Commonwealth v. Webster , 480 Mass. 161 ( 2018 )

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SJC-12358
COMMONWEALTH vs. STEVEN M. WEBSTER.
Barnstable. April 6, 2018. - July 27, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.
Homicide. Home Invasion. Armed Assault in a
Dwelling. Robbery. Firearms. Felony-Murder Rule. Joint
Enterprise. Cellular Telephone. Deoxyribonucleic
Acid. Evidence, Joint venturer, Relevancy and materiality,
Consciousness of guilt. Practice, Criminal, Capital case,
Instructions to jury.
Indictments found and returned in the Superior Court
Department on March 7, 2013.
The cases were tried before Gary A. Nickerson, J.
Dana Alan Curhan (Christie L. Nader also present) for the
defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
BUDD, J. In the afternoon of July 11, 2012, Andrew Stanley
was shot and killed at his home during an armed robbery and home
invasion involving the defendant and three coventurers. The
defendant, Steven M. Webster, was convicted of murder in the
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first degree on a theory of felony-murder, home invasion, armed
assault in a dwelling, armed robbery, 1 and carrying a firearm
without a license. 2 The defendant asserts that the judge erred
by denying his motion for a required finding of not guilty and
by admitting certain evidence at trial. The defendant asserts
further that the judge should have instructed the jury on
consciousness of guilt evidence sua sponte, and that his counsel
was ineffective for failing to request such an instruction. We
affirm the defendant's convictions and decline to grant
extraordinary relief pursuant to G. L. c. 278, § 33E.
Background. We summarize the facts as the jury could have
found them, reserving certain details for discussion of specific
issues.
At approximately 1:20 P.M. on July 11, 2012, police
responded to reports of shots fired at a home in Hyannis.
Police officers heard moaning and yelling coming from the house;
one of them saw an individual he recognized as Keiko Thomas
looking out a window. The officers heard gunfire. Three men
were seen fleeing from the house and jumping over an adjacent
1 The judge dismissed the armed robbery conviction, which
was the predicate offense for felony-murder, contingent on the
murder conviction being upheld.
2 The defendant was tried with Eddie Mack, who was convicted
of, among other offenses, murder in the first degree with
extreme atrocity or cruelty. Two other coventurers, Keiko
Thomas and David Evans, pleaded guilty to several offenses
including manslaughter.
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fence; an officer recognized one of the fleeing men as Eddie
Mack. Officers pursued the men on foot and apprehended Thomas
and another individual, David Evans. The police also
apprehended Mack, who was hiding behind an air conditioning unit
outside a nearby store. In the meantime, a witness saw a fourth
man who had run back toward the house; this man was not
apprehended.
Inside the home, police found the victim lying unresponsive
on the living room floor. His hands and feet were bound with
handcuffs, duct tape, and zip ties. He had numerous abrasions,
injuries from blunt force trauma, and marks on his body
consistent with the use of a stun gun. The cause of death was a
single gunshot wound to the torso.
Police recovered several items near the area where they had
apprehended Mack. Marijuana was inside the air conditioning
unit, and $14,300 in cash and two cellular telephones (cell
phones) were underneath a pallet next to the unit. They also
found two cell phones in a nearby alleyway. Three of the cell
phones belonged to the victim, Mack, and Thomas. In the parking
lot next to the house, police located a backpack containing the
following: two firearms, one of which was a loaded .45 caliber
Colt handgun; gloves; a roll of duct tape consistent with the
duct tape used to bind the victim; a stun gun; an aerosol can;
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zip ties; and a black face mask, which had the defendant's
deoxyribonucleic acid (DNA) on it.
Police discovered a spent shell casing that had been fired
from the Colt handgun. The bullet retrieved from the victim's
body was consistent with having come from that gun.
Investigators found Mack's fingerprint on a crumpled piece of
duct tape and his palm print on the lower part of a window.
