Commonwealth v. Collins

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SJC-11710
COMMONWEALTH vs. MICHAEL COLLINS.
Suffolk. September 2, 2014. - December 17, 2014.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Homicide. Armed Assault with Intent to Murder. Firearms.
Constitutional Law, Assistance of counsel, Identification,
Search and seizure, Public trial. Practice, Criminal,
Assistance of counsel, Failure to object, Identification of
defendant in courtroom, Agreement between prosecutor and
witness, Conduct of prosecutor, Disclosure of evidence,
Witness, Sequestration of witnesses, Public trial,
Empanelment of jury. Evidence, Identification,
Exculpatory, Disclosure of evidence, Impeachment of
credibility. Witness, Credibility, Impeachment. Cellular
Telephone. Search and Seizure, Warrant. Jury and jurors.
Indictments found and returned in the Superior Court
Department on February 20, 2007.
The cases were tried before Raymond J. Brassard, J., and a
motion for a new trial was heard by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Ruth Greenberg for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.
2
GANTS, C.J. A jury in the Superior Court convicted the
defendant of murder in the second degree for the killing of
Myles Lawton. The defendant also was convicted of armed assault
with intent to murder for the shooting of Pierre Laguerre, and
of possession of an unlicensed firearm.1 Represented by new
counsel, the defendant moved for a new trial. The trial judge
denied the motion in part on the papers, and denied the
remaining part of the motion following an evidentiary hearing
regarding the defendant's allegation of prosecutorial
misconduct. The defendant appealed both the convictions and the
denial of the motion for a new trial, and we granted direct
appellate review.
On appeal, the defendant claims that (1) he was denied his
right to the effective assistance of counsel because of his
attorney's failure to object to the in-court identification of
the defendant by an eyewitness who previously had been unable to
make a positive identification of the defendant when the police
showed her a photographic array; (2) the prosecutor withheld
exculpatory evidence of the promises, rewards, and inducements
the Commonwealth provided to Laguerre in return for his
testimony at trial regarding his pending drug distribution case;
1
The defendant had been indicted for murder in the first
degree, and was found guilty of the lesser offense. He was
found not guilty on an indictment alleging the armed robbery of
Pierre Laguerre.
3
(3) the trial judge erred in admitting cellular telephone
records that revealed the switching stations that handled
cellular telephone calls allegedly made by the defendant and
thereby revealed the location of the telephone within a radius
of approximately one hundred miles, where those records were
obtained by court order rather than with a search warrant; (4)
he was denied his right to the effective assistance of counsel
when his attorney failed to object to the enforcement of a
sequestration order during jury selection; and (5) his Federal
constitutional rights were violated by his conviction of
possession of an unlicensed firearm, where the Commonwealth did
not prove that the defendant lacked a license to carry firearms.
Based on these claims, the defendant asks us to vacate the
convictions, dismiss the indictment for possession of an
unlicensed firearm, and order a new trial on the remaining two
indictments. We affirm the defendant's convictions and the
denial of his motion for a new trial.
Background. We summarize the evidence at trial, reserving
discussion of the evidence that pertains to the issues on
appeal. Laguerre testified that, before December 5, 2006, he
and the defendant, whom Laguerre knew only by the name "Goodie,"
agreed that Laguerre would purchase two kilograms of cocaine
4
from the defendant at a price of $38,000.2 On December 5, Lawton
drove Laguerre to meet the defendant, who was wearing a New York
Mets jacket and driving a white Mercury Mountaineer sport
utility vehicle (SUV) with Rhode Island license plates. The
three went to a second-floor apartment in the Dorchester section
of Boston that was rented by Teresa Jones, who was Lawton's girl
friend, where Laguerre showed the defendant the bag containing
the cash. The defendant left the apartment and said he would be
back. The defendant returned that evening, driving the same SUV
and wearing the same jacket. Lawton went down to the first
floor to let him in the building. When they entered the second-
floor apartment, Lawton told Laguerre, "[H]e's bullshitting. He
want[s] the money." The defendant then "pulled the gun out,"
and asked Laguerre for the money. Laguerre refused. When
Lawton ran "at [Laguerre] to give the money" to the defendant,
the defendant "smacked [Lawton] in the back of his head and shot
him." Laguerre broke a window in the apartment with his elbow
so he could call for help, and the defendant fired a shot at
him, missing his head by inches. The defendant fired three more
shots at Laguerre, striking him twice in the chest and once in
the elbow. The defendant then took the bag containing the money
and left. The wounded Laguerre walked down the stairs and left
2
Laguerre testified that he thought it was such a "good
deal" that he decided to give the defendant an extra $2,000, for
a total of $40,000, at the time of the exchange.
5
the apartment building. In front of the building, a police
officer asked him who had shot him. He answered, "Goodie."3
The only other people in the apartment at the time of the
shooting were Jones and her one year old grandson, who were
lying in bed in the bedroom, with the door closed, watching
television. Jones testified that, before any shots were fired,
the bedroom door opened and a man whom Jones had never seen
before stood in the doorway "for a second" and looked at her.
