Commonwealth v. Balboni ( 2016 )

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14-P-697 Appeals Court
14-P-698
COMMONWEALTH vs. SCOTT BALBONI
(and three companion cases1).
Nos. 14-P-697 & 14-P-698.
Middlesex. December 4, 2015. - July 1, 2016.
Present: Cypher, Wolohojian, & Carhart, JJ.
Burning of Property. Destruction of Property. Practice,
Criminal, Motion to suppress, Affidavit. Search and
Seizure, Probable cause, Affidavit. Constitutional Law,
Search and seizure, Probable cause. Probable Cause.
Cellular Telephone. Witness, Cross-examination.
Indictments found and returned in the Superior Court
Department on July 14, 2009.
Pretrial motions to suppress evidence were heard by
Christine M. Roach, J., and the cases were tried before
Elizabeth M. Fahey, J.
Mark G. Miliotis for Samuel Doxsey.
Patrick J. Noonan for Scott Balboni.
Eric A. Haskell, Assistant District Attorney, for the
Commonwealth.
1
One of the cases is against Balboni, and two are against
Samuel Doxsey.
2
CYPHER, J. In these appeals from convictions of malicious
burning of property, G. L. c. 266, § 5, and malicious
destruction of property over $250, G. L. c. 266, § 127, the
defendants, Samuel Doxsey and Scott Balboni, argue that (1)
their motions to suppress documentary evidence obtained from
third parties should have been allowed; (2) their motions to
strike certain witness testimony were erroneously denied; and
(3) the evidence of wilful and malicious burning was
insufficient.2 We affirm.
1. Background. We recite the evidence in the light most
favorable to the Commonwealth. Additional details will be set
forth in later sections as necessary.
On the evening of April 4, 2009, Daniel Feehan threw a
party at his apartment; Doxsey's younger sister was in
attendance. At the party, Feehan sexually assaulted Doxsey's
sister. As she attempted to leave the party, Feehan pulled down
her shirt, exposing her chest to the other partygoers.
After Doxsey's sister left Feehan's apartment, she
telephoned Doxsey and told him that she had been assaulted at a
party. Doxsey was a student at the University of New Hampshire,
living at a fraternity house in Durham, New Hampshire.
2
Balboni and Doxsey were also indicted for conspiracy to
commit malicious burning of personal property. The judge
allowed the defendants' motion to sever the conspiracy charges,
which, at the close of trial, were placed on file and are not
before us.
3
At around 4:00 A.M., after the party, the Lexington fire
department responded to an alarm at an apartment complex where
they found a pickup truck engulfed in flames.3 Fire Captain John
Wilson observed fire coming from the rear passenger compartment
of the vehicle and flames rising from the exterior doors. On
the side of the truck, Captain Wilson discerned "pour patterns"
-- uneven liquid patterns running down the vehicle's surface --
where the paint had burned away. Captain Wilson observed a
flaming object on the ground and found that the truck's plastic
door handles had been consumed by fire and had fallen off the
rear doors. Other evidence at the scene of the fire led Captain
Wilson to conclude that the fire had started in the rear
passenger compartment, where the incineration was most
concentrated, and burned outward toward the truck's exterior.4
During his investigation, Captain Wilson learned that the
truck was last driven approximately four hours before it caught
fire and was parked in the location where firefighters found it.
3
Feehan was known to drive the truck and to park it at the
curb outside his apartment.
4
On the ground near the burning truck, police found a black
baseball cap and a red gas can lying on its side. The gas can
contained a small amount of liquid that, according to Captain
Wilson, smelled like gasoline. The liquid was later disposed of
without being tested. When the fire was extinguished, Captain
Wilson observed that the rear passenger seat of the truck had
been completely destroyed and very little remained of the
interior, but that the gas tank, located under the truck bed,
remained intact.
4
He reasoned, therefore, that the engine had been cold at the
time the fire started. He was unable to identify any source of
ignition for the fire; there were no keys in the truck's
ignition to engage the electrical system and no electrical
accessories that might have sparked the fire.5 Captain Wilson
concluded that the fire had been intentionally set.6
Cellular site location information (CSLI)7 associated with
Doxsey's cellular telephone (cell phone) number showed that
between the hours of 11:20 P.M. and 1:30 A.M., Doxsey's cell
5
The power door locks, which remain active whenever the
vehicle is connected to a live battery, had been completely
consumed by fire; thus, Captain Wilson was unable to inspect
them as part of his investigation. Without having examined the
power locks, Captain Wilson testified that he was unable to
conclusively rule out an electrical source of the fire.
