COMMONWEALTH v. LENNOX NEATH (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury waived trial, the defendant was convicted of one count of unlawful possession of a firearm; one count of trafficking 200 or more grams of cocaine; one count of possession of a firearm during the commission of a felony; and one count of unlawful possession of ammunition without a firearm identification card. On appeal, he claims error in the denial of his motion to suppress, that his statements to the police were inadmissible because they were not preceded by Miranda warnings, and that he was denied the effective assistance of counsel. We affirm.

1. Motion to suppress. The defendant claims that the police lacked a valid basis to order him out of the car, that it was improper to rely on the ShotSpotter system alert, and that the protective sweep of the car was improper. We disagree.

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). We take the facts from the judge's findings following a hearing on the motion to suppress, and we may add those that are not in dispute or clearly erroneous. Commonwealth v. Castillo, 89 Mass. App. Ct. 779, 781 (2016).¹ But we “conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

An exit order is justified during a traffic stop where “a reasonably prudent [person] in the [officer's] position would be warranted in the belief that the safety of the police or that of other persons was in danger.” Commonwealth v. Torres-Pagan, 484 Mass. 34, 37 (2020), quoting Commonwealth v. Washington, 449 Mass. 476, 482 (2007). “Where an officer has issued an exit order based on safety concerns, the officer may conduct a reasonable search for weapons in the absence of probable cause to arrest.” Commonwealth v. Amado, 474 Mass. 147, 152 (2016). Our inquiry is an objective one in which we consider the totality of the circumstances, including an officer's training and experience. See Commonwealth v. Monell, 99 Mass. App. Ct. 487, 489 (2021).

As the motion judge properly determined, it is undisputed that the traffic stop was proper as the car was being unlawfully operated at night without its headlights illuminated. See G. L. c. 85, § 15. Contrary to the defendant's claim, the police officer's arrival at the scene of the ShotSpotter alert within a couple of minutes,² and the car's location 200 feet from the origin of the alert, provided links in the reasonable suspicion chain that the car had been involved in a shooting. See Commonwealth v. Ford, 100 Mass. App. Ct. 712, 717 (2022). See also Commonwealth v. Henley, 488 Mass. 95, 105 (2021) (defendant's physical and temporal proximity to crime lend support for reasonable suspicion); Commonwealth v. Evelyn, 485 Mass. 691, 704 (2020) (“We consistently have held that geographic and temporal proximity to a recent crime weigh towards reasonable suspicion in the over-all analysis”).

In addition to the ShotSpotter alert and that the car was driving in close proximity to the area of shots being fired without the benefit of illuminated headlights, the motion judge properly found other factors contributed to the officer's safety concerns. These included that when the officer approached the car, he could see the defendant had his left arm underneath a jacket draped across his left leg.³ This made the officer nervous because he could not see the defendant's arm, and he did not know what was under the jacket. At that point, the officer's suspicions grew based on the defendant's behavior, including his inability to give the officer straight answers to his questions, and the defendant was “sweating profusely.” From these facts, it may be inferred that the defendant was nervous, scared, or both, which provided added links to the reasonable suspicion chain. See Commonwealth v. Karen K., 491 Mass. 165, 179 (2023); Commonwealth v. Goewey, 452 Mass. 399, 407 (2008). Considering these facts in the aggregate, a reasonably prudent officer would be warranted in the belief that his safety or that of other persons was in danger. See Torres-Pagan, 484 Mass. at 37. Accordingly, the exit order was justified.

Furthermore, as the motion judge determined, as the defendant exited the car, the officers received a dispatch that a 911 caller reported seeing a silver Honda Accord, i.e., the same make, model, and color of the car they had stopped, fleeing the area of the ShotSpotter activation with no headlights on. This further heightened a reasonable concern that there might be a firearm present in the car. Because the police had sufficient grounds to be concerned for their safety, they were entitled to conduct a protective sweep of the car's interior. See Commonwealth v. Almeida, 373 Mass. 266, 270 (1977); Commonwealth v. Rousseau, 61 Mass. App. Ct. 144, 153 (2004). Accordingly, the search of the car's interior, including the backpack, was proper. See Commonwealth v. Manha, 479 Mass. 44, 51 (2018); Commonwealth v. Amado, 474 Mass. at 152. There was no error in the denial of the motion to suppress.

