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Commonwealth v. Pearson

Appeals Court of Massachusetts, Middlesex

October 28, 2019


          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.

          Edward Crane for the defendant.

          Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

          Present: Blake, Henry, & McDonough, JJ.

          BLAKE, J.

         Following 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).[1] He was first tried and convicted by a Superior Court jury in Norfolk County.[2] 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) (Pearson I).

         Meanwhile, the defendant was tried and convicted by a Superior Court jury in Middlesex County of burglary-related crimes and intimidation of a witness.[3] 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.


         1. The burglaries.

         Between 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 African-American man.

         On 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.

         2. The arrests.

         Detective 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.

         That 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.

         Johnson 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.

         After 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.

         3. Norfolk County case.

         The 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.[4]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.

         4. Middlese ...

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