Commonwealth v. Wittey

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-13239
COMMONWEALTH vs. JOHN B. WITTEY.
Plymouth. March 10, 2023. - June 5, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, & Wendlandt, JJ.
Homicide. Firearms. Constitutional Law, Search and seizure.
Search and Seizure, Curtilage, Motor vehicle, Probable
cause. Probable Cause. Self-Defense. Evidence, Self-
defense, Age. Duress. Practice, Criminal, Capital case.
Indictments found and returned in the Superior Court
Department on May 24, 2016.
A pretrial motion to suppress evidence was heard by Gregg
J. Pasquale, J., and the cases were tried before Cornelius J.
Moriarty, II, J.
Dana Alan Curhan for the defendant.
Carolyn A. Burbine, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, John B. Wittey, was convicted of
murder in the first degree on theories of both deliberate
premeditation and extreme atrocity or cruelty, after he shot and
stabbed the victim, John Williams, in the victim's home,
2
following his discovery of a romantic affair between the victim
and the defendant's deceased partner. On appeal, the defendant
argues that a State police trooper's examination of his vehicle,
visibly parked in the driveway leading up to his house,
constituted a warrantless search within the curtilage of his
home. He argues that his motion to suppress the evidence
recovered pursuant to a search warrant following these
observations wrongfully was denied. He further asserts that
this court should vacate or reduce his conviction of murder in
the first degree under G. L. c. 278, § 33E (§ 33E), based on the
self-defense theory he presented at trial, and based on his age,
the circumstances surrounding the killing, and his mental state
at the time, which he suggests shows that he was acting under
some degree of duress.
We hold that the defendant's vehicle was not parked within
the curtilage of his home and that, therefore, the trooper's
observations of the vehicle did not constitute a search for
constitutional purposes. Discerning no error in the verdict of
murder in the first degree after plenary review of the entire
record, we decline to exercise our authority under § 33E to
reduce the verdict or order a new trial.
1. Background. a. Facts. We discuss the facts that the
jury could have found, reserving some details for later
discussion.
3
The victim was the president of a ham radio club,1 a golfer,
a pilot, and a father. He had a license to carry a firearm and
occasionally would do so. Judy Harris, the defendant's partner
of over twenty years whom he considered to be his wife, was the
vice-president of the ham radio club. Harris and her grandson
Anthony, whom she and the defendant raised, lived at the
defendant's home.2 While Harris was in a relationship with the
defendant, she had a years-long affair with the victim. The
victim and the defendant knew each other; there was conflicting
testimony surrounding whether they were friends. Harris was
diagnosed with stage four ovarian cancer in 2012, from which she
passed away in January 2016.
On the evening of February 8, 2016, at around 9:30 P.M.,
Roberta Delorie, a friend of the victim, spoke with him by
telephone and planned to meet him for breakfast the next morning
at a restaurant.3 The victim was to pick her up at 10 A.M. the
next morning. That night, there was a snowstorm. When it
1 Ham radio also is known as amateur radio. Britannica,
https://www.britannica.com/technology/amateur-radio [https:
//perma.cc/WK4F-YB88].
2 The defendant also was a ham radio operator. Anthony, who
also was in the ham radio club, could not recall whether the
defendant was a member but recalled the defendant going to
meetings frequently.
3 On her 911 call to the police, she identified the victim
as her boyfriend.
4
snowed, the victim would go out each hour and measure the snow
for his pilots' association.
The next morning, on February 9, 2016, the victim did not
arrive at Delorie's home as promised, which was unusual for him.
When it neared 10:30 A.M. and the victim did not answer her
calls, Delorie decided to drive to the victim's house, located
on Glen Charlie Road in Wareham, using her son's car. When she
arrived, she parked in the victim's driveway and walked to his
front door. She entered the house with a key given to her by
the victim.
When she opened the door, she saw white matter hanging from
the ceiling and a thick purple substance on the floor. She
noticed the victim on the floor, wearing boxer shorts and a T-
shirt, with a bulge underneath his shirt. She also saw three
bullets or casings near each other by the victim's feet. She
called 911 and listened to the dispatcher, who instructed her to
leave the house without touching anything.
Sergeant Walter Correia of the Wareham police department
was the first officer on the scene. He noted blood on the walls
and floor, as well as casings on the floor. Initially, he
believed that the victim's death was the result of a suicide.
He did not see a firearm, but believed that it could be under
the victim's body. The victim's body was a short distance,
approximately six feet, from the doorway. Correia remained
5
outside in order to maintain the scene as it was, and more
officers and emergency medical service paramedics arrived at the
scene.
State police Lieutenant Leonard Coppenrath arrived at the
victim's home as well. There were two vehicles in the driveway,
one belonging to the victim and the other belonging to Delorie,
and there was freshly fallen snow on the ground. When he
arrived, Coppenrath traveled the perimeter of the property to
look for footprints. He only observed footprints traceable to
first responders on the scene. Until he arrived, the officers
present ensured that no one else entered the home.
State police Sergeant William Tarbokas, who is trained in
tire tread examination, responded to the victim's home to
perform analysis with personnel from crime scene services. He
found no fingerprints of value for identification purposes.
Tarbokas saw that there was a third tire track underneath the
middle of Delorie's car, which preserved the track from melting
due to sunlight. He took photographs of the third track to be
used for comparison.
In the kitchen area, behind the victim's body, officers
located a beer bottle for a specific brand, Beck's, which bottle
was on its side leaning against a scratch post for a cat.
Coppenrath noticed three closely grouped gunshot wounds to the
right side of the victim's head, just above his ear, and a
6
gunshot wound and stippling on the top of his head. In addition
to observing those gunshot wounds, Trooper David Collett noticed
two more entrance wounds to the victim's back after pulling back
his shirt, which had two holes in it. Coppenrath observed a
laceration on the victim's arm, and once the victim was turned
over, he noticed a laceration to the victim's stomach area with
"innards . . . protruding." At that point, officers were aware
that this was not a suicide, but a homicide.4
Police recovered two live rounds and three spent shell
casings surrounding the area of the victim's body. They also
recovered two bullet fragments, jacketed spent projectiles,
which had been fired and were lodged in the flooring. The
victim owned several firearms, which were located in his home,
in a closet. Coppenrath testified -- despite the cat food
4 The medical examiner testified that the victim died from
multiple gunshot wounds and sharp force injuries, any of which
potentially may have been fatal if left untreated. She observed
an entrance and exit gunshot wound and sharp force injury to his
left hand, which fractured a bone in his hand; a graze gunshot
wound on his left forearm; intestines protruding from a stab
wound on his torso; an entrance gunshot wound in the middle of
his chest; an entrance gunshot wound on his left hip; two
entrance gunshot wounds on his back, one of which lacerated his
right lung and exited through his chest; an entrance gunshot
wound on the left side of his face, which perforated several
organs; three entrance gunshot wounds to the right side of his
head; and a gunshot wound to the top of his head. Several
projectiles were recovered in different parts of the victim's
body, including his hand, hip, shoulder, spine, torso, and
brain. There was stippling on the victim's body suggesting that
a firearm was fired at close range.
7
scattered on the floor of the victim's home, the bottle opener
on the floor, and the watch that was detached at the hinge and
on the floor -- that he did not believe the victim died in a
struggle because there were a significant number of items in the
kitchen area that were undisturbed.
