Commonwealth v. Broom

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SJC-11729

COMMONWEALTH vs. ELDRICK BROOM.

Suffolk. February 12, 2016. - June 13, 2016.

Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.

Homicide. Cellular Telephone. Probable Cause. Constitutional
Law, Search and seizure, Probable cause, Retroactivity of
judicial holding, Harmless error. Search and Seizure,
Warrant, Probable cause. Error, Harmless. Jury and
Jurors. Practice, Criminal, Capital case, Retroactivity of
judicial holding, Warrant, Harmless error, Jury and jurors,
Question by jury.

Indictments found and returned in the Superior Court
Department on January 31, 2012.

A pretrial motion to suppress evidence was heard by Janet
L. Sanders, J., and the cases were tried before Jeffrey A.
Locke, J.

Elizabeth Caddick for the defendant.
Cailin M. Campbell, Assistant District Attorney, for the
Commonwealth.

BOTSFORD, J. Eldrick Broom, the defendant, stands

convicted of the murder in the first degree of Rosanna Camilo

DeNunez, on the theories of extreme atrocity or cruelty and
 2

felony-murder with aggravated rape as the predicate felony.1 We

consider here the defendant's appeal from his convictions, and

affirm.

Background. We summarize the facts that the jury could

have found. In 2010, the victim, who was from the Dominican

Republic and the mother of three children, moved to New Jersey

with her newborn baby, Thiago. Shortly thereafter, she

relocated to Boston to seek medical treatment for Thiago.

Although in July of 2011, the victim's sixteen year old

daughter, Navila, joined her mother to help her take care of

Thiago, the victim's husband of seventeen years and her other

son remained in the Dominican Republic. By the time Navila came

to Boston, the victim was living in an apartment on Fairlawn

Avenue in the Mattapan section of Boston. In the spring,

summer, and early fall of 2011, the defendant lived in an

apartment across the hall from the victim. The defendant was

living with his fiancée and their children.

The victim spoke very little English, and interacted in a

substantive way only with her family members and the medical

professionals who were providing services to Thiago. The victim

sometimes left her keys in her apartment door at the Fairlawn

Avenue apartment, and on three different occasions before the

1
The defendant was sentenced to life in prison without the
possibility of parole on the murder conviction. His conviction
of aggravated rape was placed on file.
 3

day she was killed, the defendant knocked on the door and

returned the keys to her. Navila had never seen her mother and

the defendant interact, except for the times he returned the

keys and when they exchanged polite greetings as he passed them

in the hall. At the end of October, 2011, the defendant and his

fiancée, who was pregnant, moved to an apartment on Bismarck

Street, which was part of the same apartment complex as the

Fairlawn Avenue building. Despite the move, the defendant

sometimes returned to the steps of the Fairlawn Avenue building

to smoke marijuana at his "normal spot."

During the afternoon of Sunday, November 20, 2011, Navila

and the victim used the online Skype program2 to talk with family

members in the Dominican Republic. Thereafter, Navila, the

victim, and Thiago went grocery shopping. When they returned to

their apartment around 8 P.M., the defendant was on the front

steps of the building. He helped them carry Thiago's carriage

and the grocery bags up the steps, but did not enter the

building. The family spent the evening alone together. At

around 9 P.M., the victim put Thiago to bed. When Navila went

to bed at around 10:30 P.M., she remained awake for the next

one-half hour. The victim was in the living room using her

2
Skype is "a proprietary [I]nternet-based computer software
system that provides two-way visual and voice communication."
E.C.O. v. Compton, 464 Mass. 558, 559 n.5 (2013), quoting Rivera
v. State, 381 S.W.3d 710, 711 n.2 (Tex. Ct. App. 2012).
 4

computer. The bedroom door was open, and Navila heard no

unusual sounds. The victim, Navila, and Thiago all slept in the

same bedroom. The next morning, November 21, 2011, the victim

was asleep in her bed when Navila left for school.

When Navila came home from school at around 2:40 P.M. that

day, she found her mother dead on the floor in a bedroom other

than the one in which the family slept. The victim was naked

from the waist down, her shirt was pulled up around her neck,

her bra was pulled down with her left breast exposed, a pair of

blue jeans and a blue shirt were lodged underneath her body, and

the blue jeans were turned inside out. Two socks and a

universal serial bus (USB) cord were tied around the victim's

neck; the cause of death was strangulation. The victim's

cellular telephone, keys, and underwear were missing.

Navila identified the defendant through a photograph as the

only neighbor she ever saw interact with her mother. The police

visited the defendant's apartment and spoke to him on

November 29. During the interview, which was recorded with his

permission, the defendant voluntarily provided the police with a

buccal swab. At that time, the defendant said nothing in that

interview about any sexual relationship with the victim.

