DocketNumber: SJC-12319
Citation Numbers: 122 N.E.3d 520, 482 Mass. 311
Judges: Cypher, Gants, Gaziano, Kafker, Lenk
Filed Date: 5/16/2019
Status: Precedential
Modified Date: 7/24/2022
**312Andrew Stanley was shot and killed in his home in Hyannis while his hands and feet were bound by handcuffs, zip ties, and duct tape. The ensuing police investigation resulted in the arrests of four coventurers, including the defendant, Eddie Mack. A jury convicted the defendant of murder in the first degree on the theories of felony-murder and extreme atrocity or cruelty.
For the reasons set forth below, we affirm the defendant's convictions and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.
Background. The facts that the jury could have found in this case were set forth in detail in Commonwealth v. Webster,
At approximately 1:20 P.M. on July 11, 2012, police responded to reports of shots fired at a home in Hyannis. Upon arrival, police officers heard moaning and yelling coming from the home. After one officer saw an individual he recognized as Keiko Thomas looking out a window of the home, the officers heard gunfire. Three men were then seen fleeing from the home and jumping over an adjacent fence. An officer recognized one of the fleeing men as the defendant. Officers pursued the men on foot and apprehended Thomas and another individual, David Evans. The fourth coventurer, Steven Webster, was not apprehended until several months later.
With the aid of a canine unit, the police eventually tracked down and apprehended the defendant, who was hiding behind an air conditioning unit outside a nearby liquor store. Police recovered several items near the area where the defendant had been hiding, including a large amount of marijuana inside the air conditioning unit and a large amount of cash and several cell phones underneath a pallet next to the unit. Two of the cell phones were later determined to belong to the defendant and the victim, respectively. Following his apprehension, the defendant was taken back to the crime scene and was identified by a witness as one of the men whom the witness saw fleeing the victim's home following the shooting.
Inside the home, police found the victim lying unresponsive on the floor. His hands and feet were bound with handcuffs, duct tape, and zip ties. He had numerous abrasions, injuries from blunt force trauma, and marks on his body consistent with the use of a stun gun. The cause of death was a single gunshot wound to the torso. In the parking lot next to the home, police located a backpack containing the following: two firearms, one of which was a loaded .45 caliber Colt handgun; gloves; a roll of duct tape consistent with the duct tape used to bind the victim; a stun gun; an aerosol can; zip ties; and a black face mask, which had Webster's deoxyribonucleic acid (DNA) on it.
Through the course of their investigation, investigators recovered forensic evidence tying each of the coventurers to the *525crime scene.
Investigators also used cell phone records to establish that the coventurers were in frequent communication with each other via calls and text messages prior to and on the day of the killing. Specifically, these records showed that from July 1 to July 11, Webster called or sent text messages to numbers associated with Evans numerous times. On July 3, Webster sent a text message to Evans that stated, "Got some heat lined up," and "Bring dem rollie up, in the arm rest." On July 7, Webster sent another text message to Evans, stating, "I am to go snatch my lil heat by Norfolk and cum bak." On July 8, the defendant sent a text message to Evans saying, "Gotta come down so I can explain it better bro so we can get better understandin feel me." On July 9, Evans sent a text message to Webster asking, "So, what about mack?" Webster responded, "We out their what time was u tryna head out their?" Evans replied, "We gotta see dude at nine tho." The day before the killing, the defendant sent another text message to Evans asking, "Yal good?" Evans responded, "Yup. We out there tomorrow night cuz." On the day of the killing, the defendant sent a text message to Evans approximately one hour **315before the police responded to the victim's home, asking, "Yal ready?" Evans responded, "Waiting on u." Mack responded one minute later, saying, "We at table ... Com On." Following the shooting, at 2:21 P.M. , Webster -- the only coventurer who had yet to be apprehended by that point -- telephoned the defendant, using a calling feature to block the caller's identification.
The jury eventually returned guilty verdicts on all five charges, and the defendant was subsequently sentenced to life in prison without the possibility of parole. The defendant now appeals.
Discussion. The defendant argues that he is entitled to a new trial for the reasons identified supra. We address each argument in turn.
1. Right to a fair trial. The defendant argues first that the publicity surrounding his case deprived him of his constitutional right to a fair trial guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. His principal contention is that the trial judge improperly seated seven jurors on the first day of jury empanelment without having inquired of them whether they had been exposed to media coverage of the case and, if so, whether such exposure had led them to form a bias against the defendant.
