Heard: May 14, 2019.
Indictments found and returned in the Superior Court
Department on October 25, 2012, and December 10, 2013.
Pretrial motions to suppress evidence were heard by Elizabeth
M. Fahey, J.; the cases were tried before Douglas H. Wilkins,
J., and a motion for a new trial, filed on January 8, 2018,
was heard by him.
Crane for the defendant.
Timothy Ferriter, Assistant District Attorney, for the
Present: Blake, Henry, & McDonough, JJ.
a crime spree in Middlesex and Norfolk Counties, the
defendant, Washington Pearson, was indicted for multiple
breaking and entering and related offenses in both counties
(we refer hereafter to these offenses as burglary-related
crimes). He was first tried and convicted by a
Superior Court jury in Norfolk County. He appealed,
contending that his motion to suppress was erroneously
denied. We affirmed the Norfolk convictions in
Commonwealth v. Pearson, 90 Mass.App.Ct. 289 (2016)
the defendant was tried and convicted by a Superior Court
jury in Middlesex County of burglary-related crimes and
intimidation of a witness. Then, after a jury-waived trial in
Middlesex County, the defendant was found to be a habitual
criminal on three of the burglary-related convictions and on
the intimidation of a witness conviction. The defendant filed
a motion for a new trial on the intimidation conviction,
which was denied after a nonevidentiary hearing. The
defendant's appeal from the judgments on the
burglary-related indictments and his appeal from the order
denying his motion for a new trial on the indictment charging
intimidation were consolidated in this court. We affirm.
January 31 and February 8, 2012, a series of burglaries
occurred in Brookline and Cambridge resulting in the theft of
jewelry, credit cards, and electronics. While investigating a
burglary that occurred in Brookline on February 6, 2012,
Brookline Police Detective Matthew McDonnell learned that one
of the stolen credit cards was used to make a series of
fraudulent purchases at multiple retail stores. Surveillance
video from some of the stores depicted a Hispanic woman in
her thirties making the purchases. She was accompanied by an
February 8, 2012, Brookline police learned of a home burglary
in Cambridge, where the victim found a driver's license
in the name of Jenell Johnson, a person unknown to the
victim. Using Johnson's name, Detective McDonnell found
booking photographs from a 2011 breaking and entering
involving Johnson and the defendant. The photographs matched
the physical description of the suspects as seen in the
surveillance video from the retail stores.
McDonnell applied for arrest warrants for the defendant and
Johnson based on the Brookline burglary. At approximately
12:30 A.M. on February 9, 2012, a clerk-magistrate of the
Brookline Division of the District Court Department
determined that there was probable cause to arrest the
defendants, authorized the issuance of arrest warrants, and
signed the applications for complaints.
same day, at approximately 6:30 A.M. in a coordinated effort
by the Brookline, Cambridge, and Lynn police departments,
officers went to the Lynn apartment shared by the defendant
and Johnson, purporting to have warrants for their arrest.
Although the officers had applied for arrest warrants, they
had not yet been issued.
opened the door, was taken into custody, and was advised of
the Miranda rights. When asked about the location of a pair
of boots she had purchased, Johnson directed officers to a
bedroom, where they saw items matching the description of
items fraudulently purchased using the Brookline burglary
victim's credit card. The officers found the defendant
hiding in the third-floor bathroom and arrested him.
the defendant and Johnson were arrested and transported to
the police station, officers remained at the apartment to
secure it while a search warrant was obtained. During that
time, police spoke with the owner of the house, who
identified himself as Johnson's stepfather. He confirmed
that the defendant and Johnson had been staying there for a
number of weeks. He told the officers that he had discovered
a shopping bag in a trash can at the back of the house that
contained a prescription bottle in the name of the Brookline
burglary victim, silverware, blue velvet Tiffany jewelry
bags, and assorted costume jewelry.
Norfolk County case.
defendant was first indicted in Norfolk County, where he
chose to represent himself. He filed a motion to suppress
statements made to police during and after his arrest, as
well as evidence obtained through the execution of search
warrants of the apartment and two cars. Following an
evidentiary hearing, the motion judge issued an order dated
January 13, 2013, allowing in part and denying in part the
defendant's motion (Norfolk order). The judge found that
the police did not have valid arrest warrants for the
defendant or Johnson when the officers entered the
apartment.Accordingly, the judge ordered the
suppression of statements made at the times of the arrests.
He then excluded from the search warrant affidavit all
information obtained during the arrests and found that the
subsequent search of the residence was untainted by the
initial illegality, as the remainder of the affidavit
established probable cause. Finally, he denied the portion of
the motion seeking to suppress postarrest statements made by
the defendant. The defendant was convicted on all of the
Norfolk County indictments.