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15-P-948                                             Appeals Court

             COMMONWEALTH   vs.   BRADLEY J. ST. GEORGE.


                            No. 15-P-948.

           Norfolk.      April 14, 2016. - July 22, 2016.

              Present:   Green, Trainor, & Milkey, JJ.


Controlled Substances. Constitutional Law, Investigatory stop,
     Reasonable suspicion. Threshold Police Inquiry. Search
     and Seizure, Threshold police inquiry, Reasonable
     suspicion. Practice, Criminal, Assistance of counsel,
     Plea.



     Complaint received and sworn to in the Quincy Division of
the District Court Department on May 17, 2010.

     A pretrial motion to suppress evidence was heard by Kevin
J. O'Dea, J.; the case was tried before Robert P. Ziemian, J.,
and a motion for postconviction relief, filed on March 26, 2014,
was heard by him.


     Dana Alan Curhan for the defendant.
     Susanne M. O'Neil, Assistant District Attorney, for the
Commonwealth.


     TRAINOR, J.   The defendant, Bradley J. St. George, appeals

his convictions of distribution of a class D substance, see

G. L. c. 94C, § 32C, and violating the drug laws near a school
                                                                       2


zone or park, see G. L. c. 94C, § 32J.    The defendant contends

that the judgments should be reversed for three reasons.      First,

the defendant argues that his motion to suppress should have

been allowed.   Second, the defendant maintains that the evidence

was insufficient to support his convictions.     Third, the

defendant claims that the trial judge erred in denying his

motion for new trial because his trial counsel deprived him of

effective assistance of counsel.    We affirm.

     Background.   The defendant challenges the motion judge's

decision on his motion to suppress, as well as the sufficiency

of evidence at trial.    We will, therefore, first summarize the

evidence presented at the hearing on the motion to suppress.      We

will then summarize the additional evidence presented at trial.

     On May 14, 2010, at approximately 7:45 P.M., Quincy police

Detectives William O'Brien and Dennis Keenan were working in the

drug control unit.    Detective O'Brien noticed a man, later

identified as Robert Fitzmorris, standing in front of an

apartment building.    He talked on his cellular telephone, then

sat in front of the building and appeared to be waiting.

Detective O'Brien placed him under surveillance and contacted

Detective Keenan for assistance.    Less than one minute later,

Detective O'Brien observed a vehicle, driven by the defendant,

pick up Fitzmorris.    Detective O'Brien followed the defendant as

he drove into the parking lot of the St. Mary School and stopped
                                                                     3


next to a gray Mitsubishi automobile. 1   At this point, Detective

Keenan picked up surveillance of the automobile and the two men.

Detective Keenan observed Fitzmorris leave the defendant's

vehicle with a big, brown paper bag in his hand.    Fitzmorris

entered his vehicle, the gray Mitsubishi, while the defendant

drove back in the direction that Detective O'Brien had driven.

     Because Detective Keenan believed he had witnessed a street

level drug transaction, he drove his cruiser into the parking

lot and approached Fitzmorris on foot, displaying his police

badge. 2   Fitzmorris put his vehicle in gear and "sped" out of the

parking lot.    Detective O'Brien also witnessed Fitzmorris

apparently attempt to flee.    A short distance away, Detective

Keenan stopped Fitzmorris.    Detective Keenan asked Fitzmorris if

he had just purchased drugs, to which he responded "only weed."

Detective Keenan seized the marijuana and radioed Detective

O'Brien to inform him that he had recovered approximately one

pound of marijuana.

     When Detective O'Brien saw Fitzmorris flee, he followed the

defendant.    At a red traffic light, he stopped in front of the

defendant, got out of his vehicle, displayed his badge, and told

the defendant to turn off his vehicle.    Detective O'Brien could

     1
       The parking lot was about one hundred yards from where the
defendant picked up Fitzmorris.
     2
       Both detectives were in unmarked police cruisers and plain
clothes.
                                                                      4


see the defendant had a large sum of money in his right hand and

that he appeared nervous and was looking around.     The defendant

also appeared to be attempting to hide the money he had in his

hand.     Detective O'Brien ordered the defendant to turn off his

vehicle again, and he repeated this order several more times.

