Commonwealth v. Holley

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12130
COMMONWEALTH vs. REGINALD HOLLEY
(and five companion cases1).
Suffolk. September 8, 2017. - December 14, 2017.
Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.
Homicide. Robbery. Firearms. Joint Enterprise. Felony-Murder
Rule. Search and Seizure, Warrant, Probable cause.
Constitutional Law, Probable cause. Probable Cause.
Cellular Telephone. Jury and Jurors. Evidence, Joint
enterprise, Prior misconduct. Practice, Criminal, Capital
case, Motion to suppress, Warrant, Instructions to jury,
Jury and jurors, Deliberation of jury, Substitution of
alternate juror, Severance.
Indictments found and returned in the Superior Court
Department on December 12, 2012.
Pretrial motions to suppress evidence were heard by Patrick
F. Brady, J., and the cases were tried before him.
Elizabeth A. Billowitz for Reginald Holley.
Neil L. Fishman for Oasis Pritchett.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
1
Two against Reginald Holley and three against Oasis
Pritchett.
2
LENK, J. On the morning of October 17, 2012, Alfonso Rivas
was in his apartment building anticipating a sale of marijuana
to Reginald Holley when Rivas was fatally shot in the head.
Holley and Oasis Pritchett were convicted of felony-murder in
the first degree, armed robbery, and possession of a firearm
without a license, as joint venturers, in connection with the
victim's death. Prior to trial, both defendants had moved
unsuccessfully to suppress text messages obtained from their
cellular service provider. The text messages, which were
introduced at trial, contained incriminating statements
involving the defendants' plan to steal marijuana from the
victim on the morning of the shooting.
In this direct appeal, Holley and Pritchett challenge the
sufficiency of the evidence supporting their felony-murder
convictions and the introduction of their text messages at
trial. They argue also that the judge erred in declining to
instruct the jury on felony-murder in the second degree, and in
dismissing a deliberating juror who was ill. Pritchett argues
separately that the judge erred by denying his motion to sever,
admitting evidence of prior bad acts, and declining to instruct
the jury on the requirements of the hearsay exemption concerning
joint venturer statements. Each defendant also requests relief
under G. L. c. 278, § 33E. We affirm the convictions and, after
3
careful review of the record, decline to set aside the verdicts
or reduce the degree of guilt pursuant to our authority under
G. L. c. 278, § 33E.
1. Facts. We recite the facts the jury could have found,
reserving certain details for later discussion.
a. The shooting. The victim lived with his girl friend
and their children in one of the two units on the third floor of
an apartment building on Lyndhurst Street in the Dorchester
section of Boston. The other apartment on that floor was vacant
and left unlocked. The victim often used the vacant apartment
to do homework and to sell marijuana to friends and close
acquaintances. When selling to people he did not know well,
such as individuals who had been referred to him, the victim
would arrange to meet the buyers somewhere outside the apartment
building. Shortly before his death, the victim had obtained a
handgun to protect himself when he was selling marijuana,
because he had been robbed during a previous sale. The victim
stored his marijuana, and the proceeds from his marijuana sales,
in empty cans of Enfamil brand baby formula.
Sometime between 9 and 10 A.M. on October 17, 2012, the
victim went to the vacant apartment to do homework. His girl
friend remained in their apartment to watch television. At some
point while the victim was in the vacant apartment, his girl
friend placed a video call to the victim and the two spoke
4
briefly. The victim owned a white iPhone cellular telephone
that repeatedly flashed a light that resembled a "strobe light"
when it rang. After the call, at around 11 A.M., the girl
friend heard a "loud pop" and then a "thud." She tried to
video-call the victim, but he did not respond. When she went
into the hallway, she saw that the door to the vacant apartment
was open and the lid of an Enfamil can was on the floor in front
of the door. She entered the vacant apartment and saw the
victim lying on the floor, shaking and bleeding from the head.
She ran back to her apartment and telephoned 911.
Emergency medical technicians and police responded within
minutes. On their way up the stairs, they noticed what they
described as a burgundy Red Sox baseball cap on the second-floor
landing. They entered the vacant apartment and found the victim
lying face down, barely breathing, nonresponsive, and bleeding
from the right side of his head. Next to the victim was a cloth
bag containing a firearm. Police found the plastic lid of an
Enfamil can but did not find the Enfamil container itself, nor
did they find any marijuana or money. The victim's iPhone was
not in the apartment. The victim was transported to the
hospital, where he died a few hours later.
b. The investigation. During the course of the
investigation, police examined the victim's call records and
learned that the last call the victim answered before the
5
shooting came from Holley's telephone number. Police then
obtained information from the defendants' cellular telephone
records through a warrant served on their cellular service
provider, MetroPCS.2 Two days before the shooting, Holley sent
Pritchett a text message stating, "Yo who can we stick . . .
mainly for sum loud[3] . . . git da V an joint bro." Holley then
called Pritchett and spoke to him on his cellular telephone.
The next day, Holley sent a text message to the victim asking,
"Bro U kno wea I can get a nice deal on a ounces of loud??" The
victim and Holley thereafter exchanged text messages in which
they arranged that the victim would sell Holley two ounces of
marijuana for $650; they planned to meet the following day to
make the exchange.
On the morning of the shooting, Holley sent the victim a
text message at 8:21 A.M. stating, "I'll be off at 9 . . . ill
hit u up tho." The victim responded, "Oo forreal . . . wasn't
even hip . . But ya whenever ur ready bruh . . . Koo."
2
At that time, the defendants' cellular service provider,
MetroPCS, maintained copies of all text messages in the ordinary
course of its business, as part of a customer's telephone
records. The victim's cellular service provider, Sprint
Corporation, on the other hand, does not appear to have kept
copies of its customers' text messages. The victim's text
messages that were admitted at trial were obtained through
Holley's MetroPCS records.
3
Evidence at trial established that "loud" is a slang term
for high-quality marijuana.
6
Approximately forty minutes later, Holley sent a text message to
Pritchett saying, "I got a stick . . . not a big one tho . . .
its for two. Ounces of loud . . . wanna get it." The following
exchange then took place:
Pritchett: "Wen"
Holley: "ASAP. Wanna meet me . . . I live on
Esmond st . . ."
Pritchett: "Who u stay there wit"
Holley: "I got a roommate bro"
Pritchett: "Oh so wat u want me to do
"So wea u at now"
Holley: "I can get my Hans on a joint but then
shits is too big . . . nigga got a couple rifles.
SawedOff . . . no hand joints . . . u got a Hand joint
"I just got off . . . I'm getting dropped off
now . . . "
Pritchett: "Off of work"
Holley: "Yea work"
Pritchett: "I got a couple"
After this exchange, Holley called Pritchett at 9:09 A.M.
and spoke to him for a few minutes. Less than ten minutes
later, Holley sent Pritchett a text message saying, "Dnt bro a
revolver . . . cock back . . . so he Cam Hea it."
7
At 9:37 A.M., Pritchett called Holley. Cell site data4
records show that, during that call, Pritchett's cellular
telephone connected to a cellular telephone tower (cell tower)
near his home on Blue Hill Avenue, while Holley's cellular
telephone connected to a cell tower near his home on Esmond
Street. Between 9:44 and 9:49 A.M., Pritchett's cellular
telephone connected with a cell tower further from his house, on
a route leading to Holley's house.
