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15-P-1743 Appeals Court
COMMONWEALTH vs. JAMES L. WIDENER.
No. 15-P-1743.
Plymouth. April 13, 2017. - June 15, 2017.
Present: Kafker, C.J., Grainger, & Kinder, JJ.
Firearms. Practice, Criminal, Motion to suppress, Required finding, Witness, Sentence. Evidence, Immunized witness, Prior conviction. Witness, Immunity. Assault and Battery by Means of a Dangerous Weapon.
Indictments found and returned in the Superior Court Department on March 25, 2011.
A pretrial motion to suppress evidence was heard by Raymond P. Veary, Jr., J., and the cases were tried before Angel Kelley Brown, J.
Timothy St. Lawrence for the defendant. Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.
KINDER, J. Following a jury trial in the Superior Court,
the defendant was convicted of unlawful possession of a firearm,
G. L. c. 269, § 10(a); unlawful possession of ammunition, G. L.
c. 269, § 10(h); unlawful possession of a large capacity feeding 2
device, G. L. c. 269, § 10(m); and unlawful possession of a
loaded firearm, G. L. c. 269, § 10(n).1 The indictments further
alleged that the defendant previously had been convicted of
three violent crimes or serious drug offenses subjecting him to
enhanced sentencing pursuant to the armed career criminal act
(ACCA), G. L. c. 269, § 10G(c). At a later jury-waived trial on
the sentencing enhancement charges, the trial judge found the
defendant guilty of the subsequent offender allegations related
to his convictions of unlawful possession of a firearm and
unlawful possession of ammunition based on three predicate
offenses. Consequently, pursuant to the ACCA, he was sentenced
to a consolidated mandatory minimum term of imprisonment of not
less than fifteen years and not more than fifteen years and one
day. On appeal, the defendant claims (1) his motion to suppress
the firearm and the ammunition should have been allowed, (2) the
evidence was insufficient to sustain his convictions, and (3)
the evidence was insufficient to prove that he had three prior
qualifying convictions under the ACCA. The motion to suppress
properly was denied, and we conclude that the evidence was
sufficient to sustain the underlying convictions. However, we
1 The defendant was acquitted of resisting arrest, G. L. c. 268, § 32B. The Commonwealth dismissed before trial the charges related to operating a motor vehicle with a suspended license. 3
vacate the sentence imposed pursuant to the ACCA and remand for
resentencing for the reasons that follow.
Background. 1. Motion to suppress. In the fall of 2010,
members of a law enforcement task force identified the defendant
as a suspect in a series of commercial property burglaries in
Plymouth and Bristol Counties. The police learned, through a
confidential informant and recorded conversations between the
informant and the defendant, that the defendant was in Florida
purchasing guns and drugs for transport to Massachusetts. As of
February 2, 2011, the police knew that the defendant was
returning to Massachusetts driving a gray Jeep Commander sport
utility vehicle and that he would likely be with his girl
friend, Brianna Tobin. Within twenty-four hours of receiving
the information, the police observed the defendant on Route 3A
in Kingston, Massachusetts, in a gray Jeep Commander, with a
woman matching Tobin's description. Police were also aware that
the defendant had a criminal history including crimes of
violence, that he was not licensed to drive in Massachusetts,
that there were three outstanding warrants for his arrest, and
that neither he nor Tobin were licensed to carry a firearm in
Massachusetts. Police observed the defendant pull into a
gasoline station. They approached the defendant as he returned
to his vehicle, and identified themselves. The defendant 4
immediately fled on foot. He was apprehended shortly
thereafter, unarmed.
Once the defendant was apprehended, another officer
approached Tobin who was still seated in the passenger seat of
the gray Jeep Commander. The officer, with his gun drawn and
police identification visible, repeatedly screamed, "Police" and
ordered Tobin to place her hands where the officer could see
them. When Tobin failed to do so, and continued to move within
the vehicle, the officer opened the door and removed her from
the vehicle. As soon as the officer placed his hands on Tobin,
he observed a firearm in plain view on the floor of the front
passenger's side. The vehicle was secured and police applied
for a warrant to search the vehicle. The warrant was authorized
and the subsequent search of the vehicle resulted in the seizure
of the firearm and ammunition.
2. Additional trial evidence. The defendant and Tobin
were charged, inter alia, with possession of the firearm seized
from the vehicle. Tobin agreed to cooperate with the
Commonwealth and testified against the defendant at trial.
Pursuant to the cooperation agreement, the charges against her
were dismissed. She testified that the firearm belonged to the
defendant and that he left it with her in the vehicle for fear
that someone would see it if he took it into the gasoline
station with him. 5
Another witness, Adam Long, testified at trial and
identified the firearm as one that he sold to the defendant in
Daytona, Florida, in late 2010. Long testified that at the time
of the sale, the defendant was accompanied by his girl friend.
Discussion. 1. Motion to suppress. The motion judge, who
was not the trial judge, denied the defendant's motion to
suppress the firearm and the ammunition after an evidentiary
hearing. He concluded that the exit order and the arrest of
Tobin were lawful in the circumstances. On appeal, the
defendant's principal claim is that the exit order that led to
the seizure of the firearm was not justified by safety concerns.
We disagree.
"On review of a motion to suppress, we do not disturb the
judge's findings of fact unless they are clearly erroneous."
Commonwealth v. Sicari, 434 Mass. 732, 746 (2001). We "give[]
substantial deference to the judge's ultimate findings and
conclusions of law," Commonwealth v. Morse, 427 Mass. 117, 122
(1998), quoting from Commonwealth v. Magee, 423 Mass. 381, 384
(1996), and "leave to the judge the responsibility of
determining the weight and credibility to be given oral
testimony presented at the motion hearing." Commonwealth v.
Contos, 435 Mass. 19, 32 (2001), quoting from Commonwealth v.
Eckert, 431 Mass. 591, 592-593 (2000). "We conduct an
independent review of the judge's application of constitutional 6
principles to the facts found." Commonwealth v. Hoose, 467
Mass. 395, 400 (2014).
There are three bases upon which an exit order issued to a
passenger in a vehicle may be justified: (i) an objectively
reasonable concern for the safety of the officer or other
persons, (ii) reasonable suspicion that the passenger is engaged
in criminal activity, or (iii) pragmatic reasons, e.g., to
facilitate an otherwise lawful search of the vehicle pursuant to
the automobile exception to the warrant requirement.
Commonwealth v. Cruz, 459 Mass. 459, 466-467 (2011). "[I]t does
not take much for a police officer to establish a reasonable
basis to justify an exit order or search based on safety
concerns." Commonwealth v. Gonsalves, 429 Mass. 658, 664
(1999). The test is an objective one, taking into consideration
the totality of circumstances. Id. at 665.
Here, based on a multiagency and multijurisdictional
investigation, the police had information that the defendant was
transporting drugs and firearms from Florida to Massachusetts.
Police were also aware that the defendant would be accompanied
by Tobin, his girl friend, whom the informant "had identified
. . . as accompanying [the defendant] down south on these trips
to purchase guns and Percocets." Thus, the officer who
approached Tobin had reason to believe that (1) the passenger in
the vehicle was the defendant's girl friend, (2) she had 7
witnessed the defendant's flight and arrest, and (3) there were
firearms in the vehicle. In these circumstances, we discern no
error in the motion judge's conclusion that the passenger
"reasonably could be viewed by the police as a confederate of
[the defendant], . . . prepared to assist him in a variety of
different ways, including the violent upset of his arrest."
We are not persuaded by the defendant's claim that the
force used in seizing Tobin was "disproportionate." "In
evaluating whether the police exceeded the permissible scope of
the stop, the issue is one of proportion. 'The degree of
suspicion the police reasonably harbor must be proportional to
the level of intrusiveness of the police conduct.'"
Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001), quoting
from Commonwealth v. Williams, 422 Mass. 111, 116 (1996).
Because Tobin refused to show her hands when ordered to do so,
and continued to move within the vehicle, the officer's
heightened concerns for his safety were entirely reasonable.
See Commonwealth v. Obiora, 83 Mass. App. Ct. 55, 59 (2013). We
conclude that the exit order that revealed the firearm in plain
view was justified based upon the officer's objectively
reasonable concern for his safety, and therefore we discern no
error in the denial of the motion to suppress.
2. Sufficiency. The defendant argues that the
uncorroborated testimony from "immunized" witnesses Tobin and 8
Long was insufficient to prove the defendant's possession of the
firearm and the ammunition. The defendant relies on G. L.
c. 233, § 20I, inserted by St. 1970, c. 408, which provides that
"[n]o defendant in any criminal proceeding shall be convicted
solely on the testimony of, or the evidence produced by, a
person granted immunity under the provisions of section twenty
E." His reliance on this statute is misplaced.
