceded
this crime, any error would not create a substantial risk of a
miscarriage of justice.

     4. Ineffective assistance of counsel. The defendant
claims that trial counsel was ineffective for conceding guilt on
the charge of furnishing a false name. "In order to prevail on
his claim for ineffective assistance of counsel, the defendant
bears the burden of showing that (1) there has been 'behavior of
counsel falling measurably below that which might be expected
from an ordinary fallible lawyer' and (2) that 'it has likely
deprived the defendant of an otherwise available substantial
ground of defence.'" Commonwealth v. Sylvain, 466 Mass. 422,
437 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89,
96 (1974). Although the defendant brings this claim in its
weakest form, i.e., "on the trial record alone," Commonwealth v.
Peloquin, 437 Mass. 204, 210 n.5 (2002), it is apparent from the
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record that this was a tactical choice by trial counsel. We
cannot say on this record that this choice was inherently
ineffective. "As a tactical decision, counsel may well concede
guilt on a less serious offense in an effort to persuade the
jury to mitigate punishment by acquitting on the more serious
offense." Commonwealth v. Durakowski, 58 Mass. App. Ct. 92, 93
(2003). Here, trial counsel focused on the intent element of
the drug charge, and spared the defendant a conviction of the
more serious charge. As demonstrated by his closing argument,
trial counsel argued that the defendant was being forthright in
admitting to cocaine possession and to furnishing a false name.
The tactic appears to have been reasonable and it was
successful. The defendant was facing a significant sentence if
he was convicted of possession of cocaine with intent to
distribute as a subsequent offender. Counsel was not
ineffective. Cf. Commonwealth v. Stoute, 10 Mass. App. Ct. 932,
933 (1980) (reasonable trial tactic to concede guilt of assault
charge in effort to persuade jury to acquit defendant of
kidnapping).

                                   Judgments affirmed.


     Victoria L. Nadel for the defendant.
     Thomas H. Townsend, Special Assistant District Attorney,
for the Commonwealth.