*526The Sixth Amendment and art. 12 guarantee the right of a criminal defendant to a trial by an impartial jury. Commonwealth v. Toolan,
**316In assessing the existence of actual juror prejudice, we consider whether, "in the totality of the circumstances, pretrial publicity deprived [the defendant] of his right to a fair and impartial jury." Commonwealth v. Hoose,
Before individual voir dire of potential jurors regarding exposure to pretrial publicity is warranted, there must be some showing that the allegedly biased jurors may have been exposed to said publicity. See Skilling,
2. Admission of fingerprint evidence. At trial, the Commonwealth introduced, over the defendant's objection, a piece of duct tape recovered at the crime scene through the testimony of State police Trooper Michael Lombard. The duct *528tape itself, however, was initially discovered by Barnstable police Officer Mark Mellyn after he stepped on it as he entered the victim's home. Mellyn testified that after he noticed that he had stepped on the duct tape, he carefully removed it from his shoe with gloves and placed it a few feet from the victim's body. Mellyn then identified the duct tape that he had stepped on in a photograph at trial. The duct tape in the photograph was next to a yellow placard labeled no. fifteen (placard fifteen). The duct tape was thereafter collected by Lombard, who testified that he collected the duct tape that was on the floor next to placard fifteen. Subsequent forensic testing of this duct tape revealed that it contained the defendant's fingerprint.
On appeal, the defendant argues that this evidence was admitted without having been properly authenticated. The defendant argues that the duct tape could have only been properly authenticated through the testimony of Mellyn, not Lombard. We discern no error.
To properly authenticate evidence, the proponent of the evidence must make a showing "sufficient to support a finding that the item is what the proponent claims it is.' " Commonwealth v. Woollam,
3. Admission of coventurer's cell phone records. The defendant also challenges the admission of evidence connecting a specific cell phone number with one of the coventurers, Evans, arguing that the Commonwealth failed to properly authenticate the cell phone number as belonging to Evans. We considered and rejected this exact argument in *529Webster,
4. Ineffective assistance of counsel. The defendant next argues that his trial counsel was constitutionally ineffective for failing to move to suppress records obtained from searches of the defendant's cell phone and Evans's cell phone. He argues that defense counsel should have moved to suppress these records because the affidavits in support of the search warrants for these cell phones failed to establish probable cause. To prevail on a claim of ineffective assistance of counsel due to a failure to move to suppress evidence in cases of murder in the first degree, the defendant must demonstrate both that the motion would have been successful and that counsel's failure to make the motion created a substantial likelihood of a miscarriage of justice. Commonwealth v. Cruzado,
For a search of the contents of a cell phone to be reasonable under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the affidavit in support of the search warrant must establish probable cause to believe (i) that a "particularly described offense has been, is being, or is about to be committed"; and (ii) that the cell phone's contents "will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed, is committing, or is about to commit such offense" (citation omitted). Commonwealth v. Fulgiam,
a. Search of the defendant's cell phone. The affidavit in support of the search warrant for the defendant's cell phone satisfied both requirements. See Fulgiam,
As to the second requirement, the affidavit demonstrated probable cause to believe that the contents of the defendant's cell phone would produce evidence of the offense. The affidavit described that while being interrogated by police, one of the *530coventurers, Thomas, stated that the defendant had telephoned Thomas on the day of the killing and told Thomas that he was at the victim's home to make a drug deal. The affidavit further described that once police responded to a report of gunshots at the victim's home, the defendant, Thomas, and Evans were each seen **321fleeing from the crime scene. Finally, the affidavit stated that at the time the defendant was apprehended, he was hiding behind a local liquor store and had attempted to conceal four cell phones in his immediate vicinity. These facts, along with the reasonable inferences drawn therefrom, established that the defendant was at the home of the victim close in time to the killing; that the defendant used his cell phone to communicate with a coventurer in advance of the killing; that the shooting was likely connected to the drug deal that had taken place between the defendant and the victim that day; and that upon fleeing the crime scene once police arrived, the defendant felt it necessary to flee with and attempt to conceal several different cell phones, inferably because they contained content implicating his involvement in the crimes. Cf. Holley, 478 Mass. at 526,
b. Search of Evans's cell phone. The defendant does not argue that the affidavit failed to establish probable cause to search Evans's cell phone. Rather, he argues that because the affidavit in support of the search warrant for Evans's cell phone relied on information police obtained from searching the defendant's cell phone, the evidence from Evans's cell phone is properly considered the fruit of the illegal search of the defendant's cell phone. As we have concluded that the search of the defendant's cell **322phone was lawful, this argument fails.
5. Prosecutor's closing argument. Finally, the defendant argues that the prosecutor made statements in closing argument that were not supported by the evidence, and that these statements amounted to reversible error. Because the defendant did not object to these statements at trial, we review any error to *531determine whether it produced a substantial likelihood of a miscarriage of justice. Commonwealth v. Parker,
The defendant challenges two specific statements made during closing argument. First, the defendant argues that the prosecutor erroneously stated that Evans's "street name" was "Trigger" and then improperly suggested that the jury could reasonably infer that "TR" -- a contact name stored in the defendant's cell phone -- referred to "Trigger," i.e., Evans. Second, the defendant argues that the prosecutor erred when he defined the abbreviation "W.g." contained in a text message between the defendant and Evans to mean "We good." The defendant argues that these statements amounted to reversible error because they were not supported by the evidence and improperly allowed the jury to infer the existence of a "joint venture by authenticating evidence that could not otherwise be authenticated and by translating text messages supporting this conclusion."
