author: Crone, Judge.

text:
    ANONYMOUS PHYSICIAN, Anonymous Medical Practice, Anonymous Hospital, Appellants-Petitioners, v. Michelle KENDRA, as Personal Representative of the Estate of John Kendra, Deceased, Appellee-Respondent
    Court of Appeals Case No. 18A-CT-323
    Court of Appeals of Indiana.
    FILED November 28, 2018
    Attorneys for Appellants Anonymous Physician and Anonymous Medical Practice: David C. Jensen, Robert J. Feldt, Eichhorn & Eichhorn, LLP, Hammond, Indiana
    Attorneys for Appellant Anonymous Hospital: Brian J. Paul, Andrew L. Campbell, Melissa M. Orizondo, Matthew K. Giffin, Faegre Baker Daniels, LLP, Indianapolis, Indiana
    Attorneys for Appellee: David J. Cutshaw, Kelley J. Johnson, Gabriel A. Hawkins, Cohen & Malad, LLP, Indianapolis, Indiana
   Crone, Judge.

Case Summary

[1] Anonymous Physician ("AP"), an employee of Anonymous Medical Practice ("AMP"), implanted a cardiac pacemaker with a defibrillator ("CRT-D") in John Kendra at Anonymous Hospital ("AH") in 2006. AP later performed other procedures related to the CRT-D. John died in 2012. In 2015, John's daughter, Michelle Kendra, as the personal representative of his estate, filed a proposed medical malpractice complaint against AP, AMP, and AH (collectively "Appellants") alleging that the CRT-D surgery and subsequent procedures were unnecessary. Appellants moved for summary judgment on the basis that Michelle's complaint was filed outside the two-year statutory limitation period for medical malpractice claims. Michelle argued that the relevant statute was unconstitutional as applied and therefore the limitation period should be tolled. The trial court agreed with Michelle and denied Appellants' summary judgment motion. Appellants contend that the trial court erred. We agree with Appellants and therefore reverse.

Facts and Procedural History

[2] In April 2006, sixty-three-year-old John was admitted to AH's emergency room and was diagnosed with congestive heart failure and chronic pulmonary obstruction, among other things. AP implanted a CRT-D on May 1, and John was discharged five days later. AP subsequently performed various procedures related to the CRT-D. John died on June 30, 2012, from congestive heart failure and chronic obstructive pulmonary disease.

[3] On July 24, 2015, Michelle filed a proposed medical malpractice complaint against Appellants. The complaint alleged in pertinent part that as a result of AP's unspecified negligence, John "suffered severe and permanent physical injuries and disabilities, endured great pain and suffering, mental distress and anguish and trauma, and, incurred reasonable medical and related expenses." Appellants' App. Vol. 2 at 55. In June 2017, Appellants filed a petition for preliminary determination and a motion for summary judgment asserting that Michelle's complaint was untimely filed. See Ind. Code § 34-18-7-1 (medical malpractice claim may not be brought unless filed within two years after date of alleged malpractice). In support of their motion, Appellants designated portions of Michelle's complaint and John's medical records.

[4] Michelle filed an opposing memorandum, in which she asserted that the CRT-D was medically unnecessary and "was used as a basis" for AP to perform numerous other procedures. Appellants' App. Vol. 2 at 103. She also asserted that the statutory limitation period should be tolled because John "could not have known that he did not meet the criteria for the implantation" of a CRT-D. Id. at 104. In support of her memorandum, Michelle designated the affidavit of physician Dr. Nadim Nasir, Jr., as well as her own affidavit, which reads in pertinent part as follows:

4. No one in my family or in my acquaintance ever indicated that they had any awareness of [AP's] misstatements or potentially unnecessary procedures and surgeries.
5. I found out about [AP's] misstatements and potentially unnecessary procedures and surgeries in or around October of 2014 when I saw a newspaper article and a news story on television about the misrepresentations of [AP].

Id. at 121. Appellants filed a motion to strike both affidavits.

[5] The trial court held a hearing on Appellants' motions and issued an order that reads in relevant part as follows:

The question presented by [Appellants'] Motion for Summary Judgment is: as a matter of law, after all factual inferences are construed in favor of the Estate, and all doubts regarding the existence of a material issue are resolved against [Appellants], did John Kendra, and, after his death, his Estate, not know, nor in the exercise of reasonable diligence, could not have discovered, that an injury had been sustained within two years of John Kendra's death on June 30, 2012?
[Appellants have] established that the medical malpractice action was filed outside the statute of limitations. The Estate then has the burden to establish an issue of fact material to a theory that avoids the defense. The Estate designated medical records demonstrating that John Kendra had undergone, in addition to the implant of a CRT Defibrillator, 3 stress tests, 14 echocardiograms, 3 carotid dopplers, 1 bypass, 19 AV Optimizations, 2 heart catheterizations, and subsequent surgeries for generator replacement and new leads. The nature and general acceptance of the use of these tests in cardiac patients creates a material issue of fact as to whether John Kendra, or any other patient not schooled in medicine, would be prompted to know, nor in the exercise of reasonable diligence could have discovered, that their conduct could be the basis of a claim for medical malpractice.
However, after he passed, is there a material issue of fact as to whether his Estate, and, particularly, his Personal Representative, would be prompted to know, or in the exercise of reasonable diligence could have discovered, that their conduct could be the basis of medical malpractice?
The Court agrees that Nadir's [sic] Affidavit should be stricken .... The Court also agrees that most of Michelle Kendra's Affidavit should also be stricken. Hearsay declarations of the state of mind of her family members and acquaintances, and misstatements of [AP], without any foundation as to whom and when these misstatements were made, are clearly inadmissible. However, the seminal statement in her Affidavit, regardless of any lack of artful drafting, was that she, as Personal Representative of John Kendra's Estate, did not become aware that the implant of a [CRT-D], 3 stress tests, 14 echocardiograms, 3 carotid dopplers, 1 bypass, 19 AV Optimizations, 2 heart catheterizations, and subsequent surgeries for generator replacement and new leads that her father experienced during the last six years of his life had the potential of forming a basis for a claim of medical malpractice until October, 2014.
Notwithstanding the fact that the implant and subsequent procedures could, indeed, ultimately found [sic] not to be medical malpractice or the cause of John Kendra's death, the Estate should not be denied "... access to the courts and [its] ability to pursue a valid claim ...[ ]" because John Kendra and his Estate simply did not know, or, even in the exercise of reasonable diligence, could not discover, any possibility that the implant and subsequent treatment and procedures, the nature of which and general acceptance of their use in cardiac patients like John Kendra, could be medical malpractice.
IT IS THEREFORE ORDERED by the Court as follows:
1. The Motion to Strike the Affidavit of Nadim Nasir, Jr., MD, is granted.
2. The Motion to Strike the Affidavit of Michelle Kendra is granted in part and denied in part.
3. The Motion for Summary Judgment ... is denied.

Appealed Order at 3-5 (citations omitted). Appellants were granted permission to file this interlocutory appeal.

Discussion and Decision

[6] Appellants contend that the trial court erred in denying their summary judgment motion. "We review such rulings de novo. Pursuant to Indiana Trial Rule 56(C), a summary judgment movant must make a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law." Matter of Sarkar , 84 N.E.3d 666, 672 (Ind. Ct. App. 2017) (quoting Morris v. Crain , 71 N.E.3d 871, 879 (Ind. Ct. App. 2017) ). "If the movant satisfies this burden, the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial." Id. (quoting Morris , 71 N.E.3d at 879 ). "Our review of a summary judgment motion is limited to those materials designated to the trial court." Webb v. City of Carmel , 101 N.E.3d 850, 860 (Ind. Ct. App. 2018). We view the pleadings and designated materials and construe all facts and reasonable inferences from those facts in favor of the nonmoving party. Id. A trial court's summary judgment ruling is cloaked with a presumption of validity, and the losing party bears the burden of showing that the trial court erred. Id. at 861. "Where a trial court enters specific findings and conclusions, they offer insight into the rationale for the trial court's judgment and facilitate appellate review, but are not binding upon this court." Id.

[7] "The statute of limitations defense is particularly suitable as a basis for summary judgment." Anonymous Physician v. Wininger , 998 N.E.2d 749, 751 (Ind. Ct. App. 2013). The plaintiff need not anticipate a statute of limitations defense and plead matters in avoidance in the complaint. Bellwether Props., LLC v. Duke Energy Ind., Inc. , 87 N.E.3d 462, 466 (Ind. 2017). But when the summary judgment movant "asserts the statute of limitations as an affirmative defense and establishes that the action was commenced beyond the statutory period, the burden shifts to the nonmovant to establish an issue of fact material to a theory that avoids the defense." Wininger , 998 N.E.2d at 751.

[8] Indiana Code Section 34-18-7-1"is an 'occurrence' statute as opposed to a 'discovery' statute." Brinkman v. Bueter , 879 N.E.2d 549, 553 (Ind. 2008). "Because this statutory time limit begins to run upon the occurrence of the alleged malpractice, without regard to the date of actual or constructive discovery of injury or malpractice by a person sustaining harm, literal application of the statute has been found unconstitutional in certain situations." Booth v. Wiley , 839 N.E.2d 1168, 1170-71 (Ind. 2005). In Martin v. Richey , 711 N.E.2d 1273 (Ind. 1999), our supreme court held that the "statute of limitations may not constitutionally be applied to preclude the filing of a claim before a plaintiff either knows of the malpractice and resulting injury or discovers facts that, in the exercise of reasonable diligence, should lead to the discovery of the malpractice and the resulting injury." Booth , 839 N.E.2d at 1171.

