Commonwealth v. Torres (Lawyers Weekly No. 10-140-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10849 COMMONWEALTH vs. JOSE TORRES. Suffolk. April 11, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.[1] Homicide. Practice, Criminal, Capital case, New trial, Assistance of counsel, Argument by counsel, Instructions to jury. Evidence, Opinion, Expert opinion. Witness, Expert. Indictment found and returned in the Superior Court Department on June 26, 2008. The case was tried before Elizabeth M. Fahey, J., and a motion for a new trial, filed on October 19, 2011, was considered by her. Emanuel Howard for the defendant. Donna Jalbert Patalano, Assistant District Attorney (David A. Deakin, Assistant District Attorney, with her) for the Commonwealth. SPINA, J. The defendant was convicted of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty. He filed a motion for a new trial alleging ineffective assistance of counsel, and he requested an evidentiary hearing. The trial judge denied the motion without a hearing. Her indorsement in the margin said, “for the reasons stated in [the Commonwealth’s] opposition.” On appeal the defendant alleges error in the denial of his motion for a new trial, the judge’s failure to make findings, and the judge’s failure to hold an evidentiary hearing on the motion. We affirm the conviction and the denial of the defendant’s motion for a new trial. We decline to exercise our power under G. L. c. 278, § 33E. 1. Background. The defendant moved into his girl friend’s third-floor apartment in the Dorchester section of Boston in the middle of February, 2008. His girl friend, the victim, had four children, the oldest of whom was six years old. On March 8, 2008, Kristina Ortiz visited the victim at her apartment. The defendant and the victim’s four children were there. As Ortiz was leaving, the defendant made a disparaging remark about the victim’s children. That evening the victim sent her six year old son down to the first-floor apartment of a neighbor three times to ask the neighbor to come up to his mother’s apartment. Each time the neighbor said she would be right up, but became distracted by her own children and failed to appear. At 9 P.M. the defendant went down to the first-floor apartment and told the neighbor that his “wife was waiting” for her. The neighbor went up […]
Figgs v. Boston Housing Authority (Lawyers Weekly No. 10-141-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11532 TRENEA FIGGS vs. BOSTON HOUSING AUTHORITY. Suffolk. April 8, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Boston Housing Authority. Housing Authority. Municipal Corporations, Housing authority. Practice, Civil, Action in nature of certiorari. Administrative Law, Hearing, Substantial evidence. Evidence, Hearsay. Civil action commenced in the Boston Division of the Housing Court Department on August 24, 2012. The case was heard by Jeffrey M. Winik, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Michael J. Louis & Angela Marcolina for the defendant. Jeremy T. Robin for the plaintff. The following submitted briefs for amicus curiae: Jeffrey C. Turk for Greater Boston Real Estate Board & another. James M. McCreight, Alex Munevar, & Quinten Steenhuis for Massachusetts Coalition for the Homeless & others. Esme Caramello, Deena Greenberg, & Melanie Zuch for Charles Hamilton Houston Institute & another. SPINA, J. Trenea Figgs is a participant in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program, commonly referred to as “Section 8,” administered by the Boston Housing Authority (BHA) pursuant to 42 U.S.C. § 1437f (2012) and implementing HUD regulations.[2] On November 22, 2011, the BHA notified Figgs of its intent to terminate her participation in the Section 8 program due to allegations of serious or repeated violations of her lease. Several weeks earlier, Boston police officers had executed a search warrant for Figgs’s apartment in connection with a criminal investigation of her brother, Damon Nunes, and had discovered, among other things, two plastic bags of marijuana, a .380 caliber Ruger pistol, and five rounds of ammunition. Figgs appealed the proposed termination. Following an informal hearing on February 22, 2012, a hearing officer, by decision dated August 6, 2012, upheld the termination of Figgs’s Section 8 housing subsidy. On August 24, 2012, Figgs filed a verified complaint in the Housing Court for injunctive and declaratory relief. She sought to enjoin the BHA from terminating her Section 8 housing subsidy on the ground that the informal hearing failed to satisfy her procedural due process rights under the Fourteenth Amendment to the United States Constitution, and she sought a declaration that the bases for her termination were insufficient. In response, the BHA filed a […]