The defendant failed to comply, prompting Detective O'Brien to

reach into the vehicle and turn it off himself.     Detective

O'Brien then put the defendant in handcuffs and had him sit on

the sidewalk.     When Detective Keenan radioed Detective O'Brien

and reported that he had recovered approximately one pound of

marijuana from Fitzmorris, Detective O'Brien placed the

defendant under arrest.     While conducting an inventory search of

the defendant's vehicle, Detective O'Brien found $700 in the

center console and $110 in the defendant's wallet (in addition

to the $1,000 found in his hand when he was stopped). 3   Detective

O'Brien also found "cuff sheets" showing names and money owed,

and a bank receipt showing the defendant had a bank balance of

$74,000. 4

        The testimony of Detectives Keenan and O'Brien at trial was

substantially similar to their testimony at the suppression


     3
       Detective O'Brien testified that the street price of one
pound of marijuana was from $700 to $3,000 and that $1,000 was
sufficient to purchase one pound. He also testified that the
brown paper bag was consistent with marijuana packaging.
     4
         The defendant claimed at booking that he was unemployed.
                                                                       5


hearing. 5   An engineer for the city of Quincy testified that the

parking lot at St. Mary School is part of school property.

Weymouth police Detective Robert Gervasi testified as an expert

witness on marijuana, cuff sheets, and street level

distribution.

     Discussion.    1.   Motion to suppress.   The defendant argues

that his motion to suppress should have been allowed because the

detectives lacked sufficient justification to stop him and

because the stop exceeded the scope of threshold inquiry. 6     When

reviewing a motion to suppress, "we adopt the motion judge's

factual findings absent clear error."     Commonwealth v. Isaiah

I., 450 Mass. 818, 821 (2008), citing Commonwealth v. Catanzaro,

441 Mass. 46, 50 (2004).     Although we give the facts found by

the motion judge deference, we "independently determine whether

the judge correctly applied constitutional principles to the

facts as found."    Ibid.   "An investigatory stop of a motor

vehicle is appropriate when police have 'a reasonable suspicion,

based on specific, articulable facts and reasonable inferences

therefrom, that an occupant of the . . . vehicle had committed,

was committing, or was about to commit a crime.'"     Commonwealth

     5
       Detective O'Brien testified at trial that the cuff sheet
he found in the defendant's car contained a notation for "Bob"
and "1,000" with the number "3,000" crossed out.
     6
       The defendant maintains that the stop was the functional
equivalent of an arrest and required a showing of probable
cause. See note 7, infra.
                                                                     6


v. Gorman, 84 Mass. App. Ct. 482, 485 (2013), quoting from

Commonwealth v. Alvarado, 423 Mass. 266, 268 (1996).   The

actions of the police "must be based on specific and articulable

facts and reasonable inferences therefrom, in light of the

officer's experience."   Commonwealth v. Wilson, 441 Mass. 390,

394 (2004).   We view the "facts and inferences underlying the

officer's suspicion . . . as a whole when assessing the

reasonableness of his acts."    Commonwealth v. Thibeau, 384 Mass.

762, 764 (1981).   "Seemingly innocent activities taken together

can give rise to reasonable suspicion justifying a threshold

inquiry."   Commonwealth v. Watson, 430 Mass. 725, 729 (2000).

An inference "need only be reasonable and possible; it need not

be necessary or inescapable."   Commonwealth v. Beckett, 373

Mass. 329, 341 (1977).   However, merely good faith or a hunch is

not enough to justify reasonable suspicion.   See Commonwealth v.

Grandison, 433 Mass. 135, 139 (2001).