During the initial investigation of the crime scene on

November 21, swabs were collected from the jeans and shirt that

had been under the victim’s body as well as the socks and USB
 5

cable from around her neck. Testing performed on swabs

collected from the victim's body during an autopsy and on the

samples taken from the other items revealed that the defendant's

deoxyribonucleic acid (DNA) was included as being a possible

contributor to DNA found on the anorectal swabs taken from the

victim,3 as well as DNA found on stains on her jeans,4 and her

shirt.5 Based on the Y-chromosome short tandem repeat (Y-STR)

testing of a sample taken from the socks that had been used as a

ligature, the defendant could not be excluded as a contributor

to the mixture.6

3
Approximately one in 17 quadrillion Caucasians, one in 1.1
quadrillion African-Americans, and one in 230 trillion
Southeastern Hispanics are included as being a possible
contributor of deoxyribonucleic acid (DNA) to the mixture
detected in the sperm fraction of the anorectal swab.
4
The statistical probability of the defendant's being
included as a possible contributor of DNA to the single source
sample found in the sperm fraction of the stain from the blue
jeans was approximately one in 3 sextillion Caucasians, one in
220 quintillion African-Americans, and one in 1.4 quintillion
Southeastern Hispanics.
5
Approximately one in 8.6 quadrillion Caucasians, one in
740 trillion African-Americans, and one in 110 trillion
Southeastern Hispanics are included as being a possible
contributor of DNA to the mixture in the sperm fraction of the
stain from the shirt.
6
The statistical analysis based on the database consisting
of 11,393 males and thirteen different population groups showed
that the partial mixture profile was seen 266 times in 1,932
African-American males, 1,162 times in 4,114 Caucasian males,
405 times in 1,601 Hispanic males, and 2,275 times out of the
total database of 11,393 males.
 6

Cellular site location information (CSLI) associated with

the defendant's cellular telephone number for the period from

November 1 to December 1, 2011, revealed that on November 21,

2011, the defendant's cellular telephone activated a cell tower

located on Clare Avenue in the Roslindale section of Boston at

11:45 A.M. and 3:33 P.M. No CSLI or telephone activity was

generated between 12:22 P.M. and 3:33 P.M. The police obtained

the defendant's cellular telephone call detail records of text

messages from October 5, 2011, to December 7, 2011, and voice

calls from October 1, 2011, to December 4, 2011. The victim's

telephone number never appeared in any of the defendant's

records.

The police also obtained records for the victim's cellular

telephone number from November 18 through 23. The defendant's

telephone number was not listed in the call logs associated with

the victim's number. The records for November 21 revealed that

the victim's voice mail was checked at 10:07 A.M. and 11:15

A.M., and an outgoing call was made at 11:15 A.M.7 An incoming

call at 12:48 P.M. went to voice mail. The records reflect no

cellular tower activity thereafter, meaning that the victim's

cellular telephone was disabled in some way rendering it

7
There was evidence presented at the trial that a licensed
social worker who worked with Thiago spoke with the victim at
11:15 A.M. to confirm Thiago's appointment with an occupational
therapist later that day.
 7

inoperable. The occupational therapist who worked with Thiago

called the victim's cellular telephone on November 21 at 1:18

P.M. and 1:39 P.M., but received no answer. The victim's

computer was last used at 11:17 A.M. that day.

The defendant testified at trial. He stated that he began

noticing the victim beginning in June, 2011, found her keys in

her door and returned them a few times. When he ran into her in

the laundry room, he would give compliments and flirt with her.

Sometime in October, the flirtation in the laundry room led to a

consensual sexual encounter in her apartment where he performed

oral sex on her. He had an additional oral sexual encounter

with the victim in her apartment before he moved to Bismarck

Street. According to the defendant, his last sexual encounter

with the victim occurred on November 20, the night before the

murder. He observed the victim outside the apartment building

with her children at around 8:30 to 8:40 P.M. and helped them

with the stroller. He asked the victim if he could speak to

her, but she did not say anything. Approximately ten to fifteen

minutes later, he went inside the building and knocked on the

victim's door. She opened the door, looked at him, and closed

the door. He went back out to the front stairs. After another

ten to fifteen minutes, she returned to where he was sitting and

led him to the couch in her apartment. He performed oral sex on

her, which led to sexual intercourse, and he ejaculated on her.
 8

He then got dressed and she let him out the front door. He did

not see or hear anyone in the apartment while he was there.

After he left the apartment, he took a bus to his work at the

Boston Medical Center. He clocked into work at 10:57 P.M. that

night.

When the defendant left work at 7:30 A.M. on the morning of

November 21, he stayed at the house of a friend on Clare Avenue

in Roslindale, because he did not have a key to his fiancée's

apartment. The friend was not at home. At 11:45 A.M., the

defendant's cellular telephone activated a cellular tower

located on Clare Avenue. While at his friend's house, he

telephoned his father and spoke with him for ten minutes. He

then left his friend's house and took a bus to his fiancée's

apartment to help her with groceries. He carried the groceries

and stayed in the apartment for ten to twenty minutes. He then

returned to his friend's house in Roslindale and stayed there

until 4 P.M., although the friend again was not there.