Trooper Jason Abramoski arrived at the scene and remained
outside. He canvassed the neighborhood, without success, in an
effort to determine whether anyone had heard or seen anything
unusual or maintained surveillance cameras that would have aided
in the investigation. As a result of a conversation between the
victim's children and Collett on scene, Abramoski was dispatched
to speak with the defendant. After reporting to the Wareham
police department, Abramoski went to interview the defendant at
his home on Plain Street East in Berkley. He took with him
Detective William Dasilva from the Wareham police department and
Sergeant David Bernard from the Berkley police department.
When they arrived at the defendant's residence, Abramoski
noticed two Toyota motor vehicles, a Yaris and a Sienna, in the
driveway. After Abramoski knocked, the defendant answered the
door. Abramoski asked the defendant whether the officers could
speak to him about the whereabouts of the victim and the
defendant's relationship with the victim; the defendant agreed
and invited the officers inside.
8
The inside of the defendant's home was cluttered, unkempt,
and dark. Before they spoke to the defendant, the officers
allowed him to go upstairs to let Anthony know that they were
there and to get shoes. The defendant began to tell the
officers that he had met the victim through Harris, who had
passed away about two weeks prior. When Harris was ill, the
victim frequently visited her during her treatments. The
defendant produced a printed e-mail message from a pocket of his
shirt, and he indicated that he had discovered that the victim
and Harris had been "a little bit more than just friends." When
asked to explain the message, the defendant stated that it made
him upset, and he handed the printout to Abramoski. The
message, dated September 9, 2014, was written from Harris to the
victim. It revealed a sexual and romantic relationship between
the victim and Harris, through which the victim got to know
Anthony and Harris got to know the family of the victim. The
message further revealed that the victim had ended the
relationship, which devastated Harris.
After the defendant produced the e-mail message, Abramoski
asked him if he would consent to recording the interview. The
defendant agreed, and they moved to another room so that the
defendant could sit down. During the recorded interview, the
defendant explained that he found the e-mail message one week
9
after Harris passed away.5 The defendant stated that he was
upset about the message and decided to go for a "joyride,"
leaving between 10 P.M. and 11 P.M. for Dover, New Jersey,
returning in the early morning of February 9, 2016.6 He told the
officers that he drove the Toyota Sienna on this trip.
After the interview, the defendant agreed to go with the
officers to the Berkley police department for a formal
interview. When he arrived at the police station and after
being read the Miranda rights for a second time, he indicated
that he would not like to make any statements.7 At the police
station, the defendant gave the officers the clothing that he
was wearing and consented to being photographed. There was a
Beck's bottle cap found in the pocket of the defendant's jeans.
5 At some point in the investigation, officers found a
printout of a second e-mail message from Harris's account, dated
September 20, 2014, further detailing her anguish over the
breakup with the victim and the victim's new girlfriend. In an
upper corner of the printout, there was a date stamp indicating
that it had been printed on the day before the victim was found
dead in his home.
6 Anthony, who still lived in the defendant's home, stated
that the defendant left in the evening of February 8, 2016, and
did not return until the next day.
7 This testimony was admitted at the hearing on the motion
to suppress, but not the trial.
10
The defendant was allowed to leave and was picked up by his
friend, Philip Dann.8
Ruth Ragnaldsen Battaglini, a forensic scientist with the
State police crime laboratory, conducted testing and analyzed
the scene of the murder. A significant number of presumptive
tests conducted at the scene were positive for the presence of
blood. On February 9, 2016, while the defendant was at the
Berkley police station, Battaglini observed his condition and
noted that there was a reddened area on his right knuckles and a
cut and scratch on his left hand. On a screening test, the
defendant's hands tested positive for the presence of blood.
The defendant's vest, which he was wearing at the police
station, tested positive for human blood on both the interior
and exterior. The defendant's sweater and jeans also tested
positive for human blood.9 The deoxyribonucleic acid (DNA)
8 Throughout his interactions with the defendant, Abramoski
did not observe the defendant to be injured or have trouble
walking. Collett testified that at the time of the defendant's
subsequent arrest on February 12, he did not observe any
injuries to the defendant. However, Collett was impeached with
his grand jury testimony where he stated that there was redness
on the defendant's right knuckle area, a cut on his left thumb,
and a scratch on his left wrist.
9 His shoes tested negative for the presence of blood.
11
obtained from a red-brown stain on the front of the defendant's
sweater matched the victim's DNA profile.10
Dann testified that when he picked up the defendant, the
defendant's demeanor was subdued, which was different from
earlier interactions he had had with the defendant. After
attempting to drop off the defendant at a residence in Pembroke
where no one was home, Dann brought the defendant to his office
to stay there for the evening. During the drive, Dann asked the
defendant "what was going on," and the defendant told Dann that
his friend had gone missing and that the police brought him in
to question him. When asked if he "had anything to do with it,"
the defendant replied that Dann "didn't want to know anything
about [it]." At the office, the defendant told Dann that Dann
did not want to be involved and that this was a "bad thing."
Search warrants were issued in connection with the case,
including those for the defendant's residence and the Toyota
Sienna, which officers searched on February 10, 2016. In the
Sienna, officers found a case of Beck's beer containing three
full beers, a Beck's beer bottle cap, a global position system
(GPS) device, two rounds of nine millimeter ammunition, and two
rounds of .44 Magnum ammunition, among other things. Tarbokas
10The expected frequency of occurrence of the profile was
approximately one in 3.418 quintillion related individuals (a
quintillion is a one with eighteen zeros following it).
12
participated in the execution of the search warrants, and he
observed the tires of both the Yaris and the Sienna. The Yaris
tires were much smaller in width and size than the impression
photographed at the victim's home. He took impressions from the
tires on the Sienna, which were all of the same type. Tarbokas
opined that the tread marks from the Sienna were of the same
class as those found at the victim's residence, concluding that
the tread could have been made by a tire on the Sienna or any
other tire with a similar design and size. When screened for
nonvisible or occult blood, the front driver's side exterior and
interior door handles, front driver's side seat back and bottom,
front driver's side seat belt, steering wheel, gear shift, car
key, and remote tested positive for blood.
Trooper Francis Driscoll, who participated in the execution
of the search warrant for the Sienna, examined the files on the
GPS located in the Sienna, attached to the windshield. The
files on the GPS showed that on the night of February 8, 2016,
into the early morning of February 9, the Sienna was driven
multiple times to and from the area surrounding the victim's
residence. The first activation of the GPS on February 8 was at
7:33 P.M. and placed the Sienna on Seymour Street in Berkley.
The Sienna was driven to the area of Glen Charlie Road in
Wareham at 9:08 P.M., and driven back and forth on Glen Charlie
Road until 9:29 P.M. At 9:57 P.M., the Sienna returned to Glen
13
Charlie Road and remained to traverse the street until 10:09
P.M. The Sienna arrived back at the defendant's Plain Street
East address in Berkley at 10:55 P.M. and began moving again at
11:23 P.M. At 12:01 A.M. on February 9, the Sierra arrived at
Glen Charlie Road in Wareham for a third time, and ultimately
came to a stop in an area four to six houses away from the
victim's home at around 12:03 A.M. After several minutes
remaining stationary, the next activation of the GPS was at an
address next to the victim's home at 12:10 A.M., after which the
Sierra then traveled south and was switched off in Fairhaven at
12:53 A.M.