In executing a search warrant at Thomas's home, located
approximately one mile from the victim's home, police recovered
a roll of duct tape, handcuffs, and one round of ammunition.
Cell phone records showed that, in the days leading up to
the killing, Mack, Evans, and the defendant were communicating
with one another via calls and text messages. From July 1 to
July 11, the defendant telephoned or sent text messages to
numbers associated with Evans 231 times. On July 3, the
defendant sent a text message to Evans that stated, "Got some
heat lined up," and "Bring dem rollie up, in the arm rest." On
July 7, the defendant sent another text message to Evans
stating, "cuz if you chillen im bout, I am to go snatch my lil
heat by Norfolk and cum back." On July 9, Evans sent a text
message to the defendant asking, "So, what about mack?" The
defendant responded, "We out their what time was u tryna head
out their?" Evans replied, "We gotta see dude at nine tho."
Evans asked the defendant, "What you trying to do?" The
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defendant responded, "stressing fam." The defendant also
communicated with Mack seven times on July 10 and July 11.
Between July 7 and 11, there were multiple text messages
exchanged between Mack and Evans and forty-five communications
between Mack and Thomas. On July 8, Mack sent a text message to
Evans saying, "Gotta come down so I can explain it better bro so
we can get better understandin feel me." The day before the
killing, Mack sent another text message to Evans asking, "Yal
good?" Evans responded, "Yup. We out there tomorrow night
cuz."
Cell site location information (CSLI) evidence placed the
defendant's and Mack's cell phones in the Barnstable area on
July 10 and 11. CSLI evidence further indicated that both of
their cell phones were tracked being moved from Barnstable
toward Boston approximately one hour after the homicide. At
2:21 P.M., the defendant telephoned Mack, using a calling
feature to block the caller's identification. A few minutes
later, a text message was sent from Evans to Mack, which stated,
"What up bro its [me, i.e., the defendant] hit me back." At 4
P.M., cell phones belonging to the defendant and Evans were in
the Boston area.
Finally, tire impressions found in the dirt and gravel of
the backyard at the scene were consistent with the pattern made
by the tires of a Chevrolet Impala automobile that Evans had
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rented a few days prior to the murder. The vehicle was found in
Boston on July 13, approximately one mile from the defendant's
home. The defendant's DNA was located on the interior and
exterior of the rear passenger's side door of the vehicle.
The defendant was arrested in February, 2013. At trial, he
argued that he was not at the crime scene. The defendant moved
for a required finding of not guilty at the close of evidence;
the judge denied the motion.
Discussion. The defendant argues that (1) there was
insufficient evidence to convict him of the crimes; (2) the
judge should have excluded the tire impression evidence as
irrelevant and prejudicial; (3) the Commonwealth did not
establish by a preponderance of evidence that the a cell phone
number introduced at trial was used by Evans; and (4) the
defendant was entitled to a consciousness of guilt instruction
that the judge should have provided sua sponte, and because
defense counsel failed to request such an instruction, counsel
was ineffective.
1. Sufficiency of the evidence. The defendant contends
that the Commonwealth failed to prove that he was at the
victim's home at the time the crimes were committed, or that he
was otherwise involved in participating in the joint venture.
We disagree.
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To convict the defendant as a joint venturer, "we must
determine whether the evidence showed that he knowingly
participated in the commission of the crime[s] charged, alone or
with others, with the intent required for the offense[s]."
Commonwealth v. Rakes, 478 Mass. 22, 32 (2017). "Under the
familiar Latimore standard, the evidence is sufficient to reach
the jury and a motion for a required finding of not guilty is
properly denied if the evidence, viewed in the light most
favorable to the Commonwealth and drawing all inferences in
favor of the Commonwealth, would permit a rational jury to find
each essential element of the crime beyond a reasonable
doubt." Commonwealth v. Merry, 453 Mass. 653, 660 (2009),
citing Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
We conclude that the Commonwealth presented sufficient
evidence for the jury to find that when the defendant planned
and participated in, or agreed to help with, the crimes of which
he was convicted, he had the requisite mental state.