6
During Captain Wilson's testimony, he stated that he had
prepared a report outlining his investigation that, through
oversight, had not been seen by the parties prior to trial. The
report, which was read in evidence and admitted at trial,
concluded as follows, "During my investigation I was unable to
find a conclusive ignition source and I'm unable to rule out
accidental causes. The presence of the gas container
(containing gasoline), the late hour and the ball cap that
looked like someone left in haste. I believe that this fire was
intentionally set."
7
"Cellular site location information (CSLI) . . . . is a
record of a subscriber's cellular telephone's communication with
a cellular service provider's base stations (i.e., cell sites or
cell towers) during calls made or received[;] . . . this
identifies the approximate location of the 'active cellular
telephone handset within [the cellular service provider's]
network based on the handset's communication with a particular
cell site.'" Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2
(2015), quoting from Commonwealth v. Augustine, 467 Mass. 230,
238 (2014), S.C., 470 Mass. 837 (2015).
5
phone connected to cellular towers in Durham, New Hampshire, but
that at 3:44 A.M., Doxsey's cell phone initiated a call that
connected to a cellular tower in Waltham, Massachusetts.8 On
April 18, 2009, Lexington police Detective Richard Corazzini
travelled to the University of New Hampshire campus in Durham,
New Hampshire, where he observed a black Ford Explorer sport
utility vehicle with Massachusetts license plates parked in a
lot behind the fraternity house where Doxsey lived.9 A report
from the registry of motor vehicles identified Cristina Balboni
as the owner of the vehicle.
As discussed more fully, infra, investigation revealed that
the defendants had purchased a gas can and gasoline at a gas
station close to the scene of the fire on the date in question.
2. Discussion. a. Motions to suppress. The defendants
appeal from the denial of their motions to suppress documentary
evidence obtained from third parties on the grounds that the
Commonwealth failed to follow proper procedures to obtain the
records. The challenged evidence includes historical CSLI and
telephone (phone) records associated with Doxsey's cell phone
8
The apartment complex where the truck fire occurred was
located on the border between the towns of Lexington and
Waltham.
9
At trial, Lexington police Detective Richard Corazzini
testified that the driving time between Durham, New Hampshire
and Lexington, Massachusetts, is approximately one hour and
twenty minutes.
6
number and credit card records from accounts belonging to Doxsey
and Balboni.
A grand jury investigating the truck fire issued three
subpoenas duces tecum: to Verizon Wireless, seeking cell phone
records associated with the cell phone numbers of Doxsey and his
sister; to American Express (AmEx), seeking credit card records
pertaining to Balboni's account; and to USAA Federal Savings
Bank (USAA), seeking credit card records pertaining to Doxsey's
account. Record keepers at Verizon Wireless, AmEx, and USAA
produced the summonsed documents, affixed with certificates of
authenticity, to the grand jury.
i. CSLI records. In furtherance of the grand jury
investigation, the Commonwealth sought production of Doxsey's
CSLI from Verizon Wireless, pursuant to a Superior Court order
issued under 18 U.S.C. § 2703(d) (2006) of the Federal Stored
Communications Act (§ 2703[d] order). Doxsey claims that the
Commonwealth did not follow proper, constitutionally mandated
protocols to obtain his personal cell phone records, because a
search warrant was required for the CSLI. In April, 2010, the
motion judge entered a margin ruling denying Doxsey's pretrial
motion to suppress, based on her determination that compliance
7
with § 2703 was all that was required to properly obtain CSLI
from a third-party cellular service provider.10
In June, 2009, the Commonwealth sought and obtained
Doxsey's CSLI, consisting of "call detail records with cellsite
information (geographical location, including street address and
town/city of each cell tower) for the time period from April 4,
2009 through April 5, 2009,"11 using a § 2703(d) order issued by
the Superior Court.12 The § 2703(d) order directed Verizon
Wireless to produce the information for consideration of the
grand jury on or before June 18, 2009. In support of its
application for the § 2703(d) order, the Commonwealth provided
an affidavit prepared by Lexington police Detective Steven
Garabedian, in which he set forth the steps taken in the truck
fire investigation and concluded that the CSLI sought would
10
In her margin ruling, the judge stated that "[w]ith
respect to [CSLI], the application to the court which found
specific and articulable facts pursuant to the statutory
standard is sufficient at this point in the development of
Mass[achusetts] law. G. L. c. 271, § 17B; In re: Application
of U.S. for Orders, 509 F. Supp. 2d 76 (D. Mass. 2007)."