In the defendant's residence, officers secured fifteen
empty Beck's beer bottles, as well as a piece of paper on top of
a pile of papers with the name of the victim and a telephone
number written on it. The empty Beck's beer bottles in the
defendant's garage, the full bottles in the Sienna, and the
bottle found in the victim's home all had the same lot number.11
Officers also found another piece of paper with the name "Trish"
Brandon McGrath, a quality manager of a brewery that
11
produces Beck's beer at some of its locations, explained the lot
number on the bottles and stated that, operating at maximum
capacity, 600 beers per minute in fifteen-minute increments
would share the same lot number.
14
and a telephone number,12 as well as the name "Williams" and "121
Charlie R or Rd."
On February 12, 2016, a warrant issued for the defendant's
arrest. Officers executed the warrant at the home of the
defendant's daughter. When the officers confronted the
defendant in the doorway of the home, he stated, "Oh, it looks
like my ride is here."
On March 18, 2016, Robert Costanzo and Andrew Campbell were
assisting their friends John and Chrissy Nelson in cleaning out
the defendant's cluttered home, specifically focusing on the
garage.13 In a silver box in the garage, after unscrewing
approximately twenty screws to the door of the box, John located
two firearms and seven boxes of ammunition.14 They called
police, who collected the firearms and ammunition. The firearms
later were confirmed to have been purchased by the defendant.
One of the firearms was a revolver. When it was recovered,
it was loaded with six live rounds of .22 Magnum caliber
ammunition. The other was a nine millimeter Taurus
12 Trish was a local nurse who cared for Judy in hospice.
13 Chrissy is the defendant's daughter.
14When officers executed the search warrant on February 10,
2016, the silver box was inaccessible because several items
blocked the area.
15
semiautomatic pistol.15 The magazine, which was removed,
contained one round of live ammunition; there was also one round
of live ammunition in the chamber of the pistol. The boxes of
ammunition that were recovered were .22 Magnum and nine
millimeter ammunition. The revolver tested positive for the
presence of blood on the interior of the barrel and the side of
the firearm. The DNA profile found on the side of the revolver
matched the victim's DNA profile.16 Lieutenant John Conroy, the
head of the ballistics unit for the State police in Lakeville,
test fired both firearms, which fired properly. It was Conroy's
opinion, to a reasonable degree of ballistic certainty, that the
discharged shell casings found at the scene were fired from the
nine millimeter Taurus semiautomatic pistol found at the
defendant's residence. He also analyzed a projectile recovered
from the floor of the victim's residence, and his comparison to
the test firing that he conducted was inconclusive. He examined
seven other projectiles recovered during the investigation,
which were consistent in diameter with .22 caliber ammunition.
15In a revolver, unlike in a semiautomatic weapon, the
discharged cartridge casings remain in the cylinder until they
are manually removed; they are not ejected from the weapon on
firing. If there is a malfunction or jam in a semiautomatic
weapon, then moving the slide to the rear to "rack the weapon"
will eject a live round from the weapon without firing it.
16The expected frequency of occurrence of the profile was
approximately one in 1.071 nonillion unrelated individuals (a
one with thirty zeros after it).
16
Although he found several similarities with the test firing from
the revolver recovered at the defendant's residence, he did not
feel that there was "a sufficient agreement of individual
markings" to opine to a reasonable degree of ballistic certainty
whether they were fired from that weapon.
After the Commonwealth rested its case, the defendant
testified. The defendant met Harris in 1992; after six months
of dating, she moved into his home and lived with him until her
death in January 2016. While Harris was sick, the defendant
took her to her doctor appointments and the hospital, and took
care of her at home. The defendant testified that starting in
2011, Harris became very hostile toward him until her death.
During that period, the victim would come over four or five days
per week.
The defendant testified that on February 8, 2016, he found
the printout of the e-mail message written from Harris to the
victim in September 2014 in a laundry bag that he was cleaning
out.17 When he first started reading, he thought the message was
written to him, but he then realized that it was not when it
referenced the recipient sleeping with two women. After the
defendant found the message, he began to try to find any other
evidence of the affair to confirm it. He then found a second e-
17The defendant admitted on cross-examination that he lied
about finding the letter a week before the murder.
17
mail message on Harris's account that confirmed the
relationship. The defendant was "astounded" and "so upset and
angry [that he] wanted to confront [the victim] and ask him
what's been going on the last five years." He felt "doubly bad"
because the victim treated Harris poorly.
The defendant knew that the victim had purchased a house on
Glen Charlie Road in Wareham, so he inputted the address into
his GPS device and drove there, despite the severe snowstorm.
When he got there, he did not recognize anything, so he turned
around and drove home. When he returned home, he found a piece
of paper with the victim's address, which misidentified the
street number by one. According to the defendant, his intent
was not to shoot the victim, but to determine "why he was so
mean to [Harris], why he had destroyed her." When he drove back
to Glen Charlie Road, he could not see the street numbers on the
houses or the mailboxes because they were covered in snow. As
he was driving farther up the road, he saw a sports car in the
victim's driveway, which resembled the car that the defendant
knew belonged to the victim.
The defendant then "pulled in behind it and grabbed a
bottle of Beck's beer and pounded on the door." He testified
that he brought two guns with him because the victim always was
armed. The victim, in his underwear, invited the defendant
inside after the defendant told him that the defendant needed to
18
speak privately with him, and the victim handed the defendant a
bottle opener to open his beer. When the defendant told the
victim that he knew about the affair and how the victim treated
Harris, the victim "laughed in [the defendant's] face" and
"badmouth[ed]" Harris.18 This "incensed" the defendant and made
him "very angry." The defendant then responded with something
that "wouldn't have been very nice," and according to him, the
victim went into the kitchen and then charged at the defendant
with a knife.
The defendant grasped each wrist of the victim, trying to
hold the knife away from him, and they rotated around the
kitchen in a "strange dance." The defendant testified that the
victim fell on top of him, and it seemed that the victim still
had the knife and was trying to stab the defendant. At the time
of his arrest, the defendant was five feet, seven inches tall,
and weighed approximately 170 pounds. At the time of his
autopsy, the victim was five feet, seven inches tall, and
weighed 191 pounds.19
18The defendant testified on cross-examination that the
victim "laughed in [his] face and then . . . made very
disparaging remarks about my dear wife. Remarks that were
absolutely disgusting."
19The victim's son testified that the victim was six feet,
two inches tall and weighed about 220 pounds. The defendant
emphasized that the victim was taller than him.
19
In response to the victim's attempt to stab him, the
defendant took out his .22 caliber revolver and pulled the
trigger six times, until there were no bullets remaining. The
defendant then pulled out the nine millimeter Taurus
semiautomatic pistol and shot the victim twice as he was still
trying to stab the defendant, got up, picked up his revolver and
the knife, and left the home. He drove to Dover, New Jersey,
where he used to live.
On cross-examination, the defendant claimed that the victim
fell down on the knife, explaining his protruding intestines.
