Commonwealth v. Neil E. Tom, Jr.

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-1511

COMMONWEALTH

vs.

NEIL E. TOM, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a Boston Municipal Court judge denied a motion to

suppress filed by the defendant, Neil Tom, Jr., a jury found him

guilty of driving with a suspended license. He appeals from the

denial of his motion to suppress and his conviction. We affirm.

Background. The motion judge's findings, as supplemented

by testimony from the suppression hearing transcript, show that

on October 3, 2020, at about 11:53 A.M., Officers Lorenzo Monzon

and Peter Lekaditis patrolled the Mattapan and Dorchester

section of Boston in a marked cruiser. While driving in

Dorchester along Norfolk Street, which had been the subject of

speeding complaints from the community, Officer Monzon spotted a

gray SUV missing a front registration plate approaching from the
opposite direction. Officer Monzon could "not remember whether

he noticed the person inside the SUV." Because Massachusetts

registration plates bearing green numbers do not have to be

affixed to the front of vehicles, Officer Monzon made a U-turn

and drove behind the SUV and verified that the plate numbers

were red -- indicating a motor vehicle violation for the missing

plate. Given the motor vehicle violation, Officer Monzon

signaled the SUV to stop with lights and siren, and the SUV

stopped in a bus lane. The officers walked up to the SUV, and

Officer Monzon told the defendant that he stopped him due to the

missing plate and asked for his license and registration. The

defendant produced the registration and a Massachusetts

identification card and said that his mother had the

registration plate on a car she just purchased. He said his

license had been suspended, and Officer Monzon verified the

suspension through a computer check.

At Officer Monzon's request, the defendant exited the

vehicle but was neither arrested nor handcuffed at this point.

The officers decided to tow the vehicle given the obstruction of

the bus lane, the defendant's license suspension, and the

absence of anyone else who could drive. The officers arrested

the defendant after finding a firearm and drugs in the SUV

during an inventory search in preparation for towing. A

complaint issued in connection with the incident.

2
The defendant filed a motion to suppress the evidence

obtained from the motor vehicle stop and included an allegation

that the stop was "motivated by race." In a supporting

memorandum of law, the defendant claimed that race was a

motivating factor because the motor vehicle offense was minor

and rarely enforced, the vehicle (a BMW) was a "potential flag

for discrimination," the stop was pretextual "where the police

were fishing for evidence," and a statistical analysis of the

officers' prior interactions with the public "raise[d] a strong

inference of racial discrimination." The motion judge

determined that the statistical analysis raised a reasonable

inference of racial profiling and conducted an evidentiary

hearing.

At the evidentiary hearing, the officers testified to the

details of the stop as summarized above, and the defense

presented statistical data as well as testimony from a college

professor "specializ[ing] in racial profiling broadly" with

particular "expertise in consumer racial profiling" or

"discrimination against shoppers of color." The defendant

presented several exhibits, including the professor's report on

the racial and ethnic disparities in traffic citations issued by

the officers involved in the stop. After considering the

testimony and exhibits, the judge denied the motion to suppress

in a memorandum of decision dated January 26, 2023.

3
The case proceeded to trial on August 17, 2023, with a

different judge presiding, and a jury found the defendant guilty

of driving with a suspended license and acquitted him of other

charges in connection with the motor vehicle stop.

Discussion. 1. Equal protection. When claiming a traffic

stop violated principles of equal protection, a defendant must

initially establish through the totality of the circumstances "a

reasonable inference that the officer's decision to initiate the

stop was motivated by race or another protected class."

Commonwealth v. Long, 485 Mass. 711, 713 (2020). The defendant

"must produce evidence upon which a reasonable person could rely

to infer that the officer discriminated on the basis of the

defendant's race or membership in another protected class.

Conclusive evidence is not needed." Id. at 723-24. If the

defendant meets the initial burden of showing an inference of

discrimination, then the burden shifts to the Commonwealth to

rebut that inference, and the Commonwealth cannot merely rely on

the validity of the traffic violation as the reason for the

stop. Id. at 724, 726. The Commonwealth must "grapple with all

of the reasonable inferences and all of the evidence that a

defendant presented, and would have to prove that the stop was

not racially motivated." Id. at 726. On appeal, we review

"whether there was error in the judge's conclusion that the

Commonwealth met its burden of rebutting an inference of

4
selective enforcement by articulating an adequate, race-neutral

reason for the stop." Commonwealth v. Robinson-Van Rader, 492

Mass. 1, 16 (2023). We discern no error.