11
In addition, the § 2703(d) order also directed Verizon
Wireless to produce records of all incoming and outgoing calls
to and from Doxsey's cell phone number from April 4, 2009,
through April 5, 2009.
12
To obtain a § 2703(d) order compelling production of
certain cell phone records, a governmental entity must offer
"specific and articulable facts showing that there are
reasonable grounds to believe that the . . . records or other
information sought . . . are relevant and material to an ongoing
criminal investigation." 18 U.S.C. § 2703(d).
8
establish "whether Samuel Doxsey travelled from New Hampshire to
Lexington, Massachusetts on April 5, 2009," and whether Doxsey
"was in the area of the Lexington Ridge Apartments at the time
of the fire."
In February, 2014, while this case was pending on direct
review, the Supreme Judicial Court announced a new rule for
acquiring historical CSLI in Commonwealth v. Augustine, 467
Mass. 230 (2014) (Augustine I), and held that art. 14 of the
Massachusetts Declaration of Rights requires the Commonwealth to
obtain a search warrant supported by probable cause, in addition
to a § 2703 order, before seeking to obtain a person's CSLI.
Id. at 257. As a new rule, the warrant requirement was held to
apply "to cases in which a defendant's conviction is not final,
that is, to cases pending on direct review in which the issue
concerning the warrant requirement was raised." Ibid. The
court also invited the Commonwealth in such a case to show that
its application for the § 2703(d) order satisfied the probable
cause standard. Ibid. at n.40.
There is no dispute that the warrant requirement announced
in Augustine I applies to the Commonwealth's efforts to obtain
Doxsey's CSLI in this case.13 We therefore consider whether the
13
In Commonwealth v. Estabrook, 472 Mass. 852 (2015), the
Supreme Judicial Court refined the warrant requirement, holding
that, as long as the Commonwealth proceeds in compliance with 18
U.S.C. § 2703, it may obtain a person's CSLI for a period of six
9
Commonwealth is able to meet the search warrant requirement
through a demonstration of probable cause in the affidavit
originally submitted to support the § 2703(d) order.14 "Because
a determination of probable cause is a conclusion of law, we
review a search warrant affidavit de novo." Commonwealth v.
Foster, 471 Mass. 236, 242 (2015).
Our inquiry as to whether an affidavit supports a finding
of probable cause "always begins and ends with the 'four corners
of the affidavit.'" Commonwealth v. O'Day, 440 Mass. 296, 297
(2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct.
426, 428 (1995). We consider the affidavit as a whole and
interpret it "in a commonsense and realistic fashion."
Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), quoting from
United States v. Ventresca, 380 U.S. 102, 108 (1965).
"[I]nferences drawn from the affidavit need only be reasonable
hours or less without meeting the probable cause standard for a
search warrant. Id. at 858 n.11. In this case, where the
Commonwealth sought CSLI evidence for a period of two days, or
forty-eight hours, we understand Augustine I to require a
warrant.
14
In the recent case of Commonwealth v. Broom, 474 Mass.
486, 492-493 (2016), where, as here, the warrant requirement set
forth in Augustine I was announced while the case was on direct
appeal, the Supreme Judicial Court concluded that because the
defendant had not raised the warrant issue before or during
trial, he was not entitled to the benefit of the new rule.
Here, the defendant did object to the introduction of the CSLI
records without a warrant and is entitled to the application of
the rule.
10
and possible, not necessary or inescapable." Commonwealth v.
Cavitt, 460 Mass. 617, 626 (2011).
To justify the production of a person's CSLI, a supporting
affidavit must demonstrate probable cause to believe "that a
particularly described offense has been, is being, or is about
to be committed, and that [the CSLI being sought] will produce
evidence of such offense or will aid in the apprehension of a
person who the applicant has probable cause to believe has
committed, is committing, or is about to commit such offense."
Augustine I, supra at 256, quoting from Commonwealth v.