2. The defendant's statements. At the scene of his arrest, the officers demanded that the defendant produce a license to carry (LTC), and he admitted that he did not possess one. Because that admission was made prior to his receiving his Miranda rights, the defendant claims that it should have been suppressed. We disagree.

Although the defendant's motion to suppress raised a Miranda claim, it did so with little specificity, and more importantly, the matter was not actually litigated at the motion to suppress hearing. As a result, the motion judge heard no evidence on the matter and made no findings of fact or rulings of law on the questions of custody and interrogation. See Miranda v. Arizona, 384 U.S. 436, 444-445 (1966). But see Commonwealth v. Haskell, 438 Mass. 790, 796 (2003) (Miranda does not permit suspect to refuse to produce real or physical evidence (such as license) when lawfully ordered to do so). In this posture, the matter is not before us. See Commonwealth v. Piard, 105 Mass. App. Ct. 428, 438 (2025); Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004) (“Grounds not stated which reasonably could have been known at the time a motion is filed shall be deemed to have been waived”). In any event, because the defendant stipulated at trial that he did not possess an LTC, there is no substantial risk that a miscarriage of justice occurred.

3. Ineffective assistance. Finally, the defendant claims he was denied the effective assistance of counsel. In support of this claim, the defendant catalogues a variety of trial counsel's perceived shortcomings. Among those claims, he states that there was very little communication between himself and counsel; counsel was condescending towards him; counsel insisted on a jury-waived trial; counsel had him sign stipulations that relieved the Commonwealth of its burden of proof; counsel failed to investigate the 911 caller, the reliability of ShotSpotter, and whether his arrest was racially motivated; counsel failed to seek an interlocutory appeal for his denied motion to suppress; and, counsel failed to object to the judge's not employing the beyond a reasonable doubt standard to find him guilty.⁴

A problem with the defendant's claim is that he has raised it for the first time on direct appeal rather than filing a motion for a new trial. “[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal.” Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). “A claim of ineffective assistance of counsel should only be brought on direct appeal when the factual basis of the claim appears indisputably on the trial record -- that is, where the issues do not implicate any factual questions more appropriately resolved by a trial judge.” Commonwealth v. Keon K., 70 Mass. App. Ct. 568, 573–574 (2007).

Resolving ineffective assistance of counsel claims through a motion for a new trial provides the opportunity for trial counsel to submit an affidavit, or to testify should there be an evidentiary hearing. Equally important, and usually decisive, is the opportunity for the trial judge (if available) to make findings of fact to resolve the claim. See Commonwealth v. Gorham, 472 Mass. 112, 116 n.4 (2015). Here, the defendant's claims of ineffective assistance of counsel on direct appeal fail to appear indisputably on the trial record, and we decline to resolve them.

Judgments affirmed.

FOOTNOTES

1.   The defendant does not claim that any of the motion judge's findings are clearly erroneous.

2.   To the extent the defendant suggests that there should have been a Daubert-Lanigan hearing, see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 585-595 (1993), and Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994), to assess ShotSpotter's accuracy, that claim is being raised for the first time on appeal. In that posture, the claim is waived. See Newell v. Department of Mental Retardation, 446 Mass. 286, 298 n.27 (2006); Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 693-694 (2015).

3.   In our independent review of the body worn camera (BWC) footage, it is not clear that this was captured on the footage given the BWC's angle. However, the motion judge's conclusion was likely generated from his crediting the officer's testimony.

4.   The defendant also claims, albeit not necessarily through the ineffective assistance of counsel lens, that the judge failed to conduct a colloquy relative to his waiving his right to a jury trial. The claim is at odds with the record. The judge did conduct such a colloquy with the defendant.