When he closed the door, Jones got up to see who the man was,
but then heard shooting. She "peeked out" of the door "for a
second"; heard the man say "get the money"; and saw him shooting
into the living room and hitting Lawton over the head with the
firearm. She closed the door and heard more shooting.
Jones's downstairs neighbors, Desmond and Melissa Sheets,
heard banging noises upstairs at approximately 9:30 P.M., and
Melissa asked her husband to go upstairs and tell them to keep
the noise down. When Desmond arrived at the top of the landing,
he saw a man wearing a Mets jacket with a semiautomatic firearm
3
A Boston police officer testified that Laguerre said that
"Goldie" had shot him. But Laguerre testified that he did not
know anyone named "Goldie," and that the mistake might be
attributable to Laguerre's thick accent. When the police later
showed him an array of photographs at the hospital, Laguerre
identified a photograph of the defendant as the shooter and
wrote on the back of the photograph: "That's him, Goodie. He
shot me and [Myles Lawton]." At the time of the shooting,
Laguerre had known the defendant for eighteen months from a
strip club where they were both regular customers.
6
in his right hand emerge from the second-floor apartment. The
man said, "Dude, I got a gun," and proceeded downstairs at a
fast pace. When Desmond was shown a photographic array, he said
that a photograph of the defendant "could pass for" the man he
saw, based on similarities in their facial features and facial
hair. Asked by the police to state his degree of certainty in
the identification, Desmond said he was seventy-five per cent
sure that the photograph of the defendant showed the man.
On December 6, the defendant accompanied Tiffany Lanides,
with whom he had a romantic relationship, to an automobile
rental agency, where she returned a white Mercury Mountaineer
SUV with Rhode Island license plates that she had rented.4
Lanides knew the defendant by the name "Goodie," and testified
that the defendant drove the vehicles that she rented.
The defendant was arrested in Washington, D.C., on December
21. A New York Mets jacket was retrieved from the vehicle he
was in when he was arrested. In the defendant's pocket were
business cards with the name "Goodie" in the upper left-hand
corner, above the letters "CEO."
The defendant also was implicated in a double shooting in
Chelsea that occurred on July 28, 2006. One of the victims,
4
Tiffany Lanides had just renewed the rental agreement for
the sport utility vehicle on December 5, 2006. She testified
that she returned the vehicle because "something was wrong with
it."
7
John Arnold, told police that "Goodie" had shot him, and was
later shown a photographic array where he identified the
defendant as the shooter.5 Spent shell casings collected from
Jones's Dorchester apartment were compared with spent shell
casings collected from the Chelsea shooting, and with the spent
shell casings collected from the test-firing of a firearm that
had been recovered near a highway on-ramp in Boston. Detectives
from the Boston police department firearms analysis unit
testified that in their opinion the Chelsea casings, the
Dorchester casings, and the test-fired casings were fired from
the same firearm, and that there was only a "small" probability
that they were fired from different weapons.
Discussion. 1. Jones's in-court identification of the
defendant. On January 5, 2007, Boston police Detective Juan
Tores showed Jones a photographic array consisting of eight
photographs. Detective Tores had not been involved in the
investigation of this homicide and did not know which photograph
depicted the defendant. The photographic array was sequential
rather than simultaneous, that is, Jones was shown only one
photograph at a time, and was allowed to take as much time as
she wanted to view the photographs. The defendant's photograph
5
During his testimony at the defendant's trial for the
shooting of Lawton and Laguerre, John Arnold claimed not to
remember the photographic array, and denied having told police
that Goodie had shot him. He also stated, "I'm not a snitch."
8
was the fourth shown to her. Detective Tores testified that
Jones said "no" after viewing each of the eight photographs.6
When she saw the eighth photograph, the last one shown to her,
she "held [it] a lot longer than any of the other photos," and
"stated that it was between" no. eight and no. four.7 She then
asked the detective if she could see the individuals depicted in
the photographs "from a side view," and the detective told her
he could not provide that.
During her direct examination at trial more than two years
later in May, 2009, Jones was not asked to make an in-court
identification of the defendant, but she testified about her
earlier viewing of the photographic array. She said that she
had pointed out photographs no. four and no. eight to the
police, and testified that photograph no. four looked more like
the person at her bedroom door. After defense counsel had
questioned her on cross-examination about the discrepancy
between her trial testimony and Detective Tores's police report
regarding whether she previously had ever stated that photograph
no. four looked more like the person than photograph no. eight
did, Jones said on redirect examination that the reason she was
6
During her cross-examination at trial, Teresa Jones
claimed she said, "I don't know," rather than
"no," when she saw photograph no. four.
7
In her testimony at trial, Jones said that, when she
viewed the photographic array, she stopped and pointed out to
the police photographs no. four and no. eight.
9
unable to make a positive identification from the photographic
array was that she only saw the man at her bedroom door "from
the side." The prosecutor asked, "Do you see the person in the
court room today who you saw in your apartment that night?"
