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SJC-12167
COMMONWEALTH vs. PETER BIN.
Middlesex. May 11, 2018. - October 9, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Joint Enterprise. Felony-Murder Rule. Robbery.
Armed Home Invasion. Cellular Telephone. Evidence, Joint
venturer, Business record. Practice, Criminal, Question by
jury, Instructions to jury, Verdict.
Indictments found and returned in the Superior Court
Department on December 6, 2012.
The cases were tried before Kathe M. Tuttman, J.
Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
Jamie M. Charles, Assistant District Attorney (David M.
Solet also present) for the Commonwealth.
GAZIANO, J. A Superior Court jury convicted the defendant
of murder in the first degree, as a joint venturer, in the
shooting death of Quintin Koehler on July 7, 2012, at his
grandmother's house in Billerica. The Commonwealth proceeded on
a theory of felony-murder, with armed home invasion and
2
attempted armed robbery as the predicate felonies. At trial,
the Commonwealth argued that the defendant was one of four
intruders who entered the victim's home intending to rob him of
drugs and money, a struggle ensued, one of the other men fatally
shot the victim, and all four intruders fled from the scene
together with two others, who had remained in their vehicles.1
In this direct appeal, the defendant challenges the
sufficiency of the evidence that he was present at the scene,
knew that any of the alleged accomplices were armed, or shared
any intent to commit either the armed home invasion or the
robbery. The defendant argues also that cell site location
information (CSLI) evidence was introduced through an
unqualified witness and should have been excluded. In addition,
the defendant maintains that the judge erred when, in response
to a jury question, she did not instruct the jury, as defense
counsel requested, that they were allowed to reach factually
inconsistent verdicts. Finally, the defendant asks this court
to abolish the felony-murder rule, and also asks us to use our
1 The defendant was tried with a single codefendant, Gabriel
Arias, the only one of the six alleged participants at the scene
who had not then been indicted on a charge of murder in the
first degree. Arias was convicted of the sole offense of which
he was indicted, intentionally misleading a police officer, in
violation of G. L. c. 268, § 13B. In 2017, while he was serving
a prison term of from five to seven years on that offense, Arias
was indicted on charges of murder in the first degree, armed
home invasion, and conspiracy for his alleged role in this case;
his trial on those indictments is pending.
3
extraordinary power under G. L. c. 278, § 33E, to reduce the
verdict of murder or to order a new trial. For the reasons that
follow, we affirm the convictions and decline to exercise our
authority to grant relief under G. L. c. 278, § 33E.2
1. Facts. We recite the facts that the jury could have
found, viewed in the light most favorable to the Commonwealth,
see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979),
reserving some facts for later discussion of particular issues.
The victim, Quintin Koehler, lived in Billerica in his
grandmother's house. He worked in landscaping, and also sold
marijuana and other drugs from the house. He had a roommate who
was his partner in both enterprises.
2 In addition to murder in the first degree, the defendant
was indicted on a charge of armed home invasion against Ryan
Koehler and a charge of attempted armed robbery of Quintin
Koehler. In her final charge, the judge instructed the jury
that the charge of attempted armed robbery applied to Quintin
Koehler, and instructed on armed home invasion without
specifying a victim. The defendant was convicted of both
felonies. He was acquitted of charges of carrying a firearm
without a license and possession of ammunition without a firearm
identification card. At sentencing, the convictions of armed
home invasion and attempted armed robbery were vacated as
duplicative. See Commonwealth v. Carter, 475 Mass. 512, 513-514
(2016), citing Commonwealth v. Alcequiecz, 465 Mass. 557, 558
(2013). Shortly thereafter, on the Commonwealth's motion, both
felony convictions were reinstated. While reinstatement of the
conviction of armed home invasion, as to Ryan Koehler, was
appropriate, the conviction of attempted armed robbery of
Quintin Koehler properly should have been vacated as
duplicative. See Commonwealth v. Rivera, 464 Mass. 56, 81-82,
cert. denied, 570 U.S. 907 (2013), citing Commonwealth v.
Rasmusen, 444 Mass. 657, 666-667 (2005) (where felony-murder
conviction is based on more than one felony, only one of
underlying felonies is duplicative).
4
In March, 2012, the victim and his roommate began
purchasing marijuana from Ashley Marshall, at a music studio in
Lynn.3 They purchased marijuana in one- to four-pound increments
and subsequently resold it in smaller quantities. The roommate
would coordinate purchases with Marshall through text messages,
using coded language to establish the quantity and price of a
purchase. At one meeting at the music studio, the victim and
his roommate saw a tall man with a shaved head who had a number
of tattoos, including one on the back of his head that read,
"LYNN, MASS."4
In June, 2012, one of Marshall's friends, Adam Bradley,
told her that he needed someone to rob, and inquired about the
possibility of robbing the victim and his roommate. At first,
Marshall declined to help Bradley because the victim and his
roommate were friends of her cousin. On July 6, 2012, Bradley
came to the music studio and reiterated that he wanted to rob
the victim and his roommate. After initially refusing, Marshall
agreed to help. Around 5 P.M., Marshall sent the victim's
roommate several text messages asking if he wanted to purchase
marijuana. She was attempting to ascertain whether the roommate
3 Ashley Marshall testified at trial under a grant of
immunity.