Under an occurrence-based statute, ... the critical issue is what reasonable diligence requires, not when the claim accrues or is discovered. Because the Medical Malpractice Act provides an occurrence-based limitations period, reasonable diligence requires more than inaction by a patient who, before the statute has expired, does or should know of both the injury or disease and the treatment that either caused or failed to identify or improve it, even if there is no reason to suspect malpractice. As a matter of law, the statute requires such a plaintiff to inquire into the possibility of a claim within the remaining limitations period, and to institute a claim within that period or forego it.

Herron v. Anigbo , 897 N.E.2d 444, 449 (Ind. 2008) (emphasis added). "A plaintiff does not need to be told malpractice occurred to trigger the statute of limitations." Brinkman , 879 N.E.2d at 555 (emphasis added).

[9] The "critical date" on which a patient either knows of malpractice and the resulting injury or learns of facts that, in the exercise of reasonable diligence, should lead to the discovery thereof is known as the "trigger date." Herron , 897 N.E.2d at 449. "The length of time within which a claim must be filed after a trigger date in an occurrence-based statute ... varies with the circumstances." Id. "A plaintiff whose trigger date is after the original limitations period has expired may institute a claim for relief within two years of the trigger date." Id. "But if the trigger date is within two years after the date of the alleged malpractice, the plaintiff must file before the statute of limitations has run if possible in the exercise of due diligence." Id. "If the trigger date is within the two-year period but in the exercise of due diligence a claim cannot be filed within the limitations period, the plaintiff must initiate the action within a reasonable time after the trigger date." Id.

[10] Here, Appellants contend that John "was aware of both his condition [i.e., congestive heart failure and chronic pulmonary obstruction] and the surgery he would undergo for that condition, and he was also aware that his condition failed to improve in the years leading up to his death" from congestive heart failure and chronic obstructive pulmonary disease. AH Appellant's Br. at 9; see also AP/AMP Appellants' Br. at 39 (noting that John "was aware that the device was inserted for the purpose of treating his heart problems, and according to [Michelle], he suffered severe physical and mental injuries as a direct consequence of the transplantation of the device."). According to Appellants, "[n]othing else was required under Supreme Court precedent to trigger a duty to investigate the possibility of malpractice. Equitable tolling therefore does not save [Michelle's] case from the statute of limitations." Id.

[11] We agree. Even if John and Michelle had no reason to suspect malpractice, reasonable diligence required them to inquire into the possibility of a claim before the proposed malpractice complaint was filed in 2015. We need not pinpoint the trigger date, but it was certainly no later than the date of John's death in 2012, more than three years before the complaint was filed. Consequently, we reverse the denial of Appellants' summary judgment motion. See Biedron v. Anonymous Physician 1 , 106 N.E.3d 1079, 1100 (Ind. Ct. App. 2018) (reaching same conclusion under substantially similar factual circumstances involving same Appellants and another patient who received allegedly unnecessary CRT-D), trans. pending .

[12] Reversed.

Najam, J., and Pyle, J., concur.

      The complaint also contains allegations of wrongful death, personal injury, and fraudulent concealment, all of which Michelle has since abandoned.

      Michelle does not appeal the ruling on Appellants' motion to strike the affidavits. After the hearing, Appellants filed a motion to strike references that Michelle's counsel had made during the hearing to another medical malpractice case for which an interlocutory appeal had been denied. The trial court did not rule on this motion, and AP and AMP contend that it should have been granted. Given our resolution of this appeal, we need not address that issue. The same goes for their assertion that the trial court should have stricken Michelle's affidavit in full.

      Michelle's attempt to repudiate the relevant allegations in her complaint is not well taken. See Stewart v. Alunday , 53 N.E.3d 562, 568-69 (Ind. Ct. App. 2016) (holding that judicial admissions, which "may be contained in ... current pleadings in the case being tried," are "conclusive and binding" upon the party making them). So too is her assertion that Appellants failed to raise a tolling argument below and therefore waived it. See Appellants' App. Vol. 2 at 37 (tolling argument in AP and AMP's summary judgment brief).


source: Caselaw Access Project

author: Baker, Judge.

license: Public Domain

text:
    SOUTHSIDE AUTOMOTIVE OF ANDERSON, INC., and David Amadio, Appellants-Defendants, v. Celeste SMITH and Byron Swain, Appellees-Plaintiffs
    Court of Appeals Case No. 18A-SC-471
    Court of Appeals of Indiana.
    Filed December 7, 2018
    Attorney for Appellants: Ralph E. Sipes, Anderson, Indiana
    Attorney for Appellees: Paul J. Podlejski, Anderson, Indiana
   Baker, Judge.

[1] Southside Automotive of Anderson, Inc. (Southside), and David Amadio appeal the trial court's denial of their motion to set aside a default judgment for Celeste Smith and Byron Swain. Finding that the default judgment should have been set aside, we reverse and remand for further proceedings.

Facts

[2] In late May 2017, Smith and Swain went to Southside to look for a car. They became very interested in a 2007 BMW 530xi. The two spoke with Amadio, the president of the company, about the car's condition. Amadio claimed that "the car was in mint condition ... a rare find ... [and] it appeared to be in good shape." Tr. Vol. II p. 11. Relying upon Amadio's advice, on June 2, 2017, Smith and Swain purchased the BMW "as-is" for $7,490 with all fees included. Smith and Swain agreed to pay $4,000 immediately as a down payment and to return on June 5, 2017, to pay an additional $2,500. Thereafter, they would pay the remaining $990 in two monthly installments of $495.

[3] One day later, immediately after picking up the BMW, Smith and Swain started having problems with it. The car started "knocking" and "backfiring" quite loudly, id. at 13, so Smith called Amadio to inform him about the issues. Amadio assured Smith that he had an excellent mechanic who would fix any minor problems the car might have. The two dropped the car off at Southside to have it fixed.

[4] Smith and Swain did not hear from Amadio for another three weeks before they called him again. Amadio said the repairs were not complete and that he would need more time. Finally, after nearly three months, on August 28, 2017, Smith and Swain picked up the car. The next day, the two experienced even more problems. The BMW "almost caught fire," "it began smoking," and "the [check] engine light came on." Id. at 17. On September 1, 2017, Smith and Swain took the car to Resf Motors, a BMW certified service center, to get a proper diagnosis. Resf Motors informed the couple that the necessary repairs would cost $1,927. Amadio refused to cover those costs.

[5] On September 13, 2017, Smith and Swain filed a small claims suit against Southside and Amadio, arguing that they sold a car they falsely claimed to be in "mint condition," appellants' app. vol. II p. 22; that it took Southside and Amadio almost three months to make repairs; that Smith and Swain were without a vehicle for that entire time; and that even after making repairs, the car continued to malfunction. Smith and Swain sought $6,700 in damages and $107 in court costs. A hearing was set for September 29, 2017.

[6] After receiving notice of this suit, on September 20, 2017, Amadio went to the Madison Circuit Court and asked the court reporter if he or Southside needed legal counsel for the September 29, 2017, hearing. She said, "You don't have to worry about that. He doesn't operate that way. If you need an attorney, he will tell you." Id. at 16. The fact that the court reporter made this statement is not challenged, and the trial court made no finding to the contrary. The next day, Southside and Amadio filed a counterclaim, denying Smith and Swain's small claims allegations and arguing that the two had failed to pay the remaining purchase price ($3,490) or to return the BMW to Southside.

[7] At the September 29, 2017, hearing, Smith and Swain appeared pro se and Amadio appeared pro se and on behalf of Southside. Though Amadio is the president of Southside, Southside technically failed to appear at the hearing because it was not represented by an attorney. So, while Amadio appeared and spoke for himself, he was not permitted to appear and speak on behalf of Southside. The trial court admonished Amadio, who is not an attorney, for attempting to represent Southside without a law license:

Okay. Do you know that it's illegal for you to be here today in this capacity?
* * *
You can't represent yourself in this type of case okay, because it's against the corporation. ... So, let's try to do this and let's let plaintiffs talk about their case for a minute and see if we can get somewhere[.]

Tr. Vol. II p. 5-6.

[8] Amadio explained what the court reporter had told him about not needing legal counsel for a small claims proceeding:

[W]hen I tried to reach you to find out about procedural ... aspects and I explained to [the court reporter] what my question concerning whether [sic] had to have an attorney, she said that ... the whole goal was to keep costs down that that ... if I need ... to have one, you would let me know.

Id.

[9] Smith and Swain spoke at length about the incident without interruption or pause. Amadio only spoke for a short amount of time and could not refute any of Smith or Swain's statements made against him. The trial court allowed Amadio to speak only on his own behalf, drastically limiting what he could do. Specifically, Amadio was not allowed to admit evidence or cross-examine Smith and Swain, and the trial court restricted what Amadio could say. Specifically, the court said, at different moments, as follows:

• "[Y]ou wouldn't be able to do that."
• "That's-that's out of bounds."
• "Hang on, stop right there."

Id. at 31-33.

[10] Ultimately, Amadio asked if the hearing could be delayed so Southside could obtain proper legal representation, but the trial court stated that it would be unnecessary and too expensive to "correct the matter." Id. at 43. After the informal hearing, the trial court entered a default judgment against both Southside and Amadio in favor of Smith and Swain, awarding them $6,000, the maximum amount permissible under small claims jurisdiction. Appellant's App. Vol. II p. 7. The trial court did not order Smith and Swain to return the BMW to Southside.

[11] On October 27, 2017, Southside and Amadio filed a motion to correct errors and to set aside the September 29, 2017, entry of default judgment, which the trial court denied on January 24, 2018. Southside and Amadio now appeal.

Discussion and Decision

[12] Southside and Amadio's core argument is that the trial court erred for three reasons, one of which we find dispositive: the default judgment should have been set aside because it was based on Amadio's mistake.

