Commonwealth v. Xavie X.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-988

COMMONWEALTH

vs.

XAVIE X.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted as a youthful offender in the Juvenile Court, the

juvenile appeals from his convictions and the denial of his

motion to suppress. Following a trial, a jury found him guilty

of armed robbery (G. L. c. 265, § 17), assault and battery with

a firearm (G. L. c. 265, § 15E [a]), carrying a firearm without

a license (G. L. c. 269, § 10 [a]), assault and battery by means

of a dangerous weapon (G. L. c. 265, § 15A [b]), and witness

intimidation (G. L. c. 268, § 13B). On appeal, he contends that

the motion judge failed to suppress evidence from an unlawful

investigatory stop, and he contends that the trial judge erred

regarding identification evidence and a related jury

instruction. We affirm.
Background. As more fully set forth in the discussion

below, the juvenile is one of two people apprehended following a

shooting that occurred in Quincy at about 1:15 P.M., on March

17, 2017. After police officers responded to a report of shots

fired around Santander Bank on Hancock Street, Trooper Michael

Best, armed with a description of the suspects, found the

juvenile and his companion in a nearby parking garage and

engaged them in a brief conversation. When the trooper

attempted to patfrisk the juvenile, he dropped the backpack

(exposing the handle of a firearm inside), jumped off the second

floor of the parking garage, and fled. Officers later

apprehended him.

Discussion. 1. Threshold inquiry. "In reviewing a ruling

on a motion to suppress, our duty is to make an independent

determination of the correctness of the judge's application of

constitutional principles to the facts as found." Commonwealth

v. Mercado, 422 Mass. 367, 369 (1996). Here, the judge

concluded that Trooper Best had a reasonable suspicion to

conduct an investigatory stop and subsequent frisk of the

juvenile. On appeal, the juvenile takes no issue with the

judge's findings of fact but contends that the evidence did not

justify the stop or the frisk. We discern no error.

We disagree with the juvenile's contention that Trooper

Best's conversation in the parking garage constituted a seizure.

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"[P]olice do not effect a seizure merely by asking questions

unless the circumstances of the encounter are sufficiently

intimidating that a reasonable person would believe he was not

free to turn his back on his interrogator and walk away."

Commonwealth v. Fraser, 410 Mass. 541, 544 (1991). See

Commonwealth v. Nestor N., 67 Mass. App. Ct. 225, 228 (2006)

(police conversation with juvenile did not constitute seizure).

While "the age of a juvenile suspect, if known to the officer or

if objectively apparent to a reasonable officer, will be part of

the totality of the circumstances relevant to whether the

juvenile was seized under art. 14 of the Massachusetts

Declaration of Rights," Commonwealth v. Evelyn, 485 Mass. 691,

693 (2020), we discern nothing from the record to suggest that

the trooper used his police power to coerce the juvenile to stay

in the parking garage and speak with him. To the contrary, the

record suggests that the juvenile engaged in the conversation in

an effort to throw the trooper off the trail by saying the pair

were coming from Quincy College.

Even if the conversation with the juvenile was sufficiently

coercive to render it a seizure, something we do not conclude,

Trooper Best had ample justification for conducting an

investigative stop based on a reasonable suspicion that the

juvenile and his companion were engaged in criminal activity.

See Mercado, 422 Mass. at 369. See also Terry v. Ohio, 392 U.S.

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1, 21 (1968). Officers responded to a report of shots being

fired near the bank, and they found a bullet hole in a window

and broken glass in the building next to the bank. One witness

at the scene said "two or three males" ran from behind a

building, and a second witness, who also saw "two or three

males," provided a detailed description of one (a white male

suspect wearing black clothing and carrying a backpack and a

silver handgun). A third witness provided a similar description

of two male suspects (one with a dark complexion and one white

or Hispanic with a backpack), saw the suspect with the backpack

drop an object and put it in his waistband, and noted they

jogged together toward a parking garage. Responding to the

descriptions and probable escape route of the suspects, Trooper

Michael Best went to the parking garage and spotted two suspects

clothed in black (one "black male" and one "white male" with a

backpack), generally matching the physical description, emerge

from a second-floor stairwell. Thus, based on the interception

of possible suspects along their escape route, Trooper Best had

"sufficient articulable facts" to warrant an investigative stop

of these two individuals. Mercado, 422 Mass. at 370 n.1.

