Opinion
13-P-1005
04-23-2015
COMMONWEALTH v. WILLIAM HAYES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of breaking and entering a building in the daytime with the intent to commit a felony, G. L. c. 266, § 18, and larceny over $250, G. L. c. 266, § 30, and also from his sentence as a habitual offender under G. L. c. 279, § 25, with respect to the breaking and entering conviction. The defendant contends that the judge erred by denying his motions to suppress evidence, that gloves found during the search were erroneously admitted in evidence, and that his prior convictions do not support his sentence as a habitual offender. We affirm.
Motion to suppress. "In reviewing a denial of a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Washington, 449 Mass. 476, 480 (2007). We defer to the motion judge's "assessment of the credibility and weight of testimony." Commonwealth v. Ramos, 72 Mass. App. Ct. 773, 777 (2008).
First, the defendant argues that the affidavit in support of the applications for the warrants to search his residence and car contained statements that were either intentionally false or made with reckless disregard for the truth under the standard of Franks v. Delaware, 438 U.S. 154, 155-156 (1978) (Franks). Specifically, Detective Morrison's affidavit, based on information conveyed to him by Detective Shea, stated that Shea had seen the defendant exit his residence and get into the car that the burglar had used during the crime earlier that day, which was registered to the defendant's mother and known to be used by the defendant. The affidavit further stated that Shea later saw the vehicle return to the defendant's residence "where [the defendant] entered the door." In fact, Shea did not actually see the defendant, but only saw someone he believed to be the defendant get into the vehicle, and he did not actually see anyone go back into the residence after the vehicle returned.
The motion judge, who was also the trial judge, conducted a Franks hearing at the defendant's request at which both detectives testified. She found both officers to be "entirely credible," and Shea in particular to be "without any guile whatsoever." She found that, based on what he knew and was able to observe, Shea reasonably "drew the conclusion in good faith that it was the defendant who was leaving the building and getting into the vehicle." Thus, the judge found, when Shea told Morrison that he had seen the defendant leave and return to the building, though "not literally correct," the misstatement was "negligent" and "careless" but "not made with reckless disregard for the truth." These findings are well supported by the officers' testimony and not clearly erroneous.
"Where . . . a police affiant's misstatement is the product of good faith but negligent conduct," Commonwealth v. Nine Hundred & Ninety-Two Dollars, 383 Mass. 764, 771 (1981), it "cannot form the basis of suppression under Franks or art. 14 [of the Massachusetts Declaration of Rights]." Commonwealth v. Valdez, 402 Mass. 65, 70 (1988). Furthermore, "[t]here was no showing that the affiant had any reason to doubt the truth of the statements given to him . . . ." Commonwealth v. Nine Hundred & Ninety-Two Dollars, supra at 775. The motion judge properly denied the motion to suppress on this ground. Because the affidavit did not contain any intentional or reckless falsehoods, we do not reach the question whether the misstatements were material or the defendant's assertion that art. 14 requires suppression even in the absence of materiality.
To enter a home to execute an arrest warrant, the police must "have a reasonable belief that the location to be searched is the arrestee's residence, and a reasonable belief that the arrestee is in his residence at the time the arrest warrant is executed." Commonwealth v. Gentile, 466 Mass. 817, 817-818 (2014), quoting from Commonwealth v. Silva, 440 Mass. 772, 778 (2004). The motion judge's finding, supported by the record, that Shea reasonably believed that the defendant had left and returned to his residence, disposes of the defendant's claim that the police lacked justification to enter the residence to execute the warrant for his arrest. Although the police did not locate the defendant at this time, their observations of jewelry in plain view as they properly entered and walked through the defendant's apartment, conducting a "protective sweep," were permissibly included in their applications for warrants to search the defendant's home and car.
In addition to being familiar with the defendant and this residence from previous investigations, the police confirmed with the defendant's probation officer that this was the defendant's current address.
Finally, although the search warrants did not particularly authorize the police to search for gloves, the police were justified in seizing the two boxes of latex gloves and the pair of gardening gloves that they found in plain view in the apartment and the car, respectively, when they returned to execute the warrants. As the defendant recognizes, the plain view doctrine authorizes police officers executing a search warrant to seize items of immediately apparent incriminating character that they inadvertently come across during their search. Commonwealth v. Accaputo, 380 Mass. 435, 447-448 (1980). Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307 (2010). We agree with the motion judge that police executing a search warrant for jewelry stolen during a home burglary could readily recognize and conclude that "people who break into homes often wear gloves to prevent fingerprints, and police officers can recognize gloves as items that are used in break-ins." See Commonwealth v. Bond, 375 Mass. 201, 206 (1978); Commonwealth v. Small, 10 Mass. App. Ct. 606, 610-611 (1980) (seizure of pair of black leather gloves in investigation of breaking and entering valid under plain view doctrine where officer "recognized the gloves to be plausibly related as proof of criminal activity of which he was already aware"). The motion judge correctly denied the defendant's motion to suppress.
For similar reasons, the judge acted well within her substantial discretion in determining that the gloves were relevant to prove the crimes charged and admitting them in evidence. See Commonwealth v. Wills, 398 Mass. 768, 778 (1986); Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 348 (2012).
Habitual offender sentencing enhancement. The defendant argues that the judge improperly sentenced him as a habitual criminal under G. L. c. 279, § 25, because he was "convicted" and "sentenced" on the predicate offenses at a single guilty plea hearing. He concedes that the fact he received concurrent four-to-five-year sentences for the predicate offenses does not make him ineligible for habitual offender treatment because "[c]oncurrent prison sentences, imposed for separate and distinct offenses, [as here,] together with a third conviction of a felony, support a finding of habitual offender status under the statute." Commonwealth v. Perry, 65 Mass. App. Ct. 624, 632 (2006) (Perry), quoting from Commonwealth v. Keane, 41 Mass. App. Ct. 656, 660 (1996) (Keane). But he argues that his case is not governed by Perry because there the defendant received concurrent sentences for separate, distinct crimes at two different guilty plea hearings on different dates, whereas he received concurrent sentences for separate, distinct crimes at the same guilty plea hearing. We reject this argument. The fact that he pleaded guilty and was sentenced in a consolidated hearing on two multicount indictments (MICR2004-01834 and MICR2005-00375) does not change the fact that he was "convicted" of four separate offenses on which he was "sentenced" to a prison term of three or more years. Compare Commonwealth v. Hall, 19 Mass. App. Ct. 1004 (1985), S.C., 397 Mass. 466 (1986), in which this court affirmed a habitual offender sentence based on predicate offenses to which the defendant had pleaded guilty and been sentenced on the same date.
The indictment in this case was returned April 10, 2011. The habitual offender statute has since been amended, by St. 2012, c. 192, § 4, effective August 2, 2012.
The discussion of this issue in Keane does not include the dates when the sentences on the predicate offenses were imposed.
Contrary to the defendant's assertion, these sentences constitute four separate judgments, not a single judgment.
The Supreme Judicial Court, on further appellate review, affirmed on different grounds and did not reach the question whether the two convictions, on which the defendant entered guilty pleas and was sentenced on the same date, alone were sufficient under G. L. c. 279, § 25. Commonwealth v. Hall, 397 Mass. at 469 n.2.
Judgments affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 23, 2015.