Connolly, 454 Mass. 808, 825 (2009). See Commonwealth v. Broom,
474 Mass. 486, 491 n.8 (2016).
We summarize the facts recited in Detective Garabedian's
affidavit. On April 5, 2009, at about 4:00 A.M., Lexington
police and firefighters responding to an alarm at an apartment
complex encountered a gray pickup truck fully engulfed in
flames. On the ground beside the burning truck, they found a
red one-gallon plastic gas container and a black baseball cap.
Captain Wilson, a former arson investigator who responded to the
truck fire, opined that the fire had been intentionally set.
On April 10, 2009, Detective Garabedian interviewed Feehan,
whose father was the owner of the burned truck. Feehan told
Detective Garabedian that, on the night of April 4, 2009, he had
been extremely intoxicated and, at a party at his home, he
11
grabbed the blouse of Doxsey's sister, pulled it down, and
exposed her breast.
On April 14, 2009, police detectives visited a gas station
in Lexington, where they learned that a red one-gallon plastic
gas container matching the one found at the scene of the fire
was purchased from that location at 3:07 A.M. on April 5, 2009.
Surveillance footage recorded inside the gas station in the
early morning hours of April 5 showed two young males entering
at 3:06 A.M. and purchasing a red one-gallon gas container with
a credit card. Sales records revealed that the purchaser used
an AmEx credit card issued to Balboni. Surveillance footage
recorded by a camera overlooking the gas pumps during the same
period of time showed three males exiting a vehicle, one of whom
was wearing a hat matching the one found at the scene of the
truck fire. In the surveillance footage, one of the males who
purchased the red gas container is shown purchasing gasoline
with a credit card. Sales records revealed that he used a USAA
credit card, issued to Doxsey, to purchase .931 gallons of
gasoline at 3:09 A.M.
On April 24, 2009, Detective Garabedian interviewed
Doxsey's sister, who reported that she had telephoned Doxsey, a
student at the University of New Hampshire, on April 5, 2009, at
around 12:15 A.M. and told him that Feehan had assaulted her.
12
Her brother returned her call at around 12:45 A.M., and the two
spoke by telephone again around 9:00 A.M.
Cell phone records associated with Doxsey's number revealed
incoming and outgoing calls made during the late night hours of
April 4, 2009, and early morning hours of April 5, 2009,
including several calls made around the time of the truck fire.
The affidavit concludes with a statement that the CSLI
records are sought to determine whether Doxsey travelled from
New Hampshire to Lexington on April 5, 2009, and whether he was
in the vicinity at the time the fire was set.
Drawing reasonable inferences from Detective Garabedian's
recitation, we conclude that the affidavit established probable
cause to believe that a particularly described offense had been
committed. See Augustine I, supra at 256. The late hour of
night (a time when the truck would not have likely been in
operation); the burning of a parked vehicle (suggesting that a
malfunction was an unlikely source of the fire); and the gas can
and baseball cap beside the burning truck (suggesting a hasty
departure from the scene) permit inferences reinforced by the
opinion of Captain Wilson. These circumstances support the
inference that the truck was deliberately set on fire, in
violation of G. L. c. 266, § 5 (malicious burning of property).
We also conclude that Detective Garabedian's affidavit
demonstrated probable cause to believe that the CSLI sought here
13
would produce evidence of the offense under investigation.
Ibid.
Feehan's assault on Doxsey's sister, and her communication
with her brother immediately after the assault and hours before
the truck was burned, suggest that Doxsey had a motive for
setting the fire. Doxsey used his credit card to purchase a
small amount of gasoline, which he pumped into a gas can similar
to the one found at the scene of the fire. He was living in New
Hampshire at that time, and yet he purchased the gas in
Lexington, where the fire occurred. He was recorded at the gas
station around 3:00 A.M., one hour before firefighters and
police discovered the truck ablaze. These circumstances provide
a nexus in agency, place, and time between Doxsey and the fire.