Between 9:54 and 9:58 A.M., Pritchett and Holley exchanged
text messages to coordinate a meeting at Holley's house. At
10:01 A.M., Pritchett called Holley. Pritchett's cellular
telephone connected to a cell tower on Talbot Avenue, closer to
Holley's house, while Holley's cellular telephone connected to a
cell tower on his street. When Pritchett called Holley again
two minutes later, both of their cellular telephones used the
same cell tower on Holley's street.
4
Cellular telephone towers, also known as cell sites,
contain antennae and electronic communications equipment that
enable cellular telephones to place and receive calls. At the
time of the defendants' trial, there were over 1,000 Sprint
Corporation cell sites in Boston and "a lot" of MetroPCS sites.
Cellular telephones usually connect to the tower nearest to them
that has the strongest signal. A cell tower that is physically
closer to the location of a particular cellular telephone would
not be used for the connection if the signal from that tower is
weaker, or if it is too busy. While the precise location of a
particular cellular telephone cannot be determined from cellular
telephone records, those records do show the tower to which a
cellular telephone connected when it placed or received a
specific call.
8
At 10:22 A.M., Holley sent the victim a text message saying
"I'm bout to head down their . . ." and the victim responded,
"Koo." At 10:29 A.M., Holley replied, "15 min," and the victim
responded, "Ok." Video surveillance footage from the entryway
of the victim's building showed the victim walk down the
interior stairs, prop open the interior entry door, and then
walk back up the stairs at 10:30 A.M.5
At 10:54 A.M., Holley's cellular telephone connected to a
cell tower at an intersection that was just a few blocks from
the victim's apartment. At 10:56 A.M., Holley's telephone
connected with a cell tower approximately several blocks away
from closer to the victim's apartment. At the same time, the
victim's call records show that he answered a call from Holley;
at that point, the victim's telephone connected to a tower a few
blocks from his apartment. This was the last time a call was
answered from the victim's cellular telephone.
Footage from the video surveillance cameras in the victim's
apartment building showed two young, African-American males
enter the building at 10:57 A.M. that morning. One was wearing
5
To enter the victim's apartment building, a visitor would
have to pass through two sets of doors at the entrance. A
resident could unlock the first entryway door remotely for a
visitor using an intercommunication device (intercom), which
would permit the visitor to enter the vestibule. The second
entryway door, however, had to be manually opened from inside in
order for a visitor to gain access to the apartments and the
stairwell.
9
a gray hooded sweatshirt with a dark coat over it and a maroon
baseball cap; he was speaking on a cellular telephone as he
climbed the stairs. The other was wearing a black, white, and
red plaid jacket with the hood up and a dark vest over it. The
surveillance video showed the same two individuals run down the
stairs and out of the building at 11 A.M. As they ran out, the
first individual, with the gray sweatshirt, was no longer
wearing the baseball cap. The police reviewed the footage from
all surveillance cameras in the front and back of the building
from approximately 10:15 A.M. until 11:05 P.M. that day, but saw
no other significant activity. Investigating officers also
reviewed surveillance footage taken from a nearby post office,
which had cameras that showed the entrance to the victim's
building. On this footage, the same two individuals can be seen
entering the victim's building.
At approximately the same time as the events on the video
surveillance footage, two people were involved in an automobile
accident on the street where the victim lived. They were
exchanging insurance information when they heard a loud bang;
one ducked and said, "Someone's shooting." Approximately one
minute later, the man involved in the accident (the witness) saw
two men come out of the victim's apartment building. They
walked past in a rush, scanned up and down the street, and began
running toward Allston Street, in the direction of the
10
Massachusetts Bay Transportation Authority's (MBTA) Shawmut
station. The men were wearing several layers of clothing and
jackets.6 The witness had been on the street approximately
twenty to thirty minutes before he saw the two men leave the
victim's apartment building; in that time, he did not see anyone
else enter that building.
Video surveillance from the MBTA shows the two individuals
who had entered and left the victim's apartment building
arriving at the Shawmut MBTA station at 11:04 A.M.7 They bought
one ticket that they both used to walk through the turnstile.
The men walked down the stairs to the inbound platform and sat
on a bench. The one wearing the grey sweatshirt pulled a light-
colored cylindrical object out of his clothing and placed it
under the bench,8 and then the two stood up and walked away. The
two men then took a different set of stairs to the outbound
platform.
6
The witness described both men as young, tall, and
African-American. He observed that one of them had braided
"cornrows" in his hair and was wearing a red jacket, and the
other was wearing an olive green jacket with a hood.
7
Both of their hoods were down, showing that both had their
hair in "cornrows."
8
The man in the video footage appeared to be Holley.
11
At 11:17 A.M.,9 the ticket the two men had used to enter
Shawmut station was used on the 815 MBTA bus from Ashmont
station, one station away from Shawmut on the MBTA's Red Line.
Video surveillance from the 815 bus shows the same two men get
on the bus at Ashmont station and sit down next to each other;
the bus headed back in the direction from which the men had
come, toward the victim's home. Two minutes before the video
footage showed the two men getting onto this bus, Pritchett's
cellular telephone had connected with a cell tower a few blocks
from Ashmont station.
Between 11:15 A.M. and 12:29 P.M., the defendants
collectively received approximately one dozen calls that
connected from cell towers located on MBTA Route 23, the route
of the 815 bus, which ran along Washington Street from Ashmont
station to a bus stop a few blocks away from Pritchett's house
on Blue Hill Avenue. At 11:22 A.M., the surveillance video from
the 815 bus shows that one of the two men10 pulled from his pants
pocket a black cellular telephone and then a white cellular
telephone, which was flashing a light resembling a strobe light;
9
Due to technical difficulties, the bus's time stamp was
seventeen hours and fifty minutes earlier than the actual time.
10
The man in the video footage appeared to be Pritchett.
12
he manipulated the device with the flashing light.11 According
to the victim's cellular telephone records, his telephone
received a call at approximately the same time, which connected
to a cell tower near the 815 bus's location along Route 23; the
call went unanswered. A few minutes later, Pritchett's and
Holley's telephones each connected with a nearby cell tower.
At 11:32 A.M., the MBTA surveillance footage shows the
individual again take out the telephone with the flashing light.
At the same time, the victim's cellular telephone received
another call; that call connected to a cell tower on the Sprint
network that is approximately six blocks from the MetroPCS tower
that Holley's telephone connected with at 11:32 A.M.12 On the
video footage, the individual handed the flashing telephone to
an unidentified man then sitting next to him,13 who manipulated
the telephone so that it stopped flashing. The victim's
cellular telephone records showed no further activity after
11
When police seized Pritchett's cellular telephone, it did
not have a flashing feature.
12
Because the victim's cellular telephone provider, Sprint,
Corp., was different from that of the defendants, who used
MetroPCS, the cell towers that the victim's telephone connected
to were different from those used by the defendants' telephones.
13
When the unidentified man got onto the bus, he appeared
to recognize the man who looked like Pritchett. A short time
later, the man who looked like Pritchett left his seat next to
the man resembling Holley and sat down next to this unidentified
man at the back of the bus. The two men appeared to have been
talking when the telephone started flashing.