The defendant stated that the knife "must have gone into [the
victim's] stomach and come back out because he still had it in
his hand" and continued to try to harm the defendant. The
defendant disposed of the knife in the trash at a gasoline
station in Connecticut. The defendant claimed that he was
underneath the victim when he fired all of the shots.
b. Procedural history. The defendant was indicted on
May 24, 2016, and arraigned on June 28 on charges of murder in
the first degree, G. L. c. 265, § 1; two counts of unlawful
possession of a firearm without a firearm identification (FID)
card, G. L. c. 269, § 10 (h); one count of unlawful possession
of ammunition without an FID card, G. L. c. 269, § 10 (h); three
counts of a firearm violation with one prior violent crime,
G. L. c. 269, § 10G (a); and possession of a large capacity
20
firearm, G. L. c. 269, § 10 (m). The defendant filed a motion
to suppress evidence obtained from an alleged warrantless search
in the curtilage of his home on July 19, 2018.20 An evidentiary
hearing on the motion to suppress was held on November 20. On
January 7, 2019, the motion judge, who was not the trial judge,
denied the defendant's motion to suppress with written findings.
The trial began on September 30, 2019. In closing
arguments, the defense argued that the defendant acted in self-
defense in response to a struggle on the floor, and asked the
jury to return a verdict of manslaughter. The Commonwealth
argued that the defendant acted "in cold blood with vengeance"
when he "executed . . . [and] assassinated" the victim in his
home, shooting the victim ten times without missing.21 The
Commonwealth suggested that the defendant's story was
"incredible." On October 11, the jury convicted the defendant
of murder in the first degree on theories of both deliberate
premeditation and extreme atrocity and cruelty, and also
convicted him on the indictments charging unlawful possession of
firearms and ammunition without an FID card and possession of a
20He also moved to suppress his statements to police, with
which he does not take issue on appeal.
21The medical examiner testified that there was an eleventh
"graze" gunshot wound on the victim's forearm.
21
large capacity firearm.22 The defendant filed a timely notice of
appeal.
2. Discussion. a. Curtilage issue. On February 9, 2016,
State police Trooper Donald Short responded to the defendant's
residence to observe the Sienna in the driveway and to speak
with Anthony.23 The defendant's residence is set back from a
long driveway.24 A visitor approaching the front door of the
home would have to walk up the driveway to get there, traveling
along a walkway toward the front steps leading up to the main
entrance of the home. From the street, there was an
unobstructed view of the Sienna; there was no gate around the
driveway, no fence around the property, and no "no trespassing"
signs posted around the property.
At around 7:30 P.M., while the defendant was at the police
station, Short pulled into the driveway, observed the Sienna in
the driveway, and looked at the tread pattern on the tires. The
Yaris, also in the driveway, was parked farther down and closest
to the garage; the Sienna was parked to the front left of it.
22The Commonwealth dismissed the three indictments charging
a firearm violation with one prior violent crime.
23The relevant facts are taken from the testimony at the
hearing on the motion to suppress and photographs of the
driveway, vehicles, and home admitted at the hearing.
24From a photograph taken from behind the parked Sienna,
one can observe a relatively long driveway marked at the roadway
by an unmarked police cruiser.
22
Both were parked toward the end of the driveway closest to the
house. Earlier that day, when Abramoski went to the defendant's
home to speak with the defendant, he got within five to ten feet
of the vehicles as he was walking up the driveway and to the
front door.
On the tread pattern of the tires on the Sienna, Short
observed unique rain channels that appeared to be similar to the
tread markings in the driveway at the victim's home. Because it
was dark, the tires would have had to be illuminated in order
for Short to see them; he could not recall whether he used a
flashlight or whether the area was illuminated in another
manner. In addition to examining the tire treads, Short looked
inside the window of the Sienna and saw an open case of Beck's
beer, a sleeping bag, and a "sea bag."25 He did not open the
door or move the Sienna in any way.
Short's observations were included in the affidavits
supporting the search warrant applications for the defendant's
residence, the Sienna, specified information on the defendant's
cell phone, and the GPS found within the Sienna.
The motion judge found that in walking to the front door of
the home to speak with the defendant, Abramoski had to traverse
the walkway to the front door leading from the end of the
25A "sea bag" is a type of bag "that the military used to
store gear."
23
driveway. "In so doing, Abramoski had to walk by an automobile
parked on the defendant's property." The motion judge also
found that Short "needed to pass by an automobile in the
driveway" to reach the front door of the house, and that Short
"observed the tire treads as he walked by." He ruled that the
driveway was not part of the home's curtilage and that,
therefore, the defendant had no reasonable expectation of
privacy as to the portions of the Sienna that Short observed.
On appeal, the defendant argues that the Sienna was parked
within the home's curtilage. He asserts that the motion judge
erred in finding that the Sienna would have been visible from
the street, as the driveway was long and the home was private;
the motion judge erred in finding that one would need to walk
past the Sienna to access the front door; and Short's intent to
view the tire treads in the driveway favors the conclusion that
it was an unlawful, warrantless search. Finally, the defendant
argues that the Commonwealth cannot demonstrate that the Sienna
would have been searched in any event pursuant to the inevitable
discovery doctrine.
The Commonwealth argues that the driveway was not within
the curtilage of the home and therefore not entitled to
protections under the Fourth Amendment to the United States
Constitution and art. 14 of the Massachusetts Declaration of
Rights. The Commonwealth further argues that the search
24
warrants would have been issued even excising the information
obtained from Short's observations of the Sienna.
In our review of a ruling on a motion to suppress, "we
accept the judge's subsidiary findings of fact absent clear
error." Commonwealth v. Leslie, 477 Mass. 48, 53 (2017),
quoting Commonwealth v. Fernandez, 458 Mass. 137, 142 (2010).
We "conduct an independent review of [the judge's] ultimate
findings and conclusions of law" (citation omitted).
Commonwealth v. Torres, 102 Mass. App. Ct. 359, 361 (2023),
quoting Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166,
171 (2019). We do not consider the testimony at trial in
reviewing the motion judge's ruling on the motion to suppress.
Commonwealth v. Escalera, 462 Mass. 636, 648 (2012). "Where, as
here, the issue is whether a search occurred within the
curtilage of a home, 'we undertake our independent review
cognizant that there is no "finely tuned formula" that
demarcates the curtilage in a given case.'" Leslie, supra,quoting Fernandez, supra. There is no "bright line rule," and
we must approach "curtilage questions on a case-by-case basis."
Fernandez, supra at 143.
"[T]he Fourth Amendment's protection of curtilage has long
been black letter law." Collins v. Virginia, 138 S. Ct. 1663,
1670 (2018). The concept of curtilage "originated at common law
to extend to the area immediately surrounding a dwelling house
25
the same protection under the law of burglary as was afforded
the house itself." Commonwealth v. McCarthy, 428 Mass. 871, 873
(1999), quoting United States v. Dunn, 480 U.S. 294, 300 (1987).