The CSLI sought by the Commonwealth had the potential to
reveal whether Doxsey travelled from New Hampshire to Lexington
on the night of the fire, and whether he was near the scene
where Feehan's truck was set ablaze around the time that the
fire was discovered.15 Doxsey's location during the night of
15
The facts set forth in the affidavit indicate that the
relevant time period for CSLI collection would have been between
around 12:15 A.M. and 9:00 A.M. on April 5, 2009. However, the
Commonwealth sought CSLI for a forty-eight-hour period covering
April 4 and 5, 2009. The Commonwealth argued that even if
probable cause underpinned only a portion of the § 2703(d)
order, that part is severable from the defective portion, and
CSLI was properly seized under the valid portion, citing
Commonwealth v. Lett, 393 Mass. 141, 144-145 (1984), quoting
from United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.
14
April 4 and morning of April 5 would likely provide evidence of
the offense under investigation by implicating Doxsey in the
fire. In sum, the affidavit established probable cause to
conclude that Doxsey was involved in the malicious burning of
Feehan's truck. See Commonwealth v. Augustine, 472 Mass. 448,
455-460 (2015) (Augustine II). Accordingly, the Commonwealth
properly obtained Doxsey's CSLI records under Augustine I's
probable cause standard.
ii. Cell phone records. Doxsey challenges the denial of
his motion to suppress his cell phone records, which, he claims,
the Commonwealth unlawfully obtained from Verizon Wireless
without prior judicial approval. Doxsey maintains that, under
Commonwealth v. Odgren, 455 Mass. 171 (2009) (Odgren), the
Commonwealth was required to follow the formal process
established by Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), as
construed by Commonwealth v. Lampron, 441 Mass. 265, 268-271
(2004) (Lampron), when it sought to obtain third-party records
in advance of trial.
The Commonwealth obtained call logs for the cell phone
numbers of Doxsey and his sister pursuant to a grand jury
1983) ("infirmity of part of a warrant requires the suppression
of evidence seized pursuant to that part of the warrant . . .
but does not require suppression of anything described in the
valid portions of the warrant"). At trial the Commonwealth did
not rely on any of Doxsey's CSLI outside the limited time period
for which there was undeniably probable cause.
15
subpoena served on Verizon Wireless. The subpoena ordered
Verizon Wireless to produce records of all incoming and outgoing
phone calls, and subscribers' listing and billing information
for April 4 and 5, 2009. The information, affixed with an
affidavit from the custodian of records at Verizon Wireless, was
later produced to the grand jury. Over Doxsey's objection, the
records were admitted in evidence at trial.
At the outset, the Commonwealth properly used its
investigative powers to bring the cell phone records before the
grand jury. G. L. c. 277, § 68. See Odgren, supra at 185 n.25
(Lampron standard does not apply to grand jury subpoenas).
Although the Commonwealth did not follow the rule 17(a)(2)
protocol mandated in Odgren by moving to resummons the cell
phone record evidence in advance of trial, Odgren was decided
after the Commonwealth was already in possession of the cell
phone records procured by grand jury subpoena, and more than a
month after Doxsey and his counsel received the records as part
of the Commonwealth's pretrial notice of discovery. As our case
law makes clear, suppression is not an appropriate remedy absent
a showing that the erroneously subpoenaed evidence caused
prejudice. See Commonwealth v. Hart, 455 Mass. 230, 243 (2009);
Commonwealth v. Burgos, 470 Mass. 133, 147-148 (2014).
There was no prejudice shown here. The relevant question
is whether the defendant received the material sufficiently
16
before trial in order to prepare a defense. Commonwealth v.
Kastner, 76 Mass. App. Ct. 131, 137 n.10 (2010). Doxsey and his
counsel were provided a copy of the records on September 10,
2009; trial began on February 17, 2011, allowing Doxsey and his
counsel approximately one and one-half years to prepare. See
Odgren, supra at 188 (no prejudice where defendant received
recordings early in proceedings and Commonwealth narrowed its
use of evidence to forty-six day period); Commonwealth v.
Burgos, supra at 148 (no prejudice where defendant was given
recorded phone calls one month ahead of trial).
To the extent that Doxsey claims that suppression of his
cell phone records was required because the Commonwealth's
procurement of the records violated his constitutional rights,
the claim fails. Massachusetts does not recognize a reasonable
privacy interest in cell phone records such as those at issue
here. See Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 729
(1997) ("No statute or regulation drapes a particular cloak of
confidentiality around the billing records of a telephone
company"). Doxsey's motion to suppress cell phone records was
properly denied.
iii. Credit and bank card records. Balboni and Doxsey
challenge the denial of their motions to suppress credit card
records that were obtained for trial by means other than those
set forth in rule 17(a)(2) and Commonwealth v. Lampron, supra.