See Commonwealth v. Phillips, 452 Mass. 617, 633 (2008).
First, the Commonwealth presented evidence from which the
jury could conclude that the defendant helped plan the crimes
against the victim. That evidence included the many telephone
calls and text messages exchanged between the defendant and
Evans. As discussed, on July 3 and 7, the defendant sent a text
message to Evans stating that he was getting "heat," i.e., a
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gun. On July 9, the defendant and Evans were coordinating
meeting with a "dude at nine." Evans asked the defendant, "What
you trying to do?" The defendant responded, "stressing fam."
Jurors could infer from this exchange that the defendant
participated in planning the crime, including procuring one or
more firearms, and that the defendant was nervous about it.
There was also evidence that the defendant was at the scene
of, and participated in, the crime. CSLI evidence placed the
defendant's cell phone in the area of the victim's home on July
11. The defendant did not send a text message to either Evans
or Mack on the morning of July 11, but Evans and Mack were
communicating with one another from 8:39 A.M. to 12:10 P.M. that
day, which, with other evidence, permitted an inference that the
defendant was with Evans during that time. No text messages
were sent among any of the four men between 12:10 and 2:21 P.M.,
which included approximately one hour before and one hour after
the murder. This evidence allowed the jury to infer that the
four coventurers were together at the victim's home at the time
of the killing. Additionally, the defendant's DNA was
discovered on a mask located in a backpack containing other
items that had been used in the killing.
There also was evidence of the defendant's flight from the
scene. While three men were seen jumping over an adjacent fence
when police arrived, one witness saw a fourth man, who was not
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apprehended that night. Approximately one hour after the
homicide, both Evans's and the defendant's cell phones were
tracked being moved toward Boston. At 4 P.M., both cell phones
were in the Boston area, and on July 13, the vehicle that Evans
had rented was located in Boston approximately one mile from the
defendant's home. Together, this evidence permitted an
inference that the defendant and Evans had traveled together to
the crime and, after the killing, the defendant fled back to
Boston in Evans's vehicle.
The jury also could infer that a telephone call made from
the defendant to Mack using the feature to block a caller's
identification, and a subsequent text message sent from Evans's
cell phone (rather than his own) to Mack stating, "What up bro
its [me, (i.e., the defendant)] hit me back," were attempts made
by the defendant to communicate with Mack after the crime while
attempting to conceal his identity. Moreover, the jury could
infer that the defendant was in possession of both Evans's cell
phone and his own. See Commonwealth v. Barbosa, 477 Mass. 658,
667 (2017) (concluding defendant's flight from scene and
subsequent calls to coventurers allowed reasonable inference of
participation and shared intent).
Finally, when interviewed by the police after his arrest,
the defendant made false statements from which the jury could
infer consciousness of guilt. He told police that he had never
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been to Cape Cod and that he was not familiar with Barnstable. 3
Although he acknowledged knowing Mack, the defendant initially
said that he did not know Evans. He later acknowledged that he
knew Evans by a street name, but stated that he had met him only
once. See Commonwealth v. Jones, 477 Mass. 307, 317 (2017)
("evidence of the defendant's consciousness of guilt . . . is
probative and can, in conjunction with other evidence, support a
verdict of guilt").
