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15-P-44 Appeals Court

COMMONWEALTH vs. SEAN BRANTLEY.

August 18, 2016.

Arrest. Constitutional Law, Arrest, Investigatory stop, Stop 

and frisk, Assistance of counsel, Search and seizure.

Search and Seizure, Arrest, Inventory, Automobile. Name.

Practice, Criminal, Motion to suppress, Required finding, 

Instructions to jury, New trial, Assistance of counsel.

The defendant, Sean Brantley, appeals from the judgments 

after his convictions by a Superior Court jury of possession of 

cocaine and furnishing a false name to a law enforcement

officer.1 The defendant contends that (1) his motion to suppress 

evidence should have been allowed; (2) the evidence was 

insufficient to establish beyond a reasonable doubt the elements 

of furnishing a false name; (3) the jury instructions on 

furnishing a false name were incorrect; and (4) defense counsel 

was ineffective because he improperly conceded the defendant's 

guilt to furnishing a false name. We discuss the facts where 

relevant.

1. Motion to suppress. The defendant filed a motion to 

suppress evidence on the grounds that the search and seizure of 

 

1 A grand jury indicted the defendant for possessing cocaine 

with intent to distribute, subsequent offender; operating a 

motor vehicle with a suspended license; furnishing a false name 

to a law enforcement officer; and refusing to submit to a police 

officer. At the close of the Commonwealth's case, the judge 

allowed the defendant's motion for required findings of not 

guilty on the charges of operating with a suspended license and 

refusing to submit to a police officer. 
2

the defendant and his vehicle were not based on reasonable 

suspicion or probable cause. After an evidentiary hearing, the 

motion judge denied the motion and made the following findings:

"In this matter, Commonwealth vs. Sean Brantley, the court 

finds Sgt. Toledo credible. I credit his testimony in its 

entirety. I adopt his testimony as the court's findings of 

fact. Based on those findings, I find that Sgt. Toledo 

ha[d] reasonable suspicions, based on specific and 

articulated facts, to stop the motor vehicle for its 

failure to stop for a stop sign.

"I then find significantly that the officer on multiple 

occasions ordered the defendant to stop and that the 

defendant, in fact, fled from that particular location.

"Consequently, I find that the search of his person was a 

valid search, incident to arrest, and that the inventory 

search was similarly valid, consistent with the written 

inventory policy of the Springfield Police Department."

2

The defendant argues that he did not commit an arrestable 

offense and therefore the search could not be justified as a 

search incident to arrest. Here, the initial stop of the 

defendant's vehicle was valid as a routine traffic stop. The 

stop was no longer routine once the defendant, after stopping,

backed up the vehicle three to five feet in the direction of the 

officer. The officer could see the defendant staring at him in 

the rearview mirror. Only when the officer activated two bursts 

from his air horn did the defendant fully stop. The defendant 

then "leapt" out of the vehicle. The officer immediately 

ordered him back into the vehicle, but the defendant refused to 

comply, and ran from the scene.

Failure to stop a vehicle when ordered to do so by a police 

officer is an arrestable offense. See G. L. c. 90, §§ 21 and 

25. The defendant attempts to escape the application of § 25 by 

arguing that he was no longer inside the automobile when ordered 

to stop. The Supreme Judicial Court has held, however, that the 

phrase "operating or in charge of a motor vehicle" in § 25

"connotes active control of a vehicle by a driver placed either 

in the vehicle or in such physical proximity that he might drive 

 

2 We accept the motion judge's findings of fact unless 

clearly erroneous; credibility determinations are him to decide. 

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 436-437

(2015).
3

away." Commonwealth v. Schiller, 377 Mass. 10, 12 (1979). 

Furthermore, the defendant's operation of the vehicle, backward 

toward the officer after being pulled over, established probable 

cause to support arrest for this offense. The motion to 

suppress was properly denied.

2. Sufficiency of the evidence: furnishing a false name. 

Defense counsel conceded in his opening statement that the 

defendant provided the police with a false name. The defendant

argues, however, that his motion for a required finding on this 

charge should have been allowed because he provided the false 

name prior to his arrest, while the statute contains the phrase 

"following an arrest." G. L. c. 268, § 34A. A rational jury 

could have found that the defendant furnished a false name 

beginning with his capture and extending through the booking 

procedure. Therefore, even if an arrest is viewed as occurring 

only after a formal arrest and not at the point of seizure with 

probable cause, the elements of the statute have been satisfied. 

Moreover, as with the crime of resisting arrest, the appropriate 

question is not whether there had been a formal arrest, but 

rather, whether a reasonable person in the defendant's 

circumstances would have understood that he was under arrest. 

Cf. Commonwealth v. Grant, 71 Mass. App. Ct. 205, 208 (2008).

3. Jury instruction: furnishing a false name. The 

defendant claims that the jury instruction was incorrect because 

it did not distinguish between the use of the false name prior 

to arrest and the use of the false name after arrest. The 

defendant ignores the fact that the trial judge gave the model 

jury instructions almost verbatim and they were correct. Even 

if the instructions were incorrect, where the defendant conceded 

this crime, any error would not create a substantial risk of a 

miscarriage of justice. 

4. Ineffective assistance of counsel. The defendant 

claims that trial counsel was ineffective for conceding guilt on 

the charge of furnishing a false name. "In order to prevail on 

his claim for ineffective assistance of counsel, the defendant 

bears the burden of showing that (1) there has been 'behavior of

counsel falling measurably below that which might be expected 

from an ordinary fallible lawyer' and (2) that 'it has likely 

deprived the defendant of an otherwise available substantial 

ground of defence.'" Commonwealth v. Sylvain, 466 Mass. 422, 

437 (2013), quoting from Commonwealth v. Saferian, 366 Mass. 89, 

96 (1974). Although the defendant brings this claim in its 

weakest form, i.e., "on the trial record alone," Commonwealth v. 

Peloquin, 437 Mass. 204, 210 n.5 (2002), it is apparent from the 
4

record that this was a tactical choice by trial counsel. We 

cannot say on this record that this choice was inherently 

ineffective. "As a tactical decision, counsel may well concede

guilt on a less serious offense in an effort to persuade the 

jury to mitigate punishment by acquitting on the more serious 

offense." Commonwealth v. Durakowski, 58 Mass. App. Ct. 92, 93 

(2003). Here, trial counsel focused on the intent element of 

the drug charge, and spared the defendant a conviction of the

more serious charge. As demonstrated by his closing argument, 

trial counsel argued that the defendant was being forthright in 

admitting to cocaine possession and to furnishing a false name. 

The tactic appears to have been reasonable and it was 

successful. The defendant was facing a significant sentence if 

he was convicted of possession of cocaine with intent to 

distribute as a subsequent offender. Counsel was not 

ineffective. Cf. Commonwealth v. Stoute, 10 Mass. App. Ct. 932, 

933 (1980) (reasonable trial tactic to concede guilt of assault 

charge in effort to persuade jury to acquit defendant of 

kidnapping).

Judgments affirmed.

Victoria L. Nadel for the defendant.

Thomas H. Townsend, Special Assistant District Attorney, 

for the Commonwealth.