Com. v. Ware

• Decision Date: 23 September 2009
• Docket Number: No. 07-P-1701.,07-P-1701.
• Parties: COMMONWEALTH v. Kenneth WARE.
• Court: Appeals Court of Massachusetts

913 N.E.2d 869

75 Mass. App. Ct. 220

COMMONWEALTH v. Kenneth WARE.

No. 07-P-1701.

Appeals Court of Massachusetts, Suffolk.

Argued October 10, 2008.

Decided September 23, 2009.

Elizabeth Caddick for the defendant.

Joseph M. Ditkoff, Assistant District Attorney (Jennifer J. Hickman, Assistant District Attorney, with him) for the Commonwealth.

Present: TRAINOR, KATZMANN, & VUONO, JJ.

KATZMANN, J.

In this case we address whether a District Court conviction of possession of cocaine with the intent to distribute is a predicate offense under the armed career criminal statute. We also consider issues arising from the denial of a motion to suppress evidence.

On December 17, 2001, Kenneth Ware was indicted on charges of assault and battery by means of a dangerous weapon (Count 1) (G.L. c. 265, § 15A); three counts of assault and battery (Counts 2, 3, 4) (G.L. c. 265, § 13A); threats to commit a crime (Count 5) (G.L. c. 275, § 2); receiving a firearm with the serial or identification number obliterated (Count 6) (G.L. c. 269, § 11C); and unlawful possession of a firearm while being an armed career criminal based on three predicate offenses (Count 7) (G.L. c. 269, § 10(a)). His uncle, Eddie Ware (codefendant), was indicted on the same charges (as well as three others). The indictments arose from an incident that occurred in the Dorchester section of Boston on the evening of October 12, 2001.

On January 15, 2003, the defendant filed a motion to suppress and a motion to dismiss a portion of the armed career criminal indictment. On August 1, 2003, after an evidentiary hearing, a Superior Court judge denied the motion to suppress, issuing written findings.

The defendant and the codefendant were tried before a Superior Court jury from February 25, 2004, to March 2, 2004. A motion for a directed verdict was allowed as to Count 6. Following the close of all evidence, the defendant was acquitted of the charge of threats, and convicted of three counts of assault and battery and one count of unlawful possession of a firearm. After the jury trial, the defendant had a jury-waived trial on the issue whether he was an armed career criminal. The judge found the defendant guilty and sentenced him to ten to eleven years imprisonment on Count 7. The assault and battery convictions were placed on file with the defendant's consent.

The defendant now appeals,¹ contending that the judge erred in not dismissing the earmed career criminal count, and in denying his motion to suppress. We affirm.

1. Discussion. a. Armed career criminal conviction. The armed career criminal statute, G.L. c. 269, § 10G(a), provides enhanced penalties for an individual who unlawfully possesses a firearm or ammunition after "having been previously convicted of a violent crime or of a serious drug offense, both as defined" in § 10G itself. The sentences increase according to the number of predicate offenses, up to a maximum of three. G.L. c. 269, § 10G(a)-(c). The defendant contends that the enhanced penalty provision of G.L. c. 269, § 10G, is not triggered by his prior conviction under G.L. c. 94C, § 32A(a).²

General Laws c. 269, § 10G(e), defines "serious drug offense" as:

"an offense under the federal Controlled Substances Act, 21 U.S.C. 801, et seq., the federal Controlled Substances Import and Export Act, 21 U.S.C. 951, et seq. or the federal Maritime Drug Law Enforcement Act, 46 U.S.C.App.1901, et seq. for which a maximum term of imprisonment for ten years or more is prescribed by law, or an offense under chapter 94C involving the manufacture, distribution or possession with intent to manufacture or distribute a controlled substance, as defined in section 1 of said chapter 94C, for which a maximum term of ten years or more is prescribed by law"(emphasis added).

To support the § 10G enhancement, the Commonwealth relies on the defendant's previous District Court conviction of possession of a Class B substance with intent to distribute.³ The defendant argues that his District Court conviction of this crime could not be a predicate drug offense because the maximum term that he faced in District Court was two and one-half years, and not the ten years required by statute for a serious drug offense.

Instructive is Commonwealth v. Smith, 444 Mass. 497, 497, 829 N.E.2d 1090 (2005), where the Supreme Judicial Court addressed whether the reference in the deoxyribonucleic acid (DNA) sample statute to "an offense that is punishable by imprisonment in the [S]tate prison," G.L. c. 22E, § 3, included District Court convictions. In Smith, the defendant argued that because he was tried in District Court, he did not meet the statutory criterion of being convicted of an offense that carried the possibility of a State prison sentence. Ibid. The court rejected the defendant's argument, reasoning that "the issue is how the `crime' itself may potentially be punished, not how a particular defendant before a particular court may be punished." Id. at 497-498, 500 n. 1, 829 N.E.2d 1090. Accordingly, the court held that the statute extends to the defendant because his offense was punishable by a State prison sentence. Id. at 500-501, 829 N.E.2d 1090.