Without objection, Jones answered, "Yes, I do," and pointed to
the defendant.
The defendant contends that he was denied the effective
assistance of counsel by his attorney's failure to object to the
in-court identification, which he claims was inadmissible as "a
one-man showup without advance notice to counsel." In
Commonwealth v. Crayton, ante (2014), which we issued today,
we considered whether a judge erred in admitting, over
objection, an in-court identification of the defendant by a
witness who had not participated in any pretrial identification
procedure. We explained in Crayton:
"Although we have adopted a 'rule of per se exclusion'
for unnecessarily suggestive out-of-court identifications,
we have not adopted such a rule for in-court
identifications, despite their comparable suggestiveness.
. . . Instead, we have excluded an in-court identification
only where it is tainted by an out-of-court confrontation
. . . that is so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable
misidentification. . . . In essence, we have excluded in-
court identifications only where their inherent
suggestiveness is magnified by the impermissible
suggestiveness of an out-of-court identification.
Therefore, here, where there had been no out-of-court
identification to taint the in-court identification, the
judge's admission of the in-court identification conformed
to our case law."
10
Id. at (quotations and citations omitted). Here, the witness
had participated in a pretrial identification procedure that is
not alleged to have been suggestive, and failed to make a
positive identification of the defendant, although she did
identify his photograph as one of two that looked like the
person she saw at her bedroom door. As in Crayton, the judge's
admission of the in-court identification conformed to our case
law, and we conclude that defense counsel was not ineffective
for failing to make an objection that would have been futile
under the prevailing case law. See Commonwealth v. Conceicao,
388 Mass. 255, 264 (1983) ("It is not ineffective assistance of
counsel when trial counsel declines to file a motion with a
minimal chance of success"). Cf. Minkina v. Frankl, 86 Mass.
App. Ct. 282, 289 (2014) ("[I]t is not malpractice to fail to
advocate for or anticipate a substantial change in law requiring
the overruling of a controlling precedent"). However, as in
Crayton, we revisit the wisdom of our case law regarding the
admission of in-court identifications in the circumstances
reflected in this case.
In Crayton, we concluded that an "in-court identification
is comparable in its suggestiveness to a showup identification,"
supra at , and may even be more suggestive because "where the
prosecutor asks the eyewitness if the person who committed the
11
crime is in the court room, the eyewitness knows that the
defendant has been charged and is being tried for that crime."
Id. at . We declared:
"Where an eyewitness has not participated before trial
in an identification procedure, we shall treat the in-court
identification as an in-court showup, and shall admit it in
evidence only where there is 'good reason' for its
admission. The new rule we declare today shall apply
prospectively to trials that commence after issuance of
this opinion, and shall apply only to in-court
identifications of the defendant by eyewitnesses who were
present during the commission of the crime." (Footnote
omitted.)
Id. at . We consider here whether to adopt that rule where
the eyewitness did participate before trial in a nonsuggestive
identification procedure and made something less than an
unequivocal positive identification of the defendant.8 For the
reasons described below, we conclude that the new rule also
applies in these circumstances.
The danger posed by admitting in evidence an in-court
identification where there has been no pretrial identification
procedure is somewhat different from the danger posed by the
admission in evidence of an in-court identification where there
has been an earlier identification procedure that produced
something less than an unequivocal positive identification.
With the former, the danger is that the jury must evaluate the
8
We do not address the admissibility of an in-court
identification where there has been a suggestive pretrial
identification procedure.
12
accuracy of the in-court identification without the benefit of a
nonsuggestive pretrial identification procedure. With the
latter, the danger is that the jury may disregard or minimize
the earlier failure to make a positive identification during a
nonsuggestive identification procedure, and give undue weight to
the unnecessarily suggestive in-court identification.9
The danger of unfairness arising from an in-court showup in
these circumstances is considerable. Where eyewitnesses before
trial were unable to make a positive identification of the
defendant or lacked confidence in their identification, they are
likely to regard the defendant’s prosecution as confirmation
that the defendant is the "right" person and, as a result, may
develop an artificially inflated level of confidence in their
in-court identification. See Supreme Judicial Court Study Group
on Eyewitness Evidence: Report and Recommendations to the
9
In addition, an in-court identification that follows an
out-of-court identification procedure where the witness failed
to make a positive identification of the defendant poses the
danger that occurs whenever an eyewitness participates in
multiple identification procedures: the danger of confusion of
source memory. An eyewitness may recall the defendant's face,
but not recall that the source of the eyewitness's memory was
the defendant's presence in a pretrial lineup or photographic
array rather than the defendant's presence at the scene of the
crime. See Supreme Judicial Court Study Group on Eyewitness
Evidence: Report and Recommendations to the Justices 78-79
(July 25, 2013) (SJC Study Group Report), citing State v.
Henderson, 208 N.J. 208, 255-256 (2011), and Deffenbacher,
Bornstein, & Penrod, Mugshot Exposure Effects: Retroactive
Interference, Mugshot Commitment, Source Confusion, and
Unconscious Transference, 30 Law & Hum. Behav. 287, 299 (2006).
