Commonwealth v. Pearson, 18-P-1302

Citation96 Mass.App.Ct. 299,135 N.E.3d 240
Decision Date28 October 2019
Docket NumberNo. 18-P-1302,18-P-1302
Parties COMMONWEALTH v. Washington PEARSON.
CourtAppeals Court of Massachusetts

96 Mass.App.Ct. 299
135 N.E.3d 240

COMMONWEALTH
v.
Washington PEARSON.

No. 18-P-1302

Appeals Court of Massachusetts, Middlesex..

Argued May 14, 2019
Decided October 28, 2019


Edward Crane, Cambridge, for the defendant.

Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

Present: Blake, Henry, & McDonough, JJ.

BLAKE, J.

135 N.E.3d 242

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, 58 N.E.3d 375 (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.

Background. 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,

135 N.E.3d 243

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. Middlesex County case. Meanwhile, the defendant was indicted in Middlesex County on other burglary-related charges, and he once again elected to represent himself. After a colloquy that the defendant does not claim was involuntary, uninformed, or defective, a Superior Court judge determined that the defendant waived his right to counsel, and the judge appointed Attorney Scott Matson to act as standby counsel.

The defendant filed motions to suppress,5 and on January 16, 2014, he orally

135 N.E.3d 244

requested an evidentiary hearing.6 The judge ruling on the motion "incorporated [the findings of fact in the Norfolk order] by reference ... for the purpose of deciding whether an evidentiary hearing is required in the present case." The judge determined that, because the issue whether the warrant was otherwise supported by probable cause is an analysis that "begins and ends with the four corners of the affidavit," there was no need for an evidentiary hearing on that matter. The judge further concluded that "[t]he court will hear argument on whether or not there was probable cause to issue the search warrant with the unlawfully obtained information removed from the affidavit submitted in support of the application for the search warrant," and he outlined the information the court would consider at such hearing, and the information that would be excluded. A different judge held that hearing, denied the defendant's motions to suppress, and ordered that the Norfolk order "remain[ ] in effect." Notably, and as conceded by defense counsel at oral argument before this court, the defendant never specifically raised the question whether the police officers would have applied for a search warrant if the initial entry into the apartment was not illegal.

On December 10, 2013, another Middlesex County indictment was returned against the defendant for intimidation of a witness, stemming from his communication with Johnson while the two were held on bail pending trial. At his arraignment on this indictment, the defendant did not waive his right to counsel and explicitly requested the appointment of counsel other than Attorney Matson "due to [his] involvement in the related matter."7 Attorney Matson was appointed for the arraignment. In 2014, the Commonwealth's motion to join the burglary-related and witness intimidation indictments for trial was allowed, and the defendant's motion to sever was denied.8

Over a series of court hearings, issues related to Attorney Matson's representation of the defendant on the intimidation indictment were raised. It is this representation that serves as the basis of the defendant's claim of ineffective assistance of counsel.

Discussion. 1. The Middlesex burglary-related convictions. The defendant asks us to overrule Pearson I, 90 Mass. App. Ct. at 292, 58 N.E.3d 375, contending that the court there adopted a version of the independent source doctrine that provides him with less protection than what is required under Federal law. See Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). In the alternative, the defendant asks us to remand the case to the Superior Court for an evidentiary hearing on his motion to suppress. We decline to overrule Pearson I or to remand the case. This case is controlled in all material respects by Commonwealth v. DeJesus, 439 Mass. 616, 627 n.11, 790 N.E.2d 231 (2003) (where defendant was already under arrest for involvement

135 N.E.3d 245

in sale of 300 grams of cocaine, and had been identified as regular supplier, court concluded that "[t]here can be no doubt that the police were committed to an investigation of the...

To continue reading

Request your trial
3 cases
  • Commonwealth v. Sanchez
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • August 25, 2020
    ...(quotations and citations omitted). Commonwealth v. Pon, 469 Mass. 296, 308, 14 N.E.3d 182 (2014). See Commonwealth v. Pearson, 96 Mass. App. Ct. 299, 304 n.9, 135 N.E.3d 240 (2019), ("We are not bound by the analysis of constitutional principles applied by the United States Court of Appeal......
  • Commonwealth v. Pearson
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 12, 2021
    ...source doctrine.The convictions were affirmed by the Appeals Court in separate opinions. See Commonwealth v. Pearson, 96 Mass. App. Ct. 299, 135 N.E.3d 240 (2019) ( Pearson II ) (Middlesex cases);1 Commonwealth v. Pearson, 90 Mass. App. Ct. 289, 58 N.E.3d 375 (2016) ( Pearson I ) (Norfolk c......
  • Commonwealth v. Pearson
    • United States
    • Appeals Court of Massachusetts
    • June 17, 2022

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT