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Commonwealth v. Holness

Appeals Court of Massachusetts, Suffolk

June 7, 2018

COMMONWEALTH
v.
IAN HOLNESS

          Heard: February 9, 2018.

         Indictments found and returned in the Superior Court Department on April 3, 2014.

         A pretrial motion to suppress evidence was heard by Charles J. Hely, J., and the cases were tried before Janet L. Sanders, J.

          Robert L. Sheketoff (Carlos A. Apostle also present) for the defendant.

          Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

          Present: Green, C.J., Henry, & Singh, JJ.

          GREEN, C.J.

         On appeal from his convictions on charges of assault and battery by means of a dangerous weapon, see G. L. c. 265, § l5A(b), assault by means of a dangerous weapon, see G. L. c. 265, § l5B(b), and unlawful possession of a firearm, see G. L. c. 269, § 10 (a.), the defendant claims error in the denial of his motion to suppress evidence seized as the result of a warrantless search of his motor vehicle.[1] For the reasons set forth below, we affirm.

         Background.

         We recite the findings of fact made by the motion judge, supplemented by the evidence in the record that is uncontroverted and undisputed, or implicitly credited by him.[2] Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007) .

         On December 25, 2013, at approximately 4:04 A.M., the Boston police department responded to a 911 call reporting a person shot at a house party at 92 Wales Street in Dorchester. The shooting occurred a few minutes before the 911 call was placed. Many of the partygoers left the house quickly in response to the shooting. Upon arrival, officers learned from people still inside the first-floor apartment that the victim, Rashaan O'Neil, was deceased in the basement. 92 Wales Street is approximately 200 yards from the intersection of Wales Street and Talbot Avenue, a main through street in Dorchester.

         At 4:10 A.M., six minutes after the report of the shooting at 92 Wales Street, Boston police were dispatched to respond to a "ShotSpotter" device activation[3] at 276 Talbot Avenue, at the intersection of Talbot Avenue and Aspinwall Road, about one-half mile from 92 Wales Street. Officer Michael Peters responded to the scene and found a large area of broken glass in the street at the intersection. On Whitfield Street, near its intersection with Talbot Avenue, about 320 feet from the Talbot-Aspinwall intersection, Officer Peters saw a dark-colored four-door Jaguar and a Kia Optima that each had damage consistent with having been in a recent accident. The rear of the Jaguar was only a few feet in from Talbot Avenue. The left rear corner of the Kia was about one foot in front of the Jaguar's left front corner. The Kia had damage to its rear bumper. The Jaguar had damage to its passenger-side tail light, and to the front driver's side, causing the top of the left front wheel to tilt sharply outward and downward. From the wheel damage it appeared that the Jaguar was inoperable. Both vehicles were protruding at odd angles into the travel lane of Whitfield Street. The front of the Jaguar was sticking out into the travel lane with its left rear tire next to the curb. The rear of the Kia was sticking out into the travel lane with its left front tire touching the curb.

         When Officer Peters first arrived at the scene there was no one in the vicinity of the Jaguar and the Kia. After making his initial observations of the vehicles, Officer Peters walked back to Talbot Avenue to block traffic. A short time later, he returned to the Talbot-Whitfield intersection where the vehicles were located and a man approached him on Whitfield Street. The man asked Officer Peters if he could retrieve his cellular telephone from the Jaguar. The officer responded "no" and informed the man that he had to move back from the accident scene. The man complied and left the scene. Officer Peters did not see the man again that night. At the motion hearing, Officer Peters identified the defendant as the man who had approached him.

         While the two scenes were being secured, additional information was relayed to units on scene regarding a potential second gunshot victim, located at Carney Hospital. Officers dispatched to the hospital observed a tan-colored Toyota Camry parked outside with a shattered passenger-side window consistent with gunshot damage, and apparent blood on the front seat. The responding officers located the second victim, Zuwena Ham, who provided a brief statement during which she admitted that she was inside the basement at 92 Wales Street at the time of the fatal shooting, standing directly next to O'Neil when he was shot. Ham reported that the shooting at the Talbot-Aspinwall intersection occurred directly after she left the party at 92 Wales Street in the Camry. There were six occupants in the Camry. When the Camry paused to make a left turn from Talbot Avenue onto Aspinwall Road, one or more persons in a four-door car fired ...


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