Presently, the concept of curtilage is "used to define those
areas to which Fourth Amendment protections extend." McCarthy,
supra. If an area "is 'so intimately tied to the home itself'
that 'an individual reasonably may expect that the area in
question [will] be treated as the home itself,'" it will be
considered part of the curtilage. Id. at 874, quoting Dunn,
supra at 300, 301. In Dunn, the United States Supreme Court set
out four factors to consider in determining whether a
particularly described area qualifies as curtilage: (1) "the
proximity of the area claimed to be curtilage to the home," (2)
"whether the area is included within an enclosure surrounding
the home," (3) "the nature of the uses to which the area is
put," and (4) "the steps taken by the resident to protect the
area form observation by people passing by." Dunn, supra at
301.
Generally, "[a] driveway 'may be private according to
common law concepts of property, [but] it need not be for
purposes of the Fourth Amendment.'" Commonwealth v.
Butterfield, 44 Mass. App. Ct. 926, 928 (1998), quoting
Commonwealth v. Simmons, 392 Mass. 45, 49, cert. denied, 469
U.S. 861 (1984). Because a driveway is only a "semiprivate
26
area," the expectation of privacy a possessor of land may
reasonably have in his or her driveway "will generally depend
upon the nature of the activities [carried out there] and the
degree of visibility from the street." Butterfield, supra,
quoting Simmons, supra at 48. Applying the Dunn factors to a
driveway may yield different results based on the circumstances
present in each case.
In Massachusetts, we have considered the surrounding
circumstances in determining whether a driveway is a protected
area under the Fourth Amendment and art. 14. In Simmons, for
example, where an officer and a victim stood in a driveway and
looked for five minutes into a vehicle located between one and
two feet from the driveway, directly across a path leading to
the front door, we held that the defendant had no reasonable
expectation of privacy in the location where the vehicle was
observed. Simmons, 392 Mass. at 46-47, 49. In so holding, the
court relied on the facts that the vehicle was "clearly visible"
from the busy roadway and the adjacent parking area, the
driveway was not enclosed by any obstructions, there was an
absence of "no trespassing" signs, and the driveway was the
normal means of access to the home where visitors would traverse
on the way to the front door. Id. at 47, 49.
Similarly, in Butterfield, 44 Mass. App. Ct. at 928, the
Appeals Court found that the defendant, on a walkway leading to
27
his home, and his vehicle, parked in the driveway, were not
within the curtilage of the home. Both the defendant and the
vehicle were visible from the street; there was no evidence that
the driveway was enclosed by trees, a fence, shrubbery, or other
obstructions; and the walkway leading to the back door was one
that a visitor naturally would use to reach the door. Id. at
928-929. See Commonwealth v. Greineder, 458 Mass. 207, 254-255
(2010), S.C., 464 Mass. 580 (2013) (vehicle outside curtilage
where defendant's vehicle parked in driveway was visible from
street; no trees, fences, gates, or "no trespassing" signs; and
no measures taken to define area as curtilage); McCarthy, 428
Mass. at 875 (visitor parking space not within curtilage of
apartment where area in between apartment and space was open to
tenants, visitors, delivery persons, and maintenance workers as
common area). Cf. Commonwealth v. Thomas, 358 Mass. 771, 774-
775 (1971) (cellar not within curtilage of defendant's apartment
where he did not have exclusive control of any part of it, as
"[i]n a modern urban multifamily apartment house, the area
within the 'curtilage' is necessarily much more limited than in
the case of a rural dwelling subject to one owner's control").
But see Commonwealth v. Hall, 366 Mass. 790, 794-795 (1975)
(defendant had reasonable expectation of privacy in apartment
hallway where he did not share it with tenants or landlord as he
was owner of building, door was locked, and buzzer system was
28
designed to exclude members of public); Commonwealth v. Pierre,
71 Mass. App. Ct. 58, 61-63 (2008) (defendant had reasonable
expectation of privacy in storage locker in basement of
apartment building, and basement was within curtilage of
defendant's apartment, despite unrestricted access to basement
and lack of exclusive control).
Conversely, in Fernandez, 458 Mass. at 144-145, the court
held that the defendant's "narrow driveway, approximately the
width of one vehicle and the length of two," was within the
curtilage of his apartment. The driveway directly was adjacent
to the three-family home, in which the defendant lived on the
first floor. Id. at 144. No one seeking to enter the home
would have reason to walk on the driveway, and the police saw
only vehicles associated with the defendant parked in the
driveway, pointing to his exclusive use. Id. at 144, 146.
There was a fence separating the driveway from the neighboring
building. Id. at 145. Although the vehicle was visible from
the street, an observer of the inside of the car would have to
depart from the path designed to lead to the front door, rather
traveling along the side of the house down the driveway. Id. at
146. In these circumstances, the driveway was within the
curtilage of the defendant's home. Cf. Leslie, 477 Mass. at 55-
57 (side yard was within curtilage where it was attached to
porch, where it was enclosed by fence with house and porch,
29
where porch was used as extension of home, and where steps were
taken to protect area from view); Commonwealth v. Straw, 422
Mass. 756, 759 (1996) (fenced in back yard was within curtilage
of home); Pierre, 71 Mass. App. Ct. at 62-63 (locker in basement
was within curtilage where stairs in defendant's kitchen linked
apartment to basement and storage locker searched was subject to
defendant's exclusive control); Commonwealth v. Hurd, 51 Mass.
App. Ct. 12, 15-16 (2001) (defendant had reasonable expectation
of privacy in cage located in back yard and partially enclosed
by fence, where cage was not visible from public street or front
yard, porch, or shed doors; officer's vantage point from
driveway was not determinative where driveway was not normal
access to front door).
In Collins, 138 S. Ct. at 1670-1671, the Supreme Court held
that a particular section of the driveway where the defendant's
motorcycle was parked constituted curtilage. In so holding, the
Court described this portion of the driveway as sitting a few
yards past the front perimeter of the house, enclosed on two
sides by a brick wall the height of a vehicle and on the third
side by the house. Id. at 1670. A side door provided direct
access between this enclosed section and the house. Id. at
1670-1671. A visitor would have no reason to enter the
enclosure, as he or she would turn off toward a set of steps
leading to the front porch before entering the enclosure. Id.30
at 1671. The officer pulled off a tarp to expose the
motorcycle. Id. at 1668.
Case law from the Federal circuits discussing driveways and
a reasonable expectation of privacy reinforces the case-specific
inquiry that the curtilage question demands. A prominent factor
in the analysis is whether the driveway freely is exposed to
public view. United States v. Brown, 510 F.3d 57, 65 (1st Cir.
2007) ("If the relevant part of the driveway is freely exposed
to public view, it does not fall within the curtilage"). Where
so exposed, the balance tends to favor the determination that a
defendant is not entitled to a Fourth Amendment protections in
such an area. See United States v. Hatfield, 333 F.3d 1189,
1194 (10th Cir. 2003) ("The openness and accessibility of a
driveway to the public has been an important factor that courts
have used to conclude that an owner does not have a reasonable
expectation of privacy and that police observations made from
the driveway do not constitute a search"). "This holds true
even where the relevant part of the driveway is somewhat removed
from a public road or street, and its viewing by passersby is
only occasional." Brown, supra.
