Commonwealth v. Broom

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SJC-11729
COMMONWEALTH vs. ELDRICK BROOM.
Suffolk. February 12, 2016. - June 13, 2016.
Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.
Homicide. Cellular Telephone. Probable Cause. Constitutional
Law, Search and seizure, Probable cause, Retroactivity of
judicial holding, Harmless error. Search and Seizure,
Warrant, Probable cause. Error, Harmless. Jury and
Jurors. Practice, Criminal, Capital case, Retroactivity of
judicial holding, Warrant, Harmless error, Jury and jurors,
Question by jury.
Indictments found and returned in the Superior Court
Department on January 31, 2012.
A pretrial motion to suppress evidence was heard by Janet
L. Sanders, J., and the cases were tried before Jeffrey A.
Locke, J.
Elizabeth Caddick for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
BOTSFORD, J. Eldrick Broom, the defendant, stands
convicted of the murder in the first degree of Rosanna Camilo
DeNunez, on the theories of extreme atrocity or cruelty and
2
felony-murder with aggravated rape as the predicate felony.1 We
consider here the defendant's appeal from his convictions, and
affirm.
Background. We summarize the facts that the jury could
have found. In 2010, the victim, who was from the Dominican
Republic and the mother of three children, moved to New Jersey
with her newborn baby, Thiago. Shortly thereafter, she
relocated to Boston to seek medical treatment for Thiago.
Although in July of 2011, the victim's sixteen year old
daughter, Navila, joined her mother to help her take care of
Thiago, the victim's husband of seventeen years and her other
son remained in the Dominican Republic. By the time Navila came
to Boston, the victim was living in an apartment on Fairlawn
Avenue in the Mattapan section of Boston. In the spring,
summer, and early fall of 2011, the defendant lived in an
apartment across the hall from the victim. The defendant was
living with his fiancée and their children.
The victim spoke very little English, and interacted in a
substantive way only with her family members and the medical
professionals who were providing services to Thiago. The victim
sometimes left her keys in her apartment door at the Fairlawn
Avenue apartment, and on three different occasions before the
1
The defendant was sentenced to life in prison without the
possibility of parole on the murder conviction. His conviction
of aggravated rape was placed on file.
3
day she was killed, the defendant knocked on the door and
returned the keys to her. Navila had never seen her mother and
the defendant interact, except for the times he returned the
keys and when they exchanged polite greetings as he passed them
in the hall. At the end of October, 2011, the defendant and his
fiancée, who was pregnant, moved to an apartment on Bismarck
Street, which was part of the same apartment complex as the
Fairlawn Avenue building. Despite the move, the defendant
sometimes returned to the steps of the Fairlawn Avenue building
to smoke marijuana at his "normal spot."
During the afternoon of Sunday, November 20, 2011, Navila
and the victim used the online Skype program2 to talk with family
members in the Dominican Republic. Thereafter, Navila, the
victim, and Thiago went grocery shopping. When they returned to
their apartment around 8 P.M., the defendant was on the front
steps of the building. He helped them carry Thiago's carriage
and the grocery bags up the steps, but did not enter the
building. The family spent the evening alone together. At
around 9 P.M., the victim put Thiago to bed. When Navila went
to bed at around 10:30 P.M., she remained awake for the next
one-half hour. The victim was in the living room using her
2
Skype is "a proprietary [I]nternet-based computer software
system that provides two-way visual and voice communication."
E.C.O. v. Compton, 464 Mass. 558, 559 n.5 (2013), quoting Rivera
v. State, 381 S.W.3d 710, 711 n.2 (Tex. Ct. App. 2012).
4
computer. The bedroom door was open, and Navila heard no
unusual sounds. The victim, Navila, and Thiago all slept in the
same bedroom. The next morning, November 21, 2011, the victim
was asleep in her bed when Navila left for school.
When Navila came home from school at around 2:40 P.M. that
day, she found her mother dead on the floor in a bedroom other
than the one in which the family slept. The victim was naked
from the waist down, her shirt was pulled up around her neck,
her bra was pulled down with her left breast exposed, a pair of
blue jeans and a blue shirt were lodged underneath her body, and
the blue jeans were turned inside out. Two socks and a
universal serial bus (USB) cord were tied around the victim's
neck; the cause of death was strangulation. The victim's
cellular telephone, keys, and underwear were missing.
Navila identified the defendant through a photograph as the
only neighbor she ever saw interact with her mother. The police
visited the defendant's apartment and spoke to him on
November 29. During the interview, which was recorded with his
permission, the defendant voluntarily provided the police with a
buccal swab. At that time, the defendant said nothing in that
interview about any sexual relationship with the victim.