Denying the motion to suppress, the judge concluded, "Upon

considering the totality of the circumstances, the Commonwealth

proved by a preponderance of evidence, that this stop was not

motivated by race. In addition, the actions occurring after the

initial stop, once they learned that the [d]efendant did not

have a valid license and had pulled over in a bus lane, were not

motivated by race." The record before us shows that the judge

based these conclusions on a careful review and weighing of the

evidence presented. Unpersuaded by the professor's testimony,

the judge found the statistical analysis relied on benchmarking

data for the entire city of Boston rather than the Mattapan and

Dorchester neighborhoods being patrolled by the officers and

failed to consider traffic on the road in question, the

particular shift assignments of each officer, the number of

verbal warnings made by the officers in contrast to the number

of citations issued, and the effect, if any, that the pandemic

shutdown played on skewing data collected on the number of

motorists on the roads and the number of tickets issued.

Additionally, the judge found that the professor's analysis did

not account for evidence that the officers were specifically

assigned to address traffic enforcement, witnessed an

5
infraction, and were not simply running random license plate

checks. The judge further found that before initiating the

stop, the officers confirmed the color of the numbers on the

rear plate, and "the driver's race or skin color did not stand

out." Moreover, the judge found that the events that followed

the stop provided race-neutral reasons to search the SUV. See

Robinson Van-Rader, 492 Mass. at 23 ("There may be substantial

overlap between an inquiry into the reasonableness of a stop and

the officer's motivation for stopping a suspect"). Giving due

deference to the motion judge's evaluation of the weight of the

evidence presented, we discern no clear error. Id. at 9.

We also discern no error from the motion judge's legal

conclusions. To the extent that the defendant contends that the

Commonwealth can only meet its burden by presenting statistical

evidence of its own, we disagree. A judge must consider the

"totality of the circumstances," Long, 485 Mass. at 724-725,

which may include "the reasons the officer decided to target the

defendant." Robinson-Van Rader, 492 Mass. at 20. Without

relying on its own statistical evidence, the Commonwealth may

still meet its burden by showing race-neutral reasons for "the

sequence of events prior to the stop." Long, supra at 724.

See, e.g., Robinson-Van Rader, supra at 23-24 (Commonwealth met

burden without statistical evidence).

6
2. Evidence of suspension. The defendant raises one error

with respect to the trial. He contends that the Commonwealth

offered inadmissible hearsay to prove that the defendant's

license had been suspended, and the defendant's admission on the

roadside is insufficient to prove his guilt without

corroboration. Here, both officers testified that the defendant

admitted his license had been suspended, a fact verified through

a computer check. Because the defendant lodged no objection to

the testimony, we review only to determine whether an error

created a substantial risk of a miscarriage of justice.

Commonwealth v. Keevan, 400 Mass. 557, 562 (1987). Here, we

perceive no such risk.

We first address whether there was an error. We agree with

the defendant that the officers' testimony about the result of

the computer check constituted inadmissible hearsay. See

Commonwealth v. Royal, 89 Mass. App. Ct. 168, 169 (2016)

(hearsay where officer testified that he "ran . . . the

[defendant's driver] license number through the Registry of

Motor Vehicles" and it "came with a status of suspended"). We

disagree that his admission to the license suspension lacked

corroboration that a crime had been committed because the police

were percipient witnesses to the defendant driving the SUV. See

Commonwealth v. Costello, 411 Mass. 371, 375 (1991)

7
(corroboration rule "does not require corroboration of each

element of a crime").

Whether or not the admission of the evidence constituted an

error, the record reveals that the defendant did not object to

this testimony for evident strategic reasons. See Commonwealth

v. Delong, 72 Mass. App. Ct. 42, 46 (2008), citing Commonwealth

v. Beliard, 443 Mass. 79, 88-89 (2004). Through cross-

examination of the officers, the defendant sought to distance

himself from the firearm and drugs found in the SUV by

highlighting his courtesy and cooperation with the officers and

his candor about the license suspension. In closing argument,

defense counsel emphasized this theme of candor and cooperation

that would be logically inconsistent with someone who was aware

of a firearm and drugs stashed in the SUV with the police

standing nearby. See Commonwealth v. Pytou Heang, 458 Mass.

827, 852 (2011) ("Where inadmissible evidence is admitted

because of a defendant's reasonable tactical decision, there is

no substantial likelihood of a miscarriage of justice"). We

also note that this strategy met with success as the jury

acquitted the defendant of the possession offenses connected

with the SUV. Thus, we discern no substantial risk of a

miscarriage of justice.

Judgment affirmed.

8
By the Court (Singh,
D'Angelo & Hodgens, JJ. 1),

Clerk

Entered: August 18, 2025.

1 The panelists are listed in order of seniority.

9