The defendant argues that, save for the DNA on the mask
found in the backpack that contained items used to commit the
crime, there was no physical evidence linking him to the crimes,
and that the mask alone cannot establish that the defendant
participated in the crime. 4 See, e.g., Commonwealth v. Morris,
422 Mass. 254, 257 (1996) (where "the only identification
evidence is the defendant's fingerprint at the crime scene, the
prosecution must prove beyond a reasonable doubt that the
fingerprint was placed there during the crime"). He also
contends that his statements demonstrating consciousness of
3 Hyannis is a village in Barnstable.
4 The defendant made this point during closing argument:
that there was no evidence that a mask was used during the
crime. It was for the jury to determine what weight, if any, to
give this evidence. Commonwealth v. Barbosa, 477 Mass. 658, 666
(2017). See Commonwealth v. Evans, 438 Mass. 142, 151 (2002),
cert. denied, 538 U.S. 966 (2003) ("Evidence of a defendant's
possession of the means to commit a crime within a reasonable
time of the crime charged is admissible without proof that the
particular means was in fact the one used").
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guilt are also insufficient to show participation.
See Commonwealth v. Gonzalez, 475 Mass. 396, 413 (2016) (motive
and consciousness of guilt combined are insufficient to
establish guilt beyond reasonable doubt). The defendant
overlooks the fact that the mask and the statements made to
police were a fraction of the evidence tying him to the crime.
To be sure, the Commonwealth's case was circumstantial.
Even so, "circumstantial evidence is sufficient to establish
guilt beyond a reasonable doubt." Commonwealth v. Miranda, 458
Mass. 100, 113 (2010), cert. denied, 565 U.S. 1013 (2011), S.C.,
474 Mass. 1008 (2016). Inferences drawn from circumstantial
evidence "need only be reasonable and possible; [they] need not
be necessary or inescapable." Commonwealth v. Beckett, 373
Mass. 329, 341 (1977). To "the extent that conflicting
inferences may be drawn from the evidence, it is for the jury to
decide which version to credit." Barbosa, 477 Mass. at 666,
quoting Miranda, supra at 113. The Commonwealth was not
required to eliminate "every reasonable hypothesis of innocence,
provided the record as a whole supports a conclusion of guilt
beyond a reasonable doubt" (citation omitted). Commonwealth
v. Merola, 405 Mass. 529, 533 (1989).
Here, taken together, the evidence, including the text
messages in which the defendant said he was procuring a firearm,
the CSLI evidence placing his cell phone in the area of the
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victim's home on July 11 and tracking it as the defendant made
his way from Barnstable to Boston just after the murder, his
cell phone silence on the morning of the murder, his attempts to
conceal his identity when he contacted Mack using Evans's cell
phone after the murder, the fact that Evans could not have
driven his rental car back to Boston right after the murder, the
condition in which the victim was discovered, and the cash and
marijuana recovered, as well as the DNA and the defendant's
false statements to police was sufficient to allow the jury to
conclude that the defendant knowingly participated in a joint
venture to commit home invasion, armed assault in a dwelling,
armed robbery, and carrying a firearm without a license. 5 Jones,
477 Mass. at 317-318, and cases cited. The evidence permitted
an inference that the victim was killed in the course of the
armed robbery, thereby providing sufficient evidence to find the
defendant guilty of felony-murder. See Rakes, 478 Mass. at 32-
33.
2. Tire impression evidence. At trial, the Commonwealth
introduced evidence that tire impressions found in the dirt and
gravel on the driveway behind the victim's home were consistent
5The text messages, backpack containing the handgun and a
mask with the defendant's DNA, and the cash and marijuana
recovered provided sufficient evidence demonstrating that the
defendant possessed a firearm or knew that one of his
coventurers possessed a firearm. See Commonwealth v. Williams,
475 Mass. 705, 710-711 (2016).
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with the make and model of the vehicle that Evans had rented.
The defendant argues that the evidence was irrelevant and unduly
prejudicial. Because the defendant objected to its admission
during trial, we review for prejudicial error. See Commonwealth
v. Tu Trinh, 458 Mass. 776, 785 (2011).
The defendant first argues that the tire impression
evidence was irrelevant because it was inconclusive,
establishing only that, at some undetermined time, a vehicle
with the same or similar tires made the impressions. This point
does not make the evidence irrelevant. "The relevance threshold
for the admission of evidence is low" (citation
omitted). Commonwealth v. Gerhardt, 477 Mass. 775, 782 (2017).
