Commonwealth v. Carlton Sheffield.

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-1357

COMMONWEALTH

vs.

CARLTON SHEFFIELD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in Superior Court, the defendant was

convicted of unlicensed possession of a firearm, in violation of

G. L. c. 269, § 10 (a), and unlicensed possession of a loaded

firearm, in violation of G. L. c. 269, § 10 (n).1 On the

defendant's appeal, we affirm.

1. Motion to suppress. The defendant argues that the

judge erred in denying his motion to suppress because the police

1The defendant was also convicted of unlawful possession of
ammunition, in violation of G. L. c. 269, § 10 (h) (1), but
after the verdict the judge dismissed that charge as duplicative
of the conviction for unlicensed possession of a loaded firearm.
The judge entered a required finding of not guilty on a charge
of possessing a Class D substance with the intent to distribute,
in violation of G. L. c. 94C, § 32C (a).
lacked reasonable suspicion to stop him. Because the officers

acted reasonably in responding to a volatile confrontation in

which there was robust evidence that at least one of the

potential combatants was armed, we conclude that the defendant's

motion to suppress was properly denied.

In reviewing a ruling on a motion to suppress evidence, we

accept the judge's findings of fact absent clear error and defer

to her assessment of the credibility of the testimony taken at

the evidentiary hearing. Commonwealth v. Scott, 440 Mass. 642,

646 (2004). "We review independently the application of

constitutional principles to the facts found" (quotation

omitted). Commonwealth v. Villagran, 477 Mass. 711, 713 (2017).

The facts found by the motion judge include the following.

On the afternoon of April 6, 2021, Sergeant Eric Merner observed

three men on the street engaged in a "very heated verbal

exchange." Two of the men were standing "shoulder to shoulder";

one was later identified as the defendant, and the other is

referred to as "Suspect No. 2." A third man was about 100 feet

away. Sergeant Merner could hear their voices as he was driving

by. He saw Suspect No. 2 waiving to the third man with his left

hand, while his right hand was stuck in his sweatshirt pocket

with a clear protrusion. The defendant was standing next to

Suspect No. 2 with his hands in his pockets, but "not in an

aggressive way." Sergeant Merner quickly parked and continued

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his observations. He testified, "[i]t was clearly a heated

verbal exchange just sort of -- that appeared to be kind of one-

sided with the two males shouting at -- or at least the voices

were coming from those two males in the direction of the third

male." He could not say which of the two men was speaking to

the third man, or whether more than one of them was speaking.

Based on his observations, Sergeant Merner was concerned that a

firearm might be involved, as he had previously seen similar

behavior and body movements precede shootings. The defendant

and Suspect No. 2 started to move toward the third man.

Believing that violence was imminent, Sergeant Merner called on

his radio for police officers in the area to respond.

Boston Police District 4 station was located across the

street, and approximately fourteen or fifteen officers responded

immediately. Sergeant Merner saw the defendant and Suspect

No. 2 flee as soon as uniformed officers approached the scene.

The officers chased the two men. Suspect No. 2 was never

apprehended. After the officers stopped the defendant, they

found a loaded semiautomatic firearm, wrapped in black cloth, on

his waist.

"[A] police officer may stop an individual and conduct a

threshold inquiry if the officer reasonably suspects that such

individual has committed, is committing, or is about to commit a

crime." Commonwealth v. Staley, 98 Mass. App. Ct. 189, 191

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(2020), quoting Commonwealth v. Mercado, 422 Mass. 367, 369

(1996). "Reasonable suspicion may not be based on good faith or

a hunch, but on specific, articulable facts and inferences that

follow from the officer's experience." Commonwealth v.

Grandison, 433 Mass. 135, 139 (2001). The standard is an

objective one. Commonwealth v. Karen K., 491 Mass. 165, 174-175

(2023).