4 The Commonwealth introduced a booking photograph of Adam
Bradley that showed a tattoo on the back of his head which
reads, "LYNN, MASS." Marshall also testified that Bradley had
such a tattoo.
5
had cash in the house.5 The roommate, who had had reservations
about dealing with Marshall and had not made any recent
purchases from her, did not respond.
Marshall used an Internet Web site to direct Bradley to the
victim's house. She also drew a layout of the inside of the
house on a piece of notebook paper. Before leaving, Bradley
asked Marshall if he needed to bring weapons; Marshall said that
he did not, because the victim and his roommate were "little
kids" who would not offer any resistance. Bradley returned to
the studio later that evening and made a number of telephone
calls. Shortly thereafter, approximately twenty Asian men
arrived at the studio. Before they left, Bradley showed them
the Web site with directions to the victim's house. After
telephoning Marshall repeatedly throughout the night of July 6
to July 7, 2012, Bradley arrived at the music studio on the
morning of July 7, 2012; Marshall testified that he appeared to
be "frantic."
The Commonwealth's theory at trial was that Bradley was
assisted in the attempted armed robbery by the defendant, Steven
Touch, Jason Estabrook, Gabriel Arias, and Sophan Keo.6 The
5 A search of the victim's house after his death revealed a
large quantity of cash and marijuana.
6 Evidence at trial suggested that the defendant, Bradley,
Touch, Arias, and Keo were associated with the Bloods gang in
Lynn. The judge instructed the jury that they were not to
6
victim's brother, Ryan Koehler,7 who had been present at the
scene and had attempted to force the armed intruders out of the
house in the minutes before his brother was shot, described some
of the assailants in detail, but was able to give only a vague
description of others. Forensic evidence at the scene, medical
records, and statements by Marshall tied some of the men to the
scene. As evidence of the joint enterprise involving all of the
men, the Commonwealth relied heavily on surveillance video
footage of two white automobiles that seemed to be acting in
concert for approximately one hour before, and immediately
after, the shooting, and extensive evidence of cellular
telephone calls among the men, as well as CSLI showing a pattern
of movement of all of their cellular telephones toward and away
from the victim's Billerica home at the time of the shooting.
Keo owned a white Honda Civic with distinctive blue after-
market headlights. Touch regularly used his girl friend's white
Toyota Corolla with her permission.
consider the evidence "to infer anything about [the] defendant's
character or general propensity to commit a crime. The only
purpose for which any evidence concerning alleged gang
affiliation may be considered by . . . the jury is on the
limited issue of what the Commonwealth claims may have been a
particular defendant's state of mind at a particular time either
to form a motive for the offenses charged in this case, or to
participate in a joint venture or criminal enterprise."
7 Because they share a last name, we refer to the victim's
brother, Ryan Koehler, by his first name.
7
At 2:51 A.M. on July 7, 2012, an officer of the Billerica
police department, who was on routine patrol, entered the
license plate of Keo's vehicle in the police computer system.
Surveillance footage taken by a camera at a Billerica
convenience store on Route 3A, near the victim's home, shows
that at 3:19 A.M. and 3:33 A.M., a Honda Civic drove past the
store. At 3:25 A.M. and 3:33 A.M., a Toyota Corolla drove past
the store. At 3:38 A.M., both vehicles entered a parking lot
across the street from the convenience store, in view of the
surveillance camera, and each vehicle extinguished its lights.
At 3:40 A.M., both vehicles' lights were turned on, and they
left the parking lot eleven seconds apart.
During this time, there were repeated calls among cellular
telephones registered to, or used by, the defendant and the
other five men; although none of the alleged accomplices lived
in Billerica, the calls connected to towers in the Billerica
area, heading toward the victim's house. Evidence of the cell
towers that were accessed, the times and duration of the calls,
and the locations of the cell towers on a map relative to the
victim's house was introduced by a State police trooper who was
a member of its technical surveillance unit, as well as a member
of the Federal Bureau of Investigation's cellular analysis
survey team.