Discussion. 1. The Commonwealth's access to the

defendant's CSLI. The defendant challenges the Commonwealth's

obtaining the CSLI for his cellular telephone, arguing that

under Commonwealth v. Augustine, 467 Mass. 230, 232 (2014)

(Augustine I), the Commonwealth was required to seek such
 9

information by a search warrant based on probable cause;8 and

that in any event, probable cause did not exist for the thirty-

one days of CSLI that the Commonwealth sought and obtained.

a. Relevant facts. On December 8, 2011, the day the

defendant was arrested and charged with the murder of the

victim, an assistant district attorney applied to a Superior

Court judge for an order under 18 U.S.C. § 2703(d) of the Stored

Communications Act (§ 2703[d] order) to obtain from the

defendant's cellular service provider CSLI records associated

with the defendant's cellular telephone number for the period

from November 1 to December 1, 2011. An affidavit of a police

detective supported the application. The affidavit included

information that the defendant had lived in the same housing

complex as the victim and had lived across the hall from her

until three weeks before her death, and that the defendant had

recently provided the police with an oral swab for DNA testing

which had indicated that the defendant's DNA was found on the

body of the victim. The affidavit further stated that the CSLI

8
The defendant argues that what must be shown is that there
is probable cause that the CSLI records "were relevant and
material to an ongoing investigation." That is not correct.
The probable cause standard applicable to CSLI is "'probable
cause to believe that a particularly described offense has been
. . . committed' and that the CSLI sought will 'produce evidence
of such offense or will aid in the apprehension of a person who
the applicant has probable cause to believe has committed . . .
such offense.'" Commonwealth v. Augustine, 467 Mass. 230, 236
n.15 (2014) (Augustine I), quoting Commonwealth v. Connolly, 454
Mass. 808, 825 (2009).
 10

would provide evidence relevant to the homicide, including the

defendant's location at the time it had occurred. The judge

allowed the Commonwealth's request, a § 2703(d) order issued,

and the Commonwealth obtained the defendant's CSLI records for

the requested thirty-one day period. A copy of the CSLI records

for this entire period was admitted at trial as an exhibit but

the prosecutor focused on the CSLI records for November 20 and

November 21, 2011, in particular.

b. Analysis. In Augustine I, 467 Mass. at 231, 255, this

court concluded that the government-compelled production of CSLI

by a cellular telephone service provider is a search in the

constitutional sense to which the warrant requirement of art. 14

of the Massachusetts Declaration of Rights applies. The

defendant does not dispute that the Commonwealth's application

for the § 2703(d) order met the standards of that statute, but

challenges the absence of a search warrant and the existence of

probable cause for the CSLI covering thirty-one days. See

Commonwealth v. Estabrook, 472 Mass. 852, 858-859 (2015) (where

Commonwealth has complied with 18 U.S.C. § 2703, it may obtain

up to six hours of person's CSLI without search warrant).

