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15-P-1743                                               Appeals Court

                 COMMONWEALTH     vs.   JAMES L. WIDENER.


                               No. 15-P-1743.

            Plymouth.        April 13, 2017. - June 15, 2017.

            Present:    Kafker, C.J., Grainger, & Kinder, JJ.


Firearms. Practice, Criminal, Motion to suppress, Required
     finding, Witness, Sentence. Evidence, Immunized witness,
     Prior conviction. Witness, Immunity. Assault and Battery
     by Means of a Dangerous Weapon.



     Indictments found and returned in the Superior Court
Department on March 25, 2011.

     A pretrial motion to suppress evidence was heard by Raymond
P. Veary, Jr., J., and the cases were tried before Angel Kelley
Brown, J.


     Timothy St. Lawrence for the defendant.
     Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.


    KINDER, J.         Following a jury trial in the Superior Court,

the defendant was convicted of unlawful possession of a firearm,

G. L. c. 269, § 10(a); unlawful possession of ammunition, G. L.

c. 269, § 10(h); unlawful possession of a large capacity feeding
                                                                        2


device, G. L. c. 269, § 10(m); and unlawful possession of a

loaded firearm, G. L. c. 269, § 10(n).1      The indictments further

alleged that the defendant previously had been convicted of

three violent crimes or serious drug offenses subjecting him to

enhanced sentencing pursuant to the armed career criminal act

(ACCA), G. L. c. 269, § 10G(c).       At a later jury-waived trial on

the sentencing enhancement charges, the trial judge found the

defendant guilty of the subsequent offender allegations related

to his convictions of unlawful possession of a firearm and

unlawful possession of ammunition based on three predicate

offenses.      Consequently, pursuant to the ACCA, he was sentenced

to a consolidated mandatory minimum term of imprisonment of not

less than fifteen years and not more than fifteen years and one

day.       On appeal, the defendant claims (1) his motion to suppress

the firearm and the ammunition should have been allowed, (2) the

evidence was insufficient to sustain his convictions, and (3)

the evidence was insufficient to prove that he had three prior

qualifying convictions under the ACCA.       The motion to suppress

properly was denied, and we conclude that the evidence was

sufficient to sustain the underlying convictions.       However, we



       1
       The defendant was acquitted of resisting arrest, G. L.
c. 268, § 32B. The Commonwealth dismissed before trial the
charges related to operating a motor vehicle with a suspended
license.
                                                                       3


vacate the sentence imposed pursuant to the ACCA and remand for

resentencing for the reasons that follow.

    Background.     1.   Motion to suppress.   In the fall of 2010,

members of a law enforcement task force identified the defendant

as a suspect in a series of commercial property burglaries in

Plymouth and Bristol Counties.    The police learned, through a

confidential informant and recorded conversations between the

informant and the defendant, that the defendant was in Florida

purchasing guns and drugs for transport to Massachusetts.      As of

February 2, 2011, the police knew that the defendant was

returning to Massachusetts driving a gray Jeep Commander sport

utility vehicle and that he would likely be with his girl

friend, Brianna Tobin.    Within twenty-four hours of receiving

the information, the police observed the defendant on Route 3A

in Kingston, Massachusetts, in a gray Jeep Commander, with a

woman matching Tobin's description.     Police were also aware that

the defendant had a criminal history including crimes of

violence, that he was not licensed to drive in Massachusetts,

that there were three outstanding warrants for his arrest, and

that neither he nor Tobin were licensed to carry a firearm in

Massachusetts.   Police observed the defendant pull into a

gasoline station.    They approached the defendant as he returned

to his vehicle, and identified themselves.     The defendant
                                                                     4


immediately fled on foot.     He was apprehended shortly

thereafter, unarmed.