During the initial investigation of the crime scene on
November 21, swabs were collected from the jeans and shirt that
had been under the victim’s body as well as the socks and USB
5
cable from around her neck. Testing performed on swabs
collected from the victim's body during an autopsy and on the
samples taken from the other items revealed that the defendant's
deoxyribonucleic acid (DNA) was included as being a possible
contributor to DNA found on the anorectal swabs taken from the
victim,3 as well as DNA found on stains on her jeans,4 and her
shirt.5 Based on the Y-chromosome short tandem repeat (Y-STR)
testing of a sample taken from the socks that had been used as a
ligature, the defendant could not be excluded as a contributor
to the mixture.6
3
Approximately one in 17 quadrillion Caucasians, one in 1.1
quadrillion African-Americans, and one in 230 trillion
Southeastern Hispanics are included as being a possible
contributor of deoxyribonucleic acid (DNA) to the mixture
detected in the sperm fraction of the anorectal swab.
4
The statistical probability of the defendant's being
included as a possible contributor of DNA to the single source
sample found in the sperm fraction of the stain from the blue
jeans was approximately one in 3 sextillion Caucasians, one in
220 quintillion African-Americans, and one in 1.4 quintillion
Southeastern Hispanics.
5
Approximately one in 8.6 quadrillion Caucasians, one in
740 trillion African-Americans, and one in 110 trillion
Southeastern Hispanics are included as being a possible
contributor of DNA to the mixture in the sperm fraction of the
stain from the shirt.
6
The statistical analysis based on the database consisting
of 11,393 males and thirteen different population groups showed
that the partial mixture profile was seen 266 times in 1,932
African-American males, 1,162 times in 4,114 Caucasian males,
405 times in 1,601 Hispanic males, and 2,275 times out of the
total database of 11,393 males.
6
Cellular site location information (CSLI) associated with
the defendant's cellular telephone number for the period from
November 1 to December 1, 2011, revealed that on November 21,
2011, the defendant's cellular telephone activated a cell tower
located on Clare Avenue in the Roslindale section of Boston at
11:45 A.M. and 3:33 P.M. No CSLI or telephone activity was
generated between 12:22 P.M. and 3:33 P.M. The police obtained
the defendant's cellular telephone call detail records of text
messages from October 5, 2011, to December 7, 2011, and voice
calls from October 1, 2011, to December 4, 2011. The victim's
telephone number never appeared in any of the defendant's
records.
The police also obtained records for the victim's cellular
telephone number from November 18 through 23. The defendant's
telephone number was not listed in the call logs associated with
the victim's number. The records for November 21 revealed that
the victim's voice mail was checked at 10:07 A.M. and 11:15
A.M., and an outgoing call was made at 11:15 A.M.7 An incoming
call at 12:48 P.M. went to voice mail. The records reflect no
cellular tower activity thereafter, meaning that the victim's
cellular telephone was disabled in some way rendering it
7
There was evidence presented at the trial that a licensed
social worker who worked with Thiago spoke with the victim at
11:15 A.M. to confirm Thiago's appointment with an occupational
therapist later that day.
7
inoperable. The occupational therapist who worked with Thiago
called the victim's cellular telephone on November 21 at 1:18
P.M. and 1:39 P.M., but received no answer. The victim's
computer was last used at 11:17 A.M. that day.
The defendant testified at trial. He stated that he began
noticing the victim beginning in June, 2011, found her keys in
her door and returned them a few times. When he ran into her in
the laundry room, he would give compliments and flirt with her.
Sometime in October, the flirtation in the laundry room led to a
consensual sexual encounter in her apartment where he performed
oral sex on her. He had an additional oral sexual encounter
with the victim in her apartment before he moved to Bismarck
Street. According to the defendant, his last sexual encounter
with the victim occurred on November 20, the night before the
murder. He observed the victim outside the apartment building
with her children at around 8:30 to 8:40 P.M. and helped them
with the stroller. He asked the victim if he could speak to
her, but she did not say anything. Approximately ten to fifteen
minutes later, he went inside the building and knocked on the
victim's door. She opened the door, looked at him, and closed
the door. He went back out to the front stairs. After another
ten to fifteen minutes, she returned to where he was sitting and
led him to the couch in her apartment. He performed oral sex on
her, which led to sexual intercourse, and he ejaculated on her.
8
He then got dressed and she let him out the front door. He did
not see or hear anyone in the apartment while he was there.
After he left the apartment, he took a bus to his work at the
Boston Medical Center. He clocked into work at 10:57 P.M. that
night.
When the defendant left work at 7:30 A.M. on the morning of
November 21, he stayed at the house of a friend on Clare Avenue
in Roslindale, because he did not have a key to his fiancée's
apartment. The friend was not at home. At 11:45 A.M., the
defendant's cellular telephone activated a cellular tower
located on Clare Avenue. While at his friend's house, he
telephoned his father and spoke with him for ten minutes. He
then left his friend's house and took a bus to his fiancée's
apartment to help her with groceries. He carried the groceries
and stayed in the apartment for ten to twenty minutes. He then
returned to his friend's house in Roslindale and stayed there
until 4 P.M., although the friend again was not there.