[13] We will reverse a denial of a motion to set aside a default judgment only when the trial court's judgment was clearly against the logic and effect of the facts and inferences supporting the judgment for relief. Whelchel v. Cmty. Hosps. , 629 N.E.2d 900, 902 (Ind. Ct. App. 1994). On appeal, we give the trial court substantial deference regarding its initial decision to enter a default judgment. Bennett v. Andry , 647 N.E.2d 28, 31 (Ind. Ct. App. 1995).

[14] Default judgments are appropriate only when a party has not appeared in person or by counsel. Smith v. Johnston , 711 N.E.2d 1259, 1264 (Ind. 1999). Therefore, the default judgment against Amadio was erroneous because he actually did appear at the hearing. To the extent the trial court entered a default judgment against Amadio, it is reversible error. And even if the trial court instead intended to rule against Amadio on the merits, that would also be erroneous because Amadio was not afforded a full opportunity to present his case at the hearing. Therefore, we reverse the judgment against Amadio and remand for a new hearing.

[15] With respect to Southside, it is undisputed that while Amadio could represent himself in the informal proceeding, he could not represent Southside, a separate entity, because he was not an attorney. Ind. Small Claims Rule 8(c)(3). Amadio argues that he relied to his detriment on the words of the court reporter, who opined that the trial court judge probably would not require Southside to have an attorney. Amadio alleges that this caused his mistaken belief that he could represent both himself and Southside.

[16] A default judgment may be set aside under Indiana Trial Rule 60(B)(1) for mistake, surprise, or excusable neglect. Johnston , 711 N.E.2d at 1264. Although there is no fixed rule or standard for determining what constitutes a mistake, State v. Mooney , 51 N.E.3d 281, 284 (Ind. Ct. App. 2016), as a general rule, our courts favor deciding cases on the merits in the face of procedural errors that mistakenly cause attorneys to miss deadlines or lose contact. Dalton Corp. v. Myers , 65 N.E.3d 1142, 1146 (Ind. Ct. App. 2016). The burden is on the movant to establish grounds for Trial Rule 60(B) relief for mistake, surprise, or excusable neglect by affidavit or other evidence. JK Harris & Co., LLC v. Sandlin , 942 N.E.2d 875, 881 (Ind. Ct. App. 2011).

[17] While it is clear that Southside should have had an attorney, its failure to retain one stemmed from Amadio's reliance on the court reporter's statement. In our view, Amadio reasonably relied on the information provided by the court reporter and appeared at the hearing, with a mistaken but understandable belief that he could speak on behalf of himself and the company he heads.

[18] When the trial court realized what had happened, it should have continued the hearing so that Southside could retain counsel. Instead, it refused to do so and dramatically restricted what Amadio could and could not say during the hearing, thereby affecting the rights of both Southside and Amadio. Under these circumstances, the trial court erred by denying Southside's motion to set aside the default judgment based on mistake.

[19] In sum, a default judgment should not have been granted against Amadio because he was present. A judgment on the merits could also not have been entered against him because he was not permitted to fully defend himself or prove his counterclaim. As for Southside, the better practice would have been a continuance rather than a default. But having entered the default judgment, the trial court should have later set it aside based on mistake. Both Amadio and Southside are entitled to a new hearing.

[20] The judgment of the trial court is reversed and remanded for further proceedings.

May, J., and Robb, J., concur.

      Because of our disposition, we are not analyzing the amount awarded or the appropriateness of allowing the car to remain with Smith and Swain.

      At this point, Smith and Swain had only paid the initial $4,000 down payment.

      See Ind. Code § 33-29-2-4(b)(1).

      Though we are not analyzing the amount the trial court awarded Smith and Swain, we question the fairness of this apparent double recovery. The two received the maximum amount permissible under small claims jurisdiction and were able to keep the car without having to make the final payments.


author: GAZIANO, J.

text:
    COMMONWEALTH v. Mark J. DAVIS.
    SJC-12484
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued September 7, 2018 Decided January 14, 2019
    MarySita Miles for the defendant.
    Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.
    Michael A. DelSignore & Julie Gaudreau, for National College for DUI Defense, amicus curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   GAZIANO, J.

On an afternoon in July 2015, a State police officer stopped the defendant for speeding and driving erratically on the Massachusetts Turnpike. After the traffic stop, the officer arrested the defendant for operating a motor vehicle while under the influence of marijuana, G. L. c. 90, § 24 (1) (a ) (1). Subsequently, police officers searched the defendant's automobile and found bags of marijuana, a firearm, and ammunition in the trunk, and oxycodone and cocaine in the locked glove compartment.

The defendant moved to suppress the evidence seized from his automobile. A Boston Municipal Court judge conducted an evidentiary hearing and thereafter denied the motion to suppress; she found that the police had probable cause to arrest the defendant for operating a motor vehicle while under the influence of marijuana, and that the search of the vehicle was justified as an inventory search. A jury acquitted the defendant of all charges except unlawful possession of the drugs found within the locked glove compartment. The defendant appealed to the Appeals Court, and we transferred the case to this court on our own motion.

On appeal, the defendant argues that police did not have probable cause to arrest him for operating a motor vehicle while under the influence of marijuana, the search of his automobile was not a lawful inventory search or justified by any other recognized exception to the warrant requirement, and his trial counsel was ineffective for conceding that the defendant possessed the drugs found in the glove compartment.

We conclude that there was no error in the denial of the defendant's motion to suppress, and that the defendant was not deprived of the effective assistance of counsel.

1. Background. We summarize the facts as found by the motion judge, supplemented where appropriate with uncontroverted evidence from the suppression hearing that is not contrary to the judge's findings and rulings. See Commonwealth v. Melo, 472 Mass. 278, 286, 34 N.E.3d 289 (2015). We reserve for later discussion certain facts relevant to specific claims.

On July 28, 2015, at 12:40 P.M. , Major Daniel Risteen was driving eastbound on the Massachusetts Turnpike in an unmarked Ford Taurus cruiser. The defendant, driving a gray Infiniti sedan, sped past Risteen. Risteen observed the defendant drive at speeds between seventy and eighty miles per hour, and follow "dangerously close" to two other vehicles. The defendant failed to slow down at the toll booths at Exit 18, to Brighton or Cambridge; he was driving seventy miles per hour in a zone with a posted speed limit of thirty miles per hour. Using his public address system, Risteen stopped the vehicle immediately after it had passed through the toll booths, approximately fifty or sixty feet after the booths. The defendant, who had been driving in the left hand lane, stopped on the left hand side of the egress from the toll booths.

In addition to the driver, the vehicle was occupied by two passengers. Risteen approached the driver's side door and asked the defendant for his license and registration. He detected a strong odor of burnt marijuana and an odor of fresh marijuana coming from within the vehicle. The defendant also smelled of burnt marijuana. Apologizing for "moving pretty fast," the defendant explained that he and his two friends were traveling from New York, and that one of them had to be in Somerville by 1 P.M.

During this initial interaction, Risteen noticed that the defendant's eyes were "red," "glassy," and "droopy," and that he was "fighting with the eyebrows, trying to keep his eyes open." He had "dry spit" on the sides of his mouth, his tongue was dry, he was "licking his lips" in responding to questions, and "his speech was slow and lethargic." Suspecting that the defendant was impaired, Risteen returned to his vehicle and called for assistance. Trooper Michael Lynch responded to the scene in a marked police cruiser. When Risteen returned to the Infiniti, the defendant admitted to smoking marijuana "a couple of hours ago."

Risteen noted that both passengers also appeared to have smoked marijuana and thought they "looked high." They smelled of marijuana, and they had trouble staying awake during the roadside encounter. The judge found, as Risteen testified, that the passengers' eyes were red and they appeared "sleepy." They were closing their eyes and tilting their heads back as Risteen was talking to them. The passengers both said that they had been smoking marijuana "earlier" that day.

Risteen ordered the defendant to get out of his automobile so that Risteen could "check out" his condition to drive. Based on the officer's testimony, the motion judge found that the defendant exhibited a number of signs of impairment; "his coordination was slow, his head was bowing down, he had a hard time focusing -- [the officer] asked him four times to take his hands out of his pockets, [and] he was not able to follow simple instructions." Risteen decided to arrest the defendant, but believed that it would be "prefer[able]" to have a third officer present, so the officers would not be outnumbered, and called for additional backup. Once a third officer arrived, Risteen placed the defendant under arrest for operating a motor vehicle while under the influence of marijuana.

After he was arrested and placed in the police cruiser, the defendant asked that one of his passengers be permitted to drive his vehicle. It was Risteen's opinion that "neither one of them could drive, they were both high." Because the officer believed the passengers were impaired and not capable of driving, he did not accede to the defendant's request that one of the passengers be allowed to drive his Infiniti. Rather, the officers impounded the vehicle and called a tow truck to remove it from the turnpike. Risteen told the two passengers to get out of the vehicle, and allowed them to retrieve their personal belongings -- shoes, other clothing, and backpacks -- from it, by indicating which items were theirs. He told them that they were not under arrest and could leave with the tow truck driver. When one of the passengers said that his backpack was in the trunk, Risteen removed it from the trunk, "pat frisked" it for weapons, and then handed it to the passenger.

Prior to the tow, Lynch "started the inventory" of the automobile by searching the trunk. There, he found a loaded handgun, ammunition, and three bags of marijuana sealed inside a plastic food container with a tight-fitting lid. At that point, the defendant already had been arrested, handcuffed, and placed in a police cruiser. Risteen decided to conduct a further search of the automobile at the State police barracks, because the sedan was stopped in a "precarious spot" that was causing traffic to back up at the tolls.