Evidence is generally relevant where "(a) it has any tendency to
make a fact more or less probable than it would be without the
evidence and (b) the fact is of consequence in determining the
action." Mass. G. Evid. § 401 (2018).
There was evidence that allowed the jury to infer that the
vehicle was at the scene at the time of the crime. Evans rented
the vehicle days before the killing. A text message exchange
between Evans and Mack approximately one hour before the
homicide indicated that Evans was driving a vehicle and that
Mack instructed him to "pull in" the driveway:
Mack: "Yall ready?"
Evans: "Waiting on u."
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Mack: "We at table. . . ."
Evans: "Still pull in."
Mack: "Yup."
Even though Evans could not have driven the vehicle to
Boston because he had been apprehended, it was located a little
over one mile away from the defendant's home two days after the
murder and one day after it should have been returned to the
rental company. Most importantly, the defendant's DNA was found
in the vehicle, making it relevant to whether he was in a
vehicle that had been tied to the crime scene at around the time
of the murder and whether he used the vehicle to flee.
See Gerhardt, 477 Mass. at 782, quoting Commonwealth v. Sicari,
434 Mass. 732, 750 (2001), cert. denied, 534 U.S. 1142 (2002)
(to be relevant, evidence need not directly prove proposition,
"it must only provide a link in the chain of proof").
The defendant also argues that the admission of the tire
impression evidence was unduly prejudicial because it misled the
jury into believing that there was a perfect match. 6 There was
6 In addition, the defendant argues that the tire impression
evidence is prejudicial because the jury may have viewed the
evidence as infallible given the "CSI effect." See United
States v. Fields, 483 F.3d 313, 355 n.39 (5th Cir. 2007), cert.
denied, 552 U.S. 1144 (2008) ("The 'CSI effect" is a term . . .
coined to describe a supposed influence that watching the
television show CSI: Crime Scene Investigation has on juror
behavior"). We have been reluctant to recognize the CSI effect
given its uncertain foundation. See Commonwealth v. Seng, 456
Mass. 490, 504 (2010) ("'The CSI effect' is a subject beyond the
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no error. "The weighing of the prejudicial effect and probative
value of evidence is within the sound discretion of the trial
judge, the exercise of which we will not overturn unless we find
palpable error." Commonwealth v. Bresilla, 470 Mass. 422, 436
(2015), quoting Commonwealth v. Bonds, 445 Mass. 821, 831
(2006).
Here, witnesses testified only that the tire impressions
were consistent with the make and model of the tires on the
vehicle. On cross-examination they testified that the
impressions could have been made by any other tire of similar
size and pattern. During closing arguments, the Commonwealth
argued only that the tire impressions were consistent with the
vehicle, and defense counsel made the point that the tires of
many vehicles could have made the same impressions. The jury
were free to accept or reject the Commonwealth's theory.
See Barbosa, 477 Mass. at 666. There was no
error. Commonwealth v. Torres, 469 Mass. 398, 407 (2014)
(testimony "that is not definitive, but expressed in terms of
observations being 'consistent with' a particular cause . . .
does not render the opinion inadmissible on the ground that it
is 'speculative'").
permissible scope of judicial notice"). Instead, we have stated
that "jurors can and should be trusted to separate what they see
on television from what evidence is presented at trial." Id.
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3. Cell phone number evidence. The judge permitted the
Commonwealth to elicit evidence regarding a cell phone number it
claimed was used by Evans de bene, that is, prior to presenting
foundational evidence that the number was connected to Evans.
After the Commonwealth presented its case, the defendant moved
to strike the evidence regarding the number on the ground that
the Commonwealth failed to lay a foundation for it. The judge
denied the motion. The defendant objected. The defendant now
argues that the Commonwealth failed to prove the connection
between the number and Evans.