13
11:32 A.M., and the telephone did not connect to any cell towers
after that time.
At 11:42 A.M., the two individuals got off the bus at the
stop closest to Pritchett's house. At 11:52 A.M., and again at
1:39 P.M., Holley's telephone connected with a cell tower one
block from Pritchett's house. Pritchett's telephone connected
to the same tower at 12:29 P.M.
At 2:35 P.M., Holley sent a text message to Pritchett
saying, "I'm home." A little over one hour later, Holley sent
another message: "He died." Pritchett asked, "How u kno," and
Holley responded, "Word of mouth." Approximately one and one-
half hours later, Holley sent a text message to Pritchett
saying, "U good bro." Beginning at 6:56 P.M., and continuing
into the next day, Holley also sent the following texts to third
parties: "I got loud on deck"; "Babe cum blow this loud"; "Loud
on deck"; Kush on deck"; and "I got Kush for sale."
Between 1:50 A.M. and 2:25 A.M. on the morning after the
shooting, Pritchett engaged in the following text message
exchange with a third party:
Pritchett: "I fucked up"
Third party: "So whos prego"
Pritchett: "No no no real shit pj"
Third party: "So baby wats wrng"
"Jus do it"
14
"Please jus tell me"
"U didnt do kno hot shit rite"
Pritchett: "Yea"
Third party: "Wat u mean o waT u doin out here"
"Tlk nigga"
Pritchett: "I fucked up"
"Dont b saying anything i fucked up"
Third party: "Im not wtf say sumthn o"
"Is that all u keep sayn"
Pritchett: "Sumthin happend today I might go
down for it"
Third party: "I need to c u tonite if dats da
case ur gonna leave me lonely out here n these
streets"
Pritchett: "Im sorry im good tho i hope"
Third party: "I wanna c u"
"Well I hope thngs work out for u luv u it cnt b
dat serious cuz u would wanna c me as i would u u wont
even tlk to me so Iono ttyl"
Pritchett: "I have go sumwhere i will c u
tomorrow"
Third party: "U cnt call me n tell me u love me"
"God forbid u do go dwn jus kno ima rememba dis
so dnt expect shit frm me"
Pritchett: "On my life u need to chill"
Investigating officers also reviewed surveillance footage
obtained from Holley's employer, United Parcel Service, for the
15
week of October 16-19, 2012. The footage from the days Holley
appeared at work showed that on October 16 and October 17 (the
morning of the shooting), Holley wore a maroon Boston Red Sox
baseball cap to work. On October 19, however, he wore a
different hat.
c. Forensic evidence. Police searched the victim's
apartment building and several items from the vacant apartment,
including the baseball cap, for fingerprints.14 None of the
viable fingerprints were a match to Pritchett or Holley's
fingerprints. Police also examined footprints found at the
crime scene. None matched the shoes collected from Holley,
Pritchett, or the victim.15 Some "reddish brown stains" from the
entryway to the building, the baseball cap, Holley's jacket, and
Pritchett's shoes were submitted to the police crime laboratory
for deoxyribonucleic acid (DNA) testing. Test results indicated
that Holley was one of two possible contributors to the DNA from
the baseball cap and the jacket; the victim was a contributor to
the stains in the front entryway. The stains on the shoes were
insufficient for DNA testing.
14
Police seized a number of other objects as well,
including a Pepsi can, a white plastic bottle, a Brisk lemonade
bottle, and an Enfamil container.
15
Bloody footprints near the victim were later determined
to have been made by first responders providing medical
assistance.
16
d. Firearm evidence. The Commonwealth presented evidence
that, a few days before the shooting, Pritchett was hired to
help a doctor clean out the house of his late uncle. The doctor
had brought a friend, and had hired a contractor and his
assistant, Pritchett, to go through the uncle's house room by
room, sorting items to keep and items to be discarded.
The uncle owned two guns that he kept in a red bag: a
Taurus Model 85 .38 caliber revolver and a Jennings .32 caliber
semiautomatic pistol. The bag also contained bullets, a
cleaning kit, and the receipts for the handguns. The doctor had
placed the uncle's bag in a separate pile of items that he was
planning to keep. After the cleaning was completed and
Pritchett and the mover left, the doctor went to check on the
pile of items he planned to keep. The red bag was still in the
pile, with the bullets, receipts, and cleaning kit inside, but
the two handguns were missing.
The doctor spoke to his friend about the missing guns; the
friend suggested that he call the mover. The mover disclaimed
any knowledge. The mover then called Pritchett, who told the
mover that he had no knowledge of the missing guns. The next
day, however, the doctor's friend sent a text message to
Pritchett, saying, "Hey man dude noticed guns are gone and he's
gona call [the mover] and ask him. I said I don't know anything
so just say you don't either." Pritchett responded, "We might
17
of thought them in the trash." The doctor's friend responded,
"That's what I said but he said the bag they were in is still
there. So just say you don't know anything like I did and well
be cool." Pritchett answered "Ok." The doctor never located
the guns.
A ballistics expert analyzed bullet fragments from the
victim's body and generated a list of many potential firearms
that could have fired the bullet. When asked during cross-
examination whether the Taurus model 85 could have fired the
bullet, even though it had not been included in his initial
report, the expert testified that he could not exclude such a
firearm as the possible weapon. The expert also determined that
the Jennings pistol could not have fired the bullet that killed
the victim.
2. Procedural history. The defendants were indicted on
charges of murder in the first degree in violation of G. L.
c. 265, § 1; armed robbery in violation of G. L. c. 265, § 17;
and possession of a firearm without a license in violation of
G. L. c. 269, § 10 (a). The Commonwealth's motion to join the
defendants' trials was allowed over the defendants' objections.
Prior to trial, both defendants also sought to suppress the text
18
messages obtained from MetroPCS;16 their motions were denied.17
The Commonwealth moved in limine to introduce evidence of the
firearms that were missing from the doctor's uncle's house; that
motion was allowed over Pritchett's objection. The defendants
were convicted of all charges. The Commonwealth proceeded at
trial on theories of deliberate premeditation and felony-murder;
however, the defendants were convicted only on the theory of
felony-murder.
3. Discussion. a. Sufficiency of the evidence. The
defendants argue that there was insufficient evidence of felony-
murder because the predicate offense of armed robbery and the
death of the victim were both based on a single gunshot, rather
than arising from two separate assaults. A conviction of
felony-murder requires that the predicate felony be based on
conduct that is independent of the act necessary for the
killing. Commonwealth v. Bell, 460 Mass. 294, 300 (2011), S.C.,
473 Mass. 131 (2015), cert. denied, 136 S. Ct. 2467 (2016).
16
At trial, and on appeal, the defendants did not object to
the admission of cell site data or call logs but, rather,
challenged the admissibility of "stored content," meaning, in
this context, the content of their text messages.
17
The investigating officers had obtained two independent
sets of warrants to search both of the defendants' cellular
telephones and their MetroPCS records. The language of the two
sets of search warrants is substantially the same. In our
discussion, we address the language in the warrants to search
MetroPCS records, as only those records were introduced at
trial.
19
"This requirement ensures that not every assault that results in
a death will serve as a basis for murder in the first degree on
the theory of felony-murder." Commonwealth v. Scott, 472 Mass.