The tow truck delivered the defendant's vehicle to the State police barracks at 1:50 P.M. At some point after the defendant's arrest (it is unclear precisely when), Risteen requested the assistance of a canine "to put a drug dog on the vehicle." The canine handler, Trooper Edward Blackwell, met Risteen and Lynch at the State police barracks and started his search of the vehicle at 2 P.M. The canine sniffed around the outside of the vehicle and eventually alerted to the glove compartment. After attempting to open it, Lynch and Blackwell realized that the glove compartment was locked, and notified Risteen. Risteen obtained the key, which had been in the defendant's pocket, from the booking officer. Blackwell then used the key to open the glove compartment, where he found eleven oxycodone pills and two plastic bags containing a white powder later determined to be cocaine. The officers also found in the trunk a box for the firearm, which contained a gun lock and ammunition.

2. Discussion. a. Probable cause to arrest. A warrantless arrest is lawful under the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights if supported by probable cause. Commonwealth v. Santaliz, 413 Mass. 238, 240, 596 N.E.2d 337 (1992). "[P]robable cause exists, where at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense" (citation omitted). Id. at 241, 596 N.E.2d 337. A determination whether probable cause exists concerns the probability that an offense has been committed. See Commonwealth v. Cartright, 478 Mass. 273, 283, 84 N.E.3d 851 (2017), and cases cited. "These [determinations] are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men [and women ], not legal technicians, act" (citation omitted). Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982). Under this standard, police are not required to resolve all of their doubts before making an arrest. See Cartright, supra.

In this case, the motion judge found that Risteen was justified in arresting the defendant for operating a motor vehicle while under the influence of marijuana, based upon the officer's observations of the defendant's demeanor, physical appearance, and behavior. The judge determined also that the warrantless search of the defendant's vehicle was permissible under the inventory search exception to the warrant requirement.

The defendant contends that the judge erred in denying his motion to suppress, because the officers at the scene did not have probable cause to arrest him for operating a motor vehicle while under the influence of marijuana and, as a result, all of the evidence gathered after the unlawful arrest must be suppressed. In the defendant's view, the facts known at the time of his arrest gave rise only to a suspicion that he had consumed marijuana sometime prior to the traffic stop, and, absent evidence of impairment, there was no crime, just the civil infractions of speeding and tailgating. See Commonwealth v. Rodriguez, 472 Mass. 767, 769-770, 37 N.E.3d 611 (2015) (odor of burnt marijuana, standing alone, does not create probable cause or even reasonable suspicion of criminal activity); Commonwealth v. Craan, 469 Mass. 24, 32, 13 N.E.3d 569 (2014) (odor of unburnt marijuana emanating from vehicle did not give rise to probable cause to arrest absent evidence that driver was impaired).

We agree with the motion judge that, based upon evidence that the defendant's consumption of marijuana had impaired his ability to drive safely, the officers were justified in arresting the defendant for operating a motor vehicle while impaired.

"While using marijuana is no longer a crime in Massachusetts," operating a motor vehicle while under the influence of marijuana remains a criminal offense. Commonwealth v. Gerhardt, 477 Mass. 775, 780, 81 N.E.3d 751 (2017). General Laws c. 90, § 24 (1) (a ) (1), prohibits an individual from operating a motor vehicle on a public way "while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances." We interpret this statute " 'in light of the legislative purpose to protect the public from drivers whose judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies are diminished because of the consumption of alcohol' or drugs." Commonwealth v. Daniel, 464 Mass. 746, 756, 985 N.E.2d 843 (2013), quoting Commonwealth v. Connolly, 394 Mass. 169, 172-173, 474 N.E.2d 1106 (1985). A driver operates a motor vehicle while under the influence when the consumption of an intoxicating substance such as alcohol or marijuana diminishes his or her "ability to operate a motor vehicle safely." See Connolly, supra at 173, 474 N.E.2d 1106. The offense requires impairment of the ability to drive, as opposed to proof that the driver is "drunk" or "high." See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321, 640 N.E.2d 481 (1994).

We acknowledge that it is often difficult to detect marijuana impairment, because the effects of marijuana consumption "vary greatly amongst individuals," Gerhardt, 477 Mass. at 780-783, 786, 81 N.E.3d 751, and as yet there are no validated field sobriety tests. Id. at 786, 81 N.E.3d 751. Nonetheless, as we noted in Gerhardt, certain indicia of marijuana impairment may be relevant to such an inquiry. See id. at 782-783, 81 N.E.3d 751. "A police officer makes numerous relevant observations in the course of an encounter with a possibly impaired driver. There is no doubt that an officer may testify to his or her observations of, for example, any erratic driving or moving violations that led to the initial stop; the driver's appearance and demeanor; the odor of fresh or burnt marijuana; and the driver's behavior on getting out of the vehicle." Id. See Daniel, 464 Mass. at 756, 985 N.E.2d 843 (no probable cause to arrest for operating motor vehicle while under influence of marijuana where no evidence that defendant's "eyes were red or glassy, that her speech or movements were unusual, or that her responses to questioning were inappropriate or uncooperative").

The defendant's argument rests largely on the officer's testimony at the hearing on the motion to suppress that, while he observed the defendant speeding, at times driving at speeds of eighty miles per hour, and driving dangerously close to the bumpers of two other vehicles, he did not observe the defendant swerving over marked lines, driving erratically, or appearing not to be in control of the vehicle. Indeed, the officer testified that, before he reached the driver's side door, he had been considering a number of reasons why the operator would have been driving in that manner, only one of which involved driving while intoxicated. Nonetheless, upon approaching the driver's side door of the Infiniti, Risteen detected the odor of burnt and unburnt marijuana emanating from the vehicle, and the odor of burnt marijuana coming from the defendant's person. Among other things, the defendant had red and glassy eyes, he was struggling to keep his eyes open and his head upright, "his coordination was slow," he had difficulty "focusing," and he also had difficulty in following the officer's "simple directions." The defendant told the officer that he had smoked marijuana earlier that day, before he left to drive to Somerville. Given this, the judge was warranted in finding that police had probable cause to believe that the defendant had operated a motor vehicle while impaired. Contrast Daniel, 464 Mass. at 756-757, 985 N.E.2d 843, citing Connolly, 394 Mass. at 172-173, 474 N.E.2d 1106 (no reasonable suspicion of impairment where there was no testimony that defendant's "judgment, alertness, and ability to respond promptly and effectively to unexpected emergencies [were] diminished' by the consumption of marijuana"). Thus, the denial of the defendant's motion to suppress on this basis was proper. We turn to the search of the defendant's vehicle after his arrest.

b. Warrantless search of the automobile. A warrantless search is "per se" unreasonable under the Fourth Amendment. See Commonwealth v. Perkins, 465 Mass. 600, 603, 989 N.E.2d 854 (2013), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). For evidence seized without a warrant to be admissible, the Commonwealth bears the burden to establish that a warrantless search fell within an exception to the warrant requirement. Perkins, supra. See Commonwealth v. Oliveira, 474 Mass. 10, 13, 47 N.E.3d 395 (2016) ; Commonwealth v. Johnson, 461 Mass. 44, 48, 958 N.E.2d 25 (2011).

The motion judge determined that the officers were authorized to conduct the search of the defendant's vehicle as an inventory search pursuant to the State police inventory search policy. She found that the officers adhered to the written inventory policy, and that the impoundment of the vehicle and its subsequent search were justified because "the vehicle was located on the side of the road after the toll booth and both passengers appeared to be under the influence of drugs and not able to drive."

On appeal, as he did at the hearing on the motion to suppress, the defendant challenges the search of his vehicle at the State police barracks on two grounds. First, he asserts that the judge erred in finding that both passengers were unable to drive the vehicle safely from the turnpike toll booth. See Commonwealth v. Caceres, 413 Mass. 749, 751, 604 N.E.2d 677 (1992) (police required to consider practical alternatives to impoundment of vehicle and subsequent inventory search). Second, the defendant argues that the inventory search was a pretext for an investigatory search. See Commonwealth v. Alvarado, 420 Mass. 542, 553, 651 N.E.2d 824 (1995) (purpose of inventory search is not, and may not be, investigatory in nature).

An inventory search serves three separate legitimate purposes, none of which is investigatory. See Commonwealth v. Eddington, 459 Mass. 102, 108-109, 944 N.E.2d 153 (2011). Police may impound and search a vehicle in order to protect the vehicle and its contents from the threat of theft or vandalism; to protect the police and the tow company from false claims; and to protect the public from dangerous items that might have been left in a vehicle. See Commonwealth v. Ehiabhi, 478 Mass. 154, 165, 84 N.E.3d 13 (2017). To justify this type of warrantless search, the Commonwealth bears the burden of establishing, first, that the impoundment was reasonable under the circumstances, and, second, that police conducted the inventory search in accordance with established written procedures. Oliveira, 474 Mass. at 13, 47 N.E.3d 395. See Alvarado, 420 Mass. at 552, 651 N.E.2d 824, quoting Colorado v. Bertine, 479 U.S. 367, 376, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (Blackmun, J., concurring) ("Law enforcement officers do not have discretion regarding what or where to search during an inventory search"). See also Ehiabhi, supra at 164-165, 84 N.E.3d 13. In examining the propriety of an impoundment, we also consider whether a police officer's decision to tow the vehicle "conceal[s] an investigative motive." Id. at 164, 84 N.E.3d 13. "Where the police's true purpose for searching the vehicle is investigative, the seizure of the vehicle may not be justified as a precursor to an inventory search, and must instead be justified as an investigative search." Oliveira, supra at 14, 47 N.E.3d 395.

The motion judge concluded, and we agree, that the police had reasonable grounds to impound the defendant's automobile. See Commonwealth v. Hoose, 467 Mass. 395, 399-400, 5 N.E.3d 843 (2014) (court defers to motion judge's subsidiary findings of fact absent clear error). The judge found that the vehicle, which was stopped on the left hand side of a toll exit on the Massachusetts Turnpike, in the middle of the day, partially impeding exit from the toll booth and causing traffic delays, posed a public safety hazard. See Oliveira, 474 Mass. at 14, 47 N.E.3d 395. The judge also determined that the police were justified in rejecting the defendant's request that one of his passengers be permitted to remove the vehicle from the highway. She credited Risteen's testimony and found that "both passengers appeared to be under the influence of drugs and not able to drive."