We agree that if Augustine I were to apply here, the

defendant's challenge to the admission of CSLI evidence for

thirty-one days on the ground of lack of probable cause would

likely succeed. But in Augustine, we concluded that the rule
 11

requiring a search warrant based on probable cause to obtain

CSLI for any substantial period of time was a new rule, and

that, pursuant to the framework established in Teague v. Lane,

489 U.S. 288, 301 (1989), and Commonwealth v. Bray, 407 Mass.

296, 301 (1990), "this new rule applies only to cases in which a

defendant's conviction is not final, that is, to cases pending

on direct review in which the issue concerning the warrant

requirement was raised." Augustine I, 467 Mass. at 257. The

defendant contends that he fits within this limitation, because

his case was pending on direct review at the time of the court's

decision in Augustine I, and the warrant requirement issue is

raised in this appeal. This contention fails. The import of

the quoted language from our decision in Augustine I is that the

search warrant requirement -- the new rule -- applies only to

cases pending on direct appeal in which the warrant issue was

raised before or during trial. This is the generally applicable

principle of retroactivity that applies to new rules in criminal

cases. See, e.g., Commonwealth v. Figueroa, 413 Mass. 193, 202

(1992), S.C., 422 Mass. 72 (1996) ("Retroactive application of a

rule of criminal law is indicated if [1] a case is on direct

appeal or as to which time for direct appeal has not expired

when the new rule is announced, and [2] the issue was preserved

at trial" [citation omitted]).9 Here, although the case was on

9
In his reply brief, the defendant asserts that the
 12

direct appeal when Augustine I was decided, the defendant did

not challenge either before or during his trial the

Commonwealth's having obtained the defendant's CSLI pursuant

only to a § 2703(d) order. Accordingly, the question we must

answer is whether the unobjected-to admission of the CSLI

"clairvoyance exception" to the general rule of retroactivity
should apply in his case. See, e.g., Commonwealth v. D'Agostino,
421 Mass. 281, 284 (1995), quoting Commonwealth v. Bowler, 407
Mass. 304, 307 (1990) ("[A] defendant does not waive a
constitutional issue by failing to raise it before the theory on
which his argument is premised has been sufficiently developed
to put him on notice that that the issue is a live issue.
Counsel need not be 'clairvoyant'"). The defendant's claim
fails because by the time the defendant was arrested in 2011,
the issue of search and seizure concerning tracking technology
was widely known. See, e.g., Commonwealth v. Connolly, 454
Mass. 808, 811 (2009), in which this court concluded that under
art. 14 of the Massachusetts Declaration of Rights, a warrant
was required for police to place a global positioning system
(GPS) tracking device on a vehicle. See also id. at 819-822
(analyzing State and Federal cases on constitutionality of
tracking devices). CSLI presents the same legal search and
seizure issue as GPS data, i.e., where the location data
generated from both are due to tracking technology, such that it
could have been raised by the defendant here in a motion to
suppress. See Augustine I, 467 Mass. at 254 (GPS tracking data
and CSLI implicate same constitutionally protected interest in
reasonable expectation of privacy "by tracking a person's
movements"). For example, according to the record in the
Augustine case, counsel for Augustine raised the CSLI issue in a
motion to suppress filed November, 2012, approximately one year
before the defendant's trial in this case. See id. at 231-232.
Moreover, as discussed in Augustine I, supra at 253, the court's
decision included consideration of Federal cases, dating back to
2010 and 2011, that specifically discussed the constitutional
issue that CSLI presented. Thus, we see no reason to alter our
conclusion that the new rule requiring a warrant for CSLI be
limited to those cases where a defendant's conviction is not
final and where "the issue concerning the warrant . . . was
raised." Id. at 257.
 13

evidence that was obtained without a search warrant created a

substantial likelihood of a miscarriage of justice.

Although thirty-one days of CSLI records were admitted as

an exhibit at trial, the trial record makes clear that the only

CSLI evidence actually referenced related to November 20 and 21,

2011. As the defendant recognizes in his brief, in light of the

information known to the police concerning the presence of the

defendant's DNA on the victim and that he lived in the same

apartment complex, there was probable cause to believe that CSLI

for these two days, which would assist in determining the

defendant's location in the hours before, during, and following

the victim's death, was reasonably related to the criminal

investigation of the victim's death by homicide. See

Commonwealth v. Augustine, 472 Mass. 448, 454-455 (2015). See

also Commonwealth v. Kaupp, 453 Mass. 102, 110 (2009). In these

circumstances, it cannot be said that the defendant was unfairly

prejudiced by admission of the CSLI evidence. No substantial

likelihood of a miscarriage of justice occurred.

2. Search of defendant's cellular telephone. The

defendant challenges the search of the contents of his cellular

telephone that was made by police officers in October, 2012,

pursuant to a search warrant. He argues that the warrant was

in effect a general warrant that authorized a search of vast

amounts of information stored on the cellular telephone, and it
 14

was issued without satisfying either the requirement of

particularity or demonstrating probable cause for much or all of

it. He contends also that because the search conducted by the

police did not commence within seven days of the issuance of the

warrant, the search was invalid.

a. Relevant facts. At the time of the defendant's arrest

on December 8, 2011, the police seized his cellular telephone

and stored it at the police department. Ten months later, the

police applied for, and obtained, a search warrant to search its

contents. The affidavit of a police detective, filed in support

of the warrant application, included the following information:

after the victim's body was discovered in her apartment on

November 21, 2011, the victim's cellular telephone was not found

anywhere in the apartment, a fact that the victim's daughter

could not account for; until three weeks before the victim's

death, the defendant had been living in an apartment on the same

hall as the victim's and recently had moved to another apartment

in the same housing complex; the defendant had provided an oral

swab for DNA testing voluntarily, and on December 8, the results

of that testing indicated that the defendant was the source of

DNA taken from the victim; the defendant was arrested on

December 8 and gave a statement to the police in which he

claimed to have had a consensual sexual encounter with the

victim on the night before her death, and said that at the time
 15

of her death he was with a friend at the friend's home on Claire

Avenue; examination by the police of records for the defendant's

cellular telephone suggested that the defendant was six miles

away and not at the victim's apartment on the evening of

November 20; and on November 21, the day of the victim's death,

between 11:46 A.M. and 3:33 P.M., "there were no phone calls

made or answered by the defendant, therefore, no cell site

information could be obtained[, but] [d]uring this time frame

. . . [the defendant's] phone records reveal that the defendant

did use his phone to receive and send text messages, as well as

access the [I]nternet." The affidavit then stated that based on

the detective's training and experience, he had "personal

knowledge that cellular telephones contain multiple modes used

to store vast amount of electronic data." It next describes the

many types of data the detective sought "to search for and, if

found, extract from" the defendant's cellular telephone,10 and

10
The affidavit states: "The electronic data that I [the
affiant] seek to search for and, if found, extract from the
above described phone, includes the following: the subscriber's
telephone number, electronic serial number (ESN), international
mobile equipment identity (IMEI), mobile equipment identifier or
other similar identification number; contact list, address book,
calendar and date book entries, group list, speed dial list; and
phone configuration information and settings. I would also seek
to extract all saved, incoming, outgoing[,] draft, sent, and
deleted text messages; saved, opened and unopened voice mail
messages; saved, opened and unopened electronic mail messages;
mobile instant message chat logs, data, and contact information;
{I}nternet browser history; and saved and deleted files
including photograph and movie files."
 16