815, 819 (2015). "If an assault that is an element of an
underlying felony is not separate and distinct from the assault
that results in the death, then the assault is said to merge
with the killing, in which case the underlying felony cannot
serve as a predicate felony for purposes of the felony-murder
doctrine." Id.
Generally, a determination whether a killing merges with
the underlying felony must be assessed on a case-by-case basis.
Commonwealth v. Kilburn, 438 Mass. 356, 359 (2003). Here,
however, the judge noted that his decision was constrained by
Commonwealth v. Christian, 430 Mass. 552, 556 (2000), overruled
on other grounds by Commonwealth v. Paulding, 438 Mass. 1
(2002), in which this court explained that it could "envision no
situation in which an armed robbery would not support a
conviction of felony-murder."
Notwithstanding Holley's arguments to the contrary, the
court's holding in Christian, supra, on the issue of felony-
murder has not been abrogated. The merger doctrine is
inapplicable in cases where the purpose of the predicate felony
is distinct from an intent to cause physical injury or death.
Commonwealth v. Morin, 478 Mass. 415, 430 (2017). For armed
20
robbery, the elements of the crime are that "a defendant, while
armed with a dangerous weapon, assaulted another person, and
took money or property from the person with the intent to steal
it." Commonwealth v. Anderson, 461 Mass. 616, 633, cert.
denied, 568 U.S. 946 (2012), citing G. L. c. 265, § 17.
Christian, 430 Mass. at 556, explained that it is "the stealing
or taking of property[] that qualifies them for application of
the felony-murder rule." Otherwise put, it is the intent to
steal, rather than the intent to assault, which is substituted
for malice. Since intent to steal does not cause a homicide,
the armed robbery does not merge with the killing. Morin, supra
at 431. Accordingly, the merger doctrine is inapplicable in
this case, and there was sufficient evidence to support the
defendants' convictions of felony-murder in the first degree.
Pritchett also argues that his felony-murder conviction
must be reversed because it is undisputed that the victim did
not die during the armed robbery but, rather, died several hours
later at the hospital. He points to cases such as Commonwealth
v. Ortiz, 408 Mass. 463, 465 (1990), and Commonwealth v.
Hanright, 466 Mass. 303, 307 (2015), abrogated on other grounds
by Commonwealth v. Brown, 477 Mass. 805 (2017), which explain
that felony-murder imposes liability where a death occurred "in
the course of" a felony or criminal enterprise. Pritchett's
reading of these cases is too narrow. In Hanright, supra, the
21
court explained that the homicide must follow "naturally and
probably from the carrying out of the joint enterprise"
(citation omitted), such that the intent to commit the
underlying felony is substituted for the malice aforethought
required for the murder. Similarly, in Ortiz, supra at 466, we
explained that "the killings and the felonious carrying [of a
firearm in a motor vehicle] need only to have occurred as part
of one continuous transaction. It was not necessary for the
Commonwealth to show that the homicides occurred while the
[felony] was still in progress, as long as the homicides were
connected with and incident to the [felony] and as long as the
[felony] and the homicides took place at substantially the same
time and place." Here, it was sufficient that the fatal shot
was delivered during the course of the armed robbery; that the
victim died a few hours later does not negate the fact that the
victim was killed in the course of the armed robbery.
b. Motions to suppress text messages. Both defendants
argue that the motion judge, who was also the trial judge, erred
in denying their motions to suppress the content of their text
messages obtained from MetroPCS.18 Specifically, they contend
18
As stated, the defendants do not challenge that there was
probable cause to obtain the cell site data and subscriber
information. In light of the video surveillance footage and the
victim's telephone records, we discern no error in the admission
of this evidence.
22
that the warrants to obtain those records were not supported by
probable cause and also were lacking particularity. After
reviewing the search warrant applications and supporting
affidavits, we conclude that both were supported by probable
cause. In addition, to the extent that the warrants were
lacking particularity, there was no prejudice to the defendants
by the introduction of their text messages at trial.
i. Holley's text messages. A. Probable cause. Both the
Fourth Amendment to the United States Constitution and art. 14
of the Massachusetts Declaration of Rights "require a magistrate
to determine that probable cause exists before issuing a search
warrant" (citation omitted). Commonwealth v. Cavitt, 460 Mass.
617, 626 (2011). Probable cause means a "substantial basis" to
conclude that "the items sought are related to the criminal
activity under investigation, and that they reasonably may be
expected to be located in the place to be searched at the time
the search warrant issues" (citations omitted). Commonwealth v.
Kaupp, 453 Mass. 102, 110 (2009). There must be probable cause
to conclude not only that an individual committed a crime, but
also that the particular source of evidence has a "nexus" to the
offense (citation omitted). Commonwealth v. White, 475 Mass.
583, 588 (2016). While "definitive proof" is not necessary to
meet this standard, the warrant application may not be based on
mere speculation. Commonwealth v. Augustine, 472 Mass. 448, 455
23
(2015); Commonwealth v. Cinelli, 389 Mass. 197, 213, cert.
denied, 464 U.S. 860 (1983) (even "strong reason to suspect is
not adequate").
"When considering the sufficiency of a search warrant
application, our review 'begins and ends with the four corners
of the affidavit.'" Commonwealth v. Dorelas, 473 Mass. 496,
500-501 (2016), quoting Cavitt, 460 Mass. at 626. The affidavit
is "considered as a whole and in a commonsense and realistic
fashion"; it is not "parsed, severed, and subjected to
hypercritical analysis" (citations omitted). Dorelas, supra.
"All reasonable inferences which may be drawn from the
information in the affidavit may also be considered as to
whether probable cause has been established." Commonwealth v.
Donahue, 430 Mass. 710, 712 (2000). A magistrate's
determination of probable cause is accorded "considerable
deference." Commonwealth v. McDermott, 448 Mass. 750, 767,
cert. denied, 552 U.S. 910 (2007).19 Probable cause is a "fact-
19
The Commonwealth points out that, here, the content of
the text messages admitted at trial was not obtained through
forensic searches of the defendants' cellular telephones, as it
was in Commonwealth v. White, 475 Mass. 583, 586-587 (2016),
Commonwealth v. Dorelas, 473 Mass. 496, 500 (2016), and other
cases the defendants rely upon, but rather through the records
of the cellular telephone service provider. This distinction is
immaterial. Regardless of whether the text messages were stored
only on the defendants' cellular telephones or also on their
service providers' servers, police could not seek a warrant to
recover the contents of those text messages without establishing
24
intensive inquiry, and must be resolved based on the particular
facts of each case." Morin, 478 Mass. at 426.
There was a substantial basis to conclude that Holley's
text messages were related to the crime under investigation.
The warrant affidavit discussed information contained in the
victim's call records and the apartment surveillance footage in
order to establish that Holley used his cellular telephone to
call the victim immediately prior to the shooting, just as
Holley was entering the victim's apartment building, where the
victim was ultimately shot. The affiant also stated that the
victim's girl friend had told him that the victim sold marijuana
from the vacant apartment and kept his marijuana in Enfamil
cans. The girl friend had observed an Enfamil can top, but not
a nexus between the homicide and the defendants' cellular
telephone communications. See Commonwealth v. Fulgiam, 477
Mass. 20, 34, cert. denied, 86 U.S.L.W. 3177 (2017) (individual
has objectively reasonable expectation of privacy in text
messages, regardless of whether they are stored in that person's
cellular telephone or on service provider's server); White,
supra at 588 ("the government must demonstrate a nexus between
the crime alleged and the article to be searched or seized"
[quotations and citation omitted]).