The officers' testimony at the hearing, which the judge credited, supports a reasonable conclusion that the passengers were "not able to drive." The passengers told the officers that they had been smoking marijuana "all day," were in a vehicle that smelled of burnt marijuana, and had difficulty in staying awake during the traffic stop. A determination that the passengers were not in a condition to operate the vehicle safely is fact-driven, "with the overriding concern being the guiding touchstone of '[r]easonableness' " (citation omitted). See Eddington, 459 Mass. at 108, 944 N.E.2d 153. It was reasonable for the officers to conclude that turning the vehicle over to another impaired driver could compromise public safety. See Ehiabhi, 478 Mass. at 165, 84 N.E.3d 13.

That the officers had reasonable grounds to impound the vehicle, however, does not end the analysis. Based on Risteen's decision to "put a drug dog on the vehicle," the defendant argues that the inventory search of his automobile was a pretext to search the vehicle for investigative purpose, and that the judge erred in determining that it was a valid inventory search. See Oliveira, 474 Mass. at 13, 47 N.E.3d 395.

Unlike other types of searches, an inventory search is administrative, and the decision to conduct an inventory search must not be for investigatory purposes; the decision must be objectively reasonable, and the search must be conducted according to standard written procedures. See Commonwealth v. Matchett, 386 Mass. 492, 509-510, 436 N.E.2d 400 (1982) (to be permissible, inventory search must be conducted following established written procedures and there must be "no suggestion that the procedure was a pretext concealing an investigatory police motive"). The use of a drug detection dog to conduct what is supposedly a search to safeguard property -- and not a search for drugs -- raises a red flag. See Alvarado, 420 Mass. at 553, 651 N.E.2d 824 ("The Commonwealth's contention that the search of the Buick was an inventory search is also defeated by the fact that the police enlisted the assistance of a canine in conducting the search"); Commonwealth v. Ortiz, 88 Mass. App. Ct. 573, 577, 39 N.E.3d 458 (2015) (judge's finding that inventory search was pretext was supported by police decision to assign traffic stop to State police officer "with his narcotics-sniffing dog in tow").

Here, the Commonwealth failed to establish that the decision to "put a drug dog" on the vehicle was made for a noninvestigatory purpose. See Oliveira, 474 Mass. at 13, 47 N.E.3d 395 (reasonableness of inventory search requires inquiry into officer's "true purpose"). Risteen testified that he called for a canine search during the stop, and wrote in his police report that Blackwell arrived "on scene with his certified canine to further check the Infinit[i] sedan at E-4 [the State police barracks]." Risteen did not testify as to when during the encounter he decided to request a canine, or what prompted him to do so.

It may be that Risteen decided to call for a canine to search the vehicle prior to the initial roadside search, or that the discovery of marijuana in the trunk prompted the request. Because the Commonwealth had the burden of establishing that the police conducted a lawful inventory search, yet did not present any evidence to demonstrate that there was a legitimate need to "put a drug dog" on the defendant's vehicle, we cannot affirm the judge's ruling on this basis.

c. Automobile exception to the warrant requirement. Although we conclude that the motion judge's decision to deny the motion to suppress, on the grounds discussed, was not proper, we consider other reasons, advanced by the Commonwealth, that might support the judge's determination. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102, 682 N.E.2d 586 (1997) (reviewing court may affirm motion judge's decision on grounds different from those relied upon by judge, if those grounds are supported by record and judge's findings of fact). Accordingly, we turn to whether the search of the defendant's Infiniti was justified under the automobile exception to the warrant requirement.

Due to the inherent mobility of an automobile, and the owner's reduced expectation of privacy when stopped on a public road, police are permitted to search a vehicle based upon probable cause to believe that it contains evidence of a crime. Commonwealth v. Motta, 424 Mass. 117, 123-124, 676 N.E.2d 795 (1997). "The issue of paramount importance is whether the police, prior to the commencement of a warrantless search, had probable cause to believe that they would find the instrumentality of a crime or evidence pertaining to a crime in the vehicle" (quotations and citation omitted). Johnson, 461 Mass. at 49, 958 N.E.2d 25. The scope of a warrantless search of a vehicle conducted pursuant to this exception is defined by the object of the search, and extends to every part of the vehicle where there is probable cause to believe the object may be found. See Commonwealth v. Cast, 407 Mass. 891, 906, 556 N.E.2d 69 (1990), citing United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Authority to search under the automobile exception exists "even when the police had ample opportunity to obtain a search warrant, provided that there has been no unreasonable delay." Commonwealth v. Eggleston, 453 Mass. 554, 554, 903 N.E.2d 1087 (2009). See Johnson, supra at 46-47, 958 N.E.2d 25 (affirming search of vehicle for evidence of operation of motor vehicle while under influence of alcohol where "agitated" driver "reeked" of alcohol and was slurring his words and unsteady on his feet, and where officer observed half-empty bottle of cognac on dashboard of vehicle).

The defendant argues that the Commonwealth did not establish probable cause to believe that evidence relating to either the offense of operating a motor vehicle while under the influence of marijuana or possession of the loaded handgun would be found in the glove compartment. He argues, in addition, that the automobile exception does not apply where the officers had ample opportunity to secure a warrant to search the impounded vehicle. See Commonwealth v. Agosto, 428 Mass. 31, 34-35, 696 N.E.2d 924 (1998), quoting Commonwealth v. Markou, 391 Mass. 27, 30-31, 459 N.E.2d 1225 (1984) (while safety concerns may permit immediate search after towing vehicle from highway to safe environment, "[n]onetheless, we have not endorsed 'giving the police carte blanche to search without a warrant any time subsequent to a valid stop' ").

The Commonwealth contends that the officers' search of the glove compartment was permissible in order to search for (unspecified) evidence of separate crimes: operating a motor vehicle while under the influence of marijuana, and "based on the discovery of the loaded Smith and Wesson .380 and three bags of marijuana [found] during the inventory at the scene." See Johnson, 461 Mass. at 50, 958 N.E.2d 25. The delay in searching the vehicle was reasonable, argues the Commonwealth, because it had to be removed from the turnpike and towed to a safe location in order to conduct the search.

We conclude that the officers had adequate grounds to secure the vehicle and thereafter promptly to search the glove compartment for evidence related to the offense of operating the vehicle while under the influence of marijuana. See Ross, 456 U.S. at 825, 102 S.Ct. 2157 ; Motta, 424 Mass. at 123-124, 676 N.E.2d 795. As discussed, the officer had probable cause to believe, based on the defendant's appearance and his interactions with Risteen, as well as his admission to having smoked marijuana earlier, that the defendant's consumption of marijuana had diminished his "ability to operate a motor vehicle safely"; in addition, once the passengers had left the vehicle, Risteen saw marijuana leaves scattered on the rear passenger seat. See Connolly, 394 Mass. at 173, 474 N.E.2d 1106. Therefore, the officers had authority to search the vehicle, pursuant to the automobile exception, for evidence pertaining to the offense of operating a motor vehicle while under the influence. See Johnson, 461 Mass. at 50, 958 N.E.2d 25. Contrast Daniel, 464 Mass. at 754-757, 985 N.E.2d 843. The search permissibly could extend to the locked glove compartment (to which the officers had a key) because it was reasonable for the officers to believe that it contained marijuana or implements used to consume marijuana. See Motta, supra at 122-124, 676 N.E.2d 795 (police entitled to search areas of vehicle where fruits of crime or evidence of crime might be found); Commonwealth v. Antobenedetto, 366 Mass. 51, 55, 315 N.E.2d 530 (1974) (search legitimate where it is for "instrumentality" or "evidence" of crime).

Finally, we reject the defendant's contention that the police unreasonably delayed the search. The tow truck arrived at the State police barracks at 1:50 P.M. Blackwell promptly initiated the search of the vehicle at 2 P.M. See Eggleston, 453 Mass. at 559, 903 N.E.2d 1087 ; Agosto, 428 Mass. at 34, 696 N.E.2d 924.

d. Ineffective assistance of counsel. In addition to his challenge to the denial of the motion to suppress, the defendant raises, for the first time on appeal, a claim of ineffective assistance of counsel. He contends that his trial counsel's decision to concede that the defendant possessed the drugs found "under lock and key" in the glove compartment fell "measurably below that which would be expected of an ordinary fallible lawyer," and deprived him of "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96-97, 315 N.E.2d 878 (1974).

The preferred method for raising claims of ineffective assistance of trial counsel is through a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810, 847 N.E.2d 1095 (2006). "Relief on a claim of ineffective assistance based on the trial record is the weakest form of such a claim because it is 'bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.' " Commonwealth v. Gorham, 472 Mass. 112, 116 n.4, 32 N.E.3d 1267 (2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5, 770 N.E.2d 440 (2002). Relief may be afforded on such a claim "when the factual basis of the claim appears indisputably on the trial record." Gorham, supra, quoting Zinser, supra at 811, 847 N.E.2d 1095.

Here, trial counsel made an obviously strategic decision to concede that his client possessed the drugs found in a locked glove compartment, and advised the judge of this during a hearing on motions in limine immediately prior to voir dire of the venire. In his opening statement, counsel said, "I'm just going to be completely upfront with you right now, those drugs were [the defendant's] drugs. You can go ahead and find him guilty of those drugs, no question. They were in his car in a locked glove box. He had the key to the glove box, his drugs." Trial counsel then stated, by way of contrast, that the Commonwealth would be unable to prove the remaining (more serious) charges of operating a motor vehicle while under the influence of marijuana and possession of an unlawful firearm. "I am going to suggest to you that the Commonwealth's evidence on those charges are [sic ] going to be insufficient. And like I said, compare it to the drugs found in the glove box. Go ahead and find him guilty of the drugs in the glove box. Those are his. But the rest of it rests on assumptions and speculation that I am going to ask you not to engage in and at the end to find him not guilty of the remaining charges."