We also note that G.L. c. 269, § 10G(a) & (e), largely replicates 18 U.S.C. § 924(e) & (e)(2)(A)(ii), the Federal Armed Career Criminal Act (ACCA). We find instructive that in interpreting that statute, the United States Court of Appeals for the First Circuit, when faced with the precise issue now before us, determined that a Massachusetts State District Court drug conviction is a "serious drug offense" under the statute. United States v. Moore, 286 F.3d 47, 49-51 (1st Cir.), cert. denied, 537 U.S. 907, 123 S.Ct. 242, 154 L.Ed.2d 184 (2002) (prior conviction under Massachusetts statute for possessing cocaine with intent to distribute, for which statutory maximum possible penalty was ten years' imprisonment, qualified as "serious drug offense" under ACCA, and thus, could serve as predicate offense for sentence enhancement, even though court that adjudicated conviction could not, under State law, impose sentence of more than two and one-half years). See United States v. Matthews, 498 F.3d 25, 36 (1st Cir.2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1463, 170 L.Ed.2d 290 (2008) (declining to revisit United States v. Moore, supra); United States v. Gunn, 962 F.Supp. 214, 215-16 (D.Mass.1997), aff'd, 141 F.3d 1150 (1st Cir.), cert. denied, 524 U.S. 932, 118 S.Ct. 2332, 141 L.Ed.2d 705 (1998) (cited with approval in United States v. Moore, supra at 49) (defendant's three prior Massachusetts drug convictions were "serious drug offenses" under ACCA, even though defendant was prosecuted on those offenses in Massachusetts District Court and thus could have received maximum penalty of two and one-half years, where maximum penalty set forth in statute for those offenses was ten years in State prison). See also United States v. Sousa, 468 F.3d 42, 45 (1st Cir.2006) (defendant's prior conviction for assault with dangerous weapon was felony, and thus was predicate offense under Federal law prohibiting felon from being in possession of firearm, despite fact that defendant was prosecuted in Municipal Court and could not have been sentenced to State prison, as required for crime to be considered felony; crime charged carried potential for State prison term of not more than five years).

In United States v. Moore, supra, the First Circuit Court of Appeals, in following a categorical approach, observed that in determining whether a prior conviction may serve as a predicate offense for sentence-enhancement purposes (under the Federal ACCA), "the sentencing court typically must limit its inquiry to `the fact of conviction and the statutory definition of the prior offense.'" United States v. Moore, 286 F.3d at 49, quoting from Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). "[I]t makes no difference under the [ACCA] that the government elected to pursue [the defendant's] drug offenses in a Massachusetts District Court.... [T]he statutory language of [G.L. c.] 94C, § 32A establishes that [the defendant] could have received at least ten years in state prison." United States v. Gunn, 962 F.Supp. at 216. "[General Laws c.] 94C, § 32A(a), allows for a maximum possible penalty of ten years' incarceration, and, thus, fits comfortably within the ambit of `serious drug offense' [under the ACCA]." United States v. Moore, supra.

We think that Commonwealth v. Smith, 444 Mass. at 497-500, 829 N.E.2d 1090, and the Federal cases are persuasive to our analysis. Here, the defendant's prior conviction under G.L. c. 94C, § 32A(a), provides for punishment by imprisonment in the State prison for not more than ten years. Thus, it qualifies as a "serious drug offense" under G.L. c. 269, § 10G(e). The defendant's prosecution for the predicate offense in District Court does not change the fact that the punishment for this crime in the State prison still falls within G.L. c. 269, § 10G(e). We agree with the judge's determination that the defendant's G.L. c. 94C, § 32A(a), conviction triggers the enhanced penalty under G.L. 269, § 10G(e).

b. Motion to suppress. 1. The evidentiary hearing. The judge conducted an evidentiary hearing on the motions to suppress filed by the defendant and the codefendant. At the hearing, Officer Robert Lyden, Detective William Doogan, and Detective Michael Devane of the Boston police department testified, as did Cordelia Ware, the wife of the codefendant. The judge found:

"At about 10 P.M. on the evening of October 12, 2001, Boston Police Officer ... Lyden ..., while patrolling the Dorchester section with Sergeant Charles Burn and Officer Chris Carol, received a radio call for a man with a gun at 11-12 York Street in Dorchester, who had then fled toward Harlem Street. After a brief search in the area of Harlem Street, Lyden and the other officers went to York Street, where they interviewed several adults...