    Once the defendant was apprehended, another officer

approached Tobin who was still seated in the passenger seat of

the gray Jeep Commander.     The officer, with his gun drawn and

police identification visible, repeatedly screamed, "Police" and

ordered Tobin to place her hands where the officer could see

them.   When Tobin failed to do so, and continued to move within

the vehicle, the officer opened the door and removed her from

the vehicle.   As soon as the officer placed his hands on Tobin,

he observed a firearm in plain view on the floor of the front

passenger's side.     The vehicle was secured and police applied

for a warrant to search the vehicle.    The warrant was authorized

and the subsequent search of the vehicle resulted in the seizure

of the firearm and ammunition.

    2.   Additional trial evidence.     The defendant and Tobin

were charged, inter alia, with possession of the firearm seized

from the vehicle.     Tobin agreed to cooperate with the

Commonwealth and testified against the defendant at trial.

Pursuant to the cooperation agreement, the charges against her

were dismissed.     She testified that the firearm belonged to the

defendant and that he left it with her in the vehicle for fear

that someone would see it if he took it into the gasoline

station with him.
                                                                      5


    Another witness, Adam Long, testified at trial and

identified the firearm as one that he sold to the defendant in

Daytona, Florida, in late 2010.   Long testified that at the time

of the sale, the defendant was accompanied by his girl friend.

    Discussion.    1.   Motion to suppress.   The motion judge, who

was not the trial judge, denied the defendant's motion to

suppress the firearm and the ammunition after an evidentiary

hearing.   He concluded that the exit order and the arrest of

Tobin were lawful in the circumstances.   On appeal, the

defendant's principal claim is that the exit order that led to

the seizure of the firearm was not justified by safety concerns.

We disagree.

    "On review of a motion to suppress, we do not disturb the

judge's findings of fact unless they are clearly erroneous."

Commonwealth v. Sicari, 434 Mass. 732, 746 (2001).    We "give[]

substantial deference to the judge's ultimate findings and

conclusions of law," Commonwealth v. Morse, 427 Mass. 117, 122

(1998), quoting from Commonwealth v. Magee, 423 Mass. 381, 384

(1996), and "leave to the judge the responsibility of

determining the weight and credibility to be given oral

testimony presented at the motion hearing."    Commonwealth v.

Contos, 435 Mass. 19, 32 (2001), quoting from Commonwealth v.

Eckert, 431 Mass. 591, 592-593 (2000).    "We conduct an

independent review of the judge's application of constitutional
                                                                      6


principles to the facts found."     Commonwealth v. Hoose, 467

Mass. 395, 400 (2014).

    There are three bases upon which an exit order issued to a

passenger in a vehicle may be justified:     (i) an objectively

reasonable concern for the safety of the officer or other

persons, (ii) reasonable suspicion that the passenger is engaged

in criminal activity, or (iii) pragmatic reasons, e.g., to

facilitate an otherwise lawful search of the vehicle pursuant to

the automobile exception to the warrant requirement.

Commonwealth v. Cruz, 459 Mass. 459, 466-467 (2011).     "[I]t does

not take much for a police officer to establish a reasonable

basis to justify an exit order or search based on safety

concerns."   Commonwealth v. Gonsalves, 429 Mass. 658, 664

(1999).   The test is an objective one, taking into consideration

the totality of circumstances.     Id. at 665.

    Here, based on a multiagency and multijurisdictional

investigation, the police had information that the defendant was

transporting drugs and firearms from Florida to Massachusetts.

Police were also aware that the defendant would be accompanied

by Tobin, his girl friend, whom the informant "had identified

. . . as accompanying [the defendant] down south on these trips

to purchase guns and Percocets."    Thus, the officer who

approached Tobin had reason to believe that (1) the passenger in

the vehicle was the defendant's girl friend, (2) she had
                                                                   7


witnessed the defendant's flight and arrest, and (3) there were

firearms in the vehicle.   In these circumstances, we discern no

error in the motion judge's conclusion that the passenger

"reasonably could be viewed by the police as a confederate of

[the defendant], . . . prepared to assist him in a variety of

different ways, including the violent upset of his arrest."