continues as follows: "Based on the information gathered

through this investigation, it is my opinion that there is

probable cause to believe that the cell phone and its associated

accounts and accessories will likely contain information

pertinent to this investigation. The evidence should be found

on, and within phone described above assigned to [the

defendant's phone number]. . . . Therefore I respectfully

request that the court issue a search warrant for the said cell

phone."

A Superior Court judge approved the issuance of a search

warrant on October 11, 2012. The warrant authorized a search of

the defendant's cellular telephone and in particular the items

that had been described in the affidavit (see note 10, supra),

but the police did not conduct the search until thirteen days

later. The return was filed on October 26, 2014.

b. Analysis. We agree with the defendant that the search

of his cellular telephone was not supported by probable cause,

and that the search warrant was overly broad. As a general

matter, "probable cause requires a substantial basis . . . for

concluding that the items sought are related to the criminal

activity under investigation, and that they reasonably may be

expected to be located in the place to be searched at the time

the search warrant issues." Commonwealth v. Dorelas, 473 Mass.

496, 501 (2016), quoting Commonwealth v. Kaupp, 453 Mass. at
 17

110. But as we observed in Dorelas, which involved a search of

a cellular telephone offering features and access to the

Internet similar to the defendant's, where search of this type

of cellular telephone is sought, there must be probable cause

that the device contains "particularized evidence" relating to

the crime. See Dorelas, supra at 502. The properties of such a

telephone render it "distinct from the closed containers

regularly seen in the physical world, [and] a search of its many

files must be done with special care and satisfy a more narrow

and demanding standard" than exists for establishing probable

cause to search physical containers or other physical items or

places. See Dorelas, supra at 502. In particular, it is not

enough that the object of the search may be found in the place

subject to search. See id. at 501-502. Rather, the affidavit

must demonstrate that there is a reasonable expectation that the

items sought will be located in the particular data file or

other specifically identified electronic location that is to be

searched. See id. at 503-504.

In this case, the detective's affidavit sets out facts,

based on the CSLI relating to the defendant's cellular telephone

that the police had obtained previously, that call into serious

question the veracity of the defendant's statement that he had a

consensual sexual encounter with the victim on the night before
 18

her death.11 But as the affidavit itself makes clear, the police

already had not only the defendant's CSLI but his phone records

(presumably call logs), and thus they would have known that the

victim's cellular telephone number did not appear anywhere in

those records. The affidavit points to no "particularized

evidence" suggesting that the contents of the defendant's

cellular telephone and specifically the files that police sought

to seize or search, including the contact list, address book,

voice mail, text, and electronic mail (e-mail) messages (see

note 10, supra), were likely to contain information linking the

defendant to the victim or relating to the victim's killing.

Here, the affidavit fails to provide a substantial,

particularized basis reasonably to expect that the files on the

cellular telephone that police sought to search would contain

information related to the homicide under investigation. All

11
The affidavit also states that on the date the victim was
killed, "between 11:46 A.M. and 3:33 P.M., there were no phone
calls made or answered by the defendant, [and] therefore, no
cell site information could be obtained. During this time
frame, however, his phone records reveal that the defendant did
use his phone to receive and send text messages, as well as
access the [I]nternet" (emphasis added). The trial record
indicates that this last statement was factually inaccurate:
the cellular service provider representative testified that the
telephone records contained no evidence of any text message,
Internet, or any other activity on the defendant's cellular
telephone during the cited time frame. Accordingly, we
disregard this statement in considering whether the affidavit
established the requisite probable cause.
 19

the affidavit states is that the affiant knows from training and

experience that "cellular telephones contain multiple modes used

to store vast amounts of electronic data[,]" and that in his

opinion, "there is probable cause to believe that the

[defendant's] cell phone and its associated accounts . . . will

likely contain information pertinent to this investigation."

