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Commonwealth v. Jones

Appeals Court of Massachusetts, Suffolk

July 22, 2019


          Heard: January 10, 2019.

         Indictments found and returned in the Superior Court Department on June 2 6, 2013. Pretrial motions to suppress evidence were heard by Linda E. Giles, J.

         An application for leave to prosecute an interlocutory appeal was allowed by David A. Lowy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court.

          Ian MacLean, Assistant District Attorney (Julie S. Higgins, Assistant District Attorney, also present) for the Commonwealth.

          James L. Sultan (Catherine J. Hinton also present) for the defendant.

          Present: Wolohojian, Neyman, & Singh, JJ.

          WOLOHOJIAN, J.

         This interlocutory appeal stems from motions to suppress[1] that the defendant filed in anticipation of his third trial on indictments charging murder in the first degree and other charges relating to the April 17, 2012 fatal shooting of Dinoriss Alston and nonfatal shooting of Ashley Piatt.[2] After conducting an extensive evidentiary hearing, [3] a Superior Court judge allowed[4] the defendant's motions and suppressed statements that the defendant and his mother had made during three encounters with police on the day of the shooting. The first encounter occurred when police stopped the defendant nearly one-half hour after the shooting to ask him if he knew anything about it. At the beginning of this encounter, the police pat frisked the defendant without reasonable suspicion. The defendant then made certain exculpatory statements, which we conclude the motion judge properly suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487-488 (1963). The second encounter occurred minutes later at the defendant's home, where police went to speak with his mother to see if she would confirm what the defendant had just told them. Unlike the motion judge, we conclude that the mother's statements were sufficiently attenuated from the initial illegality that they should not be suppressed as fruit of the poisonous tree. The third encounter occurred later the same day when police, having additional information tying the defendant to the description of the shooter, located him to ask further questions. These statements did not fall within the "cat-out-of-the-bag" doctrine, see Commonwealth v. Mahnke, 368 Mass. 662, 686 (1975), cert, denied, 425 U.S. 959 (1976), as the motion judge concluded, nor was suppression required under the other theories raised by the defendant.


         At around 4 P. M. on April 17, 2012, Dinorris Alston and his girlfriend, Ashley Piatt, were sitting in a car parked near a park located between Dunreath and Copeland Streets in the Roxbury section of Boston. Shots were fired into the car, killing Alston and wounding Piatt, who managed nonetheless to drive to a nearby gas station for help. As she drove from the scene of the shooting, Piatt saw a man walking away.

         When an officer arrived at the gas station, Piatt told him that the shooter was a black male wearing a white T-shirt and khaki pants. That description was broadcast over police radio at 4:08 P.M. Hearing that description and a report that shots had been fired, Officer Brian Johnson decided to look for the defendant in order to speak with him. He knew that the defendant frequented the park and the area where the shooting had occurred, and he had many times before conducted a field interrogation and observation[6] of the defendant in the area of Dunreath and Copeland streets, including the week before. But Johnson had never seen the defendant with a gun and did not know him to have any prior firearm convictions. Moreover, Johnson had never had any problems with the defendant and had no information connecting the defendant to the shooting. At the time he went looking for the defendant, Johnson was in an unmarked car, and he was wearing plainclothes and his badge.

         Johnson located the defendant around 4:25 P.M. about one mile away from Dunreath Street. The defendant, a young black man, was walking by himself and wearing a white T-shirt with a red and grey graphic design of a winged unicorn on the front bearing the word "Temptation." He wore khaki cargo-style shorts, a black baseball cap with a small red pony logo on the front, and black sneakers.

         Johnson pulled over, got out of his car, and asked the defendant, "What's up?" in a conversational, nonconfrontational manner. The defendant answered in a calm and natural tone with "[h]ey," or a similar expression. At this point, Johnson patted down the defendant's waist and pockets but found nothing. Johnson then asked the defendant casually what he was doing and where he was going. The defendant replied that he had been at his house earlier and that he was going to meet his mother at Walgreens to add minutes to his cell phone. Officer Michael Fanning joined Johnson during this conversation, but neither displayed his firearm or attempted to restrain or handcuff the defendant. The conversation lasted about five minutes in total, and after a brief consultation with his superior officer by telephone, Johnson ended the encounter.

         The two officers then immediately went around the corner to the defendant's home, intending to speak to his mother to see if she would verify what the defendant had told them.[7] The officers did not tell her that they had just spoken to the defendant. She denied that she was going to accompany the defendant to Walgreens and said she had not spoken with her son since that morning. She confirmed that the defendant frequented the area where the shooting had taken place.

         Meanwhile, Piatt gave police a more detailed description of the shooter, which was broadcast: a young black male with khaki shorts, black "Chuck Taylor" sneakers, [8] a white shirt with some red in it, and a black and red baseball cap.[9] Johnson and Fanning were ordered to look for the defendant again given this new description.

         They found him at around 5:30 P.M., wearing the same clothing as before and walking with another man around the corner from his home. In response to the officers' request, the defendant agreed to wait to speak with detectives, who arrived shortly thereafter and engaged the defendant in a cordial conversation conducted at a normal speaking volume. The officers did not pat frisk the defendant (who seemed a little nervous, jittery, and excitable), restrain him, display weapons, or make any show of authority. During this conversation, the defendant said that he had not been in the area of the shooting but instead had been home for the day. He agreed to have his photograph taken and to submit to a gunshot residue test, but he declined to be transported to the hospital for Piatt to view. The defendant ultimately ended the encounter, which lasted between eight and ten minutes.


         The Commonwealth argues that the motion judge erred in allowing the defendant's motions to suppress, because (1) reasonable suspicion justified the initial patfrisk of the defendant, [10] (2) even if the frisk was unlawful, the mother's later statements were not fruit of the poisonous tree, and (3) the motion judge improperly applied the "cat-out-of-the-bag" doctrine to the defendant's statements during the third encounter. In reviewing the judge's ruling, we accept the judge's subsidiary findings unless clearly erroneous, see Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439 U.S. 280 (1978), but make an "independent determination on the correctness of the judge's 'application of ...

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