City of Springfield v. Civil Service Commission, et al. (Lawyers Weekly No. 10-142-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11540 CITY OF SPRINGFIELD vs. CIVIL SERVICE COMMISSION & another.[1] Hampden. April 8, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Civil Service, Provisional promotion, Termination of employment, Notice. Labor, Civil service. Employment, Termination. Jurisdiction, Civil Service Commission. Administrative Law, Evidence. Notice, Termination of employment, Administrative hearing. Waiver. Civil action commenced in the Superior Court Department on July 29, 2010. The case was heard by Bertha D. Josephson, J. on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Maurice M. Cahillane, Jr. (William E. Mahoney with him) for city of Springfield. Andrew M. Batchelor, Assistant Attorney General, for Civil Service Commission. Bart W. Heemskerk for Joseph McDowell. BOTSFORD, J. Joseph McDowell was hired by the city of Springfield (city) in 1987 as a skilled laborer, and soon thereafter achieved the status of a permanent, tenured civil service employee of the city. In 1993, he received the first of two provisional promotions;[3] he worked in the second of these provisional positions until 2005, when the city terminated his employment. One issue we consider in this appeal is whether, despite being terminated from his provisional position, McDowell was entitled to appeal his termination pursuant to the relevant provisions of the civil service statute, G. L. c. 31, §§ 41–45; agreeing with the Civil Service Commission (commission), we conclude that he was. We also consider whether the commission, in deciding McDowell’s appeal, permissibly could consider that subsequent to the city’s discharge of McDowell, he had been indicted and then pleaded guilty to the crime of filing false tax returns. We decide that in the particular circumstances of this case, the commission was permitted to take the criminal proceeding against McDowell and its disposition into account, but that McDowell’s indictment for filing false tax returns did not qualify as an indictment “for misconduct in [McDowell’s] . . . employment” within the meaning of G. L. c. 268A, § 25, and thus a suspension based on the indictment would not have been valid. 1. Background. McDowell began working as a skilled laborer for the city in 1987. In 1989, he was promoted to the position of carpenter within the city’s civil service system. After completing his probationary period, McDowell […]
Categories: News Tags: 1014214, City, Civil, Commission, Lawyers, Service, Springfield, Weekly
Garney v. Massachusetts Teachers’ Retirement System (Lawyers Weekly No. 10-143-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11493 RONALD T. GARNEY vs. MASSACHUSETTS TEACHERS’ RETIREMENT SYSTEM. Worcester. April 10, 2014. – August 18, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Retirement. Public Employment, Forfeiture of retirement benefits. School and School Committee, Retirement benefits. Civil action commenced in the Superior Court Department on January 14, 2010. The case was heard by John S. McCann, J., on motions for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert G. Fabino (James H. Salvie, Special Assistant Attorney General, with him) for the defendant. Michael C. Donahue for the plaintiff. CORDY, J. This case concerns the scope of the pension forfeiture requirement of G. L. c. 32, § 15 (4), and specifically whether forfeiture is warranted where a teacher has engaged in criminal activity that endangers children generally, but does not involve the students whom he taught, the school district for which he worked, or the use of his status as a teacher. The plaintiff, Ronald T. Garney, a ninth grade science teacher, was arrested in 2006 for the purchase and possession of child pornography. Shortly after his arrest, he received notice that he would be dismissed from his position for conduct unbecoming a teacher and resigned prior to his dismissal. He subsequently pleaded guilty to purchasing and possessing child pornography. In August, 2007, when he reached retirement age, Garney filed a retirement application with the defendant, the Massachusetts Teachers’ Retirement System (MTRS), and received retirement benefits until 2009, when the MTRS board (board) issued a decision concluding that Garney’s benefits were forfeited by operation of G. L. c. 32, § 15 (4), due to his convictions.[2] A District Court judge affirmed the board’s decision, and Garney petitioned for certiorari review in the Superior Court pursuant to G. L. c. 249, § 4. A Superior Court judge reversed the decision of the District Court and vacated the decision of the board. MTRS appealed, and we transferred its appeal to this court on our own motion. Although cognizant of the severity of the offenses of which Garney was convicted, we conclude that on the specific facts of this case, those offenses neither directly involved his position as a teacher nor contravened a particular law applicable to that position, and therefore did not come within the forfeiture provision of […]