This general, conclusory statement adds nothing to the probable

cause calculus.12 See Dorelas, 473 Mass. at 503-504.13

In sum, the affidavit did not provide probable cause to

search the contents of the defendant's cellular telephone. The

defendant's motion to suppress the fruits of the search of his

12
We note that the police did not seek a warrant to search
the contents of the defendant's cellular telephone for almost
ten months. They apparently obtained the defendant's cellular
telephone at the time of his arrest, although the reason for
their having done so is not clear; it may have been as part of
essentially an inventory search at the time the defendant was
brought to the police station and placed in custody. In any
event, the defendant does not raise any issue concerning the
delay in seeking a search warrant, and we have concluded that
the defendant's motion to suppress evidence of the contents of
the cellular telephone should have been granted for other
reasons.
13
The overbroad nature of the warrant also is problematic.
In Commonwealth v. Dorelas, 473 Mass. 496, 499 (2016), the
warrant authorized a search of the defendant's cellular
telephone that was virtually identical to the search authorized
here. We concluded in that case that the warrant was "awkwardly
written, conflating at least in part the items to be searched
for and the places to be searched[,]" and that "as written the
warrant and the warrant application are overly broad." See id.
at 499 n.3. See also id. at 506-507 (Lenk, J., dissenting).
The same holds true here.
 20

cellular telephone should have been allowed.14 Therefore, the

question is whether the erroneous denial of the defendant's

motion to suppress -- an error that violated the defendant's

rights under the Fourth Amendment to the United States

Constitution and art. 14 -- was harmless beyond a reasonable

doubt. See Commonwealth v. Thomas, 469 Mass. 531, 552a (2014).

Considering the totality of the trial record, we are

satisfied that the error was harmless beyond a reasonable doubt.

The cellular telephone search yielded a number of text messages,

three of which were used at trial, but none was admitted in

evidence. Two of the text messages -- an exchange between the

defendant and his fiancée at 12:41 P.M. on November 21, 2011 --

were used by the prosecutor solely to refresh the respective

memories of the fiancée and the defendant when each testified at

trial. As the Commonwealth argues, a witness's memory may be

refreshed with anything. See Commonwealth v. O'Brien, 419 Mass.

470, 478 (1995); Mass. G. Evid. § 612(a)(1) (2016). The fact

that the item itself may not be admissible in evidence is not

14
Given this conclusion, it is not necessary to resolve
whether, as the defendant claims, the search was invalid because
it was not commenced within seven days of the date of the
warrant. See Commonwealth v. Cromer, 365 Mass. 519, 525 (1974).
We note, however, that there is much force to the conclusion
reached by the Superior Court judge who ruled on the defendant's
motion to suppress, that with respect to searches of computer
files and the contents of a cellular telephone that is a "smart
phone" with computer capacity, the reasoning and holding of
Cromer may not apply.
 21

necessarily a bar to its use for this purpose. See Commonwealth

v. Woodbine, 461 Mass. 720, 731-732 (2012). The substance of

each of these text messages was not read to the jury, and the

defendant did not object at trial to the use of the messages for

refreshing memory. In the circumstances of this case, given the

limited nature of the use of these two text messages, we

conclude that there was no error.

The third text message obtained from the defendant's

cellular telephone and used at trial was a message sent by the

defendant to his fiancée on November 24, 2011, three days after

the homicide. The background of its use at trial is the

following. A theme of the Commonwealth's case against the

defendant at trial was that in November, 2011, the defendant was

sexually frustrated because his fiancée was close to nine months

pregnant and could not have sex with him, and therefore he was

searching for other available sexual partners. During her

cross-examination of the defendant, the prosecutor asked him if

he was angry or frustrated because his fiancée could not have

sex with him; the defendant answered, "No." Over objection, the

prosecutor was then permitted to read out loud his November 24,

2011, text message,15 and neither the defense counsel nor the

15
The text message read: "I wouldn't have to talk dirty to
people or ask for picks and chat about getting head if you took
care of me. I wouldn't have time. People look for what they
don't have or get."
 22

prosecutor asked for, and the judge did not give, a limiting

instruction restricting the jury's use of this particular

evidence for impeachment purposes only.16 Near the outset of her

closing argument, the prosecutor referred to this text message

in discussing the defendant's motive.17

In determining whether the use of this text message at

trial was harmless beyond a reasonable doubt, "we consider 'the

importance of the evidence in the prosecution's case; the

relationship between the evidence and the premise of the

defense; who introduced the issue at trial; the frequency of the

reference; whether the erroneously admitted evidence was merely

cumulative of properly admitted evidence; the availability or

effect of curative instructions; and the weight or quantum of

evidence of guilt.'" Thomas, 469 Mass. at 552a, quoting

16
In his final instructions, the judge gave in effect a
partial limiting instruction. He explained to the jury that
evidence suggesting that the defendant and his fiancée might
have had a strained relationship and that his fiancée was
accusing him of infidelity was to be considered only in
assessing the credibility of the witnesses and in providing
evidence of motive.
17
The prosecutor argued:

"So why did he do it, ladies and gentlemen. Why? You
saw the text message that he sent to his nine-month
pregnant fiancée on November 24th. She wasn't taking care
of him. She wasn't taking care of him, his nine-month
pregnant fiancée. She wasn't taking care of him. And so
he felt entitled to go out and get what he wanted, to
satisfy himself. As he said, people look for what they're
not getting. Well, he looked for it, and where did he look
for it?"
 23

Commonwealth v. Santos, 463 Mass. 273, 287 (2012). Certainly,

evidence of motive on the defendant's part was important to the

Commonwealth's case, this evidence bore on motive, and the

evidence was introduced by the prosecution, over the defendant's

objection. However, the prosecutor's use of the statement was

limited to reading it to impeach the defendant's credibility

during his testimony and referencing it one time near the

beginning of a lengthy closing argument that focused primarily

on the strong evidence of the defendant's guilt provided by the

DNA evidence.