Where the Commonwealth seeks to introduce evidence of cell
phone communications, "the judge [is] required to determine
whether the evidence was sufficient for a reasonable jury to
find by a preponderance of the evidence that the [individual]
authored" the communications. Commonwealth v. Purdy, 459 Mass.
442, 447 (2011). The Commonwealth may meet this burden by way
of either direct or circumstantial evidence, including the
contents, substance, or other distinctive characteristics of the
cellphone. Id. at 447-448, quoting Mass. G. Evid. § 901(b)(1),
(4). A judge may to look to "'confirming circumstances' that
would allow a reasonable jury to conclude that [a piece of]
evidence is what its proponent claims it to be." Purdy, supra
at 449. See id. at 448 (absent direct evidence and testimony,
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evidence was still sufficient to authenticate electronic mail
messages as having originated from defendant).
Here, although the number was not registered in Evans's
name and no one testified that the number belonged to him, we
conclude that the confirming circumstances that the Commonwealth
presented were sufficient to meet its burden and that the judge
properly admitted the evidence. The cell phone data indicated
the user had communications with the defendant, Mack, and
Michelle Evans, which Evans told police is the name of his
mother. The jury heard that Evans's street name was "Trigger"
and he was listed in Mack's cell phone as "TR." Moreover, there
were four men, including Evans, who participated in the crimes
and communicated with each other via cell phone. The cell phone
numbers belonging to the defendant, Mack, and Thomas were clear
in the record. It is reasonable to infer that the cell phone
number the defendant challenges belonged to Evans. The
possibility that the cell phone could have belonged to another
individual goes to the weight of the evidence, not its
admissibility. Purdy, 459 Mass. at 451.
To the extent that there were any concerns about the
evidence, the judge provided instructions to the jury regarding
the authenticity of the cell phone messages. The jury had "to
be satisfied as to the authenticity of each individual
electronic communication before [they could] consider
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it." Commonwealth v. Pillai, 445 Mass. 175, 190 (2005) (judge's
instruction adequately addressed any prejudice). "The jury are
presumed to have followed" jury instructions. Commonwealth
v. Sleeper, 435 Mass. 581, 596 (2002)).
4. Consciousness of guilt instruction. The defendant
argues that he was entitled to an instruction that it was for
the jury to determine what weight to give consciousness of guilt
evidence, that they were not to convict the defendant on
consciousness of guilt evidence alone, and that such conduct did
not necessarily reflect guilty feelings. Commonwealth v. Cole,
473 Mass. 317, 325 (2015). See Commonwealth v. Toney, 385 Mass.
575, 585 (1982). The defendant did not request such an
instruction at trial, and the judge did not provide one. The
defendant now contends that the judge's failure to instruct was
error and that his counsel's failure to request the instruction
was ineffective assistance. There was no error.
A judge need not instruct on consciousness of guilt in the
absence of a request. Commonwealth v. Evans, 469 Mass. 834, 845
n.14 (2014). Further, "[w]here an ineffective assistance of
counsel claim is based on a tactical or strategic decision," we
do not find error unless "the decision was manifestly
unreasonable when made." Commonwealth v. Field, 477 Mass. 553,
556 (2017). This court has recognized that defense counsel may
decide not to pursue a limiting instruction in order to avoid
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calling further attention to the harmful evidence. Commonwealth
v. Washington, 449 Mass. 476, 488 (2007). Here, defense counsel
could have been concerned that an instruction would draw the
jury's attention to the defendant's false statements. See id.
Therefore, we conclude that defense counsel's decision was not
manifestly unreasonable when made, and thus the defendant was
not denied ineffective assistance of counsel. Field, supra at
556.
5. Review under G. L. c. 278, § 33E. The defendant asks
us to exercise our extraordinary power to grant relief under
G. L. c. 278, § 33E. We have reviewed the record and discern no
basis to set aside or reduce the verdict of murder in the first
degree or to order a new trial.
Judgments affirmed.