    We are not persuaded by the defendant's claim that the

force used in seizing Tobin was "disproportionate."     "In

evaluating whether the police exceeded the permissible scope of

the stop, the issue is one of proportion.   'The degree of

suspicion the police reasonably harbor must be proportional to

the level of intrusiveness of the police conduct.'"

Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001), quoting

from Commonwealth v. Williams, 422 Mass. 111, 116 (1996).

Because Tobin refused to show her hands when ordered to do so,

and continued to move within the vehicle, the officer's

heightened concerns for his safety were entirely reasonable.

See Commonwealth v. Obiora, 83 Mass. App. Ct. 55, 59 (2013).     We

conclude that the exit order that revealed the firearm in plain

view was justified based upon the officer's objectively

reasonable concern for his safety, and therefore we discern no

error in the denial of the motion to suppress.

    2.   Sufficiency.   The defendant argues that the

uncorroborated testimony from "immunized" witnesses Tobin and
                                                                          8


Long was insufficient to prove the defendant's possession of the

firearm and the ammunition.      The defendant relies on G. L.

c. 233, § 20I, inserted by St. 1970, c. 408, which provides that

"[n]o defendant in any criminal proceeding shall be convicted

solely on the testimony of, or the evidence produced by, a

person granted immunity under the provisions of section twenty

E."    His reliance on this statute is misplaced.

       First, "[t]here is no requirement that a cooperating

witness's testimony be corroborated unless the witness is

immunized under G. L. c. 233, § 20E."       Commonwealth v. Lessieur,

472 Mass. 317, 330 (2015).      Nothing in the record indicates that

either Tobin or Long received immunity pursuant to § 20E.         Tobin

testified pursuant to a cooperation agreement with the

Commonwealth in exchange for dismissal of the charges against

her.       According to Long, he was granted immunity from Federal

charges in the Middle District of Florida in exchange for his

testimony.      Thus, although both Tobin and Long testified in

exchange for favorable treatment from prosecuting authorities,

neither was immunized pursuant to § 20E.      Nevertheless, the

trial judge instructed the jurors that the witnesses were

immunized and that their testimony should be treated with

caution.2


       2
       The judge also instructed the jury that the uncorroborated
testimony of an immunized witness was not sufficient to convict
                                                                    9


    Second, even if Tobin and Long qualified as immunized

witnesses under § 20E, their testimony was sufficiently

corroborated.   See Commonwealth v. Vacher, 469 Mass. 425, 440

(2014) (corroboration for immunized witnesses required on only

one element of proof essential to conviction).   Police officers

testified regarding the position of the firearm in the vehicle,

the operability of the firearm, that the firearm was loaded, and

that it could accept a detachable magazine holding twelve

rounds.   Thus, there was ample corroboration from nonimmunized

witnesses on the essential elements of the offenses.   Simply

put, when considered as a whole and in the light most favorable

to the Commonwealth, see Commonwealth v. Latimore, 378 Mass.

671, 677 (1979), the evidence was sufficient to permit a

rational juror to find beyond a reasonable doubt the essential

elements of the charged offenses.

    3.    Sentencing under the ACCA.   At the jury-waived trial on

the sentencing enhancement charges, the Commonwealth introduced

certified copies of four prior convictions:   assault and battery

committed on July 19, 2001 (guilty plea on December 6, 2001);

assault and battery by means of a dangerous weapon (ABDW)

committed on March 18, 2004 (guilty plea on February 9, 2005);



the defendant. This part of the instruction, which benefited
the defendant, should not have been given because the witnesses
were not immunized pursuant to § 20E.
                                                                  10


possession with intent to distribute a class B controlled

substance committed on January 8, 2008 (guilty plea on October

20, 2008); and assault by means of a dangerous weapon committed

on January 11, 2008 (guilty plea on October 20, 2008).