First, "[t]here is no requirement that a cooperating
witness's testimony be corroborated unless the witness is
immunized under G. L. c. 233, § 20E." Commonwealth v. Lessieur,
472 Mass. 317, 330 (2015). Nothing in the record indicates that
either Tobin or Long received immunity pursuant to § 20E. Tobin
testified pursuant to a cooperation agreement with the
Commonwealth in exchange for dismissal of the charges against
her. According to Long, he was granted immunity from Federal
charges in the Middle District of Florida in exchange for his
testimony. Thus, although both Tobin and Long testified in
exchange for favorable treatment from prosecuting authorities,
neither was immunized pursuant to § 20E. Nevertheless, the
trial judge instructed the jurors that the witnesses were
immunized and that their testimony should be treated with
caution.2
2 The judge also instructed the jury that the uncorroborated testimony of an immunized witness was not sufficient to convict 9
Second, even if Tobin and Long qualified as immunized
witnesses under § 20E, their testimony was sufficiently
corroborated. See Commonwealth v. Vacher, 469 Mass. 425, 440
(2014) (corroboration for immunized witnesses required on only
one element of proof essential to conviction). Police officers
testified regarding the position of the firearm in the vehicle,
the operability of the firearm, that the firearm was loaded, and
that it could accept a detachable magazine holding twelve
rounds. Thus, there was ample corroboration from nonimmunized
witnesses on the essential elements of the offenses. Simply
put, when considered as a whole and in the light most favorable
to the Commonwealth, see Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), the evidence was sufficient to permit a
rational juror to find beyond a reasonable doubt the essential
elements of the charged offenses.
3. Sentencing under the ACCA. At the jury-waived trial on
the sentencing enhancement charges, the Commonwealth introduced
certified copies of four prior convictions: assault and battery
committed on July 19, 2001 (guilty plea on December 6, 2001);
assault and battery by means of a dangerous weapon (ABDW)
committed on March 18, 2004 (guilty plea on February 9, 2005);
the defendant. This part of the instruction, which benefited the defendant, should not have been given because the witnesses were not immunized pursuant to § 20E. 10
possession with intent to distribute a class B controlled
substance committed on January 8, 2008 (guilty plea on October
20, 2008); and assault by means of a dangerous weapon committed
on January 11, 2008 (guilty plea on October 20, 2008).
Witnesses identified the defendant as the person previously
convicted in each case. On the underlying convictions of
unlawful possession of a firearm and unlawful possession of
ammunition, the trial judge found the defendant guilty of the
subsequent offender portion of the indictments which alleged
that the defendant had "been previously convicted of three
violent crimes or three serious drug offenses, or any
combination thereof totaling three, arising from separate
incidences" and imposed the mandatory minimum enhanced sentence
of fifteen years. G. L. c. 269, § 10G(c), inserted by St. 1998,
c. 180, § 71.
The defendant challenges his convictions and his sentence
as an armed career criminal for two reasons. First, he claims
that ABDW is not a violent crime within the meaning of the ACCA.
Second, he claims that the 2008 convictions of (1) assault by
means of a dangerous weapon, and (2) possession with intent to
distribute a class B controlled substance, should be treated as
a single offense under the ACCA because the underlying conduct
was close in time and the charges were resolved by guilty pleas
in a single proceeding. We address these arguments in turn. 11
a. ABDW as a violent crime. Under the ACCA, a "violent
crime" is:
"any crime punishable by imprisonment for a term exceeding one year . . . that: (i) has as an element the use, attempted use or threatened use of physical force or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another."
G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8. See
G. L. c. 269, § 10G(e). The Supreme Judicial Court has ruled
that the fourth clause of the definition of violent crime, the
so-called "residual" clause, is unconstitutionally vague.
Commonwealth v. Beal, 474 Mass. 341, 351 (2016). Accordingly,
in the circumstances here, the only potentially applicable
section of the definition is the first clause, the so-called
"force" clause.
To determine whether a prior conviction qualifies as a
predicate offense under the ACCA, judges usually apply a
"categorical approach." Commonwealth v. Eberhart, 461 Mass.
809, 815 (2012), quoting from Commonwealth v. Colon, 81 Mass.
App. Ct. 8, 15 (2011). Under this approach, the judge looks
"only to the fact of conviction and the statutory definition of
the prior offense." Ibid., quoting from Colon, supra. However,
if the prior conviction was under a broad statute encompassing
multiple crimes, not all of which are violent, a judge should 12
apply a "modified categorical approach," which permits
consideration of extrinsic evidence. Id. at 816, quoting from
Colon, supra at 16.
The defendant argues that the modified categorical approach
should apply in this case because ABDW encompasses both
intentional and reckless conduct. Relying on Federal authority,
the defendant contends that reckless ABDW does not qualify as a
violent crime under the ACCA. See United States v. Parnell, 818
F.3d 974, 981 n.5 (9th Cir. 2016). No Massachusetts court has
gone that far.
In analyzing reckless conduct within the crime of simple
assault and battery, the Supreme Judicial Court has said that
reckless battery has an element of physical force and is
sufficient to qualify as a violent crime within the meaning of
the ACCA. Eberhart, supra at 818-819.3 We see no reason to
reach a different result with the more serious crime of ABDW.
