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Commonwealth v. Woods

Appeals Court of Massachusetts, Worcester

February 7, 2019

COMMONWEALTH
v.
ANDREW WOODS.

          Heard: November 8, 2018.

         Indictments found and returned in the Superior Court Department on March 20, 2015.

         The cases were tried before Richard T. Tucker, J.

          Deborah Bates Riordan for the defendant.

          Michelle R. King, Assistant District Attorney, for the Commonwealth.

          Present: Green, C.J., Meade, & Sacks, JJ.

          GREEN, C.J.

         The defendant appeals from his convictions of various charges arising from the discovery of a loaded firearm and drugs in a closet in the apartment in which he was arrested.[1] Among his claims on appeal, the defendant contends that (1) the evidence was insufficient to establish that he constructively possessed the loaded firearm and drugs; (2) his conviction of possession of a loaded firearm must be reversed, because the jury were not instructed that they must find that the defendant knew that the firearm was loaded; (3) his conviction of possession of ammunition is duplicative of his conviction of possession of a loaded firearm; (4) the evidence was insufficient to establish the use of force or threat element of the charge of armed home invasion; and (5) the evidence was insufficient to support his conviction of malicious destruction of property over $250, both because it did not establish that he acted with malice and because there was no evidence that the property damage was more than $250.

         We agree with the Commonwealth's concession that the defendant's conviction of possession of ammunition is duplicative of his conviction of possession of a loaded firearm, and we also agree that the evidence was insufficient to support his conviction of malicious destruction of property over $250. Accordingly, on the charge of unlawful possession of ammunition, the judgment is vacated, the verdict is set aside, and the indictment is to be dismissed. On the charge of malicious destruction of property over $250, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant on that count. We otherwise discern in the defendant's various arguments no cause for relief, and affirm the remaining judgments of conviction.

         Background.

         On the morning of December 23, 2014, a team from the Massachusetts fugitive apprehension task force went to 190 Blossom Street in Fitchburg to serve an arrest warrant on an individual they understood to be living in apartment 3 at that address (the only apartment unit on the third floor).[2] The team entered the building through the unlocked front door and began climbing the stairs; as they reached the second floor landing they noticed an open apartment door on their left, and then heard a loud bang -- followed by a woman's screams for help --coming from the third floor. The team raced up the stairs to the third floor, arriving ten to fifteen seconds after hearing the loud bang. When they arrived, they found the apartment door off its hinges and lying on the kitchen floor, and the door frame damaged; a hole in the door suggested it had been kicked in.

         Lauren Wiener was the tenant of the third floor apartment, where she and her husband had moved about three months earlier. Neither she nor her husband was the target of the arrest warrant the task force had come to serve.[3] She had been sleeping in her bedroom at around 9:00 A.M. when she was awakened by a crash. She began screaming. At the time, the apartment was dark, with the lights off and the shades pulled. After hearing the crash, Wiener saw a "dark figure" in her bedroom doorway, putting his finger to his lips while saying, "shhh." Wiener was "afraid for [her] life," and continued screaming for help. Wiener then saw the person move from her bedroom doorway into the living room.

         As Trooper Amy Waterman approached the entrance to Wiener's apartment, she saw an individual moving quickly in the back of the living room, coming toward her. The man, later identified as the defendant, initially stopped and was cooperative; however, he quickly "threw an elbow to resist . . . attempts to arrest him, and then attempted to run out the way that [everyone] had come in, past the broken door." Several members of the task force physically wrestled with the defendant for several minutes in an effort to place him in handcuffs. A search of the defendant yielded $2, 293 in cash, three one hundred dollar bills that were "smudged and off-center," and a "rock in a sock" makeshift weapon comprised of a sock containing heavy metal objects. On the floor, near the defendant, were three cellular telephones (cell phones) that the defendant acknowledged as his.

         While Trooper Waterman went into the bedroom to speak with Wiener, who had been screaming and crying and was obviously frightened, another trooper stayed with the defendant, and other task force members conducted a protective sweep of the apartment. There were four doors in the living room: two closet doors, one door to the attic, and an exit door to the outside. When Worcester police Officer Robert Johnson looked in one of the closets, he observed a bag of empty soda bottles on the floor and a child's blue kick ball, slit open, sitting on a wire rack above.[4] Officer Johnson could see the handle of a firearm inside the kick ball; as soon as he saw the weapon he alerted other members of the task force. The firearm was loaded with a bullet in the chamber and a clip holding additional rounds of ammunition.

         After Officer Johnson alerted the team to the discovery of the firearm, police brought Wiener into the living room to look at the items in the closet. While standing in the living room, Wiener heard the defendant say repeatedly, "that's not mine," though she did not know to what he was referring. Wiener was then asked to look inside the closet. Inside the closet, she saw a blue ball that had not been in the closet when she last looked into it the previous night. Inside the blue ball, Wiener was able to see two smaller balls (a basketball and a tennis ball), a handgun, and what appeared to be drugs inside the smaller balls. Wiener had never seen the blue ball or its contents before that moment, and the ball and its contents did not belong to her or any other member of her household.

         As the defendant was led out of the building, he asked Massachusetts State Trooper Darlene DeCaire to close the second-floor door to his apartment, which she did. Task force members attempted to secure the defendant's apartment while other members applied for a search warrant. However, while the task force members were waiting, the defendant's girlfriend, Alicia Ortiz, entered the apartment through an unknown door that she then locked, and would not let the task force members ...


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