Categories: News Tags: 1014314, Garney, Lawyers, massachusetts, Retirement, System, Teacher's, Weekly
Commonwealth v. Pon (Lawyers Weekly No. 10-137-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-11542 COMMONWEALTH vs. PETER PON.[1] Suffolk. April 7, 2014. – August 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2] Criminal Records. Criminal Offender Record Information. Practice, Criminal, Record. Constitutional Law, Access to criminal records, Privacy. Privacy. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on October 22, 2007. After dismissal, a petition to seal the record, filed on November 14, 2012, was heard by Robert E. Baylor, J., and a motion for reconsideration was considered by him. The Supreme Judicial Court granted an application for direct appellate review. Pauline Quirion (Susan Malouin with her) for the defendant. Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth. Rahsaan D. Hall, for Lawyers’ Committee for Civil Rights and Economic Justice & another, amici curiae, submitted a brief. Rebecca A. Jacobstein, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. CORDY, J. Under G. L. c. 276, § 100C, second par., inserted by St. 1973, c. 322, § 1, a former criminal defendant whose case resulted in the entry of a nolle prosequi or a dismissal may obtain discretionary sealing of his or her criminal record where a judge determines that “substantial justice would best be served” by sealing. This provision, which is part of the over-all criminal offender record information (CORI) statutory scheme, is intended to enable such individuals to overcome the inherent collateral consequences of a criminal record and achieve meaningful employment opportunities. See Globe Newspaper Co. v. District Attorney for the Middle Dist., 439 Mass. 374, 384 (2003). In 2010, the Legislature enacted extensive reforms to the CORI scheme, extending access to official CORI records to more employers, housing providers, and other organizations, for limited use, and simultaneously broadening the scope of the sealing provisions to enable more individuals to shield their records from public view. See generally St. 2010, c. 256. Given the demonstrable legislative concern in these reforms about the negative impact of criminal records on the ability of former criminal defendants to reintegrate into society and obtain gainful employment, particularly in an age of rapid informational access through the Internet and other new technologies, it is apparent that the stringent standard for discretionary sealing we articulated nearly twenty years ago, in Commonwealth v. Doe, 420 Mass. 142, 149-152 (1995), no longer […]
Categories: News Tags: 1013714, Commonwealth, Lawyers, Weekly
Service Employees International Union, Local 509 v. Department of Mental Health (Lawyers Weekly No. 10-138-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us SJC-11544 SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 509 vs. DEPARTMENT OF MENTAL HEALTH. Suffolk. April 7, 2014. – August 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Privatization Act. Commissioner of Mental Health. Auditor. Declaratory Relief. Practice, Civil, Declaratory proceeding, Standing, Parties, Failure to join party. Civil action commenced in the Superior Court Department on February 15, 2012. The case was heard by Merita A. Hopkins, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Alfred Gordon O’Connell for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant. Donald J. Siegel & James A.W. Shaw, for Massachusetts AFL-CIO, amicus curiae, submitted a brief. Gerald A. McDonough, for the Auditor of the Commonwealth, amicus curiae, submitted a brief. LENK, J. The plaintiff, Service Employees International Union, Local 509 (union), appeals from an order of a Superior Court judge dismissing its complaint for declaratory judgment pursuant to G. L. c. 231A, §§ 1, 2, and 5. In that complaint, the union alleged that the Department of Mental Health (DMH) violated the Massachusetts privatization statute, G. L. c. 7, §§ 52-55 (Pacheco Law), by entering into contracts with private entities to obtain services substantially similar to those performed by members of the union, but failing to comply with relevant statutory obligations. DMH filed an answer as well as a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). After a hearing, the judge granted DMH’s motion, which she treated as a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754 (1974). The judge determined that the union lacked both direct and associational standing to seek declaratory relief and, additionally, that the union’s failure to join necessary parties constituted a separate jurisdictional bar requiring dismissal. The judge did not err in declining to consider the union’s complaint on the basis of its failure to name all necessary parties. However, because we conclude that the union has direct standing to seek a declaratory judgment under G. L. c. 231A that would invalidate the contracts at issue, we remand the case to the Superior Court for the limited purpose of allowing the union to seek leave to amend […]