But of greater significance is the fact that the other

evidence of the defendant's guilt was extremely strong. The DNA

evidence linking the defendant, and only the defendant, to the

victim in an act of sexual penetration was essentially

overwhelming, and indeed not questioned by the defendant. His

explanation at trial for the presence of his semen in and on the

victim's body and clothes was that on the night before the

victim was killed, he and the victim had had a consensual sexual

encounter, and, presumably, someone else had entered the

victim's apartment during the day on November 21 and had killed

her. But the testimony of the victim's sixteen year old

daughter that the family was alone on the night of November 20,

and the evidence of the defendant's CSLI, which placed him six

miles away from the victim's apartment and very near his place
 24

of employment close to the time he said the consensual encounter

with the victim had occurred, offered a powerful refutation of

the defendant's claim that he had had a consensual sexual

encounter with the victim. Moreover, there was significant,

properly admitted, evidence other than this text message,

including testimony supplied directly by the defendant, that his

relationship with his fiancée was strained in November, 2011,

and that he was open to and engaging in sexual intercourse with

others, including the victim. Finally, the position and

condition of the victim's body when she was found splayed on the

floor of her apartment, the location of her clothes pulled up on

her and underneath her, and the socks and UBS cord around her

neck strongly supported a conclusion that the victim had been

raped and strangled as part of a single, violent assault. In

sum, on this trial record, we are confident that the November

24, 2011, text message could not have reasonably affected the

jury's determination that the defendant was guilty of raping and

murdering the victim. The error in permitting the prosecutor to

use this text message was harmless beyond a reasonable doubt.

3. Juror's note. The defendant claims that the judge

erred in his response to a note written by a juror during trial

when the judge declined to show the note to the defendant or

counsel for the parties before instructing the jury, and thereby

deprived the defendant of the opportunity to participate in
 25

shaping an appropriate response. He argues that the error was

of constitutional significance and not harmless beyond a

reasonable doubt, and therefore requires reversal of his

convictions.

a. Relevant facts. After the lunch break on the seventh

day of trial, the judge notified counsel at sidebar that a juror

had sent a note, but told them that he was not going to discuss

the note or share it with counsel at that time. None of the

attorneys objected. At the end of the day, the judge revisited

the topic of the juror's note. He read counsel the first two

sentences and the last sentence of the note,18 but again stated

that he would not permit counsel to examine the note itself,

saying that it would be placed under seal. The judge stated

that the note concerned a portion of the evidence and litigation

strategy, that nothing in the note suggested the juror could not

be indifferent, and that he was concerned that one or both sides

would try to tailor their litigation strategy to the note-

writing juror's thought process, which the parties, counsel, and

18
The text of the note was as follows:

"I apologize for my ignorance. I believe it's my civic
duty to say that the defense is focusing on cross-examining
the wrong evidence. We've established that the fingernail
and sock DNA results are inconclusive. I believe the
defense should try and cross-examine the anorectal sperm
DNA results. This is more fair for the defense. Writing
this has not made me partial in any way, and I remain
indifferent."
 26

the judge were not entitled to know. The judge also gave

counsel a preview of the instruction he intended to give the

jury about the note. The defendant's counsel objected, arguing

that the defendant was entitled to see the note. The judge

overruled the objection and gave the entire jury an instruction

to the effect that it was not their civic duty to seek out

evidence or decide whether the case is being properly presented

by the parties, but rather their duty was to assess the

evidence, find the facts, and apply the law to decide whether

the Commonwealth proved its case beyond a reasonable doubt.19

19
The judge instructed as follows:

"Now one other matter to address is a communication
that I've received through the court officers from one
. . . of our jurors commenting on some of the evidence that
has been heard, and on the way in which the attorneys are
presenting this evidence, and the juror reference that they
felt it was a civic duty to make these comments,
notwithstanding that it would not in any way affect the
juror's ability to be impartial, and that the juror remains
indifferent. And I've discussed generally that I received
a note, but not the content of the note with counsel,
because the content of the note in some way reflects an
individual juror's thoughts about the evidence, and it is
no one's business as to what any of you may be thinking but
for you. But I do not want to just let the sending juror
know I have received this note, and to clarify that it is
not the civic duty of any of you to seek out the evidence,
or decide whether or not this case is being properly
presented by one or the other or both sides in this case.
Your sole duty in this case as a juror is to impartially
listen to the evidence presented, and at the end of this
case then to impartially and fairly assess that evidence as
part of the deliberating jury, to determine the facts from
that evidence, and then to apply the law to that evidence,
and through that process determine whether or not the
 27

