75 Mass. App. Ct. 220 | Mass. App. Ct. | 2009
In this case we address whether a District Court conviction of possession of cocaine with the intent to distribute is a predicate offense under the armed career criminal statute. We also consider issues arising from the denial of a motion to suppress evidence.
On December 17, 2001, Kenneth Ware was indicted on charges of assault and battery by means of a dangerous weapon (Count 1) (G. L. c. 265, § 15A); three counts of assault and battery (Counts 2, 3, 4) (G. L. c. 265, § 13A); threats to commit a crime (Count 5) (G. L. c. 275, § 2); receiving a firearm with the serial or identification number obliterated (Count 6) (G. L. c. 269, § 11C); and unlawful possession of a firearm while being an armed career criminal based on three predicate offenses (Count 7) (G. L. c. 269, § 10[a]). His uncle, Eddie Ware (codefendant), was indicted on the same charges (as well as three others). The indictments arose from an incident that occurred in the Dorchester section of Boston on the evening of October 12, 2001.
On January 15, 2003, the defendant filed a motion to suppress and a motion to dismiss a portion of the armed career criminal indictment. On August 1, 2003, after an evidentiary hearing, a Superior Court judge denied the motion to suppress, issuing written findings.
The defendant and the codefendant were tried before a Superior Court jury from February 25, 2004, to March 2, 2004. A motion for a directed verdict was allowed as to Count 6. Following the close of all evidence, the defendant was acquitted of the charge of threats, and convicted of three counts of assault and battery and one count of unlawful possession of a firearm. After the jury trial, the defendant had a jury-waived trial on the issue whether he was an armed career criminal. The judge found the defendant
The defendant now appeals,
1. Armed career criminal conviction. The armed career criminal statute, G. L. c. 269, § 10G(a), provides enhanced penalties for an individual who unlawfully possesses a firearm or ammunition after “having been previously convicted of a violent crime or of a serious drug offense, both as defined” in § 10G itself. The sentences increase according to the number of predicate offenses, up to a maximum of three. G. L. c. 269, § 10G(a)-(c). The defendant contends that the enhanced penalty provision of G. L. c. 269, § 10G, is not triggered by his prior conviction under G. L. c. 94C, § 32A(a).
General Laws c. 269, § 10G(e), defines “serious drug offense” as:
“an offense under the federal Controlled Substances Act, 21 U.S.C. 801, et seq., the federal Controlled Substances Import and Export Act, 21 U.S.C. 951, et seq. or the federal Maritime Drug Law Enforcement Act, 46 U.S.C. App. 1901, et seq. for which a maximum term of imprisonment for ten years or more is prescribed by law, or an offense under chapter 94C involving the manufacture, distribution or possession with intent to manufacture or distribute a controlled substance, as defined in section 1 of said chapter 94C, for which a maximum term of ten years or more is prescribed by law” (emphasis added).
Instructive is Commonwealth v. Smith, 444 Mass. 497, 497 (2005), where the Supreme Judicial Court addressed whether the reference in the deoxyribonucleic acid (DNA) sample statute to “an offense that is punishable by imprisonment in the [SJtate prison,” G. L. c. 22E, § 3, included District Court convictions. In Smith, the defendant argued that because he was tried in District Court, he did not meet the statutory criterion of being convicted of an offense that carried the possibility of a State prison sentence. Ibid. The court rejected the defendant’s argument, reasoning that “the issue is how the ‘crime’ itself may potentially be punished, not how a particular defendant before a particular court may be punished.” Id. at 497-498, 500 n.l. Accordingly, the court held that the statute extends to the defendant because his offense was punishable by a State prison sentence. Id. at 500-501.
We also note that G. L. c. 269, § 10G(a) & (<?), largely replicates 18 U.S.C. § 924(e) & (e)(2)(A)(ii), the Federal Armed Career Criminal Act (ACCA). We find instructive that in interpreting that statute, the United States Court of Appeals for the First Circuit, when faced with the precise issue now before us, determined that a Massachusetts State District Court drug conviction is a “serious drug offense” under the statute. United States v. Moore, 286 F.3d 47, 49-51 (1st Cir.), cert. denied, 537 U.S. 907 (2002) (prior conviction under Massachusetts statute for possessing cocaine with intent to distribute, for which statutory maximum possible penalty was ten years’ imprisonment, qualified as “serious drug offense” under ACCA, and thus, could
In United States v. Moore, supra, the First Circuit Court of Appeals, in following a categorical approach, observed that in determining whether a prior conviction may serve as a predicate offense for sentence enhancement purposes (under the Federal ACCA), “the sentencing court typically must limit its inquiry to ‘the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Moore, 286 F.3d at 49, quoting from Taylor v. United States, 495 U.S. 575, 602 (1990). “[I]t makes no difference under the [ACCA] that the government elected to pursue [the defendant’s] drug offenses in a Massachusetts District Court .... [T]he statutory language of [G. L. c.] 94C, § 32A establishes that [the defendant] could have received at least ten years in state prison.” United States v. Gunn, 962 F. Supp. at 216. “[General Laws c.] 94C, § 32A(a), allows for a maximum possible penalty of ten years’ incarceration, and, thus, fits comfortably within the ambit of ‘serious drug offense’ [under the ACCA].” United States v. Moore, supra.