13
Justices 69 (July 25, 2013) (SJC Study Group Report).10,11 Where
confirmatory feedback artificially inflates an eyewitness’s
level of confidence in his or her identification, there is also
a substantial risk that the eyewitness's memory of the crime at
trial will "improve." As studies have shown, an eyewitness, now
certain that the defendant was the perpetrator of the crime she
10
As explained in the SJC Study Group Report, "[w]itnesses
who receive confirming feedback[,] i.e., are told or otherwise
made aware that they made a correct identification -- report
higher levels of retrospective confidence than witnesses who
receive either no feedback or disconfirming feedback. . . .
[Moreover,] confirming feedback may inflate confidence to a
greater degree in mistaken identifications than in correct
identifications." Id. at 69, citing Wells & Bradfield, "Good,
You Identified the Suspect": Feedback to Eyewitnesses Distorts
Their Reports of the Witnessing Experience, 83 J. Applied
Psychology 360 (1998) (Wells & Bradfield), and Bradfield, Wells,
& Olson, The Damaging Effect of Confirming Feedback on the
Relation Between Eyewitness Certainty and Identification
Accuracy, 87 J. Applied Psychology 112, 115 (2002).
We also note that a recently released report from the
National Research Council of the National Academies recognizes
that "[i]n-court confidence statements may . . . be less
reliable than confidence judgments made at the time of an
initial out-of-court identification . . . . The confidence of
an eyewitness may increase by the time of the trial as a result
of learning more information about the case, participating in
trial preparation, and experiencing the pressures of being
placed on the stand." Identifying the Culprit: Assessing
Eyewitness Identification 75 (2014) (pending publication).
11
Because "a witness's confidence in the accuracy of his
identification grows once he learns that the police believe he
made the correct identification," we have previously announced
that we "expect" police to use protocols for photographic arrays
that include a "procedure requir[ing] the administrator to ask
the witness to state, in his or her own words, how certain he or
she is of any identification." Commonwealth v. Silva-Santiago,
453 Mass. 782, 791, 798 (2009).
14
observed, may recall that she saw the perpetrator more clearly,
and saw more details of his appearance, than the witness had
recalled during the nonsuggestive out-of-court identification
procedure where she was unable to make a positive
identification. See SJC Study Group Report, supra at 82-83.12
This enhancement of memory makes it more difficult for juries to
assess the accuracy of an in-court identification.13 As a
result, not only is an eyewitness likely to have an inflated
level of confidence in an in-court showup identification, but a
jury may give more weight to it than to the nonsuggestive
12
The SJC Study Group Report describes one frequently cited
experimental study "in which witnesses, after making an
incorrect identification from a target-absent lineup, were told
either, 'Good, you identified the suspect,' 'Actually, the
suspect was number ____,' or given no feedback at all. . . .
The study found that the witnesses who received confirming
feedback were not only more certain in the accuracy of their
identification, but also reported having had a better view of
the perpetrator, noticing more details of the perpetrator's
face, paying closer attention to the event they witnessed, and
making their identifications quicker and with greater ease than
participants who were given no feedback or disconfirming
feedback." SJC Study Group Report, supra at 82-83, citing Wells &
Bradfield, supra.
13
Thus, a recent experimental study found that where
witnesses were not given confirming feedback, fact finders could
significantly discriminate between accurate and mistaken
testimony, but where witnesses were given confirming feedback,
the fact finders' ability to discriminate between accurate and
mistaken testimony was "totally eliminated," because mistaken
eyewitnesses delivered testimony that was just as credible as
accurate eyewitness testimony. See Smalarz & Wells, Post-
Identification Feedback to Eyewitnesses Impairs Evaluators’
Abilities to Discriminate Between Accurate and Mistaken
Testimony, 38 Law & Hum. Behav. 194, 199-200 (2014).
15
pretrial identification that yielded something less than a
positive identification.14
We previously have concluded that a witness's in-court
identification is admissible where it "demonstrated greater
certitude than did his [pretrial] photographic identifications,"
and left it to defense counsel on cross-examination to elicit
evidence of the witness's "previous reservations" to diminish
the weight of the in-court identification. See Commonwealth v.
Paszko, 391 Mass. 164, 172 (1984), citing Commonwealth v.
Correia, 381 Mass. 65, 79 (1980). But cross-examination cannot
always be expected to reveal an inaccurate in-court
identification where "most jurors are unaware of the weak
correlation between confidence and accuracy and of witness
susceptibility to 'manipulation by suggestive procedures or
confirming feedback.'" SJC Study Group Report, supra at 20,
quoting State v. Lawson, 352 Or. 724, 778 (2012). Nor do we in
other circumstances rely on cross-examination to cure the
dangers arising from an unnecessarily suggestive identification
14
"Studies show that eyewitness confidence is the single
most influential factor in juror determinations regarding the
accuracy of an eyewitness identification." SJC Study Group
Report, supra at 20, quoting State v. Lawson, 352 Or. 724, 778
(2012). See Cutler, Penrod, & Dexter, Juror Sensitivity to
Eyewitness Identification Evidence, 14 Law & Hum. Behav. 185,
189-190 (1990) (out of ten criteria correlated with accuracy of
eyewitness identifications, only eyewitness confidence had
statistically significant influence on mock-jurors' guilty
verdicts).