The Commonwealth argues also that the defendants did not
have a reasonable expectation of privacy in the content of the
third-party business records from which the content of the text
messages was obtained. We rejected this argument in Fulgiam,
supra, issued after the Commonwealth filed its brief in this
case, wherein we held that the third party doctrine is
"inapposite . . . with respect to the content of text messages
stored on a cellular telephone service provider's servers"
(quotations and citation omitted).
25
the container, near the victim's body. The shooting was
therefore likely connected to a drug deal, which the affiant
explained commonly is arranged by a telephone call "to verify
contact and to arrange for the transaction." Contrast White,
475 Mass. at 589 ("the opinions of the investigating officers do
not, alone, furnish the requisite nexus between the criminal
activity and the [device] to be searched or seized" [emphasis
added, quotations and citation omitted]).
The victim's girl friend also told the affiant that "it was
unusual for the victim not to have his phone with him."
Moreover, she had tried to video-call the victim while he was in
the vacant apartment that morning, from which it reasonably may
be inferred that the victim had had his cellular telephone in
his possession, and yet his telephone was not found at the scene
of the crime. From this information, the affidavit reasonably
inferred that "people involved in the victim's homicide may have
taken the victim's phone to hide any information such as recent
contact information and caller history."
The motion judge properly concluded that there was a nexus
between Holley's text messages and the shooting, even though the
warrant affidavit did not state specifically that Holley was
sending text messages. A nexus also may be "found in the type
of crime, the nature of the items sought, and the normal
inferences as to where such items might be kept by the suspect."
26
Commonwealth v. Matias, 440 Mass. 787, 794 (2004). See, e.g.,
Dorelas, 473 Mass. at 503 (defendant's receipt of threatening
calls and text messages on his cellular telephone supported
reasonable inference that his photograph files, and not just his
calls and text messages, would contain evidence of contentious
communications in days leading up to shooting). Here, it was
reasonable to infer that Holley's cellular communications were
instrumental in committing the crime because Holley called the
victim as he was entering the victim's apartment building only a
few minutes before the shooting. Thus, there was probable cause
to search for contemporaneous communications that were related
to the criminal activity under investigation, which includes
real-time text messages.20 Contrast White, 475 Mass. at 591
(only connection between fatal armed robbery and defendant's
cellular telephone was speculation in warrant affidavit that
20
Holley argues that the Commonwealth's contention in its
brief that the content of Holley's text messages would help
police identify the shooter is "disingenuous at best," because
all that was necessary to determine the identity of the person
the victim communicated with on the morning of the shooting was
to request the subscriber information associated with the
telephone number. In addition, Holley argues, police already
knew his identity before seeking the search warrant for his
cellular telephone. Holley's argument is unavailing. Holley
does not point to, and we are not aware of, any support for the
proposition that the police are required to limit themselves to
one source for each piece of information obtained during the
course of an investigation. That police found other
incriminating information in Holley's text messages, beyond the
fact of his identity, is immaterial.
27
cellular telephone was related to crime because cellular
telephones are "necessary to social interactions"); Commonwealth
v. Broom, 474 Mass. 486, 496-497 (2016) (only connection between
fatal aggravated rape and defendant's cellular phone was
conclusory statement in search warrant affidavit that "cellular
telephones contain multiple modes used to store vast amounts of
electronic data" and that there was "probable cause to believe
that the [defendant's] cell phone and its associated
accounts . . . will likely contain information pertinent to this
investigation.").
B. Particularity. "The Fourth Amendment, art. 14, and
G. L. c. 276, § 2, require that a search warrant describe with
particularity the places to be searched and the items to be
seized." Perkins, 478 Mass. 97, 106 (2017). The dual purposes
of the particularity requirement are "(1) to protect individuals
from general searches and (2) to provide the Commonwealth the
opportunity to demonstrate, to a reviewing court, that the scope
of the officers' authority to search was properly limited."
Commonwealth v. Valerio, 449 Mass. 562, 566–567 (2007). We have
cautioned that "given the properties that render [a modern
cellular telephone] distinct from the closed containers
regularly seen in the physical world, a search of its many files
must be done with special care and satisfy a more narrow and
demanding standard." Dorelas, 473 Mass. at 502.
28
The warrant to search Holley's cellular telephone records
sought the following information from October 1 through October
18, 2012:21
"[S]ubscriber information; billing records
and detailed airtime; outbound call detail; call
origination and termination location; stored GPS
location information, and/or stored cellular
tower records, cell tower sector information,
range from cell tower information (RTT) and
physical address of cell sites; and all stored
contents of electronic or wire communications
including stored or deleted voicemail, read,
unread, deleted, or sent electronic mail or text
messages, and stored files; and listing of all
associated phone numbers, of a subscriber to or
customer of such service."
That the warrant sought "all stored contents of electronic or
wire communications" and "stored files" in Holley's cellular
telephone records for seventeen days raises significant concerns
as to whether the warrant was "sufficiently limited in scope to
allow a search of only that content that is related to the
probable cause that justifies the search" (citation omitted).
Dorelas, 473 Mass at 511 n.8 (Lenk, J., dissenting). See
21
Although the warrants for Pritchett and Holley's MetroPCS
records did not contain any time limitation, the supporting
affidavits did; the affidavits asked only for records for the
period from October 1 through October 18, 2012, and MetroPCS
only produced the text messages for that time period. See
Commonwealth v. Valerio, 449 Mass. 562, 570 (2007) ("despite a
warrant's technical violation for lack of particularity, when
the items intended to be seized are listed in an attached
affidavit, and the affidavit is incorporated into the warrant
and present at the scene of the search, exclusion of evidence
does not necessarily follow").
29
Perkins, 478 Mass. at 106 ("By defining and limiting the scope
of the search, these constitutional and statutory particularity
requirements prohibit general warrants amounting to exploratory
rummaging in a person's belongings" [quotations and citation
omitted]).
The warrant here was hardly a model of particularity, and
did not sufficiently limit the scope of the search so as to
prevent "exploratory rummaging." See id. The record is silent,
however, as to how MetroPCS conducted its search in order to
comply with the warrant, and does not indicate what information,
if any, MetroPCS provided to the Commonwealth beyond Holley's
text messages. Indeed, it is unclear from the record whether
MetroPCS even kept any stored content apart from text messages
as part of its business records. See Commonwealth v. Sheppard,
394 Mass. 381, 390 (1985) (exclusion not warranted where record
demonstrated that officers did not exploit defect in warrant and
properly limited scope of their search such that defendant was
not prejudiced by lack of particularity). The only stored
communications used at trial consisted of Holley's text
messages, which the Commonwealth had redacted so that only the
content relevant to the crime under investigation was presented
to the jury. The redacted text messages were all sent or
received in the two days before the shooting, when the drug
transaction was arranged; on the day of the shooting, when the
30
crime was carried out; or on the day after the shooting, when
Holley discussed the disposition of the proceeds of the armed
robbery. On this record, Holley suffered no prejudice because
the text messages were sufficiently limited in content and scope
such that the Commonwealth did not capitalize on the lack of
particularity in the warrant. We cannot say that the judge
erred in denying the motion to suppress on this basis.
ii. Pritchett's text messages. A. Probable cause. The
search warrant affidavit to obtain Pritchett's cellular
telephone records contained all of the relevant facts included
in the warrant for Holley's records, as well as additional
information developed during the course of the investigation.