Discussion. 1. The Commonwealth's access to the
defendant's CSLI. The defendant challenges the Commonwealth's
obtaining the CSLI for his cellular telephone, arguing that
under Commonwealth v. Augustine, 467 Mass. 230, 232 (2014)
(Augustine I), the Commonwealth was required to seek such
9
information by a search warrant based on probable cause;8 and
that in any event, probable cause did not exist for the thirty-
one days of CSLI that the Commonwealth sought and obtained.
a. Relevant facts. On December 8, 2011, the day the
defendant was arrested and charged with the murder of the
victim, an assistant district attorney applied to a Superior
Court judge for an order under 18 U.S.C. § 2703(d) of the Stored
Communications Act (§ 2703[d] order) to obtain from the
defendant's cellular service provider CSLI records associated
with the defendant's cellular telephone number for the period
from November 1 to December 1, 2011. An affidavit of a police
detective supported the application. The affidavit included
information that the defendant had lived in the same housing
complex as the victim and had lived across the hall from her
until three weeks before her death, and that the defendant had
recently provided the police with an oral swab for DNA testing
which had indicated that the defendant's DNA was found on the
body of the victim. The affidavit further stated that the CSLI
8
The defendant argues that what must be shown is that there
is probable cause that the CSLI records "were relevant and
material to an ongoing investigation." That is not correct.
The probable cause standard applicable to CSLI is "'probable
cause to believe that a particularly described offense has been
. . . committed' and that the CSLI 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 . . .
such offense.'" Commonwealth v. Augustine, 467 Mass. 230, 236
n.15 (2014) (Augustine I), quoting Commonwealth v. Connolly, 454
Mass. 808, 825 (2009).
10
would provide evidence relevant to the homicide, including the
defendant's location at the time it had occurred. The judge
allowed the Commonwealth's request, a § 2703(d) order issued,
and the Commonwealth obtained the defendant's CSLI records for
the requested thirty-one day period. A copy of the CSLI records
for this entire period was admitted at trial as an exhibit but
the prosecutor focused on the CSLI records for November 20 and
November 21, 2011, in particular.
b. Analysis. In Augustine I, 467 Mass. at 231, 255, this
court concluded that the government-compelled production of CSLI
by a cellular telephone service provider is a search in the
constitutional sense to which the warrant requirement of art. 14
of the Massachusetts Declaration of Rights applies. The
defendant does not dispute that the Commonwealth's application
for the § 2703(d) order met the standards of that statute, but
challenges the absence of a search warrant and the existence of
probable cause for the CSLI covering thirty-one days. See
Commonwealth v. Estabrook, 472 Mass. 852, 858-859 (2015) (where
Commonwealth has complied with 18 U.S.C. § 2703, it may obtain
up to six hours of person's CSLI without search warrant).
We agree that if Augustine I were to apply here, the
defendant's challenge to the admission of CSLI evidence for
thirty-one days on the ground of lack of probable cause would
likely succeed. But in Augustine, we concluded that the rule
11
requiring a search warrant based on probable cause to obtain
CSLI for any substantial period of time was a new rule, and
that, pursuant to the framework established in Teague v. Lane,
489 U.S. 288, 301 (1989), and Commonwealth v. Bray, 407 Mass.
296, 301 (1990), "this new rule applies only 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." Augustine I, 467 Mass. at 257. The
defendant contends that he fits within this limitation, because
his case was pending on direct review at the time of the court's
decision in Augustine I, and the warrant requirement issue is
raised in this appeal. This contention fails. The import of
the quoted language from our decision in Augustine I is that the
search warrant requirement -- the new rule -- applies only to
cases pending on direct appeal in which the warrant issue was
raised before or during trial. This is the generally applicable
principle of retroactivity that applies to new rules in criminal
cases. See, e.g., Commonwealth v. Figueroa, 413 Mass. 193, 202
(1992), S.C., 422 Mass. 72 (1996) ("Retroactive application of a
rule of criminal law is indicated if [1] a case is on direct
appeal or as to which time for direct appeal has not expired
when the new rule is announced, and [2] the issue was preserved
at trial" [citation omitted]).9 Here, although the case was on
9
In his reply brief, the defendant asserts that the
12
direct appeal when Augustine I was decided, the defendant did
not challenge either before or during his trial the
Commonwealth's having obtained the defendant's CSLI pursuant
only to a § 2703(d) order. Accordingly, the question we must
answer is whether the unobjected-to admission of the CSLI
"clairvoyance exception" to the general rule of retroactivity
should apply in his case. See, e.g., Commonwealth v. D'Agostino,
421 Mass. 281, 284 (1995), quoting Commonwealth v. Bowler, 407
Mass. 304, 307 (1990) ("[A] defendant does not waive a
constitutional issue by failing to raise it before the theory on
which his argument is premised has been sufficiently developed
to put him on notice that that the issue is a live issue.