2. Motion to suppress, a. The evidentiary hearing. The judge conducted an evidentiary hearing on the motions to suppress filed by the defendant and the codefendant. At the hearing, Officer Robert Lyden, Detective William Doogan, and Detective Michael Devane of the Boston police department testified, as did Cordelia Ware, the wife of the codefendant. The judge found:
“At about 10 p.m. on the evening of October 12, 2001, Boston Police Officer . . . Lyden . . . , while patrolling the Dorchester section with Sergeant Charles Bum and Officer Chris Carol, received a radio call for a man with a gun at 11-12 York Street in Dorchester, who had then fled toward Harlem Street. After a brief search in the area of Harlem Street, Lyden and the other officers went to York Street, where they interviewed several adults and juveniles. From these interviews the police learned that two juveniles had allegedly been assaulted by an individual named Kenny [the defendant] and another individual known "as “the minister,” whom they had identified as Eddie [the codefend-ant]. The witnesses told the officers that one of the two men had a long barreled, black colored handgun with a light brown handle, and that both men had fled inside 12 York Street prior to the arrival of the police.”
The judge found that the officers then went to 12 York Street, and there spoke with the codefendant, who identified himself as the owner of the three-family house, and occupant of the first floor. The judge detailed various interactions that the officers had during the course of the evening at 12 York Street with the codefendant and his wife, Cordelia Ware. Ultimately, the offi
b. Issues. When evaluating the denial of a motion to suppress on appeal, we review findings of fact for clear error but independently determine correctness of judge’s application of constitutional principles to facts as found. See Commonwealth v. Scott, 440 Mass. 642, 646 (2004). The defendant contends that the judge erred in denying his pretrial motion to suppress, claiming that the initial entry by the police into the codefend-ant’s dwelling, leading to the issuance of the search warrant, as well as the protective sweep, was unlawful. He also argues that the search warrant does not pass muster. We first address the issue of the defendant’s standing to challenge the search.
(i) Article 14 of the Massachusetts Declaration of Rights and the defendant’s standing. The Commonwealth contends that the judge erred in ruling that the defendant had standing under art. 14 of the Massachusetts Declaration of Rights to challenge the search of the home owned by the codefendant, where the firearm that is the subject of Counts 6 and 7 was retrieved. We note that “in reviewing a judge’s ruling on a motion to suppress, an appellate court ‘may not rely on the facts as developed at trial’ even where the testimony differed materially from that given at trial.” Commonwealth v. Grandison, 433 Mass. 135, 137 (2001), quoting from Commonwealth v. Garcia, 34 Mass. App. Ct. 386, 391-392 (1993). Thus, while the Commonwealth references the trial record in its standing argument, we will not consider it in our analysis, nor will we consider any arguments not presented to the motion judge. The Commonwealth argued to the motion judge that the defendant did not have standing because he did
As a general matter, in order to trigger art. 14 analysis, the three necessary conditions that must be present are governmental action, standing, and expectation of privacy. See Grasso & Mc-Evoy, Suppression Matters Under Massachusetts Law § 3-2 (2009-2010 ed). However, in cases where there are codefend-ants and constructive possession triggers automatic standing, there is a limited exception to the requirement that each defendant have an expectation of privacy in the place searched. See Commonwealth v. Frazier, 410 Mass. 235, 243 (1991); Commonwealth v. Alvarado, 420 Mass. 542, 543 n.2 (1995). See also Grasso & McEvoy, supra at § 3-5(f).
We thus first look to determine whether the defendant has automatic standing. Massachusetts has adopted the automatic standing rule that was enunciated by the United States Supreme Court in Jones v. United States, 362 U.S. 257 (1960).
“Whether a defendant has standing under Amendola depends on allegations made by the Commonwealth, not on whether the defendant had a legitimate expectation of privacy in the area searched.”
Because the charges against the defendant can be viewed as charging him with possession (constructive or actual) of the firearm (located in the home of his codefendant), he has automatic standing to challenge the search of that home.
(ii) Legality of the warrantless entry into the home. The defendant asserts that the initial warrantless entry by the police into the residence of the codefendant was unlawful, contending that there was no valid consent to the entry.