Viewing the warrant affidavit as a whole, and drawing reasonable
inferences from the information contained in it, there was a
sufficient nexus between the criminal activity under
investigation and Pritchett's text messages.
The affidavit described the video footage of two men
resembling Pritchett and Holley entering the victim's apartment
building minutes before the shooting, while the one resembling
Holley was talking to the victim on his cellular telephone, and
both men then running out together approximately three minutes
later. It noted that, in the MBTA surveillance footage,
Pritchett "appear[ed] to be texting on a cell phone" as he was
fleeing the scene with Holley. The affidavit also stated that
31
during "a post Miranda audio and video recorded statement
Pritchett puts himself at [the victim's apartment building] with
Holley, when the marijuana was taken from the victim after the
victim was shot."
The affidavit further stated that the victim's cellular
telephone, which the girl friend had tried to video-call before
the shooting, was missing, inferably because it contained
content implicating the perpetrator. And again, it noted that
an Enfamil top, but not the container in which the victim stored
his marijuana, was near the victim's body, so the crime likely
involved a drug deal, which was commonly arranged by a telephone
call. The warrant affidavit also contained information that
Holley and Pritchett had different home addresses but arrived at
the victim's house together. Given that both Pritchett and
Holley had used their cellular telephones during the time span
of the crime, it was reasonable to infer that Pritchett's
cellular communications contained evidence of his having
arranged to meet with Holley before they entered the victim's
building together.
While none of these facts in isolation would be sufficient
for probable cause, the relevant inquiry is whether the
inferences drawn are reasonable in light of the affidavit as a
whole. See Dorelas, 473 Mass. at 500-501; Donahue, 430 Mass. at
712. As with Holley, the fact that police did not know to a
32
certainty that Pritchett was using his cellular telephone to
communicate regarding the crime under investigation is not
dispositive as to the question of nexus. See Matias, 440 Mass.
at 794. Although it is a closer case, the affidavit's detailed
information connecting Pritchett and his cellular telephone
communications to the scene of the crime at the time of the
shooting supports the reasonable inference that his text
messages were related to the crime under investigation. Compare
Commonwealth v. Keown, 478 Mass. 232, 239 (2017) (probable cause
to search defendant's computer because warrant affidavit
established that he was sophisticated with computers and had
forged documents related to proffered motive for poisoning his
wife, and supported reasonable inferences that he used his
computer to forge those documents and to research poison), with
Morin, 478 Mass. at 427 (warrant affidavit lacked probable cause
to search defendant's cellular telephone because it merely
stated that codefendant, who had brought victim of shooting to
hospital, telephoned defendant at unspecified times before and
after homicide).
This case is unlike Commonwealth v. Fulgiam, 477 Mass. 20,
34, cert. denied, 86 U.S.L.W. 3177 (2017), in which we concluded
that the fact that a defendant communicated with his codefendant
on the day of the victims' deaths "elevated their relationship
to a matter of importance in the investigation, [but] did not,
33
without more, justify intrusion into the content of that
communication." In that case, the police had information that
the defendant had been in contact with his codefendant and a
victim by telephone on the day the victims were killed, and knew
that his codefendant and one of the victims conducted drug sales
together. Id. We determined that probable cause for the
requisite search warrant was lacking because there were no facts
that "implicated [the defendant] in the crimes or suggested that
the content of his text message would aid in the apprehension of
a suspect in the murders." Id. at 35. Here, by contrast, the
warrant affidavit was not based merely on Pritchett's
association with Holley. Instead, it showed both that Pritchett
was directly implicated in the crime and that his
contemporaneous cellular communications, including text
messages, were inferably related to the criminal activity under
investigation.
B. Particularity. As with the warrant seeking Holley's
telephone records, the warrant for Pritchett's MetroPCS records
lacked particularity because it, too, sought "all stored
contents of electronic or wire communications" and "stored
files," and authorized a search of seventeen days of records.22
22
The content sought in the warrant for Pritchett's
cellular telephone records was identical to that sought in the
warrant for Holley's MetroPCS records.
34
Again, the record is silent as to the scope of the search
conducted or the information produced as a result of this
warrant. The only stored content presented to the jury
consisted of text messages related to the crime that were
exchanged in the period beginning from four days before the
shooting, when Pritchett exchanged text messages with the
doctor's friend about the missing handguns, until the early
morning hours after the shooting, when Pritchett told the third
party that he "may go down for" something that had happened on
the day of the shooting. Pritchett was not prejudiced by the
scope of the warrant, as the Commonwealth did not exploit the
lack of particularity. Again, we cannot say on the record
before us that the judge erred in denying Pritchett's motion to
suppress on this basis.
c. Instruction on felony-murder in the second degree.
Pritchett and Holley both argue that the judge erred in
declining to instruct the jury on felony-murder in the second
degree, premised on the underlying charge of possession of a
firearm without a license. "As a general matter, there is no
black-letter catalogue of predefined felonies deemed on a per se
basis to be predicates for invocation of felony-murder in the
second degree." Commonwealth v. Garner, 59 Mass. App. Ct. 350,
357 (2003). Rather, an instruction on felony-murder in the
second degree is necessary "when there is a rational basis in
35
the evidence to warrant the instruction. " Bell, 460 Mass. at
306-307, quoting Christian, 440 Mass. at 558. Specifically,
there must be evidence from which the jury could find that the
felony was "inherently dangerous or the defendant acted with
conscious disregard for the risk to human life. " Bell, supra
at 308, quoting Christian, supra.
As a matter of law, possession of an unlicensed firearm is
not inherently dangerous. "Decisional law has identified
certain felonies that are inherently dangerous as a matter of
law, such as arson, rape, burglary, armed robbery, and armed
home invasion, . . . because the risk to human life is implicit
in the intent required for any such felony" (citations omitted).
Commonwealth v. Fantauzzi, 91 Mass. App. Ct. 194, 199 n.6
(2017). Unlawful possession of a firearm does not fall within
this category. Id.
Nor was there evidence in this case to suggest that the
manner or circumstances of the possession of the firearm without
a license showed conscious disregard for human life. The
situation here is different from that in Ortiz, 408 Mass. at
467, where the defendant was convicted of felony-murder in the
second degree in connection with his brother's shooting of two
police officers. There, the jury could have found, on the
evidence before them, that the defendant possessed a firearm
"with conscious disregard for the risk to human life because of
36
the obvious risk presented by the defendant and his brother's
driving around with a loaded .357 Magnum revolver between them
looking for an individual with whom their family had a
longstanding feud." This case is also unlike Garner, 59 Mass.