Counsel need not be 'clairvoyant'"). The defendant's claim
fails because by the time the defendant was arrested in 2011,
the issue of search and seizure concerning tracking technology
was widely known. See, e.g., Commonwealth v. Connolly, 454
Mass. 808, 811 (2009), in which this court concluded that under
art. 14 of the Massachusetts Declaration of Rights, a warrant
was required for police to place a global positioning system
(GPS) tracking device on a vehicle. See also id. at 819-822
(analyzing State and Federal cases on constitutionality of
tracking devices). CSLI presents the same legal search and
seizure issue as GPS data, i.e., where the location data
generated from both are due to tracking technology, such that it
could have been raised by the defendant here in a motion to
suppress. See Augustine I, 467 Mass. at 254 (GPS tracking data
and CSLI implicate same constitutionally protected interest in
reasonable expectation of privacy "by tracking a person's
movements"). For example, according to the record in the
Augustine case, counsel for Augustine raised the CSLI issue in a
motion to suppress filed November, 2012, approximately one year
before the defendant's trial in this case. See id. at 231-232.
Moreover, as discussed in Augustine I, supra at 253, the court's
decision included consideration of Federal cases, dating back to
2010 and 2011, that specifically discussed the constitutional
issue that CSLI presented. Thus, we see no reason to alter our
conclusion that the new rule requiring a warrant for CSLI be
limited to those cases where a defendant's conviction is not
final and where "the issue concerning the warrant . . . was
raised." Id. at 257.
 13
evidence that was obtained without a search warrant created a
substantial likelihood of a miscarriage of justice.
Although thirty-one days of CSLI records were admitted as
an exhibit at trial, the trial record makes clear that the only
CSLI evidence actually referenced related to November 20 and 21,
2011. As the defendant recognizes in his brief, in light of the
information known to the police concerning the presence of the
defendant's DNA on the victim and that he lived in the same
apartment complex, there was probable cause to believe that CSLI
for these two days, which would assist in determining the
defendant's location in the hours before, during, and following
the victim's death, was reasonably related to the criminal
investigation of the victim's death by homicide. See
Commonwealth v. Augustine, 472 Mass. 448, 454-455 (2015). See
also Commonwealth v. Kaupp, 453 Mass. 102, 110 (2009). In these
circumstances, it cannot be said that the defendant was unfairly
prejudiced by admission of the CSLI evidence. No substantial
likelihood of a miscarriage of justice occurred.
2. Search of defendant's cellular telephone. The
defendant challenges the search of the contents of his cellular
telephone that was made by police officers in October, 2012,
pursuant to a search warrant. He argues that the warrant was
in effect a general warrant that authorized a search of vast
amounts of information stored on the cellular telephone, and it
14
was issued without satisfying either the requirement of
particularity or demonstrating probable cause for much or all of
it. He contends also that because the search conducted by the
police did not commence within seven days of the issuance of the
warrant, the search was invalid.
a. Relevant facts. At the time of the defendant's arrest
on December 8, 2011, the police seized his cellular telephone
and stored it at the police department. Ten months later, the
police applied for, and obtained, a search warrant to search its
contents. The affidavit of a police detective, filed in support
of the warrant application, included the following information:
after the victim's body was discovered in her apartment on
November 21, 2011, the victim's cellular telephone was not found
anywhere in the apartment, a fact that the victim's daughter
could not account for; until three weeks before the victim's
death, the defendant had been living in an apartment on the same
hall as the victim's and recently had moved to another apartment
in the same housing complex; the defendant had provided an oral
swab for DNA testing voluntarily, and on December 8, the results
of that testing indicated that the defendant was the source of
DNA taken from the victim; the defendant was arrested on
December 8 and gave a statement to the police in which he
claimed to have had a consensual sexual encounter with the
victim on the night before her death, and said that at the time
15
of her death he was with a friend at the friend's home on Claire
Avenue; examination by the police of records for the defendant's
cellular telephone suggested that the defendant was six miles
away and not at the victim's apartment on the evening of
November 20; and on November 21, the day of the victim's death,
between 11:46 A.M. and 3:33 P.M., "there were no phone calls
made or answered by the defendant, therefore, no cell site
information could be obtained[, but] [d]uring this time frame
. . . [the defendant's] phone records reveal that the defendant
did use his phone to receive and send text messages, as well as
access the [I]nternet." The affidavit then stated that based on
the detective's training and experience, he had "personal
knowledge that cellular telephones contain multiple modes used
to store vast amount of electronic data." It next describes the
many types of data the detective sought "to search for and, if
found, extract from" the defendant's cellular telephone,10 and
10
The affidavit states: "The electronic data that I [the
affiant] seek to search for and, if found, extract from the
above described phone, includes the following: the subscriber's
telephone number, electronic serial number (ESN), international
mobile equipment identity (IMEI), mobile equipment identifier or
other similar identification number; contact list, address book,
calendar and date book entries, group list, speed dial list; and
phone configuration information and settings. I would also seek
to extract all saved, incoming, outgoing[,] draft, sent, and
deleted text messages; saved, opened and unopened voice mail
messages; saved, opened and unopened electronic mail messages;
mobile instant message chat logs, data, and contact information;
{I}nternet browser history; and saved and deleted files
including photograph and movie files."
