Opinion
19-P-181
11-16-2020
COMMONWEALTH v. COLIN D. YORK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Colin D. York, appeals from his convictions of unlawful possession of a firearm, G. L. c. 26, § 10 (h) (1), unlawful possession of ammunition, G. L. c. 26, § 10 (h) (1), and two counts of violation of an abuse prevention order, G. L. c. 209A, § 7. He contends that the judge erred by denying his motion to suppress evidence obtained during the execution of an arrest warrant because officers lacked reasonable belief he was in his residence at the time of entry. He further contends that the judge erred in denying his motion for a required finding of not guilty on two of three counts of violating of a no-contact order. We affirm.
Discussion. 1. Motion to suppress. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Silvelo, 486 Mass. 13, 15 (2020), quoting Commonwealth v. Perkins, 465 Mass. 600, 601 (2013). We summarize the facts as found by the motion judge, supplemented by facts in the record that are consistent with her findings. See Commonwealth v. Gentile, 466 Mass. 817, 820 (2014).
On the morning of December 21, 2015 members of the Montague Police Department and Massachusetts State Police special tactical operations (STOP) team arrived at the defendant's home in Lake Pleasant at 5:45 A.M. to execute an arrest warrant. Upon arriving at the defendant's residence, officers attempted to contact the defendant by knocking on the door, via a loudspeaker, and by calling his mobile phone. No lights were seen nor sounds heard inside the home. At 6:53 A.M. the STOP team used a battering ram to enter. The defendant was not located, but a firearm and ammunition found in plain view were seized.
The law enforcement personnel present had also "pinged" the defendant's cell phone, and obtained information concerning its location, but the historical cell site location information (CSLI) obtained without a warrant, was suppressed. The judge decided the motion on the basis of the remaining evidence.
"The Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that police who enter an individual's residence to execute an arrest warrant '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.'" Gentile, 466 Mass. at 817-818, quoting Commonwealth v. Silva, 440 Mass 772, 778 (2004). See Payton v. New York, 445 U.S. 573, 603 (1980). "[A] law enforcement official's belief must be supported by 'specific articulable facts' that, based on the totality of circumstances, permit a reasonable inference that, at the time of entry, the defendant is on the premises. Gentile, supra at 822, quoting Commonwealth v. Webster, 74 Mass. App. Ct. 247, 251 (2009).
The motion judge concluded that the law enforcement officers formed a reasonable belief the defendant was home at the early morning hour. The defendant acknowledges that the police had reason to believe it was his house. He contends, however, that law enforcement lacked reason to believe he would be present because the entry at 6:53 A.M. was too late in the morning to support a reasonable belief he was still at home.
Officer Laster knew where the defendant lived because he had coached his football team, knew his parents before they passed away, and had responded to a call at that address a couple of weeks earlier.
"[T]he test to determine the propriety of the entry considers only the circumstances known to the police at the time of the entry into the residence." Silva, 440 Mass. at 781 n.11. The police entered at 6:53 A.M. but they had been present at the house for over an hour. "[T]he early morning hour alone . . . sufficed to warrant a reasonable belief that the defendant was home." Gentile, 466 Mass. at 824. See United States v. Hamilton, 819 F.3d 503, 509 (1st Cir. 2016) ("it was reasonable for the police to believe that [the defendant] would be [home] at [6 A.M.]"). The judge did not err in denying the motion to suppress.
2. Sufficiency of the evidence. The defendant also claims that the judge erred in denying his motion for a required finding of not guilty on two counts of violating the no-contact provision of an abuse prevention order because he contacted his former girlfriend's mother, not the former girlfriend herself, and there was insufficient evidence to show that he intended to contact her. "We review the denial of a motion for a required finding of not guilty to determine 'whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in the light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged.'" Commonwealth v. Barry, 481 Mass. 388, 397-398 (2019), quoting Commonwealth v. Whitaker, 460 Mass. 409, 416 (2011).