The defendant objected and filed a petition for relief in the

county court pursuant to G. L. c. 211, § 3. The trial was

stayed briefly by a single justice, and then lifted after the

judge read the juror's note to counsel and the defendant. The

next trial day, the defendant moved for a mistrial on the ground

that the defendant had not been given an opportunity to be heard

and to participate in shaping the contents of the response to

the note before the judge addressed the jury; he argued in

particular that he would have requested that the judge not

respond substantively to the juror's note at all, but simply

acknowledge receipt. The judge denied the motion for a

mistrial. Ultimately, the juror who had written the note was

chosen as an alternate juror and did not deliberate.

b. Analysis. When a jury pose a question to the judge

that is of legal significance, the question from the jury

generally is to be shown to counsel and the parties, who are

entitled to participate in developing a response, and to voice

their objections to the judge's proposed response. See, e.g.,

Commonwealth v. Floyd P., 415 Mass. 826, 833-834 (1993). See

also Thames v. Commonwealth, 365 Mass. 477, 478 n.2 (1974)

("where possible, any messages or questions from the jury to the

Commonwealth has proved its case beyond a reasonable doubt.
It is not your duty to suggest how a case ought to be tried
or what evidence ought or ought not to be presented. So I
want you to be aware that I do have the note, I have
reviewed it, and that is my response to the note."
 28

judge . . . should be shown to counsel and immediately placed on

record"). The rule finds its roots in the defendant's rights

guaranteed by the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights to effective assistance of counsel and to be present at

all critical stages of the trial. See Commonwealth v.

Bacigalupo, 49 Mass. App. Ct. 629, 631-634 (2000), and cases

cited. See also Shields v. United States, 273 U.S. 583, 588-589

(1927); United States v. Parent, 954 F.2d 23, 24-25 (1st Cir.

1992).

In each of the cases cited supra, however, the question or

communication from the jury at issue was delivered to the judge

on behalf of the jury as a whole while they were deliberating on

their verdict. In this case, the note in question was from a

single juror, and was written and delivered to the judge while

the trial was still ongoing. This difference is significant.

Nevertheless, although we understand the judge's concern that

the substance of the question, if shown to counsel, would open a

window into the individual thought process of the juror while

the trial was still ongoing, it was error for the judge not to

have allowed counsel to read the juror's note at or near the

time it was delivered and to participate meaningfully in shaping
 29

the judge's response to it.20 See Floyd P., 415 Mass. at 833-

834, and cases cited.

We conclude, however, that the judge's erroneous treatment

of and response to the juror's note does not warrant reversal of

the defendant's convictions. This is not a case where a

deliberating jury asked a question seeking further guidance from

the judge on a legal issue that presumably bore directly on

their collective resolution of the case. Rather, the note

reflected a single juror's observations about the trial strategy

being followed by defense counsel in relation to one type of

evidence as the trial was proceeding. Furthermore, although the

judge did not share the entire contents of the juror's note with

counsel before responding to it with an instruction, he

summarized the substance of it. Contrast, e.g., Parent, 954

F.2d at 24-25 (in response to jury's question, judge

unilaterally gave jury written pages of proposed instructions

government had earlier submitted without first informing counsel

of jury question or proposed response). Contrast also Shields,

273 U.S. at 585 (communications between jury and judge occurred

during deliberations; defense counsel never informed); Fillippon

v. Albion Vein Slate Co., 250 U.S. 76, 80 (1919) (in civil case,

20
We disagree with the Commonwealth that the judge's
reading of the note's first phrase and final sentence, and
giving counsel a preview of what he intended to say, was an
adequate substitute.
 30

judge responded to jury's written inquiry during deliberations

by instructing jury without informing counsel). Finally,

although the defendant lost the "opportunity to convince the

judge that some other or different response would be more

appropriate," Parent, 954 F.2d at 26, the instruction provided

by the judge accurately reflected governing principles

concerning the proper role and function of the jury, and did not

prejudice the defendant in any respect.21 In the circumstances,

although we question whether the harmless beyond a reasonable

doubt standard applies here, the judge's error met this

standard. Cf. Commonwealth v. Curtis, 417 Mass. 619, 636 (1994)

(constitutional violation was harmless beyond reasonable doubt

where instruction was more favorable to defendant than he was

entitled to). Contrast Commonwealth v. Davis, 52 Mass. App. Ct.

75, 77-78 (2001) (reversible error where trial judge provided

misleading and inadequate answer to jury question without

consulting counsel).

4. Review under G. L. c. 278, § 33E. Based on a careful

and thorough review of the record in this case in accordance

with our obligation under G. L. c. 278, § 33E, we conclude that

21
Defense counsel at trial argued that the defendant was
prejudiced by the judge's instruction because it constituted a
"rebuff" to the juror who had written the note. The
characterization seems overblown, but even if it were not, the
note-writing juror was chosen as an alternate at the end of the
trial and did not participate in the jury verdict.
 31

there is no basis to grant the defendant a new trial or other

relief.

Conclusion. The judgments of conviction are affirmed.

So ordered.