16
continues as follows: "Based on the information gathered
through this investigation, it is my opinion that there is
probable cause to believe that the cell phone and its associated
accounts and accessories will likely contain information
pertinent to this investigation. The evidence should be found
on, and within phone described above assigned to [the
defendant's phone number]. . . . Therefore I respectfully
request that the court issue a search warrant for the said cell
phone."
A Superior Court judge approved the issuance of a search
warrant on October 11, 2012. The warrant authorized a search of
the defendant's cellular telephone and in particular the items
that had been described in the affidavit (see note 10, supra),
but the police did not conduct the search until thirteen days
later. The return was filed on October 26, 2014.
b. Analysis. We agree with the defendant that the search
of his cellular telephone was not supported by probable cause,
and that the search warrant was overly broad. As a general
matter, "probable cause requires a substantial basis . . . for
concluding 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." Commonwealth v. Dorelas, 473 Mass.
496, 501 (2016), quoting Commonwealth v. Kaupp, 453 Mass. at
17
110. But as we observed in Dorelas, which involved a search of
a cellular telephone offering features and access to the
Internet similar to the defendant's, where search of this type
of cellular telephone is sought, there must be probable cause
that the device contains "particularized evidence" relating to
the crime. See Dorelas, supra at 502. The properties of such a
telephone render it "distinct from the closed containers
regularly seen in the physical world, [and] a search of its many
files must be done with special care and satisfy a more narrow
and demanding standard" than exists for establishing probable
cause to search physical containers or other physical items or
places. See Dorelas, supra at 502. In particular, it is not
enough that the object of the search may be found in the place
subject to search. See id. at 501-502. Rather, the affidavit
must demonstrate that there is a reasonable expectation that the
items sought will be located in the particular data file or
other specifically identified electronic location that is to be
searched. See id. at 503-504.
In this case, the detective's affidavit sets out facts,
based on the CSLI relating to the defendant's cellular telephone
that the police had obtained previously, that call into serious
question the veracity of the defendant's statement that he had a
consensual sexual encounter with the victim on the night before
18
her death.11 But as the affidavit itself makes clear, the police
already had not only the defendant's CSLI but his phone records
(presumably call logs), and thus they would have known that the
victim's cellular telephone number did not appear anywhere in
those records. The affidavit points to no "particularized
evidence" suggesting that the contents of the defendant's
cellular telephone and specifically the files that police sought
to seize or search, including the contact list, address book,
voice mail, text, and electronic mail (e-mail) messages (see
note 10, supra), were likely to contain information linking the
defendant to the victim or relating to the victim's killing.
Here, the affidavit fails to provide a substantial,
particularized basis reasonably to expect that the files on the
cellular telephone that police sought to search would contain
information related to the homicide under investigation. All
11
The affidavit also states that on the date the victim was
killed, "between 11:46 A.M. and 3:33 P.M., there were no phone
calls made or answered by the defendant, [and] therefore, no
cell site information could be obtained. During this time
frame, however, his phone records reveal that the defendant did
use his phone to receive and send text messages, as well as
access the [I]nternet" (emphasis added). The trial record
indicates that this last statement was factually inaccurate:
the cellular service provider representative testified that the
telephone records contained no evidence of any text message,
Internet, or any other activity on the defendant's cellular
telephone during the cited time frame. Accordingly, we
disregard this statement in considering whether the affidavit
established the requisite probable cause.
19
the affidavit states is that the affiant knows from training and
experience that "cellular telephones contain multiple modes used
to store vast amounts of electronic data[,]" and that in his
opinion, "there is probable cause to believe that the
[defendant's] cell phone and its associated accounts . . . will
likely contain information pertinent to this investigation."
This general, conclusory statement adds nothing to the probable
cause calculus.12 See Dorelas, 473 Mass. at 503-504.13
In sum, the affidavit did not provide probable cause to
search the contents of the defendant's cellular telephone. The
defendant's motion to suppress the fruits of the search of his
12
We note that the police did not seek a warrant to search
the contents of the defendant's cellular telephone for almost
ten months. They apparently obtained the defendant's cellular
telephone at the time of his arrest, although the reason for
their having done so is not clear; it may have been as part of
essentially an inventory search at the time the defendant was
brought to the police station and placed in custody. In any
event, the defendant does not raise any issue concerning the
delay in seeking a search warrant, and we have concluded that
the defendant's motion to suppress evidence of the contents of
the cellular telephone should have been granted for other
reasons.
13
The overbroad nature of the warrant also is problematic.