"To establish a violation of G. L. c. 209A, §7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was entered by a judge and was in effect on the date of the alleged violation; (2) the defendant violated the order; and (3) the defendant had knowledge of the order." Commonwealth v. Silva, 431 Mass. 401, 403 (2000). When contact in violation of a no-contact order is alleged to have occurred by means of contact with a third party, the Commonwealth must "prove beyond a reasonable doubt an intentional act by the defendant which led to the violation of the c. 209A order." Commonwealth v. Collier, 427 Mass. 385, 389 (1998). It is well established that "[a] defendant may not use a third party to relay a message to a complainant who has secured a restraining order against the defendant." Commonwealth v. Vital, 83 Mass. App. Ct. 669, 673 (2013). "Our cases generally interpret 'contact' broadly; there are many ways to achieve a communication." Commonwealth v. Consoli, 58 Mass. App. Ct. 734, 740 (2003), quoting Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919 (1999).
Viewed in the light most favorable to the Commonwealth, the evidence established the following. The defendant had a romantic relationship with S.K., who provided emotional support after the death of his parents. Although the romantic relationship ended in 2010, the defendant continued to exhibit possessive and jealous behavior towards her. After several violent incidents, S.K. requested, and was granted, a c. 209A abuse prevention order against the defendant on December 15, 2015. The conditions of the order were explained to him by the police when the order was served. The order was extended on December 23, 2015 and was in effect until December 22, 2016. At a hearing on January 12, 2016, S.K. testified regarding an incident that occurred on December 25, 2015 in which the defendant ran towards her with a gun and called her a bitch. The restraining order was extended, and the terms were explained in court.
The defendant sent S.K.'s mother a Valentine's Day card, which arrived on February 12, 2016. He knew that S.K. lived with her mother. S.K. recognized the handwriting on the envelope as the defendant's. In addition, the return address was Franklin County house of correction, where the defendant was incarcerated. The Valentine's Day card contained a message that read "[t]he truthful witness saves lives but he who utters lies is a betrayer." Shortly thereafter S.K. received a telephone call from Franklin County house of correction asking if she would accept a call from the defendant. She refused the call.
The defendant was convicted of a violation of the no-contact order for making the telephone call. He does not appeal from that conviction.
The jury permissibly could have found that the defendant intended to send a message to S.K. through her mother. See Commonwealth v. Russell, 46 Mass. App. Ct. 307, 309-310 (1999). The card arrived about a month after she had testified against him and contained a message that reasonable jurors could infer was a reference to her testimony. He followed up immediately with a telephone call. "[O]ne cannot undermine a no contact order by the simple expedient of ricocheting prohibited comments off of third parties . . . who are in the vicinity of those whom the order protects." Consoli, 58 Mass. App. Ct. at 741. Cf. Commonwealth v. Pereira, 93 Mass. App. Ct. 146, 154 (2018).
The defendant then sent S.K.'s mother a second letter that was received on March 12, 2016. The letter contained phrases such as "guard against profitless grumblings and from calamity", "withhold your tongues, for a stealthy utterance does not go unpunished" and "a lying mouth slays the soul". The jury were permitted to infer that the statements were intended for S.K. "Fact finders are not 'required to divorce themselves of common sense, but rather should apply to facts which they find proven such reasonable inferences as are justified in the light of their experience as to the natural inclinations of human beings.'" Russell, 46 Mass. App. Ct. at 309, quoting Commonwealth v. Arias, 29 Mass. App. Ct. 613, 618 (1990). The judge properly denied the defendant's motion for a required finding of not guilty.
On December 23, 2016 the defendant mailed a letter to S.K. stating that he knew the restraining order would lapse at 4 P.M. and he wanted to resume their relationship. This was additional evidence from which a fact finder could infer that the defendant's communications, from the beginning, were intended to forge a link with his former girlfriend for the purpose of rekindling a relationship.
Judgments affirmed.
By the Court (Meade, Sullivan & Sacks, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: November 16, 2020.