It is well established that during closing argument, a prosecutor "may not misstate the evidence or refer to facts not in evidence" (quotation and citation omitted). Parker,
a. Link between "TR" and "Trigger." The jury received evidence from which they could infer that Evans's street name was **323"Trigger." See Webster,
b. Suggestion that "W.g." means "We good." Later on in his closing argument, the prosecutor began to describe several text messages between the *532defendant and Evans. In one message, Evans responded to a question posed by the defendant with "W.g." In his closing, the prosecutor stated outright that this abbreviation stood for "We good." The record does not appear to contain a basis from which the jury could reasonably infer that the abbreviation "W.g." in this text message meant "We good." The prosecutor's statement therefore amounted to speculation, rather than a suggestion of a reasonable inference. Accordingly, this statement was an error. The error did not, however, create a substantial likelihood of a miscarriage of justice because it was not likely to have influenced the jury's conclusion. Commonwealth v. Copeland,
6. Defendant's Moffett claims. The defendant, in what he characterizes as a brief filed pursuant to Moffett,
7. Review pursuant to G. L. c. 278, § 33E. Finally, after a thorough review of the record, we find no reason to exercise our authority under G. L. c. 278, § 33E, to grant a new trial or to either reduce or set aside the verdict of murder in the first degree.
Conclusion. For the foregoing reasons, we affirm the defendant's convictions.
So ordered.
The defendant was also convicted of home invasion, G. L. c. 265 § 18C ; armed assault in a dwelling, G. L. c. 265 § 18A ; and carrying a firearm without a license, G. L. c. 269 § 10 (a ). The judge dismissed an armed robbery conviction, which was the predicate offense for felony-murder, contingent on the murder conviction being upheld.
The defendant was tried with Steven Webster, who was convicted of, among other offenses, murder in the first degree on the theory of felony-murder. We considered Webster's appeal separately and affirmed his convictions. See Commonwealth v. Webster,
Specifically, the witness identified the defendant as "the kid that fell off of the fence" and "the first one that came out of the house ... and then jumped over."
The defendant's deoxyribonucleic acid was not found at the scene or on any of these items.
Additionally, as described supra, a police officer recognized both the defendant and Thomas as they fled the victim's home following the shooting. The defendant was also positively identified by a witness who saw the defendant flee the home.
Presumptive prejudice may be found where "the entire jury pool is tainted by exposure to pretrial publicity." Commonwealth v. Toolan,
The defendant also points to the fact that media members had twice sought leave of the court to cover pretrial proceedings. Although the record reveals this to be true, the most recent attempt was over twelve months before trial. The defendant does not explain how the presence of media members at a pretrial proceeding over one year before trial prejudiced the jurors seated on the first day of juror empanelment. See Commonwealth v. Entwistle,
The lack of any meaningful pretrial publicity is also reflected by defense counsel's failure to request individual voir dire on this issue on the first day of jury empanelment. Indeed, defense counsel had a full and fair opportunity to ask each of the seven jurors seated on the first day if they had been exposed to any media coverage -- but he did not. Instead, he stated that he was either "content" or "satisfied" with each of the seven seated jurors. Defense counsel even went on to note on the fourth day of jury empanelment that he had not "see[n] anything extraordinary" with regard to the media coverage of the defendant's case.
Moreover, each of the jurors seated on the first day of jury empanelment were individually asked if they could be "fair and impartial, listen to [the judge's] instructions, and decide this case on the evidence that's presented." Each responded affirmatively. Further, none of the seven jurors seated on the first day raised his or her hand when the entire venire was asked whether they had "formed or expressed any opinion with regard to this case," or whether they were "aware of any bias or prejudice of any kind with regard to this case."
To the extent that there were any concerns about the chain of custody of the duct tape, the trial judge allowed defense counsel to cross-examine each relevant witness as to the chain of custody of the duct tape and permitted defense counsel to argue its authenticity during closing argument. The alleged defects in the chain of custody thus went to the weight of the evidence, not its admissibility, as was appropriate. Commonwealth v. Viriyahiranpaiboon,
Specifically, we concluded that "the confirming circumstances that the Commonwealth presented were sufficient to meet its burden and that the judge properly admitted the evidence." Webster,
Because we conclude that the search of the defendant's cell phone was lawful, we do not address the Commonwealth's argument that the defendant lacks standing to contest the search of Evans's cell phone.
Additionally, because we conclude that the cell phone evidence was properly admitted, we do not address the defendant's argument that had this evidence been suppressed, he would have been entitled to a required finding of not guilty.
The defendant also argues that this statement was improper because the Commonwealth did not properly authenticate the telephone number associated with Evans as belonging to Evans. As discussed supra, we have already concluded that ample evidence authenticated Evans's telephone number. Webster,