16
procedure. If the police, after an eyewitness failed to make a
positive identification from a nonsuggestive lineup or
photographic array, had conducted a showup outside the court
room on the eve of trial, we would not admit the showup in
evidence and rely on defense counsel in cross-examination to
show that a positive identification arising from the showup
should be given no weight in light of the earlier failure to
make a positive identification. In light of the considerable
danger that a jury may give undue and unfair weight to an
unnecessarily suggestive showup identification, we shall not
admit such an identification in evidence simply because it
occurred in the court room rather than out of court. Therefore,
where a witness before trial has made something less than an
unequivocal positive identification of the defendant during a
nonsuggestive identification procedure, we shall apply the new
rule declared in Crayton, supra at 1, and admit the witness's
in-court showup identification of the defendant only where there
is "good reason" for it. Also, as in Crayton, this new rule
shall apply prospectively to trials that commence after issuance
of this opinion, and the rule shall apply only to in-court
identifications of the defendant by eyewitnesses who were
present during the commission of the crime.15
15
As in Crayton, we do not address whether this new rule
should apply to in-court identifications of the defendant by
17
In Crayton, where there had been no pretrial identification
procedure, we noted that there may be "good reason" to conduct
an in-court showup if a witness was familiar with the defendant
before the commission of the crime, and therefore the risk of
misidentification arising from the in-court showup is minimal.
Id. at . But this "good reason" will not often exist where
a witness has earlier failed to make a positive identification.
In these circumstances, for an in-court showup to be admissible,
it would need to be justified by some other "good reason" for
permitting a suggestive identification procedure, which usually
would require a showing that the in-court identification is more
reliable than the witness's earlier failure to make a positive
identification and that it poses little risk of
misidentification despite its suggestiveness.16
Because the defendant did not object to the admission of
the in-court identification and because the new rule we declare
eyewitnesses who were not present during the commission of the
crime but who may have observed the defendant before or after
the commission of the crime, such as where an eyewitness
identifies the defendant as the person he or she saw inside a
store near the crime scene a short time before or after the
commission of the crime.
16
For instance, there may be "good reason" for an in-court
showup identification where the victim was familiar with the
defendant (as in a domestic violence case) and only failed to
identify the defendant in the earlier identification procedure
because of fear or an unwillingness to cooperate with the police
at the time.
18
here is prospective in its application, we need not determine
whether there was "good reason" for the unnecessarily suggestive
in-court showup here. It suffices that we conclude that no
substantial risk of a miscarriage of justice arose from its
admission in view of the partial identification that Jones made
during the nonsuggestive pretrial identification procedure,
considered together with the compelling evidence of the
defendant's guilt.17
In the future, where an eyewitness to a crime has not made
an unequivocal positive identification of the defendant before
trial but the prosecutor nonetheless intends to ask the
eyewitness to make an in-court identification of the defendant,
we impose the same burden on the prosecutor as we did in Crayton
to move in limine to admit the in-court identification,
17
If the defendant had objected to the admission of the in-
court showup identification, a judge could have evaluated the
likelihood that Jones's earlier failure to make a positive
identification resulted from the absence of a lineup or
photographic array that provided a side view of the faces in the
array, and the practicability of the police conducting such a
side-profile lineup or photographic array. An in-court showup
identification should not be admitted unless "good reason" is
shown for not conducting a nonsuggestive identification
procedure correcting the reason for the witness's earlier
inability to make a positive identification. In the
circumstances of this case, that would require "good reason" for
not conducting an out-of-court lineup or photographic array that
permitted the witness to view the defendant in profile alongside
other profile views of individuals matching the witness's
description of the shooter.
19
preferably before trial.18 See id. at . Once the motion is
made, the defendant would continue to bear the burden of showing
that the in-court showup would be unnecessarily suggestive and
that there is not "good reason" for it. Id. at . Unless
there is "good reason" for the suggestive in-court
identification of the defendant -- and in the circumstances
described earlier in this paragraph there rarely will be -- the
identification evidence at trial from that eyewitness will be
limited to the less suggestive (and therefore perhaps less
positive) out-of-court identifications.
2. Prosecutorial misconduct. In his motion for a new
trial, the defendant argued that he did not receive a fair trial
because, among other things, the prosecutor engaged in
misconduct by failing to disclose an alleged deal with Laguerre
in exchange for Laguerre's testimony. At the time of trial,
18
The Commonwealth argues that Jones's in-court
identification should be admissible as rebuttal evidence because
the prosecution had elicited the in-court identification only on
redirect examination, after doubts had been raised during cross-
examination about Jones’s pretrial identification. But where
the strength of an eyewitness’s pretrial identification is
successfully called into question during cross-examination,
appropriate rebuttal evidence would demonstrate the strength of
the witness’s pretrial identification of the defendant, rather
than the confidence with which the witness might identify the
defendant at trial in a highly suggestive showup identification.