The majority of Federal circuit cases discussing a driveway
curtilage question have found that the area at issue was not
part of the curtilage of the home or that, even if it was
curtilage, it was not afforded the same protections. See United
31
States v. Stephen, 823 Fed. Appx. 751, 755 (11th Cir. 2020)
(driveway was not within curtilage of home where, although in
close proximity to home, driveway was not gated, covered,
enclosed, or partly enclosed; it did not serve as extension of
defendant's home; occupants made no effort to conceal driveway
from passersby; and it formed part of path visitors would take
to walk to front door); United States v. Coleman, 923 F.3d 450,
456-457 (6th Cir.), cert. denied, 140 S. Ct. 580 (2019)(driveway adjacent to home was not within curtilage where it was
not enclosed, no steps were taken to obstruct view of passersby
or vehicles on way to entrance of home, and other residents
shared driveway); United States v. Beene, 818 F.3d 157, 162 (5th
Cir.), cert. denied, 580 U.S. 850 (2016) (driveway not curtilage
despite proximity to residence because open to observation from
street, and although fences encircled part of driveway, none
blocked access or view from street, and no "no trespassing"
signs or other attempts to protect privacy); Brown, 510 F.3d at
65-66 (top of defendant's driveway adjacent to garage was not
curtilage where, although close to home and not visible from
public street, there were no barriers or signs discouraging
public entry, and defendant allowed patrons of his business on
property); Hatfield, 333 F.3d at 1194, quoting 1 W.R. LaFave,
Search and Seizure § 2.3(f), at 506-508 (3d ed. 1996) ("[W]hen
the police come on to private property to conduct an
32
investigation . . . and restrict their movements to places
visitors could be expected to go [e.g., walkways, driveways,
porches], observations made from such vantage points are not
covered by the Fourth Amendment"); United States v. French, 291
F.3d 945, 953 (7th Cir. 2002) ("In the past we have held that
public drives, sidewalks, or walkways [even those which lead to
a rear side door] are not within the curtilage of the home when
they are not enclosed by a gate or fence"); United States v.
Ventling, 678 F.2d 63, 64, 66 (8th Cir. 1982) (no reasonable
expectation of privacy where officer drove into driveway and
went to front door, noticed tire tracks in yard along driveway,
and stopped to photograph them, as "a driveway and portion of
the yard immediately adjacent to the front door of the residence
can hardly be considered out of public view"); United States v.
Humphries, 636 F.2d 1172, 1179 (9th Cir. 1980), cert. denied,
451 U.S. 988 (1981) (no violation of defendant's reasonable
expectation of privacy where officer went onto driveway to
examine license plate on vehicle, where vehicle was visible from
street and driveway was not enclosed by fence, shrubbery, or
barrier).
Nonetheless, in certain circumstances, some cases have come
to the opposite conclusion. See United States v. Alexander, 888
F.3d 628, 630-634 (2d Cir. 2018) (end of long driveway in front
of shed was curtilage where it extended past back of house,
33
enclosed by fencing on three sides, and was used for hosting
barbeques, despite visibility to public); United States v.
Wells, 648 F.3d 671, 677 (8th Cir. 2011) (portion of unpaved
driveway extending past rear of defendant's home was within
curtilage of home where officers' observations were made just
behind home, visitors would need to pass paved walkway leading
to front door and door to carport to get there, driveway was
enclosed on three sides by fence, and it contained items
suggesting use for intimate activity associated with home);
United States v. Diehl, 276 F.3d 32, 39-41 (1st Cir.), cert.
denied, 537 U.S. 834 (2002) (portion of property was within
curtilage where significant portion of driveway was far from
public view, there was bend in long driveway, portion was
enclosed by forest, and inhabitants made efforts to discourage
mail delivery and visits).
With this framework in mind, we apply the Dunn factors to
this case.
i. Proximity. The photographs indicate that the portion
of the driveway where the Sienna was parked was close to the
home. Abramoski testified that both the Sienna and the Yaris
were parked toward the end of the driveway, which was the
portion closer to the home. Although this Dunn factor leans in
favor of the defendant, the remainder of the factors suggest
that the Sienna was outside the curtilage of his home.
34
ii. Enclosure. The defendant's house is set back from a
long driveway. There was no testimony describing the precise
length of the driveway, but the photographs admitted at the
hearing allow a viewer to see an individual standing at the
front of the driveway clearly from behind the Sienna, parked
toward the end of the driveway. The house and the driveway are
flanked with trees on the left, right, and rear, as the
defendant lived in a wooded area. Despite the relative privacy
surrounding the defendant's home, the Sienna was visible to
passersby in the street, contrary to the defendant's assertion
otherwise, and to visitors to the home who had to traverse the
driveway to arrive at the front door. There was no gate or
fence around the driveway. Despite the two-bay garage attached
to the home, the Sienna was exposed on the driveway within from
five to ten feet of the walkway. See Simmons, 392 Mass. at 47,
49; Stephen, 823 Fed. Appx. at 755. Contrast Collins, 138 S.
Ct. at 1670-1671 (motorcycle sitting on portion of driveway few
yards past front perimeter of house, covered in tarp, and
enclosed on two sides by wall and third side by house).
The fact that the driveway to the home was located in a
rural area does not command a finding that the driveway where
the Sienna was parked was within the curtilage of the home. See
Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 162 n.5
(1991) ("[A]n individual who lives on a relatively small public
35
road has no greater expectation of privacy than one who lives on
a large public road. Absent some effort to conceal the driveway
from public view, the relative seclusion of the neighborhood
does not heighten an individual's expectation of privacy in a
driveway").
iii. Use. There was no testimony that the defendant used
the driveway for anything other than parking cars. As far as
one can tell from the photographs, there are no items suggesting
that the driveway "harbor[ed] those intimate activities
associated with domestic life and the privacies of the home."
McCarthy, 428 Mass. at 874, quoting Dunn, 480 U.S. at 301 n.4.
See Commonwealth v. Pietrass, 392 Mass. 892, 902 (1984) (in
determining whether porch part of curtilage, factor to consider
is "whether the porch was furnished like a room in the interior
of the house").
iv. Steps taken to protect from observation. Finally, the
defendant took no steps to conceal the Sienna in the driveway,
or any portion of the driveway, from observation. As discussed
supra, there was an unobstructed view of the Sienna from the
street, there was no gate or fence around the driveway, and
there was an absence of "no trespassing" signs posted around the
property. The fact that Short may have used a flashlight or
another method to illuminate the tread marks on the tires of the
Sienna does not transform his actions into a search for
36
constitutional purposes. Commonwealth v. Blevines, 54 Mass.
App. Ct. 89, 92 n.5 (2002), S.C., 438 Mass. 604 (2003) ("The
trooper's action in shining a flashlight into the vehicle did
not constitute a search").
The defendant argues that the motion judge clearly erred in
finding that the officers needed to pass by the Sienna in order
to reach the front door of the house. It is difficult to
conclude that this finding was clear error, because it depends
on an interpretation of what the motion judge meant by "pass
by." "A judge's finding is clearly erroneous only where there
is no evidence to support it or where the reviewing court is
left with the definite and firm conviction that a mistake has
been committed" (quotation and citation omitted). Commonwealth
v. Colon, 449 Mass. 207, 215, cert. denied, 552 U.S. 1079(2007). Abramoski testified at the hearing on the motion to
suppress that he got within from five to ten feet of the Sienna
as he was walking to the front door of the home. Although the
photographs are not conclusive on the matter because of the snow
and the angles at which they were taken, in the clearest
photograph one can observe wooden steps leading to the walkway
on the far right of the Sienna, which appears to be closely
aligned with the front perimeter of the house. Based on that
photograph, it seems that an average visitor walking to the
front door would get close to the Sienna on his or her journey,
37
even supposing that the visitor would not be near enough to see
inside. It is irrelevant that Short went to the defendant's
residence, in part, for the purpose of observing the Sienna in
the driveway. "The subjective intentions of police are
irrelevant so long as their actions were objectively
reasonable." Commonwealth v. Cruz, 459 Mass. 459, 462 n.7
(2011). This does not alter our conclusion that the driveway
was not within the curtilage of the home.