Later, in his closing argument, counsel again conceded that the defendant possessed the items in the glove compartment, but asked the jury to consider that the Commonwealth's substitute chemist had not established that the substances were oxycodone and cocaine. Again, counsel urged the jury to compare the evidence from the glove compartment to the Commonwealth's proof that the defendant possessed the firearm and ammunition recovered from the trunk. He argued, "[I]t is simply insufficient for the police to have found something in the trunk of the car where there were three people inside and where two people, after [the defendant] was removed, went in and took their property out.... So compare that to what they found in the glove box. These are under lock and key. [The defendant] has the key. He's the gatekeeper. No one's getting in without his key. He possess the things in the glove box. That does not prove anything about the gun."

On this record, the defendant's claim of ineffective assistance is not indisputable. The Commonwealth established that the vehicle was registered to the defendant, and that the defendant had the key to the glove compartment in his front pocket when he was arrested. It does not appear that trial counsel had any other viable theory of defense, and appellate counsel does not offer a viable alternative. At trial, counsel skillfully utilized this inculpatory evidence to highlight the Commonwealth's inability to prove the other charges. This strategy appeared to be successful; the jury acquitted the defendant of the firearms charges and of operating a motor vehicle while under the influence.

3. Conclusion. The order denying the motion to suppress is affirmed. The judgments are also affirmed.

So ordered.

      The Commonwealth charged the defendant with six criminal offenses: operating a motor vehicle while under the influence of drugs (marijuana), in violation of G. L. c. 90, § 24 (1) (a )(1) ; unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a ) ; unlawful possession of ammunition, in violation of G. L. c. 269, § 10 (h ) (1) ; possession with intent to distribute a class B substance (oxycodone), in violation of G. L. c. 94C, § 32A (b ), as a subsequent offense; possession with intent to distribute a class B substance (cocaine) as a subsequent offense, in violation of G. L. c. 94C, § 32A (b ) ; and possession with intent to distribute a class D substance (marijuana), in violation of G. L. c. 94C, § 32C (a ). The defendant also was charged with two civil motor vehicle infractions: speeding on the Massachusetts Turnpike, in violation of 700 Code Mass. Regs. § 7.08(6)(a) (2013) (now § 7.09[6][a] ); and following too closely, in violation of 700 Code Mass. Regs. § 7.08(15) (2013) (now § 7.09[15] ). Before trial, the prosecutor reduced the charges of possession with intent to distribute oxycodone and cocaine to simple possession of those substances, and dismissed the charge of possession with intent to distribute marijuana.

      Risteen did not conduct formal "field sobriety" tests of the defendant, as he knew from experience that "standardized field sobriety" tests are "not too good of an indicator regarding marijuana intake"; rather, he relied on his thirty years of training and experience with the State police, which included extensive specialized training in narcotics and sixteen years in a specialized unit.

      At the time of the events at issue here, possession of one ounce or less of marijuana had been decriminalized, but remained a civil infraction. See St. 2017, c. 55.

      See note 2, supra.

      The search of the defendant's vehicle for evidence relating to a violation of G. L. c. 90, § 24 (1) (a )(1), stands in stark contrast to the impermissible searches conducted in Commonwealth v. Overmyer, 469 Mass. 16, 20, 11 N.E.3d 1054 (2014), and Commonwealth v. Cruz, 459 Mass. 459, 477, 945 N.E.2d 899 (2011), where "no specific facts suggest[ed] criminality."

      The defendant did not indicate, at trial, his "intransigent and unambiguous objection" to his counsel's strategic decision to admit the defendant's possession of the items in the glove compartment. Accordingly, there is no structural error as discussed in McCoy v. Louisiana, --- U.S. ----, 138 S.Ct. 1500, 1507, 1511, 200 L.Ed.2d 821 (2018).


author: LOWY, J.

text:
    COMMONWEALTH v. David COPELAND.
    SJC-10992
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued November 9, 2018 Decided January 18, 2019
    Stephen Paul Maidman, Springfield, for the defendant.
    Julianne Campbell, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Lowy, Budd, & Cypher, JJ.
   LOWY, J.

On July 29, 2008, John Marshall (victim) was stabbed to death in a parking lot in the Roxbury section of Boston. A grand jury returned indictments charging the defendant, David Copeland, with murder in the first degree and armed robbery. At trial, the defendant conceded that he stabbed the victim, but argued that he suffered from posttraumatic stress disorder (PTSD) at the time of the killing, that the killing was a spontaneous event, and that he did not rob the victim. A Superior Court jury convicted the defendant of felony-murder in the first degree and armed robbery. On appeal from his convictions, the defendant challenges (1) the Commonwealth's opening statement; (2) the sufficiency of the evidence on the offenses of felony-murder and deliberately premeditated murder; (3) the judge's refusal to instruct the jury on felony-murder in the second degree; (4) the Commonwealth's closing argument; and (5) defense counsel's ineffective performance. He also requests that we exercise our power under G. L. c. 278, § 33E, to order a new trial or reduce the verdict to voluntary manslaughter. Because we find neither reversible error nor a reason to exercise our authority under § 33E, we affirm the judgments.

Background. We recite the evidence presented during the Commonwealth's case-in-chief, in the light most favorable to the Commonwealth. Commonwealth v. Veiovis, 477 Mass. 472, 474, 78 N.E.3d 757 (2017). See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). On July 28 and 29, 2008, the defendant and two women were smoking "crack" cocaine at an apartment on Regent Street. They ran out of cocaine multiple times, and on each occasion someone left the apartment and got more. But eventually, on the second day, both the cocaine and the money ran out. The defendant then asked one of the women if he could use her cellular telephone, saying that he was going to meet somebody. The defendant left the apartment wearing a white T-shirt.

That same day, a witness telephoned the police after she saw two men fighting in the parking lot next to her apartment building on Dale Street. She saw a man in a white shirt apparently punching the victim, who was wearing a black shirt. The victim was "[j]ust standing there" leaning against his vehicle. The man in the white shirt eventually walked out of the parking lot toward Regent Street, leaving the victim lying on the ground. The witness then saw blood on the ground of the parking lot.

At that time, a police officer who was in the area saw the defendant walking away from Dale Street on Regent Street. The defendant was sweating, bleeding, and shirtless; he was holding a white T-shirt in his hands. The officer asked the defendant if he needed help, and the defendant "shrugged [the officer] off and kept walking." After receiving a radio call about a stabbing in a Dale Street parking lot, the officer put out a description of the defendant and said the defendant might be in a nearby building. Officers began to canvass the area.

The defendant returned to the Regent Street apartment sweaty and with blood on him. He first told one of the women at the apartment that he had fallen, but then said that "he got someone" and that he "took care of business." The women told the defendant that police were gathering outside. After hearing this, the defendant handed one of the women cocaine, marijuana, and money, all of which had blood on them. He also told the other woman that she did not need to open the door. He went into the kitchen, saying that he was trying to get to the back door, but he was still inside when a police officer entered the apartment.

After the defendant's arrest, police found blood containing the victim's deoxyribonucleic acid (DNA) on the defendant's ear. The defendant initially told a detective that he had not left the Regent Street apartment building on the day of the killing. But when the detective told the defendant that he had evidence to the contrary, the defendant acknowledged that he had left once to buy alcohol.

Meanwhile, police and paramedics found the victim lying on his back between two parked vehicles in the Dale Street parking lot, covered in blood. He was wearing a dark shirt, either navy blue or black. The victim was a crack cocaine dealer, and he also used marijuana. According to his girlfriend, who had previously seen drugs in the victim's vehicle, he had been selling drugs on July 29.

The victim died at the hospital from an eight inch stab wound to the heart. He had other wounds on his body, including wounds on his hands consistent with attempts to block a knife. There were components of marijuana in his blood.

Inside the victim's vehicle, which was at the crime scene, police found crack cocaine and a hat with the defendant's DNA on it. When police searched the Regent Street apartment, they found a knife wrapped in a white T-shirt. The medical examiner testified that the knife could have caused the injury that killed the victim. Blood on the knife matched the victim's DNA. Police officers also examined video footage captured on July 29 by surveillance cameras next to the Dale Street parking lot. The defendant appeared on that footage at around the time of the killing.

The defendant moved at the close of the Commonwealth's case for a required finding of not guilty on the armed robbery charge. The judge denied the motion. The defendant then presented multiple witnesses, including a psychiatrist who had interviewed the defendant, to testify about an alleged sexual assault against the defendant that occurred in February 2008. The psychiatrist testified that the assault resulted in PTSD that affected the defendant's mental state on the day of the killing.

The defendant also testified. He asserted that he planned to give the victim marijuana in exchange for crack cocaine on July 29, and he claimed to have exchanged drugs with the victim before. He also stated that he took with him a knife from the kitchen of the apartment when he went to meet the victim. After seeing the amount of cocaine that the victim wanted to exchange for the marijuana, the defendant tried to back out of the deal. He testified that a fight ensued inside the vehicle, resulting in the defendant stabbing the victim. He stated that the cocaine that the victim had offered him was not the same cocaine that the police found in the victim's vehicle.

On cross examination, the defendant admitted that his entire postarrest statement to police was a lie. He also insisted that he had not handed over any cocaine on his return to the apartment, but had no answer for where the cocaine that the victim had offered him went.