     The motion judge correctly denied the defendant's motion to

suppress.   There were sufficient articulable facts and

reasonable inferences to justify reasonable suspicion that a

crime had been committed.   These consist of the following

observations by experienced police detectives:   Fitzmorris,

without any bag, made a telephone call, waited for the defendant

to pick him up, and took a short and suspicious drive around the

block with the defendant, ending up at Fitzmorris's car about
                                                                   7


one hundred yards away from where he was picked up; Fitzmorris

left the defendant's car with a bag; Fitzmorris fled the scene

when Detective Keenan approached showing his badge; and all of

this took place in a high crime area. 7

     While there was sufficient justification for an

investigatory stop, we must determine the appropriateness of its

scope.   The defendant argues that because he was ordered out of

the vehicle and handcuffed, the investigatory stop was actually

an arrest which necessitated probable cause.

     "The officers were permitted to take reasonable measures,

such as ordering him out of the vehicle in which he was sitting,

to ensure that he did not attempt to escape before they could

conduct a threshold inquiry."   Commonwealth v. Bostock, 450

Mass. 616, 622 (2008).   It was reasonable in the circumstances

for Detective O'Brien to order the defendant out of his vehicle


     7
       Contrary to the defendant's contention, the stop of the
defendant's vehicle required only reasonable suspicion, not
probable cause. See Commonwealth v. Alvarado, 423 Mass. at 268-
269; Commonwealth v. Depiero, 473 Mass. 450, 453-454 (2016);
Commonwealth v. Gorman, 84 Mass. App. Ct. at 485. We do not
characterize this as a "ride to nowhere" because the short trip
had a final destination of Fitzmorris's automobile. While
certainly not dispositive of criminal activity, standing alone,
Detective Keenan testified to the suspicious nature of the short
automobile trip when combined with the other attendant
circumstances present here. The detective testified that "they
go from the phone call, next the vehicle pulls up -- the person
in the vehicle again, that's nothing of itself but when it makes
a tiny little trip right around the block, one person gets out
and both guys are going their separate way, it just doesn't make
sense."
                                                                    8


and to handcuff him to prevent him from fleeing.    The defendant

had failed to respond to the repeated commands to turn off the

engine and looked in all directions suspiciously. 8,9   See

Commonwealth v. Moses, 408 Mass. 136, 143 (1990), quoting from

Commonwealth v. Blake, 23 Mass. App. Ct. 456, 460 (1987) ("We

think the police could act on a probability that the occupants

of the car, conscious of guilt and fearing imminent exposure,

would, unless blocked [or otherwise temporarily immobilized],

attempt flight, with danger to the public, the police racing in

pursuit, and the occupants themselves").    Accordingly, the

investigatory stop, as well as the subsequent actions of the

detective incident to the stop, were permissible and the motion

judge did not err in denying the defendant's motion to

suppress. 10   See Commonwealth v. Knight, 75 Mass. App. Ct. 735,


     8
       Also, Detective O'Brien had just observed Fitzmorris flee
when Detective Keenan attempted to stop him.
     9
       We also note that Detective O'Brien stopped in front of
the defendant's vehicle at a red traffic light before he got out
of his vehicle to perform the investigatory stop. This was
reasonable in the circumstances because Detective O'Brien was in
plain clothes and in an unmarked cruiser. He approached the
defendant's vehicle, on foot, displaying his badge.
     10
       Once Detective O'Brien heard on the radio from Detective
Keenan that he had recovered approximately one pound of
marijuana from Fitzmorris, the reasonable suspicion for an
investigatory stop was elevated to probable cause required for a
lawful arrest. "[P]robable cause exists where, at the moment of
arrest, the facts and circumstances within the knowledge of the
police are enough to warrant a prudent person in believing that
the individual arrested has committed or was committing an
                                                                    9


739 (2009) ("Contrary to the defendant's claim, his arrest was

not complete at the point when he was ordered out of the car or

even when he was handcuffed").