In Commonwealth v. Dorelas, 473 Mass. 496, 499 (2016), the
warrant authorized a search of the defendant's cellular
telephone that was virtually identical to the search authorized
here. We concluded in that case that the warrant was "awkwardly
written, conflating at least in part the items to be searched
for and the places to be searched[,]" and that "as written the
warrant and the warrant application are overly broad." See id.
at 499 n.3. See also id. at 506-507 (Lenk, J., dissenting).
The same holds true here.
20
cellular telephone should have been allowed.14 Therefore, the
question is whether the erroneous denial of the defendant's
motion to suppress -- an error that violated the defendant's
rights under the Fourth Amendment to the United States
Constitution and art. 14 -- was harmless beyond a reasonable
doubt. See Commonwealth v. Thomas, 469 Mass. 531, 552a (2014).
Considering the totality of the trial record, we are
satisfied that the error was harmless beyond a reasonable doubt.
The cellular telephone search yielded a number of text messages,
three of which were used at trial, but none was admitted in
evidence. Two of the text messages -- an exchange between the
defendant and his fiancée at 12:41 P.M. on November 21, 2011 --
were used by the prosecutor solely to refresh the respective
memories of the fiancée and the defendant when each testified at
trial. As the Commonwealth argues, a witness's memory may be
refreshed with anything. See Commonwealth v. O'Brien, 419 Mass.
470, 478 (1995); Mass. G. Evid. § 612(a)(1) (2016). The fact
that the item itself may not be admissible in evidence is not
14
Given this conclusion, it is not necessary to resolve
whether, as the defendant claims, the search was invalid because
it was not commenced within seven days of the date of the
warrant. See Commonwealth v. Cromer, 365 Mass. 519, 525 (1974).
We note, however, that there is much force to the conclusion
reached by the Superior Court judge who ruled on the defendant's
motion to suppress, that with respect to searches of computer
files and the contents of a cellular telephone that is a "smart
phone" with computer capacity, the reasoning and holding of
Cromer may not apply.
21
necessarily a bar to its use for this purpose. See Commonwealth
v. Woodbine, 461 Mass. 720, 731-732 (2012). The substance of
each of these text messages was not read to the jury, and the
defendant did not object at trial to the use of the messages for
refreshing memory. In the circumstances of this case, given the
limited nature of the use of these two text messages, we
conclude that there was no error.
The third text message obtained from the defendant's
cellular telephone and used at trial was a message sent by the
defendant to his fiancée on November 24, 2011, three days after
the homicide. The background of its use at trial is the
following. A theme of the Commonwealth's case against the
defendant at trial was that in November, 2011, the defendant was
sexually frustrated because his fiancée was close to nine months
pregnant and could not have sex with him, and therefore he was
searching for other available sexual partners. During her
cross-examination of the defendant, the prosecutor asked him if
he was angry or frustrated because his fiancée could not have
sex with him; the defendant answered, "No." Over objection, the
prosecutor was then permitted to read out loud his November 24,
2011, text message,15 and neither the defense counsel nor the
15
The text message read: "I wouldn't have to talk dirty to
people or ask for picks and chat about getting head if you took
care of me. I wouldn't have time. People look for what they
don't have or get."
22
prosecutor asked for, and the judge did not give, a limiting
instruction restricting the jury's use of this particular
evidence for impeachment purposes only.16 Near the outset of her
closing argument, the prosecutor referred to this text message
in discussing the defendant's motive.17
In determining whether the use of this text message at
trial was harmless beyond a reasonable doubt, "we consider 'the
importance of the evidence in the prosecution's case; the
relationship between the evidence and the premise of the
defense; who introduced the issue at trial; the frequency of the
reference; whether the erroneously admitted evidence was merely
cumulative of properly admitted evidence; the availability or
effect of curative instructions; and the weight or quantum of
evidence of guilt.'" Thomas, 469 Mass. at 552a, quoting
16
In his final instructions, the judge gave in effect a
partial limiting instruction. He explained to the jury that
evidence suggesting that the defendant and his fiancée might
have had a strained relationship and that his fiancée was
accusing him of infidelity was to be considered only in
assessing the credibility of the witnesses and in providing
evidence of motive.
17
The prosecutor argued:
"So why did he do it, ladies and gentlemen. Why? You
saw the text message that he sent to his nine-month
pregnant fiancée on November 24th. She wasn't taking care
of him. She wasn't taking care of him, his nine-month
pregnant fiancée. She wasn't taking care of him. And so
he felt entitled to go out and get what he wanted, to
satisfy himself. As he said, people look for what they're
not getting. Well, he looked for it, and where did he look
for it?"
23
Commonwealth v. Santos, 463 Mass. 273, 287 (2012). Certainly,
evidence of motive on the defendant's part was important to the
Commonwealth's case, this evidence bore on motive, and the
evidence was introduced by the prosecution, over the defendant's
objection. However, the prosecutor's use of the statement was
limited to reading it to impeach the defendant's credibility
during his testimony and referencing it one time near the
beginning of a lengthy closing argument that focused primarily
on the strong evidence of the defendant's guilt provided by the
DNA evidence.
