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Commonwealth v. Widener

Appeals Court of Massachusetts, Plymouth

June 15, 2017


          Heard: April 13, 2017.

         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.

          Kafker, C.J., Grainger, & Kinder, JJ.

          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 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 vacate the sentence imposed pursuant to the ACCA and remand for resentencing for the reasons that follow.


         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 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.

          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.

         D ...

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