Summary
The Supreme Judicial Court of Massachusetts held that a police officer’s command to stop and ensuing pursuit constituted a seizure, supported by reasonable suspicion based on the totality of the circumstances. The court affirmed the defendant’s conviction for possession of heroin with intent to distribute. It reversed the denial of a motion for a new trial concerning the public-park-zone charge and vacated that conviction, while holding that intent to commit the underlying drug offense suffices under G. L. c. 94C, § 32J without separate proof that the defendant knew the park boundaries.
Topics
Practice areas
Questions Presented
- Whether the officer's initial request that the defendant come over constituted a seizure under article 14 of the Massachusetts Declaration of Rights.
- Whether the officer had reasonable suspicion to conduct an investigatory stop when he ordered the defendant to stop and pursued him.
- Whether G. L. c. 94C, § 32J requires proof that the defendant knew the underlying drug offense occurred within one hundred feet of a public park or playground.
- Whether a pedestrian walkway may qualify as a public park under § 32J and whether that question is for the fact finder.
- Whether trial counsel was ineffective for failing to challenge the variance between the park named in the indictment and the location proved at trial.
- Whether the § 32J conviction could be retried or instead had to be dismissed with prejudice because the evidence was legally insufficient as to the park named in the indictment.
Holdings
- The defendant was not seized when the officer, without activating lights or siren or otherwise restricting his movement, called out, "Hey, come here for a second." The seizure occurred when the officer ordered the defendant to stop and then pursued him.
- The officer had reasonable suspicion to stop the defendant.
- To prove a violation of the public-park provision of § 32J, the Commonwealth need prove only the defendant's intent to commit the underlying drug offense; it need not prove that the defendant knew the offense occurred within one hundred feet of a public park or playground.
- A pedestrian walkway may qualify as a public park under § 32J depending on the circumstances, and whether the tract is publicly owned or maintained and dedicated or set apart for public recreational use and enjoyment is a question for the fact finder.
- Trial counsel's failure to challenge the variance between the indictment, which identified Ely Court Park, and the evidence, which concerned the separate Ely Pedestrian Walkway, was manifestly unreasonable and deprived the defendant of viable defenses.
- The § 32J conviction had to be dismissed with prejudice rather than retried because the Commonwealth presented no evidence that the underlying drug offense occurred within one hundred feet of Ely Court, the park named in the indictment.
Key quotations
“the coercion must be objectively communicated through the officer's words and actions for there to be a seizure.” (at 369)
“No scienter requirement is stated or implied.” (at 378)
“We conclude that, as a walkway may be considered a "park" under § 32J depending upon the circumstances, it is for the jury to decide whether a tract of land is publicly owned or maintained and dedicated for enjoyment and recreational use by the public.” (at 380)
“Where the evidence at the first trial was legally insufficient to sustain a verdict, a new trial would violate the prohibition against double jeopardy and is therefore impermissible.” (at 384)
Factual background
Police received anonymous reports that a firearm had been placed under the front seat of a black vehicle in a Holyoke area known for violent crime, drug sales, and shootings. Officers instead observed a dark green Honda with two occupants; the defendant adjusted his waistband, walked toward bushes, and fled after an officer called out, "Hey, come here for a second." During the pursuit, the defendant threw a bag over a fence, and police recovered heroin from that bag and from small baggies near his feet. The indictment identified Ely Court Park as the relevant park, but the evidence at trial concerned a separate Ely Pedestrian Walkway more than one hundred feet away.
Procedural history
A Superior Court judge denied the defendant's motion to suppress evidence. The defendant was convicted of possession of heroin with intent to distribute and of committing the offense within one hundred feet of a public park under § 32J. The same judge denied the defendant's motion for a new trial based on ineffective assistance of counsel. The Supreme Judicial Court affirmed the possession conviction, reversed the denial of a new trial on the § 32J charge, vacated that conviction, set aside the verdict, and ordered judgment for the defendant because the evidence was legally insufficient as to the park identified in the indictment.
Remand instructions
The judgment of conviction for possession of heroin with intent to distribute is affirmed. The denial of the motion for a new trial on the § 32J charge is reversed; the § 32J conviction is vacated, the jury verdict is set aside, and judgment shall enter for the defendant. No retrial is permitted on the § 32J charge.