But of greater significance is the fact that the other
evidence of the defendant's guilt was extremely strong. The DNA
evidence linking the defendant, and only the defendant, to the
victim in an act of sexual penetration was essentially
overwhelming, and indeed not questioned by the defendant. His
explanation at trial for the presence of his semen in and on the
victim's body and clothes was that on the night before the
victim was killed, he and the victim had had a consensual sexual
encounter, and, presumably, someone else had entered the
victim's apartment during the day on November 21 and had killed
her. But the testimony of the victim's sixteen year old
daughter that the family was alone on the night of November 20,
and the evidence of the defendant's CSLI, which placed him six
miles away from the victim's apartment and very near his place
24
of employment close to the time he said the consensual encounter
with the victim had occurred, offered a powerful refutation of
the defendant's claim that he had had a consensual sexual
encounter with the victim. Moreover, there was significant,
properly admitted, evidence other than this text message,
including testimony supplied directly by the defendant, that his
relationship with his fiancée was strained in November, 2011,
and that he was open to and engaging in sexual intercourse with
others, including the victim. Finally, the position and
condition of the victim's body when she was found splayed on the
floor of her apartment, the location of her clothes pulled up on
her and underneath her, and the socks and UBS cord around her
neck strongly supported a conclusion that the victim had been
raped and strangled as part of a single, violent assault. In
sum, on this trial record, we are confident that the November
24, 2011, text message could not have reasonably affected the
jury's determination that the defendant was guilty of raping and
murdering the victim. The error in permitting the prosecutor to
use this text message was harmless beyond a reasonable doubt.
3. Juror's note. The defendant claims that the judge
erred in his response to a note written by a juror during trial
when the judge declined to show the note to the defendant or
counsel for the parties before instructing the jury, and thereby
deprived the defendant of the opportunity to participate in
25
shaping an appropriate response. He argues that the error was
of constitutional significance and not harmless beyond a
reasonable doubt, and therefore requires reversal of his
convictions.
a. Relevant facts. After the lunch break on the seventh
day of trial, the judge notified counsel at sidebar that a juror
had sent a note, but told them that he was not going to discuss
the note or share it with counsel at that time. None of the
attorneys objected. At the end of the day, the judge revisited
the topic of the juror's note. He read counsel the first two
sentences and the last sentence of the note,18 but again stated
that he would not permit counsel to examine the note itself,
saying that it would be placed under seal. The judge stated
that the note concerned a portion of the evidence and litigation
strategy, that nothing in the note suggested the juror could not
be indifferent, and that he was concerned that one or both sides
would try to tailor their litigation strategy to the note-
writing juror's thought process, which the parties, counsel, and
18
The text of the note was as follows:
"I apologize for my ignorance. I believe it's my civic
duty to say that the defense is focusing on cross-examining
the wrong evidence. We've established that the fingernail
and sock DNA results are inconclusive. I believe the
defense should try and cross-examine the anorectal sperm
DNA results. This is more fair for the defense. Writing
this has not made me partial in any way, and I remain
indifferent."
26
the judge were not entitled to know. The judge also gave
counsel a preview of the instruction he intended to give the
jury about the note. The defendant's counsel objected, arguing
that the defendant was entitled to see the note. The judge
overruled the objection and gave the entire jury an instruction
to the effect that it was not their civic duty to seek out
evidence or decide whether the case is being properly presented
by the parties, but rather their duty was to assess the
evidence, find the facts, and apply the law to decide whether
the Commonwealth proved its case beyond a reasonable doubt.19
19
The judge instructed as follows:
"Now one other matter to address is a communication
that I've received through the court officers from one
. . . of our jurors commenting on some of the evidence that
has been heard, and on the way in which the attorneys are
presenting this evidence, and the juror reference that they
felt it was a civic duty to make these comments,
notwithstanding that it would not in any way affect the
juror's ability to be impartial, and that the juror remains
indifferent. And I've discussed generally that I received
a note, but not the content of the note with counsel,
because the content of the note in some way reflects an
individual juror's thoughts about the evidence, and it is
no one's business as to what any of you may be thinking but
for you. But I do not want to just let the sending juror
know I have received this note, and to clarify that it is
not the civic duty of any of you to seek out the evidence,
or decide whether or not this case is being properly
presented by one or the other or both sides in this case.