Warrantless entry is justified where voluntary consent is obtained from the owner or resident of the house. See Commonwealth v. Walker, 370 Mass. 548, 553-554, cert. denied, 429 U.S. 943 (1976); Commonwealth v. Ortiz, 422 Mass. 64, 70 (1996); Commonwealth v. Sanna, 424 Mass. 92, 97-98 (1997) (defendant’s father, who was owner of house and present at time of police entry, gave valid consent). See Smith, Criminal Practice and Procedure § 4.112 (3d ed. 2007).
The burden of proving consent rests with the Commonwealth. Commonwealth v. Aguiar, 370 Mass. 490, 496 (1976). The Commonwealth must establish by a preponderance of the evidence that the party reportedly giving consent did so “unfettered by coercion, express or implied,” and did something “more than mere ‘acquiescence to a claim of lawful authority.’ ” Commonwealth v. Walker, supra at 555, quoting from Bumper v. North Carolina, 391 U.S. 543, 549 (1968). The voluntariness of an individual’s consent to a warrantless entry is an issue of fact, and must be examined in light of the circumstances of each case. See Commonwealth v. Aguiar, supra; Commonwealth v. Rogers, 444 Mass. 234, 238 (2005).
In the present case, the record shows conflicting testimony on the issue of consent to enter the codefendant’s residence. First is the question of the consent of Cordelia Ware, the wife of the codefendant and also a resident at 12 York Street.
The motion judge made a determination — after hearing the testimony of all witnesses — that Cordelia consented to the initial entry by the police into the residence. Reviewing the record, we discern no clear error and accept this determination, especially in light of the applicable standard that “[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not this court.” Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), quoting from Commonwealth v. Moon, 380 Mass. 751, 756 (1980). Moreover, “[t]he clear error standard is a very limited form of review,” and when presented with conflicting evidence, “a judge’s resolution of such conflicting testimony invariably will be accepted.” Commonwealth v. Yesilciman, supra, quoting from Commonwealth v. Spagnolo, 17 Mass. App. Ct. 516, 517-518 (1984).
The defendant asserts that Cordelia’s consent to entry was not sufficient to pass constitutional muster under Georgia v. Randolph, 547 U.S. 103 (2006). The Randolph decision involved a husband who clearly objected, and his wife who consented, to a search of the marital residence by police officers. Id. at 107. The United States Supreme Court held that the wife’s consent was not sufficient for a reasonable search, and that the wife, as a cotenant,' could not waive the objector’s constitutional rights if a potential defendant is at the door and objects to the search. The Court stated:
“[W]e have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does*232 not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.”
Id. at 121.
The defendant here, as did the defendant in Commonwealth v. Ocasio, 71 Mass. App. Ct. 304, cert. denied, 129 S. Ct. 314 (2008), “seeks to portray himself as falling on the protected side of the ‘fine line’ drawn by the Supreme Court [in the Georgia v. Randolph decision].” Id. at 308, quoting from Georgia v. Randolph, supra at 121. The defendant argues that the codefendant’s refusal of consent to entry was obvious from the facts that he knew that police desired to enter the apartment; that (as the judge found) he closed the door; and that he did not respond to the police’s continuous knocking and inquiries. However, as in Ocasio, the record here contains no evidence of any unequivocal protest or objection by the codefendant.
(iii) Miscellaneous claims. The other suppression issues raised by the defendant are not meritorious. The protective sweep was justifiable. Here, when the police arrested the defendant in 12 York Street, they had not located the firearm allegedly used by him. Therefore, it was reasonable for the police to conduct a protective sweep following the defendant’s arrest to insure their own safety by ascertaining that there were no other individuals at the dwelling who could potentially pose danger. Subsequent to an arrest, a protective sweep of a dwelling is valid “in the interest of insuring the safety of the police.” Commonwealth v. Bowden, 379 Mass. 472, 478 (1980). See Commonwealth v. Acosta, 416 Mass. 279, 283 (1993). Accord Maryland v. Buie, 494 U.S. 325, 327, 335 (1990).
Finally, even if the initial entry and protective sweep were unlawful, the exclusion of the evidence was not required as long as the subsequent search warrant was properly obtained. Commonwealth v. DeJesus, 439 Mass. 616, 624-625 (2003). Here, the affidavit, on the basis of which the warrant was issued, established probable cause with adequate specificity. Commonwealth v. Donahue, 430 Mass. 710, 711-712 (2000). The affidavit was based on the statements of the witnesses who observed the defendant carrying the gun and subsequently entering the codefendant’s residence at 12 York Street. Additionally, the police corroborated the witnesses’ statements by speaking to the codefend-
Judgment affirmed.
The codefendant, who was also convicted by the jury on various counts, did not appeal.