Even if we were to determine that the driveway where the
Sienna was parked was within the curtilage of the home, excising
that information from the search warrant affidavits, probable
cause would remain to search the defendant's residence and the
Sienna.
"[R]egardless of the illegality of the initial entry and
search, the evidence is admissible as long as the affidavit
in support of the application for a search warrant contains
information sufficient to establish probable cause to
search the defendant's [residence and Sienna], apart from
the observation of the [tire tread marks, the Beck's beer,
and the sleeping bag]."
Commonwealth v. DeJesus, 439 Mass. 616, 625 (2003).26 "It is a
simple matter to exclude from the supporting affidavit all
26As indicated by the court's explanation in DeJesus, 439
Mass. at 625, this is the more appropriate inquiry, rather than
the application of the inevitable discovery doctrine. If we
were to apply the inevitable discovery doctrine to this matter,
the Commonwealth would meet both parts of the test. Because of
the other information contained in the affidavit, discussed
infra, the search of the defendant's residence and vehicle was
"certain as a practical matter." Commonwealth v. McAfee, 63
38
information gained" by Short in relation to the Sienna on
February 9 by excluding the following paragraph from the
affidavits:
"On Tuesday, February 9, 2016[,] Trooper Donald Short
arrived at [the defendant's address] in Berkley. Trooper
Short observed a grey Toyota Sienna parked in the driveway.
The driveway led you to the stairs, which led you to the
front door of the residence. The grey Toyota Sienna . . .
has four tires with four rain channels and square treads on
the outside of each tire. This tire pattern is similar to
the tire pattern found in the driveway at [the victim's
address] in Wareham by Sgt. William Tarbokas . . . (Crime
Scene Services Section). Trooper Short observed from the
driveway through the clear exterior windows of the Sienna
an open case of Becks beer in the rear of the Sienna.
There also was a sleeping bag and a green sea bag in the
back of the Sienna. The left rear passenger seat was
pulled all the way forward against the driver's seat."
Id. The information remaining in the affidavits, which appear
to contain largely identical facts, provided ample support for
probable cause for the searches.27
We summarize the information in the affidavits connecting
the defendant to the murder of the victim. When officers
responded to the victim's residence, they noted identifiable
tire tracks preserved in the snow from recent traffic. The
Mass. App. Ct. 467, 479 (2005), quoting Commonwealth v. Perrot,
407 Mass. 539, 547 (1990). Additionally, as Short's observation
of the Sienna in the driveway was not a "search" in the
constitutional sense, he did not act in bad faith by "conducting
an unlawful search in order to accelerate discovery of the
evidence." McAfee, supra at 480, quoting Commonwealth v.
O'Connor, 406 Mass. 112, 118 (1989).
The affidavit for the GPS had additional facts, as it was
27
discovered after the search of the Sienna.
39
victim's children, after being asked whether their father had
any conflicts, told officers about the victim's relationship
with Harris while she was living with the defendant. The
victim's daughter stated that the victim found it odd when the
defendant invited him to the defendant's house for drinks after
Harris's wake. The officers checked the defendant's criminal
record and saw that Harris had a restraining order against him
in 2003 and that he had been convicted of assault and battery on
an elderly disabled person in 2013, a case in which the victim
was a witness.
In the victim's home, there was one partially consumed
Beck's beer bottle on its side under the kitchen table; the
remainder of the beer in the victim's home was "Miller High
Life" brand. Nine millimeter ammunition and shell casings were
found near the victim's body.
When Abramoski arrived at the defendant's residence to
speak with him, he noted two vehicles cleared of snow, the Yaris
and the Sienna, both registered to the defendant. The defendant
stated that he knew the victim and met him through Harris. He
told the officers that he believed the victim and Harris to be a
"little more than just friends," and produced the e-mail message
that he discovered, readily available in his left shirt pocket,
which, as detailed supra, revealed a years-long affair between
the victim and the defendant's longtime girlfriend. The
40
defendant stated that he discovered this message one week
earlier.
The defendant told officers that he spoke to the victim on
the telephone on February 8, 2016, the day before the victim's
body was discovered. Despite allegedly finding the e-mail
message one week earlier, the defendant claimed that he never
brought this to the victim's attention on their telephone call.
The affair made him very upset.
On February 8, 2016, the defendant said that he left his
house approximately between 10 P.M. and 11 P.M., in the severe
weather, to go for a "joy ride" in his Sienna to Dover, New
Jersey, because he was upset about discovering the relationship
between the victim and Harris. He stated that he stopped twice
for gasoline and paid for everything in cash. When he arrived
at approximately 4 A.M., he took a nap in a store's parking lot,
the location of which he could not recall, and slept for several
hours. He then visited his old neighborhood in New Jersey, of
which he could not remember the exact location, and returned
home. He arrived home that day at 12 P.M. Anthony confirmed
that the defendant was not home from late on February 8 until
February 9 at around 11 A.M.
The defendant stated that he knew the victim's home was in
Wareham, but did not know where exactly. He initially told
officers he never owned a handgun, but then claimed he may have
41
owned a nine millimeter handgun that he sold to an unknown party
when his license expired. The defendant was not concerned about
the victim's whereabouts because "it was difficult to [still]
consider the victim a friend" after finding the e-mail message.
He told the officers that he drinks Beck's beer.
"Probable cause requires a '"substantial basis" to conclude
that "the items sought are related to the criminal activity
under investigation, and that they reasonably may be expected to
be located in the place to be searched at the time the search
warrant issues."'" Commonwealth v. Snow, 486 Mass. 582, 586
(2021), quoting Commonwealth v. Holley, 478 Mass. 508, 521
(2017). From the information summarized above, the magistrate
reasonably could have inferred that the defendant had recently
unearthed a motive to murder the victim, lied about owning a
nine millimeter gun at some point (where nine millimeter live
rounds and casings were found by the victim's body), drank the
same type of beer found in the victim's home near his body, and
acted in a suspicious manner on the night of the victim's
murder, with no record of his activities. This information,
without reference to Short's observations, provided ample
support for probable cause to search the defendant's home and
Sienna, where the GPS was subsequently discovered, for evidence
relating to the defendant's murder of the victim. See
Commonwealth v. Donahue, 430 Mass. 710, 712-715 (2000)
42
(affidavit provided substantial basis to search defendant's home
and car for evidence of murder of his wife).
b. Review under G. L. c. 278, § 33E. The defendant argues
that he is entitled to a new trial or a reduction of the verdict
of guilty of murder in the first degree under our powers
pursuant to § 33E. As reason therefore, he asserts that an
acquittal based on self-defense or a reduction to manslaughter
would be more consonant with justice. He also argues that his
age, mental state, and the circumstances surrounding the killing
support a reduction in the verdict. We disagree and see nothing
else in the record warranting the exercise of our extraordinary
authority under § 33E.