Failure to make an inquiry on these facts "would have been poor

police work indeed." Mercado, 422 Mass. at 370, quoting Terry,

392 U.S. at 23.

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Rather than dispelling suspicions, the trooper's

conversation with the suspects and his observations justified a

patfrisk. Upon questioning by the trooper, the white male

suspect said that they were coming from Quincy College, but

neither could produce college identification. The white male

suspect, however, did produce a debit card with the juvenile's

name on it. During the brief conversation, both suspects

continually looked around, placed their hands in their pockets,

and looked nervous. When asked if they had weapons, the

juvenile's companion acknowledged that he had a knife, and the

juvenile did not respond. Trooper Best became concerned for his

safety and asked about the contents of the backpack, and the

juvenile replied that it was not his. After Trooper Best asked

to look inside the backpack, the juvenile backed away, turned

the backpack from view, and placed his hands in his pockets.

Given the nature of the crime under investigation, the

inconsistent answers to questions, the acknowledgement of the

companion that he was armed, the juvenile's unanswered question

about being armed, the nervous demeanor, and the concealing of

hands in pockets, Trooper Best had a "reasonable suspicion that

the suspect [was] armed and dangerous." Commonwealth v. Torres-

Pagan, 484 Mass. 34, 36 (2020). Because we conclude that the

trooper had the requisite reasonable suspicion, we need not

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address the judge's alternative conclusion that the juvenile

abandoned the backpack.

2. Identification evidence. Prior to trial, the parties

filed competing motions in limine with respect to Officer

Stephen Cleary making an in-court identification of the

juvenile. The trial judge denied the defense motion and allowed

the Commonwealth's motion. The evidence at trial showed that

Officer Cleary ran up the parking garage ramp and saw the

juvenile flee from Trooper Best and suddenly disappear by

jumping off the second floor of the parking garage. Officer

Cleary looked over the garage wall and saw the juvenile running

down the street about thirty feet below. Later, Officer Cleary

went to another location less than a mile away and identified

the juvenile, who had been apprehended, as the person he saw

disappear from the parking garage. Over an objection, Officer

Cleary identified the juvenile in court as the person who was in

custody.

On appeal, the juvenile contends that the judge erred by

allowing Officer Cleary to identify him in court. He argues

that the in-court identification was irrelevant and unduly

prejudicial. He further argues that because the showup was

suggestive, the in-court identification was rendered

inconsistent with Commonwealth v. Crayton, 470 Mass. 228, 242

(2014) (requiring "good reason" for admitting in-court

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identification without prior out-of-court nonsuggestive

identification). We discern no error as we rejected a similar

claim in Commonwealth v. Matos, 95 Mass. App. Ct. 343, 350

(2019), where an officer who "was not an eyewitness to the crime

and had no firsthand knowledge of the perpetrator's identity"

was properly allowed to testify that the juvenile was the man

the police arrested. We also note that unlike the situation

here, Crayton applies to a "first-time in-court identification"

and does not, as the juvenile implies, prohibit out-of-court

showups. Crayton, 470 Mass. at 235, 238 ("suggestiveness alone

is not sufficient to render a showup identification

inadmissible").

3. Identification jury instruction. Finally, we discern

no error and no substantial risk of a miscarriage of justice

stemming from the jury instruction on identification evidence.

As the juvenile concedes, the judge's instruction "largely

mirrors the model jury instruction." For the first time,

however, he contends that with respect to Officer Cleary's

testimony the judge erred by not including optional instructions

from the model regarding (1) a photographic array or lineup and

(2) multiple identification procedures.

These optional instructions would not have assisted and may

have confused the jury when evaluating Officer Cleary's

testimony because he did not view an array or a lineup, and he

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only participated in one pretrial identification. See Model

Jury Instructions on Eyewitness Identification, 473 Mass. 1051

(2015) (optional instructions "need only be given under the

circumstances described"). With respect to the evidence

presented, we also note the judge cautioned that a showup may be

particularly suggestive, that witnesses may be truthful but

mistaken, that witnesses may have greater difficulty identifying

persons of other races or ethnicities, and that witnesses may

have been influenced by other information in making an

identification. The judge's fulsome instructions on

identification, which carefully discussed numerous factors to

consider when evaluating identification evidence, enabled jurors

"to capably evaluate the accuracy" of Officer Cleary's

identification and echoed similar factors in the optional

instructions. Commonwealth v. Gomes, 470 Mass. 352, 365 (2015).

Order denying motion to
suppress affirmed.

Judgments affirmed.

By the Court (Blake, C.J.,
Walsh & Hodgens, JJ.1),

Clerk

Entered: November 26, 2024.

1 The panelists are listed in order of seniority.

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