Therefore, where a witness before trial did not make an
unequivocal positive identification, an in-court identification
will not be admissible on either direct or redirect examination
unless a motion in limine by the prosecution has been granted.
20
drug distribution charges were pending against Laguerre in the
Boston Municipal Court (BMC case).19 On the day the defendant's
case was submitted to the jury, the Commonwealth reduced the
distribution charge to possession of cocaine, and Laguerre
admitted to sufficient facts for a finding of guilty on that
lesser offense and was sentenced to a continuance without a
finding for nine months.20 According to the defendant, the
prosecutor previously had caused the BMC case to be continued
until after Laguerre testified at the defendant's trial so that
the prosecutor could influence the outcome of Laguerre's case
depending on Laguerre’s testimony. Furthermore, the defendant
argues, the prosecutor kept this information secret from the
defense and the jury. After an evidentiary hearing on the
issue, the judge, in a thorough written decision, rejected the
defendant's argument.
The Commonwealth is required to disclose exculpatory
evidence to the defendant, including, as is relevant here,
evidence that would tend to impeach the credibility of a key
prosecution witness. See Commonwealth v. Hill, 432 Mass. 704,
19
The criminal complaint against Laguerre issued on July 9,
2007, after the December 5, 2006, incident that led to the
charges against the defendant, and after Laguerre testified
before the grand jury. Laguerre was charged with distribution
of cocaine, in violation of G. L. c. 94C, § 32A (c), and with
committing a drug violation in a school zone, in violation of
G. L. c. 94C, § 32J.
20
The school zone charge was dismissed.
21
715 (2000). Such evidence clearly includes "[u]nderstandings,
agreements, promises, or any similar arrangements between the
government and a significant government witness." Id. at 715-
716, citing Commonwealth v. Gilday, 382 Mass. 166, 175 (1980).
Had there been any such deal with Laguerre in this case, the
Commonwealth would have been required to disclose it. The
judge, however, found that there was no such deal, and we
conclude that his finding was not clearly erroneous. See, e.g.,
Commonwealth v. Torres, 437 Mass. 460, 469 (2002) (judge's
findings of fact will not be disturbed on appeal unless clearly
erroneous).
On the first day of trial, before the jury were empaneled,
the prosecutor, Assistant District Attorney David Fredette, told
the judge and defense counsel that Laguerre's BMC case was
proceeding without any promises, rewards, or inducements.
Fredette also noted, however, that Laguerre's attorney in that
case, Scott Curtis, had been in touch with him about a deal and
that the district attorney's office was considering whether to
enter a nolle prosequi in the case but no decision had yet been
made.
After an evidentiary hearing on the motion for a new trial,
the judge found that the district attorney's office ultimately
decided not to enter a nolle prosequi in Laguerre's case or to
give Laguerre any considerations in exchange for his testimony
22
in the defendant's case. Fredette, whose testimony the judge
credited, testified that the primary reason for deciding not to
enter a nolle prosequi in Laguerre's case was that Curtis had
told Fredette that Laguerre was going to cooperate regardless of
whether the Commonwealth offered him a deal in the BMC case, and
Fredette did not want to provide defense counsel with the
argument that Laguerre was not credible because he was
testifying in exchange for a deal from the Commonwealth in the
BMC case. Curtis also testified at the defendant's trial that
no promises had been made regarding how Laguerre's case would be
resolved. Laguerre testified similarly, answering "No" when
Fredette asked him, "[A]re you getting anything in exchange for
your testimony here today?"
In addition to Fredette’s testimony, the judge also
credited the testimony of Assistant District Attorney Laura
Montgomery, who was handling the BMC case at its conclusion.
Montgomery testified that Fredette told her to handle Laguerre’s
case as she normally would and to document what she did. She
also testified that on the date that Laguerre’s BMC case was
resolved, she did not know that Laguerre had already testified
at the defendant’s trial.
We conclude that the evidence adequately supported the
judge's finding that "Laguerre was not given a deal on his BMC
drug case in exchange for his testimony at [the defendant's]
23
trial." The evidence also adequately supported the judge's
finding that Fredette disclosed to the judge, defense counsel,
and the defendant that he wanted to enter a nolle prosequi in
Laguerre's case but needed approval from his superiors, that
Laguerre would likely testify at the defendant's trial before
his own trial was scheduled, and that it was possible that
Laguerre would receive an entry of nolle prosequi in exchange
for his testimony. In addition, the evidence adequately
supported the judge's finding that the potential for Laguerre to
receive a favorable disposition in his BMC case in exchange for
his testimony at the defendant’s trial was fully presented to
the jury. In short, the judge’s findings were fully supported
by the record, and there was no abuse of discretion in his
denial of the defendant’s motion for a new trial on the basis of
prosecutorial misconduct.
