Commonwealth v. Werner

896 N.E.2d 45, 73 Mass. App. Ct. 97, 2008 Mass. App. LEXIS 1112
CourtMassachusetts Appeals Court
DecidedNovember 5, 2008
DocketNo. 07-P-582
StatusPublished
Cited by4 cases

This text of 896 N.E.2d 45 (Commonwealth v. Werner) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Werner, 896 N.E.2d 45, 73 Mass. App. Ct. 97, 2008 Mass. App. LEXIS 1112 (Mass. Ct. App. 2008).

Opinion

Sikora, J.

A Superior Court jury convicted the defendant, Keith A. Werner, of armed assault in a dwelling, see G. L. c. 265, § 18A; assault by means of a dangerous weapon, see G. L. c. 265, § 15B(6); and unlawful possession of a firearm, [98]*98see G. L. c. 269, § 10(a).1 The defendant filed a notice of appeal, but then moved for its dismissal. A judge of the Superior Court allowed that motion. More than eleven years after his convictions, the defendant challenged them by a motion for a new trial, upon the bases of two alleged errors. As to the first, he contended that the trial judge had wrongly denied his motion for a required finding of not guilty upon the charge of armed assault in a dwelling because the Commonwealth had not established essential elements of that offense: that he was in the victim’s dwelling when he held a gun to her head; and that his verbal threats inside the victim’s apartment amounted to an assault. The second alleged error was the denial of his pretrial motion to suppress evidence as the product of an unconstitutional stop. In a detailed memorandum of decision, a Superior Court judge addressed each argument and declined to grant relief. This same judge had denied the pretrial motion to suppress and had presided at trial. The appeal warrants careful examination of the elements of armed assault in a dwelling. We affirm the denial of the motion for a new trial.

1. Factual background. We address the pertinent events in chronological order. The first account deals with activity at the home of the victim and the sufficiency of the evidence for a verdict of guilt of armed assault in a dwelling. The second deals with the subsequent encounter of the police with the defendant at a barroom and the denial of the pretrial motion to suppress a handgun and a piece of paper seized by the police in the encounter.

a. Events at the dwelling. In the light most favorable to the Commonwealth, the evidence was the following. On September 7, 1991, at about 10:00 p.m., the fifteen year old victim was in her family’s apartment on the first floor of a three-family house in Chelsea. A common, outside porch had an entrance leading [99]*99to the apartments upstairs. Next to that entrance was a separate entry, with a storm door and a screen door, to the victim’s apartment. The storm door was open. The screen door was closed, but its upper panel did not have a screen.

The victim was home alone with her four month old sister. Her father and her stepmother had gone to a hospital to visit her brother. She heard a knock on the front door. She approached the door and saw the defendant standing on the porch. She never had seen him before. He asked for her father, and she replied that he was not home; then she turned away. The defendant opened the screen door. The victim asked him twice to leave. He nevertheless entered and followed her into the living room. Standing a couple of inches from her, he told her that the residents of the third floor had sent him to “straighten out [her] father” who owed them money and that her father needed to “smarten up.” He ordered her to place her sister, whom the victim was holding, in a different room. She refused. Next, the defendant said that he was going to kill everyone in her house and that “it was just another brick in the wall.” He then told her that he knew all members of her family and where they slept. She again asked him to leave.

The defendant then said that he was going to see the people on the third floor and went out onto the porch. The victim followed and stopped at the doorway, without stepping onto the porch. The storm door still was open. The defendant took a gun from his waistband, held it so that it touched her nose, and said that he would kill her sister and her.

The defendant then went upstairs but returned shortly afterward with Debbie Wilson and Chuck Hummel, the third-floor residents. Wilson’s incarcerated son had sent the defendant to enforce payment of the alleged debt. The victim began to cry and asked Wilson to settle the dispute directly with her father. Wilson replied, “No.” Next, the defendant handed Hummel a bag. Hummel took a gun out of the bag and the defendant loaded it with two bullets. Hummel then took the gun and went back upstairs with Wilson; the defendant left, and the victim called the police.

b. Events at the barroom. The findings of the judge and the undisputed supplemental testimony inferably credited by him [100]*100from the pretrial suppression hearing established the following. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007). The police arrived at the victim’s apartment at approximately 11:00 p.m. The victim reported that a man had forced his way into her home, pulled out a gun, held it to her head, and threatened to kill the members of her family and her. She described the suspect as a thirty-five year old white male with short blond hair and medium build, clean shaven, and dressed in black or blue jeans and a blue dungaree jacket. From the scene, Officer John Cowhig transmitted this description over the radio to the station house. The police left the victim’s residence at approximately 11:30 p.m. When Officer Cowhig’s shift ended at midnight, he repeated the victim’s account, including the description of the defendant, to the police officers arriving for the next shift. At this time, the police did not know the defendant’s whereabouts.

At about 12:15 a.m., Chelsea police received a call that a man in a local bar, the Chelsea Tap, had a firearm. Police Officers Martin Conley and Ethan Gonzales responded. They pulled up to the Chelsea Tap in a marked cruiser with its blue lights flashing. They were in uniform. The defendant inside the bar observed the blue lights outside. Still outside, the police officers encountered a taxicab driver who informed them that a man inside the bar with blond hair and a dungaree jacket had a gun. The officers’ supervisor, Sergeant Karen McDonough, arrived, and the three entered the barroom. It contained about twenty-five patrons.

Officer Conley saw one patron point to a man with blond hair and a dungaree jacket seated at the bar. As Conley approached the suspect from behind, the bartender made eye contact with the officer and nodded affirmatively. He had shaken his head “no” toward at least one other patron. The suspect was the defendant. He was sitting on a stool with his hands in front of him on the bar.

Officer Conley asked the defendant, “Are you carrying a firearm, sir?” The defendant reached for his waist with both hands. Because Conley saw that the defendant “was grabbing for something,” Conley “tilted him back in his bar stool... to throw him off balance.” In the process, the officer felt a gun in the back of the waistband of the defendant’s jeans. Conley extracted the gun, a .38 caliber revolver. He asked the defendant [101]*101his name and inquired whether he had a license to carry a firearm. The defendant did not respond. The police arrested and transported him to the police station. Afterward, the bartender turned over to the police a piece of yellow, lined paper which he had found at the defendant’s bar space.

2. Discussion, a. Standard of review. Issues not pursued on direct appeal are waived. Commonwealth v. Curtis, 417 Mass. 619, 626 (1994), citing Commonwealth v. Grace, 376 Mass. 499, 500 (1978), and Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973).

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Bluebook (online)
896 N.E.2d 45, 73 Mass. App. Ct. 97, 2008 Mass. App. LEXIS 1112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-werner-massappct-2008.