General Laws c. 94C, § 32A(o), as amended by St. 1982, c. 650, § 4, provides:
“Any person who knowingly or intentionally manufactures, distributes, dispenses, or possesses with intent to manufacture, distribute or dispense a controlled substance in Class B of section thirty-one shall be punished by imprisonment in the state prison for not more than ten years, or in a jail or house of correction for not more than two and one-half years, or by a fine of not less than one thousand nor more than ten thousand dollars, or both such fine and imprisonment.”
Ultimately, at sentencing, the defendant had two predicate offenses: a Superior Court conviction of armed assault with intent to murder and a District Court conviction of possession of a Class B substance, which is at issue here. The defendant does not contest that the former conviction qualifies as a “violent crime.”
As relevant, in our discussion we will note other findings made by the judge.
The automatic standing rule in Jones v. United States, 362 U.S. 257 (1960), was abandoned twenty years later in United States v. Salvucci, 448 U.S. 83 (1980).
In its argument on appeal with respect to automatic standing, the Commonwealth relies primarily on Commonwealth v. Mora, 402 Mass. 262 (1988), which is a pre-Amendola case. However, while Mora generally dealt with the issue of standing, it did not address directly the viability of the automatic standing rule in Massachusetts. See Commonwealth v. Amendola, supra at 599. The post-Amendola cases, directly addressing automatic standing, bear more relevance to the present case.
Massachusetts courts apply the “reasonable expectation of privacy” test in analyzing searches under the Fourth Amendment to the United States Constitution. Commonwealth v. Frazier, 410 Mass. at 244 n.3. See Commonwealth v. Panetti, 406 Mass. 230, 231 (1989); Commonwealth v. Pina, 406 Mass. 540, 544-545, cert. denied, 498 U.S. 832 (1990). “In cases where possession is an essential element of the crime we think it is best to separate the issue of standing from the question whether there has been a search for constitutional purposes." Commonwealth v. Frazier, supra.
General Laws c. 269, § 11C, as amended through St. 1996, c. 151, c. 492, provides, in relevant part:
“Whoever . . . removes, defaces, alters, obliterates or mutilates in any manner the serial number or identification number of a firearm, or in any way participates therein, and whoever receives a firearm with knowledge that its serial number or identification number has been removed, defaced, altered, obliterated or mutilated in any manner, shall be punished .... Possession or control of a firearm the serial number or identification number of which has been removed, defaced, altered, obliterated or mutilated in any manner shall be prima facie evidence that the person having such possession or control is guilty of a violation of this section . . . .” (Emphasis added.)
General Laws c. 269, § 10(a), as amended through St. 1990, c. 511, § 2, provides, in relevant part:
“Whoever, except as provided or exempted by statute, knowingly has in his possession, or knowingly has under his control in a vehicle; a*229 firearm, loaded or unloaded, as defined in section one hundred and twenty-one of chapter one hundred and forty without either: (1) being present in or on his residence or place of business; or (2) having in effect a license to carry firearms issued under section one hundred and thirty one of chapter one hundred and forty . . . shall be punished . . . .” (Emphasis added.)
Indeed, at the suppression hearing, Detective Doogan testified that children at the incident told him that the defendant had said to the codefendant, “Go get the joint.” The codefendant went back to the dwelling at 12 York Street, and then returned, and “handed something to [the defendant], . . . [who] then came back across the street, this time with the firearm, the handgun stuck in his waistband. That’s when the threatening with the firearm started. . . . [A]t some point [the defendant and the codefendant] both went back across the street and into number twelve.” Officer Lyden similarly testified that witnesses had told him that the codefendant had retrieved a gun from 12 York Street and had “handed [it] off” to the defendant.”
The judge found: “While the officers were waiting for the arrival of detectives who had been called to the scene to assist in the investigation, . . . Cordelia Ware . . . arrived at 12 York Street. When the officers told her of
In Ocasio, the defendant’s mother consented to the search of the defendant’s apartment while the defendant stood arrested and handcuffed in the hallway. Commonwealth v. Ocasio, supra at 306. As the record contained no unambiguous objection by the defendant, this court, contrasting with the Randolph decision, held that the defendant’s mother’s consent was valid. Id. at 308-309.
Cordelia Ware testified that she could not “recall” whether the codefendant told the police officers to get out of the house. She also testified that she did not ask the officer to leave.
Furthermore, the “freezing” of the house — which took place prior to the protective sweep — was proper. Securing or “freezing” a dwelling while waiting for a search warrant is not unreasonable. See Commonwealth v. Yesilciman, 406 Mass. at 743. The only limitation on the police is that they do not begin a search of the premises until the warrant arrives. Ibid.
The codefendant identified the gunman as the defendant and stated that he had run upstairs and out the rear. The police officers, finding the rear doors locked, concluded that it was unlikely that the fleeing defendant had just used them.