17
The Commonwealth initially obtained the defendants' credit card
records using grand jury subpoenas directing AmEx and USAA to
produce to the grand jury records of all transactions between
April 1, 2009, and April 27, 2009, related to the defendants'
accounts. Before trial, the Commonwealth issued a second
subpoena, pursuant to G. L. c. 277, § 68, and G. L. c. 233,
§ 79J, ordering AmEx and USAA to produce the same records to the
court on the day that trial was scheduled to begin. The
Commonwealth used an entirely appropriate means of summoning
records to trial. See Commonwealth v. Hart, supra at 243
(subpoena issued under G. L. c. 277, § 68, must direct third
party to produce documents to court on day of trial). Rule
17(a)(2), concerning production of third-party documents prior
to trial, is inapposite in the present case. The defendants'
motions to suppress financial records were properly denied.
b. Challenged witness testimony. Balboni and Doxsey
challenge the judge's denial of their motions to strike certain
witness testimony. We find no merit in these claims.
i. Captain Wilson's testimony. Doxsey contends that the
judge committed error in failing to strike "untrustworthy"
testimony of Captain Wilson. Doxsey's claim lacks articulated
reasoning and citation to authority; we decline to reach an
argument that does not satisfy the requirements of Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975). See Commonwealth v.
18
Gray, 423 Mass. 293, 296-297 (1996) (claims of error unsupported
by reasoned argument or citations do not rise to level of
appellate advocacy required under Mass.R.A.P. 16[a][4]).
ii. Thomas Shamshak's cross-examination testimony.
Balboni claims that the judge erred in denying the defendants'
motion to strike the cross-examination testimony of defense
witness Thomas Shamshak. At trial, the defendants called
private investigator Thomas Shamshak, who photographed a black
2004 Ford Explorer registered to Cristina Balboni at the law
office of defense counsel.16 Shamshak testified that the gas
tank port was located on the left, or driver's, side of the
vehicle, unlike the vehicle with a right, or passenger's, side
gas port appearing in video footage recorded at the Lexington
gas station. Upon cross-examination, the prosecutor asked
Shamshak whether he was aware that Cristina Balboni had two Ford
Explorers registered in her name. Shamshak answered, "No, sir."
The prosecutor then asked him if he was familiar with the
Massachusetts criminal justice information system (CJIS) for
performing record checks on motor vehicles. When Shamshak
indicated that he was familiar with the system, he was shown
(over objection by defense counsel) two unauthenticated CJIS
reports, one relating to the vehicle described in Shamshak's
16
Shamshak was the sole witness who testified for the
defense at trial.
19
direct testimony, and the other relating to a different Ford
Explorer, both registered to Cristina Balboni. The two reports
were marked for identification but were not admitted in
evidence. Following cross-examination, defense counsel moved to
strike all reference to the unauthenticated records. The judge
denied the motion.
Here it appears that the prosecutor had a good faith basis
to believe that two Ford Explorers were registered to Cristina
Balboni, and pursued a line of inquiry meant to impeach the
defense witness by eliciting information that tended to show the
limited value of Shamshak's examination of the Balboni vehicle.
"[T]he question[s], on a matter put in issue in the first place
by the defendant, was within the scope of allowable cross-
examination." Commonwealth v. Baldwin, 385 Mass. 165, 179
(1982). See Commonwealth v. Key, 381 Mass. 19, 28-30 (1980)
(prosecution entitled to pursue subject raised on direct
examination by defense counsel). Furthermore, even if the
attempted impeachment exceeded the allowable scope, the
Commonwealth ultimately did not contend that the vehicle located
near the fraternity house, which was registered to Cristina
Balboni, was the same vehicle depicted in the surveillance video
from the gas station. Consequently, Shamshak's testimony
addressed a peripheral matter.
20
The scope of cross-examination is within the sound
discretion of the trial judge, and Balboni has not shown that
the judge abused her discretion in allowing the prosecutor to
use extrinsic evidence for impeachment purposes in this case.
"When the extrinsic evidence relates exclusively to a collateral
matter, the discretion of the trial judge has been described as
'nearly unreversible.'" Mass. G. Evid. § 613 (a)(4) & note
(2016), quoting from Commonwealth v. Roberts, 433 Mass. 45, 51
(2000).
c. Sufficiency of the evidence. The defendants contend
that the evidence did not suffice to prove beyond a reasonable
doubt their wilful and malicious burning of the Feehan truck.