3. Admissibility of cellular telephone records. Evidence
was offered at trial that, at the relevant time, the defendant
regularly used a cellular telephone registered to Lanides.
During its investigation of the defendant, the Commonwealth
sought and received a court order pursuant to the Federal Stored
Communications Act, 18 U.S.C. § 2703(d) (2012), directing Sprint
Nextel to disclose certain information associated with this
cellular telephone number. Those records, with accompanying
24
testimony from a Sprint Nextel records custodian were admitted
in evidence at trial.
The records included call detail records for the period
from December 1, 2006, to December 15, 2006, which provided
information about the telephone numbers from which the cellular
telephone received incoming calls and the telephone numbers to
which outgoing calls were made from the cellular telephone. The
records also included information about "repoll" numbers that
identify the mobile switching center through which a call is
routed. The records custodian testified that a repoll number
reveals the general area where the cellular telephone is at the
time of a call, but does not provide a pinpoint location; that a
repolling site can cover an area of up to 100 miles; and that a
repoll number from the Washington, D.C., area would indicate
that the cellular telephone for that call was "more likely" in
Virginia, Maryland, or Washington, D.C., and "definitely not the
Boston area." Taken together, the evidence indicated that the
cellular telephone that the defendant was regularly using was in
the Washington, D.C., area after December 7, 2006, which the
Commonwealth suggested reflected that he fled Massachusetts for
Washington, D.C., shortly after the killing, showing his
consciousness of guilt.
The defendant argues that the judge erred in admitting the
records in evidence, and that his trial counsel was ineffective
25
for failing to object to their admission. He contends that the
location information revealed from the repoll numbers could be
obtained lawfully under art. 14 of the Massachusetts Declaration
of Rights and the Fourth Amendment to the United States
Constitution only with a search warrant based on probable cause.
We disagree.
The defendant equates the repoll numbers at issue here with
cell site location information (CSLI). In Commonwealth v.
Augustine, 467 Mass. 230 (2014), we concluded that government-
compelled production of CSLI records that allowed the
Commonwealth to track the defendant's movements for a two-week
period "constituted a search in the constitutional sense to
which the warrant requirement of art. 14 applied." Id. at 254-
255. The repoll information provided in this case, however, is
not comparable with CSLI, which, as we noted in Augustine,
tracks the location of a cellular telephone user with such
precision that it "implicates the same nature of privacy
concerns as a [global positioning system] tracking device" and
"may yield a treasure trove of very detailed and extensive
information about the individual's 'comings and goings' in both
public and private places." Id. at 248, 251. In sharp
contrast, the repoll numbers merely reveal switching center
information that identifies a general area -- perhaps as large
as 100 miles -- where a cellular telephone was in use. That
26
information does not trigger anything close to the privacy
concerns raised by the detailed CSLI information that we
considered in Augustine. See id. at 250-251.
Where telephone records reveal repoll numbers rather than
CSLI, a search warrant is not required for their production. To
obtain such records, it is sufficient that the Commonwealth
obtain a court order pursuant to 18 U.S.C. § 2703(d), which
requires "specific and articulable facts showing that there are
reasonable grounds to believe that the contents of . . . the
records . . . sought, are relevant and material to an ongoing
criminal investigation." Because the telephone records in this
case were obtained through such a court order, the Commonwealth
did not violate the defendant’s rights, under either art. 14 or
the Fourth Amendment, and the judge did not err in admitting the
call detail records in evidence. Where the records were not
admitted in error, there is no basis for the defendant’s claim
that his counsel was ineffective in failing to object to their
admission. See, e.g., Commonwealth v. Lykus, 406 Mass. 135, 140
(1989).
4. Court room closure. There is, similarly, no basis for
the defendant's claim that his counsel was ineffective for
failing to object to a purported closure of the court room.
During the course of jury empanelment, it came to counsels' and
the judge's attention that some of the defendant's family
27
members and friends who were also potential witnesses were in
the court room. There was, additionally, some indication that a
family member or friend had spoken with a prospective juror, and
that, in the court room, the potential witnesses had been
speaking with each other in front of the jurors.21 Upon learning
that potential witnesses were in the court room, the prosecutor
asked that they be sequestered. Defense counsel did not object,
and the judge so ordered. The defendant argues that barring
potential witnesses from the court room during jury empanelment
violated his Sixth Amendment right to a public trial and,
further, that his counsel was ineffective for failing to
understand that applying the sequestration order during jury
selection was a violation of the defendant's rights.
Because a defendant has a right to a public trial, a judge
may not permit even a partial closure of the court room at any
time during the trial, including during jury selection
proceedings, without first making specific findings that closure
is necessary. See Commonwealth v. Cohen (No. 1), 456 Mass. 94,
106-107 (2010), and cases cited. It is plain that, after the
jury are sworn, a sequestration order that excludes from the
court room all persons whom the parties have identified as
potential witnesses at trial does not constitute a partial
21
It is unclear whether the individual or individuals who
had spoken with the prospective juror were the same family or
friends who were potential witnesses.