Your sole duty in this case as a juror is to impartially
listen to the evidence presented, and at the end of this
case then to impartially and fairly assess that evidence as
part of the deliberating jury, to determine the facts from
that evidence, and then to apply the law to that evidence,
and through that process determine whether or not the
27
The defendant objected and filed a petition for relief in the
county court pursuant to G. L. c. 211, § 3. The trial was
stayed briefly by a single justice, and then lifted after the
judge read the juror's note to counsel and the defendant. The
next trial day, the defendant moved for a mistrial on the ground
that the defendant had not been given an opportunity to be heard
and to participate in shaping the contents of the response to
the note before the judge addressed the jury; he argued in
particular that he would have requested that the judge not
respond substantively to the juror's note at all, but simply
acknowledge receipt. The judge denied the motion for a
mistrial. Ultimately, the juror who had written the note was
chosen as an alternate juror and did not deliberate.
b. Analysis. When a jury pose a question to the judge
that is of legal significance, the question from the jury
generally is to be shown to counsel and the parties, who are
entitled to participate in developing a response, and to voice
their objections to the judge's proposed response. See, e.g.,
Commonwealth v. Floyd P., 415 Mass. 826, 833-834 (1993). See
also Thames v. Commonwealth, 365 Mass. 477, 478 n.2 (1974)
("where possible, any messages or questions from the jury to the
Commonwealth has proved its case beyond a reasonable doubt.
It is not your duty to suggest how a case ought to be tried
or what evidence ought or ought not to be presented. So I
want you to be aware that I do have the note, I have
reviewed it, and that is my response to the note."
28
judge . . . should be shown to counsel and immediately placed on
record"). The rule finds its roots in the defendant's rights
guaranteed by the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights to effective assistance of counsel and to be present at
all critical stages of the trial. See Commonwealth v.
Bacigalupo, 49 Mass. App. Ct. 629, 631-634 (2000), and cases
cited. See also Shields v. United States, 273 U.S. 583, 588-589
(1927); United States v. Parent, 954 F.2d 23, 24-25 (1st Cir.
1992).
In each of the cases cited supra, however, the question or
communication from the jury at issue was delivered to the judge
on behalf of the jury as a whole while they were deliberating on
their verdict. In this case, the note in question was from a
single juror, and was written and delivered to the judge while
the trial was still ongoing. This difference is significant.
Nevertheless, although we understand the judge's concern that
the substance of the question, if shown to counsel, would open a
window into the individual thought process of the juror while
the trial was still ongoing, it was error for the judge not to
have allowed counsel to read the juror's note at or near the
time it was delivered and to participate meaningfully in shaping
29
the judge's response to it.20 See Floyd P., 415 Mass. at 833-
834, and cases cited.
We conclude, however, that the judge's erroneous treatment
of and response to the juror's note does not warrant reversal of
the defendant's convictions. This is not a case where a
deliberating jury asked a question seeking further guidance from
the judge on a legal issue that presumably bore directly on
their collective resolution of the case. Rather, the note
reflected a single juror's observations about the trial strategy
being followed by defense counsel in relation to one type of
evidence as the trial was proceeding. Furthermore, although the
judge did not share the entire contents of the juror's note with
counsel before responding to it with an instruction, he
summarized the substance of it. Contrast, e.g., Parent, 954
F.2d at 24-25 (in response to jury's question, judge
unilaterally gave jury written pages of proposed instructions
government had earlier submitted without first informing counsel
of jury question or proposed response). Contrast also Shields,
273 U.S. at 585 (communications between jury and judge occurred
during deliberations; defense counsel never informed); Fillippon
v. Albion Vein Slate Co., 250 U.S. 76, 80 (1919) (in civil case,
20
We disagree with the Commonwealth that the judge's
reading of the note's first phrase and final sentence, and
giving counsel a preview of what he intended to say, was an
adequate substitute.
30
judge responded to jury's written inquiry during deliberations
by instructing jury without informing counsel). Finally,
although the defendant lost the "opportunity to convince the
judge that some other or different response would be more
appropriate," Parent, 954 F.2d at 26, the instruction provided
by the judge accurately reflected governing principles
concerning the proper role and function of the jury, and did not
prejudice the defendant in any respect.21 In the circumstances,
although we question whether the harmless beyond a reasonable
doubt standard applies here, the judge's error met this
standard. Cf. Commonwealth v. Curtis, 417 Mass. 619, 636 (1994)
(constitutional violation was harmless beyond reasonable doubt
where instruction was more favorable to defendant than he was
entitled to). Contrast Commonwealth v. Davis, 52 Mass. App. Ct.
75, 77-78 (2001) (reversible error where trial judge provided
misleading and inadequate answer to jury question without
consulting counsel).
4. Review under G. L. c. 278, § 33E. Based on a careful
and thorough review of the record in this case in accordance
with our obligation under G. L. c. 278, § 33E, we conclude that
21
Defense counsel at trial argued that the defendant was
prejudiced by the judge's instruction because it constituted a
"rebuff" to the juror who had written the note. The
characterization seems overblown, but even if it were not, the
note-writing juror was chosen as an alternate at the end of the
trial and did not participate in the jury verdict.
31
there is no basis to grant the defendant a new trial or other
relief.
Conclusion. The judgments of conviction are affirmed.
So ordered.