     2.   Sufficiency of the evidence.   The defendant maintains

that the evidence presented at trial was insufficient to convict

him of distribution of a class D substance.    Specifically, he

argues that the evidence presented at trial was as equally

compelling that he was the buyer of the marijuana as it was that

he was the seller of the marijuana.   This would result in making

the evidence insufficient to convict him of the distribution

charge.   The evidence, however, viewed in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979), only supported the theory that the

defendant was the seller.   This included:   Fitzmorris entering

the defendant's vehicle without a brown paper bag and getting

out of the vehicle with a brown paper bag (which was later found

to contain approximately one pound of marijuana) after a short

and suspicious ride around the block; the defendant was found

with $1,000 cash in his hand and a cuff sheet next to him, which

contained a notation for "Bob" and "1,000" with the number


offense." Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992).
The defendant also asserts that the stop of Fitzmorris was
illegal and evidence from that stop could not justify his own
stop and arrest. However, the defendant, in this case, does not
have standing to challenge the stop of Fitzmorris or the seizure
of evidence from him. See Commonwealth v. Santiago, 470 Mass.
574, 577-580 (2015).
                                                                   10


"3,000" crossed out; 11 as well as additional cash, but no

marijuana, found in the defendant's car.    Accordingly, the

motion for a required finding of not guilty was properly denied.

See ibid.

     3.    Ineffective assistance of counsel.   The defendant

claims that the trial judge erred in denying the defendant's

motion for new trial because his trial counsel deprived him of

the effective assistance of counsel.    Specifically, the

defendant argues that he would have accepted the Commonwealth's

plea offer if he had not been misled by trial counsel's

misrepresentations to him. 12   "We review the judge's denial of

the motion for a new trial for 'a significant error of law or

other abuse of discretion.'"    Commonwealth v. Forte, 469 Mass.

469, 488 (2014), quoting from Commonwealth v. Grace, 397 Mass.

303, 307 (1986).    The judge who decided the motion for new trial



     11
          As noted in the text, Fitzmorris's first name is Robert.
     12
       We note that the defendant only provided the trial judge
with a self-serving affidavit from himself. Trial counsel did
not provide an affidavit to verify the defendant's claims of
misrepresentation. The defendant claims that trial counsel was
overly optimistic about the defendant's chances for success at
trial. According to the defendant, trial counsel claimed that
even if unsuccessful at trial, the Appeals Court, based on the
panel's reaction at a purported oral argument, would "almost
certainly" reverse the order denying the motion to suppress, but
the panel reserved its decision pending the outcome of the
trial. However, a conforming interlocutory appeal brief was
never filed with the Appeals Court and therefore there was no
oral argument.
                                                                    11


was also the trial judge; his findings, therefore, are entitled

to "special deference."   Ibid.

     In order for a defendant to make a claim of ineffective

assistance of counsel in the plea context, the defendant must

show "serious incompetency of counsel (behavior falling

measurably below that which might be expected from an ordinary

fallible lawyer) and prejudice that, in this context, means a

'reasonable probability' that 'but for counsel's unprofessional

errors, the result of the proceeding would have been

different.'"   Commonwealth v. Mahar, 442 Mass. 11, 15 (2004),

quoting from Strickland v. Washington, 466 U.S. 668, 694 (1984).

Even assuming, arguendo, that the defendant could show serious

incompetency of counsel, 13 he is unable to show that he was

prejudiced.    In other words, he is unable to show that he would

have accepted the plea had counsel not made the errors the

defendant claims.   At the plea tender, counsel reported that the

loss of license was the driving force for the defendant's

rejection of the plea offer.      Because the loss of license was


     13
       We note that "the majority of cases in which courts have
sustained claims of ineffectiveness of counsel in the context of
plea bargaining have been based on the failure of counsel either
to communicate the government's plea offer to the defendant,
. . . or to explain its implications accurately (including the
difference between the sentence recommendation contained in the
offer and the maximum sentence that could be imposed on
conviction after trial)." Commonwealth v. Mahar, supra at 15-
16. The trial judge found neither of these circumstances in the
instant case.
                                                                  12


present regardless of counsel's alleged misrepresentations, and

because counsel accurately communicated the Commonwealth's plea

offer to the defendant as well as explained its implications,

the defendant has not shown prejudice requiring a new trial.

                                   Judgments affirmed.

                                   Order denying motion for new
                                     trial affirmed.