Commonwealth v. Sullivan (Lawyers Weekly No. 10-139-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11504 COMMONWEALTH vs. MICHAEL J. SULLIVAN. Middlesex. April 10, 2014. – August 15, 2014. Present: Ireland, C.J., Spina, Cordy, Gants, & Duffly, JJ.[1] Homicide. Practice, Criminal, Capital case, New trial. Evidence, Scientific test, Exculpatory. Indictments found and returned in the Superior Court Department on April 24, 1986, and May 14, 1986, respectively. A motion for a new trial, filed on March 9, 2012, was heard by Kathe M. Tuttman, J. A request for leave to appeal was allowed by Spina, J., in the Supreme Judicial Court for the county of Suffolk. Robert J. Bender, Assistant District Attorney (Steven C. Hoctor, Assistant District Attorney, with him) for the Commonwealth. Dana Alan Curhan for the defendant. SPINA, J. The defendant, Michael J. Sullivan, was convicted by a jury in Superior Court of murder in the first degree and armed robbery arising out of the brutal stomping death of Wilfred McGrath. We affirmed the defendant’s convictions on direct appeal. Commonwealth v. Sullivan, 410 Mass. 521, 533 (1991). Since then, the defendant has sought postconviction relief both in State and Federal courts.[2] At issue in this case is the defendant’s most recent motion for a new trial. As a result of the reexamination by a private forensic laboratory of certain physical evidence from the defendant’s trial, which revealed that the victim’s blood was not present on a jacket purportedly worn by the defendant during the killing, the defendant filed a motion for a new trial based on newly available evidence. The motion judge[3] granted the defendant’s motion, and the Commonwealth sought leave to appeal from a single justice of this court. The Commonwealth’s application was granted, and the Commonwealth argues on appeal that the motion judge erred in concluding that the jacket was a key piece of corroborative evidence in the case against the defendant and that the newly available evidence arising from the retesting of the jacket casts real doubt on the justice of the defendant’s conviction. We agree with the motion judge, and we affirm the order granting the defendant’s motion for a new trial. 1. Facts. The facts surrounding the killing of the victim are set forth in detail in Sullivan, 410 Mass. at 522-523. We summarize those facts here and supplement them with other relevant facts from the trial record and […]
Commonwealth v. Murphy (Lawyers Weekly No. 11-094-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1634 Appeals Court COMMONWEALTH vs. THOMAS MURPHY. No. 12-P-1634. Middlesex. October 9, 2013. – August 12, 2014. Present: Cypher, Katzmann, & Maldonado, JJ. Practice, Criminal, Jury and jurors, Voir dire, Required finding. Constitutional Law, Impartial tribunal, Jury. Jury and Jurors. Breaking and Entering. Indictments found and returned in the Superior Court Department on June 30, 2009. The cases were tried before S. Jane Haggerty, J. Kenneth I. Seiger for the defendant. Kimberly Rugo, Assistant District Attorney, for the Commonwealth. KATZMANN, J. The primary issue in this appeal arises from the denial of the defendant’s request for a postverdict hearing regarding the potential partiality of a juror. The defendant was convicted by a jury of four counts of breaking and entering, three counts of larceny, and three counts of malicious destruction of property emerging from incidents at four gas stations. Shortly after the jury trial, the prosecutor reported to the Superior Court judge that, after the verdict, a juror spoke to the proprietor of one of those gas stations — Welch’s Automotive in Littleton –- who was also a witness at trial. The trial judge denied the defendant’s request for a postverdict evidentiary inquiry. The defendant appeals, seeking such a hearing on remand, and further claiming that there was insufficient evidence to support the conviction of breaking and entering at Welch’s Automotive. We affirm. Background. Between September, 2007, and May, 2008, a spate of break-ins occurred at gas stations in the adjacent towns of Littleton, Boxborough, and Westford, and the nearby town of Concord.[1] On September 18, 2007, the incident that is the heart of this case occurred. An alarm at Welch’s Automotive Services (Welch’s), a gas station and garage in Littleton, automatically notified the Littleton Police Department. When Sergeant Robert Raffalo arrived at Welch’s, he investigated together with the owner of the gas station, Mark Shapiro, who was notified as well. They discovered that a ground-level panel from one of the garage doors appeared to have been kicked in and was lying on the ground. There was a footprint on the panel with a distinctive pattern on it, which investigators later matched to the sneakers of the defendant. No other property was taken or damaged.[2] A jury convicted the defendant of breaking and entering.[3] We briefly summarize the facts of the additional incidents because […]