In particular, they contend that the Commonwealth failed to
eliminate accident as the cause of the fire.
To convict the defendants for malicious burning of property
under G. L. c. 266, § 5, the Commonwealth was required to prove
beyond a reasonable doubt that (1) the defendants, either
individually or by knowingly participating in a joint venture,
set fire to or burned the property, or caused property to be
burned, or aided, counseled, or procured the property to be
burned; (2) the burned property was personal property of another
with a value exceeding twenty-five dollars and/or a motor
vehicle; (3) the defendants acted wilfully; and (4) the
defendants acted maliciously. "'[W]ilful' means intentional and
21
by design in contrast to that which is thoughtless or
accidental." Commonwealth v. Smith, 17 Mass. App. Ct. 918, 920
(1983), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct.
437, 443 (1983).
We view the evidence in the light most favorable to the
Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979). Although Captain Wilson stated in his fire report that
he was unable to rule out an accidental cause of the truck fire,
on redirect examination, he explained that his inability to
examine the power door locks, which were completely destroyed by
the fire, prevented him from conclusively eliminating an
electrical source of the fire. In other testimony, he expressed
his opinion that gasoline had been used as an accelerant, and
that the fire had been intentionally set. See Commonwealth v.
Ruci, 409 Mass. 94, 97 (1991) ("inconsistencies in the
witnesses' testimony . . . go to their credibility and do not
affect the sufficiency of the evidence"); Commonwealth v.
Harris, 1 Mass. App. Ct. 265, 268-272 (1973) (expert testimony
that fire was incendiary properly admitted).
The jury were warranted in crediting Captain Wilson's
opinion testimony, as well as other evidence (set out above) to
the effect that gasoline poured onto the truck accelerated the
fire; that the vehicle's gas tank remained intact; that the
conflagration originated, and burned most intensely, in a part
22
of the truck where electrical malfunction was unlikely to occur;
and that a gas can and a baseball cap were abandoned next to the
burning truck, strongly supporting the inference of a hasty
flight from the scene.17 Viewed under the Latimore standard, the
evidence sufficed to prove that the fire was wilfully and
maliciously set.18
Doxsey argues also that the Commonwealth presented no
evidence that he was present and participated in setting the
fire. His assertion is belied by the facts in the record.
Specifically, CSLI evidence tracking Doxsey's travel from
Durham, New Hampshire, to Waltham, Massachusetts, in the early
morning hours before the fire was set, and bank card records
indicating that he purchased less than one gallon of gasoline
17
Balboni contends that the Commonwealth's failure to
perform forensic testing on the burned truck and the liquid
found in the gas can precluded proof beyond a reasonable doubt
that the fire was set wilfully and maliciously. "The fact that
the police did not conduct a test has by itself little or no
tendency to show the defendant's guilt or innocence. The
relevance of such testimony appears to lie in the reason why a
test was omitted." Commonwealth v. Flanagan, 20 Mass. App. Ct.
472, 475 (1985). In this case, Captain Wilson testified that
his reasons for not testing the materials were a limited budget
and his belief that it was unnecessary.
18
See Commonwealth v. Rhoades, 379 Mass. 810, 816 (1980)
(jury warranted in finding fire was wilfully and maliciously, as
opposed to accidentally, set); Commonwealth v. Lanagan, 56 Mass.
App. Ct. 659, 665 (2002) (jury could infer fire was
intentionally set where accidental causes were absent and area
bore signs of flammable liquid); Commonwealth v. Blackmer, 77
Mass. App. Ct. 474, 483 (2010) ("Evidence of a defendant's guilt
may be primarily or even wholly circumstantial").
23
for a gas can at a station located approximately three miles
from where the burning truck was discovered, support the
inference that Doxsey had the opportunity and the means to set
the fire. Additionally, Doxsey's knowledge that his sister was
assaulted by Feehan suggests that Doxsey had a motive to set
fire to Feehan's truck. "Based on this circumstantial evidence,
a rational juror could have concluded beyond a reasonable doubt
that [Doxsey] participated . . . in setting the fire[]."
Commonwealth v. Rousseau, 465 Mass. 372, 387 (2013).
Judgments affirmed.