After the defense rested, the defendant moved for a required finding of not guilty on the offenses of murder in the first degree, murder in the second degree, and armed robbery. After brief oral argument, during which the defendant emphasized the lack of evidence with respect to felony-murder, the judge denied the motion "as to the armed robbery, felony murder and other theories of first degree murder." The jury were instructed on murder in the first degree based on the theory of premeditation; murder in the first degree based on the theory of felony-murder, with armed robbery as the predicate felony; murder in the second degree based on malice; manslaughter; and armed robbery. The judge declined to instruct the jury on murder in the second degree based on larceny from a person. After the jury returned their verdict, the defendant filed motions under Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), regarding the felony-murder offense and the armed robbery offense. The judge denied both motions.

Discussion. 1. Sufficiency of the evidence for felony-murder. The defendant contends that the evidence did not support a conviction of felony-murder because there was insufficient evidence of armed robbery, the predicate felony. According to the defendant, the judge erred by failing to enter sua sponte a required finding of not guilty on the felony-murder charge at the close of the Commonwealth's case, and erred again by denying the defendant's motion for a required finding at the close of all the evidence.

"In reviewing the denial of a motion for a required finding, we must determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged" (quotation and citation omitted). Commonwealth v. Whitaker, 460 Mass. 409, 416, 951 N.E.2d 873 (2011). "[A] conviction may rest upon circumstantial evidence alone, and the inferences a jury may draw from the relevant evidence need only be reasonable and possible," not "necessary or inescapable" (citation omitted).

Commonwealth v. Martin, 467 Mass. 291, 312, 4 N.E.3d 1236 (2014). "[W]e do not weigh supporting evidence against conflicting evidence when considering whether the jury could have found each element of the crime charged." Id.

When reviewing a motion for a required finding that was filed at the close of the Commonwealth's case and was renewed at the close of all the evidence, "[w]e consider the state of the evidence at the close of the Commonwealth's case to determine whether the defendant's motion should have been granted at that time. We also consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth's position as to proof deteriorated after it closed its case" (alteration omitted). Commonwealth v. Semedo, 456 Mass. 1, 8, 921 N.E.2d 57 (2010), quoting Commonwealth v. Sheline, 391 Mass. 279, 283, 461 N.E.2d 1197 (1984).

To prove that the defendant committed armed robbery, the Commonwealth had to show that the defendant (1) "[took] money or other property from the victim," (2) "with the intent to steal it," (3) "while armed with a dangerous weapon," and (4) "by applying actual force to the victim or putting the victim in fear through the use of threatening words or gestures." Commonwealth v. Benitez, 464 Mass. 686, 694 n.12, 985 N.E.2d 102 (2013). According to the defendant, at the close of the Commonwealth's case there was no evidence that the defendant took money or property from the victim, that any of the victim's money or property was missing, that the defendant applied actual force against or threatened the victim, or that the defendant intended to steal from the victim. Additionally, the defendant argues that the Commonwealth failed to prove "that the taking did not occur as a mere afterthought to the killing." We disagree. See Commonwealth v. Webster, 480 Mass. 161, 167-168, 102 N.E.3d 381 (2018).

From the evidence presented during the Commonwealth's case-in-chief, a rational jury could infer that the defendant intended to and did steal from the victim on July 29, and that he did so using a knife to stab the victim. The defendant, apparently armed with a knife, left the Regent Street apartment to meet somebody after he and his companions had run out of money and cocaine. He later returned to the apartment with money and cocaine that had blood on them. Upon his return, the defendant said that he "got someone" and that he "took care of business." See Commonwealth v. Morgan, 460 Mass. 277, 290, 951 N.E.2d 14 (2011) ("evidence tend[ing] to show that the defendant needed money and went to various extremes to get it" relevant to defendant's motive to rob). Cf. Commonwealth v. Cannon, 449 Mass. 462, 469, 869 N.E.2d 594 (2007) (sufficient evidence of plan to rob where "jury could reasonably infer that the defendant ... knew that the victim kept both money and illegal drugs in his apartment").

In addition, there was compelling circumstantial evidence that the victim possessed drugs on July 29. He had been selling drugs that day, he kept drugs in his vehicle, crack cocaine was found in his vehicle after he died, and he had been using marijuana at some point before being killed. There also was abundant evidence connecting the defendant with the crime scene. A hat the defendant had worn was found in the victim's vehicle; the defendant was wearing a white T-shirt when he left the apartment, a witness saw a man with a white shirt leaving the Dale Street parking lot after a fight with the victim, and the same witness saw blood on the ground near the victim; the defendant was observed by a police officer near the crime scene, sweaty and bloody and holding a white T-shirt, around the time that the crime was reported; and surveillance footage showed the defendant near the Dale Street parking lot on the day of the killing. The victim's blood was found on the defendant's body after his arrest, and a knife with the victim's blood on it that could have been used to inflict the victim's fatal wound was found wrapped in a white T-shirt in the apartment to which the defendant returned on July 29. See Commonwealth v. McGrath, 358 Mass. 314, 318, 264 N.E.2d 667 (1970) (finding sufficient evidence of armed robbery of drug store where, inter alia, defendant was near drug store around time of murders and, one hour after crime, "was in possession of the revolver which was proved to have been the one that killed" victim).

The defendant's consciousness of guilt further supports our conclusion. See Martin, 467 Mass. at 315, 4 N.E.3d 1236, quoting Commonwealth v. Booker, 386 Mass. 466, 470, 436 N.E.2d 160 (1982) ("evidence of consciousness of guilt 'may be sufficient to amass a quantum of proof necessary to prove guilt' when 'coupled with other probable inferences' "). Upon returning to the apartment, the defendant initially explained his physical condition to one of the women by saying that he had fallen, but then said that he "got someone"; after learning that police were outside the apartment, the defendant got rid of bloody drugs and money, told one of the women that she need not open the apartment door, and said that he was trying to get to the apartment's back door; and after being arrested, the defendant admitted to the police that he had left the apartment only after a detective told him there was evidence to that effect. See Commonwealth v. Cook, 364 Mass. 767, 772, 308 N.E.2d 508 (1974) (defendant's "contradictory statements and attempted flight" suggested "consciousness of guilt").

Although the evidence the defendant introduced after the Commonwealth rested contradicted part of the Commonwealth's case, the Commonwealth's case did not deteriorate. A finding of not guilty or guilty of a lesser offense required the jury to reject the testimony of the Commonwealth's witnesses in favor of the defendant's version of events. "[Q]uestions of credibility belong properly to the finder of fact ... and, in considering whether the evidence is sufficient to support a conviction, should be resolved in favor of the Commonwealth" (citation omitted). Martin, 467 Mass. at 315, 4 N.E.3d 1236. The evidence before the jury at the close of all the evidence, when viewed in the light most favorable to the Commonwealth, remained sufficient to support a conviction of felony-murder based on armed robbery.

2. Jury instructions. The defendant contends that the judge erred in declining to instruct the jury on felony-murder in the second degree based on the offense of larceny from a person. "[A]n instruction on felony-murder in the second degree is necessary when there is a rational basis in the evidence to warrant the instruction" (quotations and citation omitted). Commonwealth v. Holley, 478 Mass. 508, 528, 87 N.E.3d 77 (2017). There was no such rational basis here.

"To return a verdict of larceny, not robbery, a jury must conclude that any property was taken without the threat or use of force." Commonwealth v. Christian, 430 Mass. 552, 558, 722 N.E.2d 416 (2000), overruled on another ground by Commonwealth v. Paulding, 438 Mass. 1, 777 N.E.2d 135 (2002). Here, all the evidence "indicates a confrontation and force .... The facts cannot support a finding that the killing occurred in the course of larceny from the person, because force or the threat of force permeated the encounter ...." Commonwealth v. Glowacki, 398 Mass. 507, 514, 499 N.E.2d 290 (1986), overruled on another ground by Christian, supra. Therefore, the judge did not err in declining to instruct on felony-murder in the second degree. See Commonwealth v. Ford, 35 Mass. App. Ct. 752, 756, 626 N.E.2d 1 (1994) (affirming judge's refusal to instruct on larceny from person where "neither the prosecutor's theory of what occurred nor the defendant's theory raised any possibility of a finding of the lesser crime").

3. Commonwealth's closing argument. The defendant contends that the Commonwealth made several improper comments during its closing argument. Because the defendant did not object to the closing argument at trial, we review to determine whether any errors created a substantial likelihood of a miscarriage of justice. Veiovis, 477 Mass. at 488, 78 N.E.3d 757.

Only one of the defendant's contentions requires significant discussion. According to the defendant, the Commonwealth improperly referred to the defendant's medical expert as "a paid expert with a job to do ..., and that job was to come up with the excuse and then come in and sell that excuse to you." "[I]t is improper for a prosecutor to suggest that an expert witness's testimony was 'bought' by a defendant or to characterize the witness as a 'hired gun' where ... there was no evidence that he was paid more than his customary fee" (citation omitted). Commonwealth v. Bishop, 461 Mass. 586, 598, 963 N.E.2d 88 (2012). Here, the expert testified that defense counsel did not place a "specific limit" on how much money he could spend. However, he also revealed that he was conscious of avoiding unnecessary expenses, testifying that he was "[m]indful of not trying to cost the Commonwealth ... too much money in doing work that is not really going to produce much by way of my opinion." Given this evidence, it was improper for the Commonwealth to suggest that the defendant's expert was paid to reach a particular conclusion.

Nevertheless, it is unlikely that this error influenced the jury's decision. It was an isolated error, made in the context of a larger, proper discussion of evidence showing weaknesses in the expert's assessment of the defendant, and the judge instructed the jury that closing arguments are not evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517, 505 N.E.2d 519 (1987) ("instructions may mitigate any prejudice in the final argument"). Therefore, the error did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Goitia, 480 Mass. 763, 768, 108 N.E.3d 993 (2018), quoting Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014) (substantial likelihood of miscarriage of justice requires error that is "likely to have influenced the jury's conclusion").

