Heard: April 13, 2017.
found and returned in the Superior Court Department on March
pretrial motion to suppress evidence was heard by Raymond P.
Veary, Jr., J., and the cases were tried before Angel Kelley
Timothy St. Lawrence for the defendant.
L. Gauthier, Assistant District Attorney, for the
Kafker, C.J., Grainger, & Kinder, JJ.
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)- 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.
Motion to suppress.
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.
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.
Additional trial evidence.
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.