It is our duty, under § 33E, to "consider broadly the whole
case on the law and the facts to determine whether the verdict
is consonant with justice." Commonwealth v. Vargas, 475 Mass.
338, 363-364 (2016), quoting Commonwealth v. Howard, 469 Mass.
721, 747 (2014), S.C., 479 Mass. 52 (2018). "This court's
authority to reduce a conviction of murder in the first degree
in the interest of justice 'should be used sparingly and with
restraint.'" Commonwealth v. Billingslea, 484 Mass. 606, 619-
620 (2020), quoting Commonwealth v. Brown, 477 Mass. 805, 824
(2017), cert. denied, 139 S. Ct. 54 (2018). We reduce
convictions "only in the most compelling circumstances."
Billingslea, supra at 620. Factors we have considered in
43
mitigating a verdict of murder in the first degree include, but
are not limited to, whether the intent to kill was formed "in
the heat of sudden affray or combat" or during a "senseless
brawl"; whether the sequence of the killing reflects spontaneity
rather than premeditation; whether the defendant brought a
weapon to the scene; "whether the victim was the first
aggressor"; whether the defendant and victim knew each other or
were strangers, and the relationship between them; whether
alcohol or drugs were involved; and personal characteristics of
the defendant, such as age, family, disability, and lack of
prior record (citations omitted). Vargas, supra at 364-365.
This case does not present a set of circumstances in which
the defendant likely acted in self-defense to save himself from
the victim's attack. The defendant's testimony supporting such
a theory was incredible, and justifiably, the jury rejected it.
The evidence presented at trial strongly supported the
Commonwealth's theory that the defendant, driven by anguish over
the victim's affair with Harris, went to the victim's home in
the early hours of the morning in the middle of a snowstorm with
the intent to brutally kill him. By the time of the trial, the
defendant admitted that he lied to police and found the e-mail
messages the day before the victim was found dead. He drove to
the area of the victim's house three times on the night of the
murder, unassuaged when he could not locate the victim's home
44
the first two times. He arrived at the victim's house with two
firearms on his person. The victim's attitude toward Harris
made the defendant "very angry." He was at the victim's home
for only seven minutes.
The victim's injuries reflected the product of rage. The
victim had ten gunshot wounds that penetrated his hand, torso,
chest, hip, back, lungs, organs, and brain. In addition, he had
a graze gunshot wound on his left forearm and was stabbed in his
abdomen to the point that his intestines protruded. Even
recognizing that the victim owned a large number of guns, the
defendant's theory was that the victim came at him with a knife,
falling on the knife and then pulling it out of the victim's own
stomach and continuing to stab the defendant, all the while on
top of the defendant as the defendant fired off the above-
mentioned shots. There were only minor injuries located on the
defendant's hands at the police station. These facts do not
comport with those that we have found justified a reduction in a
verdict of murder in the first degree in the past. Compare
Commonwealth v. Salazar, 481 Mass. 105, 120 (2018) (where
evidence "far from compelling," no ill will between defendant
and victim, and no motive for killing, reduction warranted), and
Vargas, 475 Mass. at 365-366 (jury rejected theory of deliberate
premeditation, victim was initial aggressor, defendant
reasonably could have feared victim, defendant swung knife in
45
wild manner and told third party to call 911, and killing was
product of sudden combat and heat of passion), with Commonwealth
v. Rodriquez, 461 Mass. 100, 111-112 (2011) (although
"senseless," defendant initiated, continued, and escalated
brawl, which was fueled by animus, and defendant stabbed victim
viciously and repeatedly).
Similarly, there are no mitigating factors suggesting a
reduction in the defendant's conviction. Although it is
regrettable that Harris was unfaithful to the defendant with the
victim, this did not warrant the defendant's actions in
response. Cf. Commonwealth v. Ronchi, 491 Mass. 284, 295 (2023)
(sudden oral revelation of infidelity does not satisfy objective
element of something that would provoke reasonable person to
kill his spouse).
The defendant's older age does not warrant a reduction in
his conviction under these facts. See, e.g., Commonwealth v.
Denson, 489 Mass. 138, 154 (2022) (declining to grant relief due
to defendant's youth and immaturity where defendant was "twenty
years old at the time of the stabbing and there [was] nothing in
the record that indicate[d] that a reduction in the verdict on
this basis [was] warranted"); Commonwealth v. Tate, 486 Mass.
663, 677 (2021) ("The fact that the defendant was nineteen at
the time of the shooting is not alone enough for relief under
§ 33E"). We decline to reverse the verdict on this basis,
46
especially in light of the fact that the defendant has a prior
conviction for harming an elderly person -- this is not the
first time the defendant acted in a violent matter.
We reject the defendant's assertion that he was acting
"under some degree of duress" at the time of the murder. In
Commonwealth v. Vasquez, 462 Mass. 827, 835 (2012), the court
"reject[ed] duress as a defense to deliberately premeditated
murder, murder committed with extreme atrocity or cruelty, and
murder in the second degree," but left open the possibility that
"in exceptional and rare circumstances of duress," the court may
reduce a defendant's conviction of murder in the first degree on
§ 33E review. The defendant did not act under duress in this
case. Duress "is not available to a person who recklessly puts
himself in a position where coercion probably will be applied."
Id. at 833. It is
"a present, immediate, and pending threat of such a nature
as to induce a well-founded and reasonable fear of death or
serious bodily injury if the criminal act is not done, with
no reasonable and available chance of escape, and where no
person of reasonable firmness could have acted otherwise in
the circumstances."
Id. at 832-833. Here, the defendant, on his own accord, walked
into the victim's home armed with two guns in the middle of the
night, angry about the victim's relationship with Harris. He
was under no threat to do so.
47
Having carefully examined the entire record, including, but
not limited to, the photographs admitted at the trial, the
defendant's statements to police, the expert testimony, and the
issue with a juror in the middle of the trial, we have discerned
no basis to set aside or reduce the verdict of murder in the
first degree or to order a new trial. We decline to exercise
our authority to do so.
3. Conclusion. Although it does not have any impact on
the defendant's murder conviction, we vacate his convictions on
the two counts of unlawful possession of a firearm without an
FID card and one count of unlawful possession of ammunition
without an FID card, consistent with our holding in Commonwealth
v. Guardado, 491 Mass. 666, 693-694 (2023) ("our holding applies
prospectively and to those cases that were active or pending on
direct review as of the date of the issuance of [New York State
Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022)]").
"[T]he defendant's rights under the Second Amendment [to the
United States Constitution] and his rights to due process were
violated when he was convicted of unlawfully possessing
ammunition [and firearms] although the jury were not instructed
that licensure is an essential element of the crime." Guardado,
supra at 693. We need not vacate his conviction of possession
of a large capacity firearm. See id. ("we decline the
defendant's suggestion that we extend this holding to the crime
48
of unlawful possession of a large capacity feeding device"). We
affirm the defendant's convictions of possession of a large
capacity firearm and murder in the first degree.
So ordered.