App. Ct. at 358, where the Appeals Court held that there was
sufficient evidence of felony-murder in the second degree
because the defendant had smuggled a loaded revolver into a
nightclub "crowded with dancers moving about and people drinking
alcoholic beverages." That nightclub had been the scene of
prior shootings, resulting in the implementation of search
protocols, which the defendant deliberately subverted by
smuggling firearms into the venue on several occasions. Id. In
sum, given the evidence presented at trial, the judge did not
err in determining that an instruction on felony-murder in the
second degree based on the felony of the unlicensed possession
of a firearm was unwarranted.
d. Dismissal of ill juror. The defendants contend that a
new trial is required because the judge did not follow necessary
procedures in dismissing a juror who fell ill during
deliberations. This argument was not preserved, so we consider
whether there was a substantial likelihood of a miscarriage of
justice. Commonwealth v. Tolan, 453 Mass. 634, 648 (2009).
A judge may replace a juror in the midst of deliberations
if that juror "dies, or becomes ill, or is unable to perform his
37
duty for any other good cause shown to the court" (citation
omitted). Commonwealth v. Connor, 392 Mass. 838, 844 (1984).
"[O]nly reasons personal to a juror, having nothing whatever to
do with the issues of the case or with the juror's relationship
with his fellow jurors," may constitute good cause. Id. at 844-
845. A "judge must hold a hearing adequate to determine whether
there is good cause to discharge a juror." Id. at 844.
On the second day of deliberations, the juror requested an
ambulance because she felt ill and unable to move. The next
day, in the presence of the parties, the judge telephoned her.
She said that she had a fever of 104 degrees and had been
diagnosed with the flu. The doctor told her she should not
return to the jury for seven days because her illness was
communicable. The judge found that the juror's illness
constituted good cause, and that excusing her "ha[d] nothing to
do with her stance on the issues or anything having to do with
the merits of the case or of her personal relations with the
other jurors."
The defendants contend that the judge committed reversible
error because he did not (1) hold a formal hearing, swear her
in, and permit the attorneys to question her; (2) inform the
juror that she could not be discharged unless she had a personal
problem unrelated to her relationship with the other jurors or
38
her views about the case; or (3) tell the jury to disregard
their previous deliberations.
These arguments elevate form over substance. As Connor,
392 Mass. at 843-844, explains, whether the juror needs to be
present at the hearing where the juror's dismissal in being
considered depends on the circumstances of a particular case.
See id. at 844 n.2 ("Depending on the nature of the reason why
replacement of the juror is being considered, the juror's
presence may or may not be required"). Unlike in Connor, supra
at 842-843, where a juror refused to deliberate or keep his
oath, the juror's illness in this case was clearly a personal
problem. Additionally, whereas in Connor, supra at 842, the
judge spoke to the juror outside the presence of counsel and did
not hold a hearing or make any findings, here the judge
telephoned the juror in the presence of counsel, questioned her,
invited counsel to suggest further questions,23 and made specific
findings of good cause. Additional procedures would not have
altered his findings, and at trial all of the parties agreed
that the juror should be dismissed.
23
The judge properly rejected defense counsel's request
that he ask the juror about her ability to deliberate, as that
question came close to touching upon the content of the
deliberations. See Commonwealth v. Connor, 392 Mass. 838, 844
(1984) ("In dealing with all aspects of the problem of
discharging a deliberating juror, the utmost caution is required
to avoid invading the province of the jury").
39
Additionally, after an alternate juror was sworn in, the
judge instructed the jury to begin their deliberations "anew
with a new jury of twelve people" and told them "not to simply
pick up where [they] left off." These instructions are
sufficient to meet the requirement set forth in Connor, 392
Mass. at 844 n.2, that the judge "instruct the jury to disregard
all prior deliberations and begin its deliberations again." See
Commonwealth v. Zimmerman, 441 Mass. 146, 151 (2004) ("A judge
is not required in every case to adhere to the precise language
we used in [Connor]"). Accordingly, the judge did not err in
dismissing the ill juror during the jury's deliberations.
e. Motion for severance. Pritchett separately argues that
that the judge erred in denying Pritchett's motions to sever the
defendants' trials, an issue he raised at the outset of trial
and renewed shortly before the Commonwealth rested. Pritchett
maintains that severance was necessary because his and Holley's
defenses were mutually antagonistic, and because the evidence
against Holley was substantially greater than that against
Pritchett.
"Absent a constitutional requirement for severance, joinder
and severance are matters committed to the sound discretion of
the trial judge." Commonwealth v. McAfee, 430 Mass. 483, 485
(1999). A judge abuses his or her discretion in declining to
sever a trial where the defenses are mutually antagonistic and
40
irreconcilable, meaning the "sole defense of each [is] the guilt
of the other" (citation omitted), Commonwealth v. Vasquez, 462
Mass. 827, 837 (2012), or when "the prejudice resulting from a
joint trial is so compelling that it prevents a defendant from
obtaining a fair trial" (citation omitted). Commonwealth v.
Hernandez, 473 Mass. 379, 391 (2015).
Neither of the defenses in this case rested solely upon the
guilt of the other defendant. The primary focus of both
defenses was the sufficiency of the evidence, as there were no
witnesses to the shooting and no forensic evidence linking the
defendants to the apartment where the victim was shot. See,
e.g., Commonwealth v. Siny Van Tran, 460 Mass. 535, 543 (2011)
(denial of motion to sever proper where defendants presented
several defenses during trial, including inadequate police
investigation). Both defendants also posited that a third party
was responsible for the shooting, which they suggested was gang-
related. See, e.g., Hernandez, 473 Mass. at 391–392 (2015)
(defenses not mutually antagonistic where "the three
codefendants all named other third parties as the actual
perpetrators"). Pritchett argues that "each defendant could
avail himself of the argument that the other committed the crime
without his intentional participation," but that falls short of
demonstrating that the sole defense of each defendant was the
guilt of the other. See Hernandez, 473 at 391; Vasquez, 462
41
Mass. at 836 ("Severance is not mandated simply because defenses
are hostile").
Nor has Pritchett demonstrated that joinder prevented him
from obtaining a fair trial. Although the evidence showed that
Holley had a stronger connection to the victim, there was
sufficient evidence of Pritchett's participation in the crime,
including his text messages with Holley in which he helped plan
the armed robbery, as well as cell site data and video
surveillance showing that he entered and fled the scene with
Holley at the time of the shooting, and later manipulated the
victim's iPhone. See Commonwealth v. Akara, 465 Mass. 245, 257
(2013) ("even mutually antagonistic and irreconcilable defenses
do not require severance if there is sufficient other evidence
of guilt" [citation omitted]); McAfee, 430 Mass. at 486 ("it is
not enough that the defendants are hostile to one another or
that one defendant would have a better chance of acquittal if
tried alone"). The judge did not abuse his discretion in
denying Pritchett's motion to sever.
f. Evidence of prior bad acts. Pritchett argues that a
new trial is required because the judge allowed the admission in
evidence of the uncharged gun theft from the house of the
doctor's uncle. Pritchett contends that the probative value of
this evidence was outweighed by the risk of unfair prejudice
because his culpability in that theft was "tenuous at best and
42
speculative at worst," and because there was no evidence that
either of the stolen firearms actually was used to shoot the
victim.
"[E]vidence of a defendant's involvement in uncharged
criminal activity 'may be admissible if relevant for some other
purpose' than to show the defendant's bad character or
propensity to commit the charged offense." Commonwealth v.