Commonwealth v. Wood (Lawyers Weekly No. 10-136-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10977 COMMONWEALTH vs. WILLIAM WOOD. Suffolk. March 7, 2014. – August 7, 2014. Present: Ireland, C.J., Cordy, Botsford, Gants, & Lenk, JJ.[1] Homicide. Felony-Murder Rule. Robbery. Evidence, Third-party culprit, Relevancy and materiality, Hearsay, Prior misconduct, Joint venturer, Expert opinion, Testimony before grand jury. Jury and Jurors. Constitutional Law, Confrontation of witnesses. Witness, Expert. Perjury. Grand Jury. Practice, Criminal, Capital case, Hearsay, Jury and jurors, Confrontation of witnesses, Argument by prosecutor, Grand jury proceedings, Conduct of prosecutor, Verdict, Question by jury, Duplicative convictions. Joint Enterprise. Indictments found and returned in the Superior Court Department on May 4, 2004. The cases were tried before Patrick F. Brady, J. Stephen Neyman for the defendant. Cailin M. Campbell, Assistant District Attorney (Patrick Haggan, Assistant District Attorney, with him) for the Commonwealth. CORDY, J. In the early morning hours of February 13, 2004, Betsy Tripp was bound with telephone wire and murdered in her home, a condominium on Monsignor Way in the Dorchester section of Boston. Her throat was slit. The man who shared the condominium with her, Morris Thompson, was shot in the face, coming close to death, and losing an eye. The perpetrators fled in a vehicle that Thompson had borrowed from a neighbor in the condominium complex and for which Thompson had the keys. The vehicle was abandoned in the parking lot of a Dorchester elementary school and set ablaze shortly after 2 A.M. that same morning. Thompson survived his wounds and accused the defendant, William Wood, and Wood’s friend, Quincy Butler, of committing the crimes in the course of a botched kidnapping and robbery attempt. Both were charged with murder and related crimes,[2] and were tried together. There were four trials. Two ended in mistrials when the jury were unable to unanimously agree on a verdict. A third resulted in mistrial when the trial judge became ill during trial. At the fourth trial, which is the subject of this appeal, the defendant was convicted of murder in the first degree on theories of felony-murder and extreme atrocity or cruelty.[3] Butler was convicted of murder in the second degree, and his appeal is pending in the Appeals Court. As outlined further below, the principal witnesses for the Commonwealth were Thompson and Butler’s former roommate and girl friend at the time […]
Commonwealth v. Stewart (Lawyers Weekly No. 10-135-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11475 COMMONWEALTH vs. PAUL STEWART. Plymouth. March 6, 2014. – August 7, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Controlled Substances. Habitual Offender. Constitutional Law, Search and seizure, Investigatory stop, Probable cause, Reasonable suspicion. Threshold Police Inquiry. Probable Cause. Search and Seizure, Threshold police inquiry, Reasonable suspicion, Search incident to lawful arrest, Fruits of illegal search, Probable cause. Indictments found and returned in the Superior Court Department on July 23, 2008. A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J., and the cases were tried before Judith Fabricant, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. James P. Vander Salm for the defendant. Zachary Hillman, Assistant District Attorney (Melissa L. Brooks, Assistant District Attorney, with him) for the Commonwealth. Michael J. Fellows, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. William W. Adams, for Tari Richardson, amicus curiae, submitted a brief. GANTS, J. A Superior Court jury convicted the defendant of possession of a class B substance (cocaine) with intent to distribute, in violation of G. L. c. 94C, § 32A (c).[2] After that guilty finding, in the second part of a bifurcated trial, the jury found that the defendant had previously been convicted in 2006 of distribution of a class B substance and in 1994 of assault and battery by means of a dangerous weapon, and that he had been committed to prison for not less than three years on each of these prior convictions. As a result, the defendant was sentenced both under G. L. c. 94C, § 32A (d), which provides for a sentence of not less than five years nor more than fifteen years in State prison where a defendant is convicted of a violation of § 32A (c) after an earlier conviction of that offense, and under G. L. c. 279, § 25, as a habitual offender, which requires that the defendant “be punished by imprisonment in the [S]tate prison for the maximum term provided by law as a penalty for the felony for which he is then to be sentenced,” which the judge determined to be the statutory maximum of fifteen years in State prison. In an unpublished memorandum and order pursuant to rule 1:28 […]