Witnesses identified the defendant as the person previously

convicted in each case.   On the underlying convictions of

unlawful possession of a firearm and unlawful possession of

ammunition, the trial judge found the defendant guilty of the

subsequent offender portion of the indictments which alleged

that the defendant had "been previously convicted of three

violent crimes or three serious drug offenses, or any

combination thereof totaling three, arising from separate

incidences" and imposed the mandatory minimum enhanced sentence

of fifteen years.   G. L. c. 269, § 10G(c), inserted by St. 1998,

c. 180, § 71.

    The defendant challenges his convictions and his sentence

as an armed career criminal for two reasons.   First, he claims

that ABDW is not a violent crime within the meaning of the ACCA.

Second, he claims that the 2008 convictions of (1) assault by

means of a dangerous weapon, and (2) possession with intent to

distribute a class B controlled substance, should be treated as

a single offense under the ACCA because the underlying conduct

was close in time and the charges were resolved by guilty pleas

in a single proceeding.   We address these arguments in turn.
                                                                   11


    a.   ABDW as a violent crime.   Under the ACCA, a "violent

crime" is:

    "any crime punishable by imprisonment for a term exceeding
    one year . . . that: (i) has as an element the use,
    attempted use or threatened use of physical force or a
    deadly weapon against the person of another; (ii) is
    burglary, extortion, arson or kidnapping; (iii) involves
    the use of explosives; or (iv) otherwise involves conduct
    that presents a serious risk of physical injury to
    another."

G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8.      See

G. L. c. 269, § 10G(e).   The Supreme Judicial Court has ruled

that the fourth clause of the definition of violent crime, the

so-called "residual" clause, is unconstitutionally vague.

Commonwealth v. Beal, 474 Mass. 341, 351 (2016).    Accordingly,

in the circumstances here, the only potentially applicable

section of the definition is the first clause, the so-called

"force" clause.

    To determine whether a prior conviction qualifies as a

predicate offense under the ACCA, judges usually apply a

"categorical approach."   Commonwealth v. Eberhart, 461 Mass.

809, 815 (2012), quoting from Commonwealth v. Colon, 81 Mass.

App. Ct. 8, 15 (2011).    Under this approach, the judge looks

"only to the fact of conviction and the statutory definition of

the prior offense."   Ibid., quoting from Colon, supra.    However,

if the prior conviction was under a broad statute encompassing

multiple crimes, not all of which are violent, a judge should
                                                                    12


apply a "modified categorical approach," which permits

consideration of extrinsic evidence.     Id. at 816, quoting from

Colon, supra at 16.

     The defendant argues that the modified categorical approach

should apply in this case because ABDW encompasses both

intentional and reckless conduct.    Relying on Federal authority,

the defendant contends that reckless ABDW does not qualify as a

violent crime under the ACCA.   See United States v. Parnell, 818

F.3d 974, 981 n.5 (9th Cir. 2016).     No Massachusetts court has

gone that far.

     In analyzing reckless conduct within the crime of simple

assault and battery, the Supreme Judicial Court has said that

reckless battery has an element of physical force and is

sufficient to qualify as a violent crime within the meaning of

the ACCA.   Eberhart, supra at 818-819.3   We see no reason to

reach a different result with the more serious crime of ABDW.

Indeed, we have previously observed that "[i]t is undisputed

that, if committed by an adult, an assault and battery by means

of a dangerous weapon would be punishable by imprisonment for a

term exceeding one year and thus would constitute a violent

crime under the Massachusetts ACCA."     Commonwealth v. Rezendes,

     3
       In Eberhart, supra, the Supreme Judicial Court applied the
modified categorical approach because simple assault and battery
also included the nonviolent offense of offensive battery, which
could be committed with de minimis touching.
                                                                  13


88 Mass. App. Ct. 369, 372 (2015).   Accordingly, the defendant's

conviction of ABDW qualifies as a violent crime under the force

clause and the trial judge was not required to apply the

modified categorical approach.

    Even under the modified categorical approach, however,

there was extrinsic evidence supporting the conviction of ABDW.