Indeed, we have previously observed that "[i]t is undisputed
that, if committed by an adult, an assault and battery by means
of a dangerous weapon would be punishable by imprisonment for a
term exceeding one year and thus would constitute a violent
crime under the Massachusetts ACCA." Commonwealth v. Rezendes,
3 In Eberhart, supra, the Supreme Judicial Court applied the modified categorical approach because simple assault and battery also included the nonviolent offense of offensive battery, which could be committed with de minimis touching. 13
88 Mass. App. Ct. 369, 372 (2015). Accordingly, the defendant's
conviction of ABDW qualifies as a violent crime under the force
clause and the trial judge was not required to apply the
modified categorical approach.
Even under the modified categorical approach, however,
there was extrinsic evidence supporting the conviction of ABDW.
The certified copy of the 2004 conviction of ABDW contained
evidence of the defendant's identity, the charge, and the guilty
plea. It also contained a handwritten notation, "knife."
Considering this evidence in the light most favorable to the
prosecution, the trial judge could have reasonably concluded
beyond a reasonable doubt that ABDW was a crime of violence
because it has as an element the use, attempted use, or
threatened use of physical force or a deadly weapon against the
person of another. See Commonwealth v. Claudio, 418 Mass. 103,
108 (1994) (knife is deadly weapon).
b. Separate incidences. General Laws c. 269, § 10G(c),
inserted by St. 1998, c. 180, § 71, provides in relevant part:
"Whoever, having been previously convicted of three violent crimes or three serious drug offenses, or any combination thereof totaling three, arising from separate incidences, . . . shall be punished by imprisonment in the state prison for not less than 15 years nor more than 20 years" (emphasis supplied).
In a case decided after the sentence here was imposed, the
Supreme Judicial Court determined that sentencing enhancement 14
under the ACCA "applies only when a defendant's previous
convictions of three qualifying crimes 'arising from separate
incidences' were the results of separate, sequential
prosecutions." Commonwealth v. Resende, 474 Mass. 455, 469
(2016). In reaching this conclusion, the court reasoned that
sequential prosecutions occur when "the first conviction (and
imposition of sentence) occur before the commission of the
second predicate crime, and the second conviction and sentence
occur before the commission of the third crime." Id. at 466-
467.
Here, although the 2008 convictions of (1) assault by means
of a dangerous weapon, and (2) possession with intent to
distribute a class B controlled substance were for conduct
alleged to have occurred on different dates and charged in
separate complaints, they resulted from guilty pleas and
sentences imposed at a single hearing. The defendant pleaded
guilty and received committed jail sentences to both charges,
concurrent with each other, on October 20, 2008. Accordingly,
under the reasoning of Resende they were not sequential
prosecutions and, therefore, did not arise from separate
incidences. We therefore conclude, as required by Resende, that
these two prior convictions must be considered as one for ACCA
purposes. 15
Following the jury-waived trial on the ACCA allegations,
the trial judge found the defendant guilty of the subsequent
offender portion of the indictments without reference to the
prior convictions upon which she relied. We can reasonably
infer from her findings of guilty and the resulting mandatory
minimum sentence of fifteen years that she found at least three
prior qualifying convictions, but we cannot discern from the
record which three she found to have been proved beyond a
reasonable doubt.4 Based on our conclusion that the two 2008
convictions cannot be considered separate, sequential
convictions under the ACCA, we remand the case for resentencing
so that the trial judge can determine whether, in light of our
ruling, the defendant has two or three prior qualifying
convictions under the ACCA.5
4 The trial judge may have found that the defendant was previously convicted of all four of the alleged prior convictions of crimes of violence or serious drug offenses. Although "a certified conviction of [simple] assault and battery is insufficient to prove beyond a reasonable doubt that a defendant committed a 'violent crime' for the purpose of sentencing enhancement under [the ACCA]," Eberhart, 461 Mass. at 819, here there was extrinsic evidence of physical injury observed by the responding officer that the judge may have considered. 5 We note that the defendant qualifies for a different enhanced sentence under the ACCA if he has two (rather than three) prior convictions of violent crimes or serious drug offenses arising from separate incidences. G. L. c. 269, § 10G(b). 16
Conclusion. For the foregoing reasons, the underlying
convictions of unlawful possession of a firearm, unlawful
possession of ammunition, unlawful possession of a large
capacity feeding device, and unlawful possession of a loaded
firearm are affirmed. The finding that the defendant was guilty
as an armed career criminal pursuant to G. L. c. 269, § 10G(c),
and the consolidated sentence based on three predicate offenses,
are vacated and the case is remanded for resentencing consistent
with this opinion.
So ordered.