Snyder, 475 Mass. 445, 456 (2016), quoting Commonwealth v.
Corliss, 470 Mass. 443, 450 (2015). "One such purpose is 'to
show that the defendant has the means to commit the crime.'"
Corliss, supra, quoting Commonwealth v. Ridge, 455 Mass. 307,
311 (2009). "Even if the evidence is relevant to one of these
other purposes, the evidence will not be admitted if its
probative value is outweighed by the risk of unfair prejudice to
the defendant." Commonwealth v. Crayton, 470 Mass. 228, 249
(2014). A judge's decision to allow the admission of such
evidence is "not disturbed absent palpable error." Commonwealth
v. McGee, 467 Mass. 141, 156 (2014), quoting Commonwealth v.
Spencer, 465 Mass. 32, 48 (2013).
Here, the evidence of the prior gun theft was relevant to
show that Pritchett had the "means of committing the crime"
(citation omitted). McGee, 467 Mass. at 156. Pritchett's text
messages with the doctor's friend suggest that the two of them
were trying to hide their involvement in the disappearance of
43
the handguns, as the friend told Pritchett, "just say you don't
know anything like I did and well be cool." Additionally, on
the morning of the shooting, just days after the theft of the
handguns, Holley asked whether Pritchett had a "hand joint" and
Pritchett responded that he had "a couple." These statements
were made as part of a discussion of sawed-off rifles and
revolvers, so the jury reasonably could have construed them as
discussing handguns and could have concluded that the "couple"
of handguns Pritchett mentioned came from the doctor's uncle.
That the Taurus was just one possible model of gun that
"could have been used in the course of a crime is admissible, in
the judge's discretion, even without direct proof that the
particular weapon was in fact used in the commission of the
crime" (citation omitted). McGee, 467 Mass. at 156. It was for
the jury to decide whether the Taurus was the weapon used in the
shooting.24 Id. at 157. As for the Jennings handgun, which was
excluded as a possible murder weapon, it was admissible to show
24
The ballistics expert's conclusion that the Taurus was a
possible weapon only after he broadened his search parameters
goes to the weight of the evidence and not, as Pritchett argues,
to its admissibility. In his initial report, the expert did not
list the Taurus as one of the weapons that could have fired the
fatal bullet. During his testimony, the expert explained that
his report was not exhaustive and that he had used a
conservative set of measurements to analyze the bullet
fragments. If those measurements were expanded by five one-
thousandths of an inch, which was an acceptable variation, the
Taurus could have been the weapon used in the shooting.
44
"that the defendant had access to or knowledge of firearms."25
Id.
The judge did not abuse his discretion in finding that the
probative value of this evidence was not outweighed by the risk
of unfair prejudice to Pritchett. Notwithstanding his
contentions, the evidence did not portray Pritchett as a "thug."
The evidence left it to the jury to determine whether in fact
Pritchett had taken the missing handguns, and whether the Taurus
was used to shoot the victim. See McGee, 467 Mass. at 157
(judge did not abuse discretion in determining that probative
value of evidence of defendant's friend holding possible murder
weapon "outweighed the risk that jury might use it as improper
character or propensity evidence"). Additionally, the evidence
of the prior theft did not involve the same type of underlying
crime -- armed robbery to obtain marijuana -- that resulted in
the victim's death. Thus, the risk that the jury would conclude
that Pritchett had a propensity to commit this particular crime
25
A limiting instruction is not required with regard to
evidence of a gun that could have been used in the charged
crime. See Commonwealth v. McGee, 467 Mass. 141, 157 (2014).
With respect to the gun that was excluded as a possible murder
weapon, on the other hand, "[o]ften a limiting instruction is
required as to the proper use of such evidence to ensure that
its probative value outweighs the danger of unfair prejudice."
Id. at 158. Pritchett does not raise this issue, however, and
we conclude that the lack of an instruction did not create a
substantial likelihood of a miscarriage of justice because this
evidence received "scant attention" at trial. Id.
45
was low. Contrast Crayton, 470 Mass. at 251 (judge abused his
discretion in admitting evidence of prior bad acts because "the
danger [was] great that a jury would make the powerful natural
[and forbidden] inference that the defendant's possession of
pornographic drawings of children shows that he has an interest
in child pornography, so he must have been the person viewing
child pornography in the library").
g. Instruction regarding statements of joint venturers.
Pritchett argues that the judge erred in declining to instruct
the jury that hearsay statements of joint venturers may be
considered for their truth only if the jury first determine, on
the basis of independent, nonhearsay evidence, that a joint
venture existed. Pritchett maintains that, without such an
instruction, the jury should not have considered any hearsay
statements contained in the text messages admitted at trial.26
"We recognize, as an exception to the hearsay rule, that a
statement made by a coconspirator or joint venturer may be
admitted for its truth against the other coconspirators or joint
venturers." Commonwealth v. Mattier, 474 Mass. 261, 276-277
(2016), citing Mass. G. Evid. § 801(d)(2)(E) (2016). To admit
such evidence, a court must find, by a preponderance of the
evidence, the existence of a joint venture independent of the
26
Pritchett does not specify which text messages required
such an instruction.
46
statement being offered. Commonwealth v. Rakes, 478 Mass. 22,
37 (2017). See Mass. G. Evid., supra. Where the judge makes
this preliminary determination, the statement of the joint
venturer may be presented to the jury. Rakes, supra. Before
considering the statement as bearing on the defendant's guilt,
however, the jury must make "their own independent
determination, again based on a preponderance of the evidence
other than the statement itself, that a joint venture existed
and that the statement was made in furtherance thereof." Id.
Insofar as the hearsay statements of the defendants were
admitted against both of them, the judge should have made a
preliminary finding regarding their admissibility and then,
where warranted, instructed the jury that they could consider
those statements only if they first found independent,
nonhearsay evidence of a joint venture. Nevertheless, the
judge's failure to do so does not constitute reversible error
because it did not prejudice the defendants. See Commonwealth
v. Szlachta, 463 Mass. 37, 45 (2012) (where defendant objects to
judge's refusal to give requested instruction, "we review the
judge's action to determine whether there was error and, if so,
whether the error prejudiced the defendant").
The Commonwealth introduced overwhelming independent,
nonhearsay evidence establishing the existence of a joint
venture by, at the very least, a preponderance of the evidence.
47
This evidence included surveillance videos showing Holley and
Pritchett entering and leaving the victim's apartment building
together within a few minutes; entering the MBTA station using a
single ticket and sitting next to each other on a bench, and
then walking out of the station together; getting onto the bus
and sitting next to each other; and interacting with each other
during the ride. The cell site location data further
corroborated their locations, and was consistent with the images
seen in the various surveillance videos. See, e.g.,
Commonwealth v. Odware, 429 Mass. 231, 236-237 (1999) (judge's
failure to give requested instruction "on the possibility that
the witnesses made a good faith error in identifying
[defendant]" was not prejudicial error due to "overwhelming
evidence against the defendant"). Pritchett is not entitled to
a new trial on this basis.
4. Relief pursuant to G. L. c. 278, § 33E. Having
carefully reviewed the entire record, pursuant to our duty under
G. L. c. 278, § 33E, we discern no reason to set aside the
verdicts or to reduce the degree of guilt.
Judgments affirmed.