The certified copy of the 2004 conviction of ABDW contained

evidence of the defendant's identity, the charge, and the guilty

plea.    It also contained a handwritten notation, "knife."

Considering this evidence in the light most favorable to the

prosecution, the trial judge could have reasonably concluded

beyond a reasonable doubt that ABDW was a crime of violence

because it has as an element the use, attempted use, or

threatened use of physical force or a deadly weapon against the

person of another.    See Commonwealth v. Claudio, 418 Mass. 103,

108 (1994) (knife is deadly weapon).

    b.    Separate incidences.   General Laws c. 269, § 10G(c),

inserted by St. 1998, c. 180, § 71, provides in relevant part:

    "Whoever, having been previously convicted of three violent
    crimes or three serious drug offenses, or any combination
    thereof totaling three, arising from separate incidences,
    . . . shall be punished by imprisonment in the state prison
    for not less than 15 years nor more than 20 years"
    (emphasis supplied).

In a case decided after the sentence here was imposed, the

Supreme Judicial Court determined that sentencing enhancement
                                                                  14


under the ACCA "applies only when a defendant's previous

convictions of three qualifying crimes 'arising from separate

incidences' were the results of separate, sequential

prosecutions."   Commonwealth v. Resende, 474 Mass. 455, 469

(2016).   In reaching this conclusion, the court reasoned that

sequential prosecutions occur when "the first conviction (and

imposition of sentence) occur before the commission of the

second predicate crime, and the second conviction and sentence

occur before the commission of the third crime."    Id. at 466-

467.

       Here, although the 2008 convictions of (1) assault by means

of a dangerous weapon, and (2) possession with intent to

distribute a class B controlled substance were for conduct

alleged to have occurred on different dates and charged in

separate complaints, they resulted from guilty pleas and

sentences imposed at a single hearing.    The defendant pleaded

guilty and received committed jail sentences to both charges,

concurrent with each other, on October 20, 2008.   Accordingly,

under the reasoning of Resende they were not sequential

prosecutions and, therefore, did not arise from separate

incidences.   We therefore conclude, as required by Resende, that

these two prior convictions must be considered as one for ACCA

purposes.
                                                                  15


     Following the jury-waived trial on the ACCA allegations,

the trial judge found the defendant guilty of the subsequent

offender portion of the indictments without reference to the

prior convictions upon which she relied.   We can reasonably

infer from her findings of guilty and the resulting mandatory

minimum sentence of fifteen years that she found at least three

prior qualifying convictions, but we cannot discern from the

record which three she found to have been proved beyond a

reasonable doubt.4   Based on our conclusion that the two 2008

convictions cannot be considered separate, sequential

convictions under the ACCA, we remand the case for resentencing

so that the trial judge can determine whether, in light of our

ruling, the defendant has two or three prior qualifying

convictions under the ACCA.5




     4
       The trial judge may have found that the defendant was
previously convicted of all four of the alleged prior
convictions of crimes of violence or serious drug offenses.
Although "a certified conviction of [simple] assault and battery
is insufficient to prove beyond a reasonable doubt that a
defendant committed a 'violent crime' for the purpose of
sentencing enhancement under [the ACCA]," Eberhart, 461 Mass. at
819, here there was extrinsic evidence of physical injury
observed by the responding officer that the judge may have
considered.
     5
       We note that the defendant qualifies for a different
enhanced sentence under the ACCA if he has two (rather than
three) prior convictions of violent crimes or serious drug
offenses arising from separate incidences. G. L. c. 269,
§ 10G(b).
                                                                16


    Conclusion.   For the foregoing reasons, the underlying

convictions of unlawful possession of a firearm, unlawful

possession of ammunition, unlawful possession of a large

capacity feeding device, and unlawful possession of a loaded

firearm are affirmed.   The finding that the defendant was guilty

as an armed career criminal pursuant to G. L. c. 269, § 10G(c),

and the consolidated sentence based on three predicate offenses,

are vacated and the case is remanded for resentencing consistent

with this opinion.

                                    So ordered.