28
closure and therefore requires no specific findings that the
sequestration is necessary. See Commonwealth v. Buckman, 461
Mass. 24, 29 n.2 (2011), cert. denied, 132 S. Ct. 2781 (2012)
("The exclusion from the court room, pursuant to a sequestration
order, of persons identified by the parties as witnesses is
generally not considered to be a partial closure of the court
room"). The issue presented here is whether excluding potential
witnesses from the court room before the jury are sworn,
specifically during jury selection, constitutes a partial
closure that can be accomplished only with specific findings
that closure is necessary.
A usual reason for the sequestration of potential witnesses
is to prevent them from hearing the testimony of other
witnesses, or from learning the content of such testimony during
opening statements. See Reporters' Notes to Rule 21, Mass. Ann.
Laws Court Rules, Rules of Criminal Procedure, at 1649
(LexisNexis 2014-2015) ("The process of sequestration consists
merely in preventing one prospective witness from being taught
by hearing another's testimony"). See also Commonwealth v.
Bianco, 388 Mass. 358, 369, S.C., 390 Mass. 254 (1983). Where
this is the sole reason to sequester, a sequestration order
"ordinarily would not include the exclusion of such witnesses
from the jury empanelment portion of the trial proceedings."
Commonwealth v. Buckman, supra. But that does not mean that a
29
judge is prohibited from including jury empanelment within the
scope of a sequestration order.
The criminal rule of procedure governing the sequestration
of witnesses, Mass. R. Crim. P. 21, 378 Mass. 892 (1979),
imposes no such limitation, providing, "[u]pon his own motion or
the motion of either party, the judge may, prior to or during
the examination of a witness, order any witness or witnesses
other than the defendant to be excluded from the court room."
The reporters' notes to this rule recognize that "[t]he power of
a judge to control the progress and, within the limits of the
adversary system, the shape of a trial, is universally held to
include the broad discretionary power to sequester witnesses
before, during, and after their testimony." Reporters' Notes to
Rule 21, supra at 1649, and cases cited. We conclude that the
sequestration of potential witnesses at any time during the
trial, including jury empanelment, is not a partial closure of
the court room, because a defendant's right to a public trial
does not include a right to have potential witnesses in the
court room at any time during a trial. See Cohen (No. 1), 456
Mass. at 101 & n.10 (excluding potential witness from scope of
defendant's Sixth Amendment challenge to alleged partial closure
of court room during jury empanelment because potential witness
"would not have been allowed in the court room for empanelment
in any event because of a witness sequestration order in the
30
case"). See also Nicely v. State, 291 Ga. 788, 793-794 (2012),
and cases cited (collecting "case upon case in which courts have
held that the rule of sequestration ordinarily does not even
implicate the right to public trial, much less infringe upon
it"). Furthermore, the purpose of witness sequestration and the
right to a public trial serve entirely different ends. The
latter allows the public to see that a defendant "is fairly
dealt with and not unjustly condemned." Waller v. Georgia, 467
U.S. 39, 46 (1984), quoting Gannett Co. v. DePasquale, 443 U.S.
368, 380 (1979). The former "exercises a restraint on witnesses
'tailoring' their testimony to that of earlier witnesses; and it
aids in detecting testimony that is less than candid." Geders
v. United States, 425 U.S. 80, 87 (1976). If the right to a
public trial entitled the defendant to have potential witnesses
in the court room at any time, the broad discretion granted to
judges to sequester witnesses would be as limited as a judge's
power to order a partial closure of the court room, and would
require the same specific findings as are required to determine
that a partial closure is necessary. See Cohen (No. 1), 456
Mass. at 107 (judge must make "case-specific determination that
closure is necessary"). Cf. Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 581 (1980) (sequestration of witnesses
is alternative to court room closure). We decline to so
31
severely limit a judge's discretion to sequester potential
witnesses.
Nor do we discern any abuse here of the judge's
considerable discretion to sequester. The judge reasonably was
concerned that potential witnesses were speaking with and in
front of prospective jurors. He acted within his discretion to
exclude the potential witnesses from jury empanelment, and that
exclusion, as we have explained, did not amount to a partial
closure of the court room. Because there was no court room
closure, and the decision to sequester the potential witnesses
from jury empanelment was within the judge’s discretion, defense
counsel was not ineffective for agreeing that the potential
witnesses should be excluded from jury empanelment.
5. Firearm conviction. The defendant also argues that his
conviction of the unlicensed possession of a firearm, in
violation of G. L. c. 269, § 10 (a), violated his rights under
both the Second and Fourteenth Amendments to the United States
Constitution because the Commonwealth failed to prove that he
did not have a license to carry the firearm. We rejected this
same argument in Commonwealth v. Powell, 459 Mass. 572, 582
(2011), cert. denied, 132 S. Ct. 1739 (2012), and reject it here
for the same reasons.
32
6. Conclusion. For the reasons stated, the judgments of
conviction and the denial of the motion for a new trial are
affirmed.
So ordered.