Here, specific, articulable facts and inferences

established that, at the time the uniformed officers arrived at

the scene, a crime of violence was about to be committed.2 The

defendant, Suspect No. 2, and the third man were engaged in a

heated verbal exchange and threatening behavior. Suspect No. 2

held what appeared to be a firearm, and he and the defendant

were moving toward the third man. Informed by his experience

and training as an officer, Sergeant Merner was concerned that

2 The defendant does not dispute the judge's finding that
"facts within the knowledge of one police officer" could be
imputed to the other officers because they "were working
cooperatively." See Commonwealth v. Privette, 491 Mass. 501,
503 (2023). The parties do dispute the moment of seizure, which
the judge did not determine in her ruling from the bench. See
Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007). The
defendant argues that he was seized when uniformed officers
approached the scene and ordered him and Suspect No. 2 to show
their hands; the Commonwealth argues that the moment of seizure
occurred only when the two men fled and the officers began to
pursue them. We need not resolve that dispute because the
officers had the requisite reasonable suspicion to conduct a
threshold inquiry based on the observations that Sergeant Merner
made before the other officers arrived.

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the threatening behavior of the men was going to result in a

shooting. That belief was "not a mere hunch," but rather was

based on his experience and training as a police officer and

close observations of the three men. Commonwealth v. DePeiza,

449 Mass. 367, 373 (2007), citing Commonwealth v. Silva, 440

Mass. 772, 784 (2004). Further, although Sergeant Merner

observed only Suspect No. 2 carrying what appeared to be a

firearm, his testimony established that the defendant and

Suspect No. 2 were engaging in threatening behavior in close

coordination. Because those facts were sufficient to establish

reasonable suspicion that the defendant was engaged in or likely

to engage in criminal conduct, the officers had adequate

justification to attempt to stop him and conduct a threshold

inquiry. Accordingly, the defendant's motion to suppress was

properly denied.

2. Consciousness of guilt instruction at trial. At the

close of evidence, the Commonwealth asked the trial judge to

instruct the jury on consciousness of guilt. The defendant

objected to the request, arguing that his flight was "more

indicative of potential fear that something could potentially

happen to him than actually consciousness of guilt." The judge

noted the defendant's objection but gave the model instruction

on consciousness of guilt to the jury.

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The judge did not abuse his discretion. "Consciousness of

guilt instructions are permissible when there is an 'inference

of guilt that may be drawn from evidence of flight, concealment,

or similar acts.'" Commonwealth v. Stuckich, 450 Mass. 449, 453

(2008), quoting Commonwealth v. Toney, 385 Mass. 575, 584

(1982). "To determine whether a consciousness of guilt

instruction is warranted, a judge need only assess the relevancy

of the evidence." Commonwealth v. Morris, 465 Mass. 733, 738

(2013). "Flight is perhaps the classic evidence of

consciousness of guilt." Id., quoting Commonwealth v. Carrion,

407 Mass. 263, 277 (1990). At trial, the Commonwealth presented

testimony and video evidence showing that the defendant fled

after the police officers arrived at the scene and that he had a

weapon on his person. This evidence provided a sufficient basis

for a consciousness of guilt instruction. See Morris, supra at

738-739; Commonwealth v. Tu Trinh, 458 Mass. 776, 779-781

(2011); Commonwealth v. Prater, 431 Mass. 86, 97 (2000).

Citing Commonwealth v. Warren, 475 Mass. 530, 540 (2016),

the defendant argues that the judge should not have instructed

the jury on consciousness of guilt "without also instructing

them . . . that a Black man might instead flee Boston police

officers to avoid the recurring indignity of being racially

profiled [quotation omitted]." Because the defendant did not

object to the language in the model jury instruction or request

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the supplemental language he proposes now, we review to consider

whether the error, if any, created a substantial risk of a

miscarriage of justice. See Tu Trinh, 458 Mass. at 781-782;

Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 807 (2020). We

do not discern any error. The judge properly instructed the

jury that they were not required to draw any inference from

evidence of the defendant's flight, they should "also remember

that there may be numerous reasons why an innocent person might

do such things," and "[s]uch conduct does not necessarily

reflect feelings of guilt." The judge was not required to

instruct the jury sua sponte on the issue of racial profiling.

Judgments affirmed.

By the Court (Milkey,
Hodgens & Toone, JJ.3),

Clerk

Entered: July 26, 2024.

3 The panelists are listed in order of seniority.

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