Second, the defendant takes issue with the Commonwealth's suggestion that the defendant was not sexually assaulted in February 2008. In his closing, the prosecutor acknowledged that he was "not here to try and prove to you that this man was not assaulted." He questioned whether the incident occurred, however, stating that "one thing is for sure about whatever happened in February of 2008, there's a lot of questions about it," and that "[m]aybe something happened, maybe it didn't." "A prosecutor may not misstate evidence or refer to facts not in evidence in a closing argument." Commonwealth v. Goddard, 476 Mass. 443, 449, 68 N.E.3d 1146 (2017). But a prosecutor "may properly attack the credibility of witnesses." Commonwealth v. Donovan, 422 Mass. 349, 357, 662 N.E.2d 692 (1996). That is what the prosecutor did here. There was no error.

Third, the Commonwealth allegedly erred by suggesting that the defendant's psychiatrist expert incorrectly examined the defendant and had an obligation to investigate other sources of information about the defendant. In his closing, the prosecutor observed multiple times that the psychiatrist had not verified the defendant's statements to the psychiatrist. The Commonwealth emphasized this lack of corroboration on cross-examination; the assertions during closing argument were therefore grounded in the evidence. Moreover, it is proper to demonstrate that an opposing expert's opinion is based exclusively on the defendant's version of events. See Commonwealth v. Johnston, 467 Mass. 674, 698, 7 N.E.3d 424 (2014) (no error where prosecutor's cross-examination of expert "went to the thoroughness of [expert's] examination of the defendant"); Commonwealth v. Noxon, 319 Mass. 495, 538, 66 N.E.2d 814 (1946) ("it is open to the other party to show on cross-examination of the expert that there are facts in the case not accounted for in the opinion of the expert"). We find no error.

Fourth, the defendant argues that the Commonwealth improperly explained premeditation as capable of occurring with a snap of the fingers. This explanation was not erroneous where it was a correct statement of the law. "No particular length of time of reflection is required to find deliberate premeditation, and the decision may be made in only a few seconds." Commonwealth v. Rakes, 478 Mass. 22, 34, 82 N.E.3d 403 (2017).

Fifth, the defendant contends that the Commonwealth improperly suggested to the jury that crack dealers do not exchange crack for marijuana. The prosecutor stated in his closing argument that the defendant

"went out to go buy crack from [the victim]. And he is somehow, and apply your common sense to this ..., he has somehow found the crack dealer that exchanges marijuana for crack .... [H]e ... wants you to believe that [the victim] is okay ... being on sort of an even exchange business. I'll get some marijuana from you in exchange for crack[.] Do you really think that that's the way crack dealers work in the city of Boston? That they don't come out looking for money?"

There was no evidence at trial to suggest that crack dealers in general do not barter.

However, the jury learned that the defendant told the psychiatrist expert during an interview that the defendant "would usually buy from [the victim] using cash, but on this occasion he sought to exchange marijuana for cocaine." This evidence suggests that it would have been unusual for the defendant to pay for cocaine with marijuana. Therefore, the Commonwealth's assertions were properly grounded in the evidence. See Veiovis, 477 Mass. at 489, 78 N.E.3d 757.

Finally, the Commonwealth allegedly erred in arguing that the defendant ran from accountability after killing the victim. The prosecutor argued that the defendant "fled the scene. He ran, and he ... did not run from fear. He did not run from danger. He ran from accountability, and he has continued to run from accountability for what he did that day from that day to this." There was abundant evidence at trial that the defendant tried to avoid arrest and prosecution. "Here, where the prosecutor's references to the defendant's accountability for his actions were ... connected to specific acts of the defendant that were in evidence, the comments were not improper." Commonwealth v. Tavares, 471 Mass. 430, 444, 30 N.E.3d 91 (2015).

4. Ineffective assistance of counsel. The defendant contends that his trial counsel was constitutionally ineffective. Because this is a capital case, we review for a substantial likelihood of a miscarriage of justice by asking whether there was error and, if so, whether the error "was likely to have influenced the jury's conclusion." Commonwealth v. Alicea, 464 Mass. 837, 845, 985 N.E.2d 1197 (2013), quoting Wright, 411 Mass. at 682, 584 N.E.2d 621.

According to the defendant, trial counsel improperly failed to (1) move for a required finding of not guilty on deliberately premeditated murder and felony-murder at the close of the Commonwealth's case, and (2) object to the Commonwealth's closing argument. The defendant's claims cannot succeed here, where we have already concluded that even if there was insufficient evidence to convict on deliberately premeditated murder, the error does not require reversal (see note 3, supra ); that there was sufficient evidence to convict the defendant of felony-murder at the close of the Commonwealth's case; and that any error in the Commonwealth's closing argument did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Maynard, 436 Mass. 558, 572-573, 767 N.E.2d 1 (2002) ("Because it has already been determined that the prosecutor's misstatement does not warrant reversal under G. L. c. 278, § 33E, [defendant] cannot now succeed on his ineffective assistance of counsel claim based on counsel's failure to object to that same error"); Commonwealth v. Costa, 407 Mass. 216, 224 n.9, 552 N.E.2d 106 (1990) ("Because we determine that there was sufficient evidence to support a conviction of murder in the first degree ..., we hold that trial counsel's failure to move for a required finding of not guilty did not amount to ineffective assistance of counsel").

5. Review under G. L. c. 278, § 33E. After reviewing the entire record pursuant to our obligation under G. L. c. 278, § 33E, we decline to enter a verdict of a lesser degree of guilt or to order a new trial.

Judgments affirmed.

      In denying the motion regarding felony-murder, the judge stated that he found "no basis in the facts to set aside or reduce the verdict." In denying the motion regarding armed robbery, the judge concluded that "[t]he evidence supported the conviction."

      The defendant also argues that the alleged armed robbery merges with the killing because the Commonwealth failed to show two separate assaults. However, in Commonwealth v. Christian, 430 Mass. 552, 556, 722 N.E.2d 416 (2000), overruled on other grounds by Commonwealth v. Paulding, 438 Mass. 1, 777 N.E.2d 135 (2002), we observed that we could "envision no situation in which an armed robbery would not support a conviction of felony-murder." We have recently reaffirmed this conclusion, see Commonwealth v. Fredette, 480 Mass. 75, 83, 101 N.E.3d 277 (2018), and we discern no reason to disturb it.

      The defendant also contends that the evidence did not support a conviction of deliberately premeditated murder. This argument fails because the defendant was not convicted of that crime. See, e.g., Commonwealth v. Forde, 392 Mass. 453, 456, 466 N.E.2d 510 (1984) (even if evidence of deliberate premeditation was insufficient, error would be harmless beyond reasonable doubt because defendant convicted of murder in second degree). Moreover, although we do not decide whether the evidence was sufficient to sustain a conviction of deliberate premeditation, the facts here are similar to cases where we have upheld such a conviction. See Commonwealth v. Salazar, 481 Mass. 105, 112, 112 N.E.3d 781 (2018) (sufficient evidence of deliberate premeditation where "defendant retrieved the weapon ... before the killing," "fatal wound was a deep wound to the victim's neck," and "victim had at least six other stab or incised wounds, including defensive wounds").

      It is clear that the defendant moved for a required finding of not guilty on the offense of felony-murder at the close of all the evidence. It is less clear that the defendant preserved his rights on the felony-murder offense at the close of the Commonwealth's case. At that point, the defendant moved for a required finding on armed robbery, the predicate felony, but not on felony-murder. However, for purposes of our analysis we assume, without deciding, that the defendant preserved his rights on the offense of felony-murder when he moved for a required finding on armed robbery.

      Our conclusion disposes of the defendant's assertion that the Commonwealth improperly mentioned in its opening statement and closing argument that the defendant had a plan to rob the victim. See Commonwealth v. DePina, 476 Mass. 614, 627, 73 N.E.3d 221 (2017) ("A prosecutor's opening statement may reference anything that he or she reasonably believes in good faith will be proved by evidence introduced during the course of the trial ..."). See also Commonwealth v. Veiovis, 477 Mass. 472, 489, 78 N.E.3d 757 (2017) (closing argument proper where assertion "was fair argument based on inferences from the evidence in the case").

      The cases the defendant cites in support of his argument do not affect our conclusion. In Commonwealth v. Mandile, 403 Mass. 93, 98, 525 N.E.2d 1322 (1988), we decided that there was insufficient evidence of armed robbery where the only evidence was "motive, means, unexplained possession of funds, and consciousness of guilt" (footnote omitted). The only motive suggested in Mandile was a desire for money, but there was no evidence that the murder victim "kept large sums of money in his home." Id. at 94-95, 97, 525 N.E.2d 1322. In addition, there was no evidence linking the money found on the defendant in Mandile with the murder victim. Id. at 95, 97, 525 N.E.2d 1322. Here, in contrast, the defendant had run out of drugs and the murder victim was a drug dealer. Moreover, the drugs and money the defendant handed over after returning to the apartment had blood on them, forging a link between the property and the murder victim. The situation here is more similar to the cases distinguished in Mandile. In those cases, according to the Mandile court, we upheld convictions in the face of "no direct evidence of a loss of money" because "there was circumstantial evidence from which a jury could infer a robbery or attempted robbery." Id. at 97, 525 N.E.2d 1322. The defendant also cites Commonwealth v. Moran, 387 Mass. 644, 646, 442 N.E.2d 399 (1982), in which we concluded "that where the intent to steal is no more than an afterthought to a previous assault, there is no robbery." Here, however, the Commonwealth presented sufficient evidence to allow a rational jury to find that the defendant planned to rob the victim and thus that the robbery was not an afterthought. See id. (facts supported finding that robbery was not afterthought).