8
According to the CSLI records, a telephone registered to
the defendant traveled from Revere to Billerica during the
period immediately prior to the shooting. On July 7, 2012, the
defendant's cellular telephone activated a cellular tower in
Revere at 1:41 A.M., a cellular tower in Burlington at 2:43 A.M.
and 2:45 A.M., and a cellular tower in Billerica at 2:46 A.M.,
2:47 A.M., 3:34 A.M., 3:37 A.M., 3:38 A.M., 3:44 A.M., and
3:46 A.M. A cellular telephone associated with Bradley
activated a cellular tower in Lynn at 1:14 A.M, a cellular tower
near Wakefield at 2:31 A.M, and a cellular tower in Bedford at
3:50 A.M.8 Between 1:33 A.M. and 3:37 A.M., the defendant's
telephone connected with Keo's telephone three times. During
the early morning hours of July 7, it also connected with a
telephone associated with Touch five times, and received two
text messages from that number,9 and connected with Arias's
telephone four times.
At approximately 3:50 A.M. on July 7, 2012, the victim and
his brother, Ryan, were watching a movie in the victim's bedroom
when they heard loud noises from the kitchen. The brothers ran
into the kitchen to investigate and discovered three men, each
8 The telephone number was registered to JMB Construction, a
company owned by Jane and Michael Bradley. The address of JMB
Construction address was the same as the address on Adam
Bradley's driver's license.
9 This cellular telephone number was registered to Christina
Danh, who testified that she paid for Touch's telephone service.
9
with a firearm, standing near the door. Ryan described one man
as being blonde with blue eyes, wearing a grey bandana and a
hat, and holding a semiautomatic weapon.10 Ryan testified at
trial that he was focused on this man as he entered the kitchen,
following his brother, because the man was pointing the weapon
at him. Ryan was able to describe the other two men only as
wearing dark clothing; he said that he did not know their
height, age, or race.11 The first man told the victim to "get
down on the ground." The victim responded that the men should
"take the fake ass BB guns and . . . shove them up their candy
ass and get the fuck out of the house." The blonde intruder
then racked the firearm.12 The victim instructed Ryan to get a
sword from the victim's bedroom. Before Ryan could do so, the
victim armed himself with a tea kettle from the top of the
stove, and Ryan grabbed a frying pan.
Ryan then noticed a fourth man, who was larger and heavier,
wearing a red T-shirt, black shorts with a blue stripe, and
10The Commonwealth introduced evidence from a social media
Web site that contained an image of Bradley wearing a grey
bandana.
11On cross-examination, after his memory was refreshed by
reviewing his grand jury testimony, Ryan testified that he had
said at that time that the third man was "white" and had dark
hair, but that he had no present memory of the man's appearance.
12Ryan testified that he understood the differences between
an automatic and a semiautomatic weapon, and that he knew the
weapon was a semiautomatic.
10
black sneakers, near the refrigerator. When the man ran at the
victim, Ryan tackled him to the ground and the victim used the
tea kettle to hit him in the head "with everything he had." As
the brothers were trying to push the man toward the door, three
shots rang out and the victim slumped to the floor. While Ryan
attempted to put pressure on the wound, the intruders fled
through the broken kitchen door.13 The victim was taken to the
hospital, where he died of a gunshot wound to the head.
Neither the cellular telephone of the defendant nor the
cellular telephones of the other alleged accomplices registered
any activity between 3:50 A.M. and 3:53 A.M. At 3:53 A.M., the
cellular telephone associated with Bradley contacted the
telephone associated with Touch and activated a cellular tower
in Burlington. At 3:59 A.M., the telephone associated with
Bradley called the defendant's cellular telephone. During this
call, the defendant's telephone activated a cellular tower in
Burlington, and Bradley's telephone activated a cellular tower
in Woburn. Beginning at 5:15 A.M, the defendant's cellular
telephone activated a tower in Lowell, the city listed on his
13Evidence was presented at trial that Ryan told the first
responding officers that there were three intruders, two of whom
had been armed, and that he repeated that assertion during an
interview with investigators on July 8, 2012. During direct
examination, Ryan testified that there had been four intruders,
three standing together and one he saw later. On re-direct
examination, he was presented, and read portions of, his grand
jury testimony, in which he described four intruders; this
testimony was allowed to rebut a claim of recent fabrication.
11
driver's license, multiple times; one of these calls, at
6:20 A.M, was to Touch's telephone.
At around 5:20 A.M., Estabrook drove to the North Shore
Medical Center seeking treatment for a head injury, shoulder
pain, and back pain.14 He reported that he had been in a fight
and that "they hit me with a tea kettle to the head." He was
wearing a red shirt, black shorts, and black high-top sneakers.15
Investigating officers recovered two hats at the victim's
house that had not been present during the evening before the
shooting, when family members and friends had stopped by to see
Ryan, who had been away for six months at a residential
treatment facility. One hat, a navy blue Boston Red Sox
baseball cap, was found on the porch just outside the kitchen
door. The other, a black and red Chicago Bulls baseball cap,
was found in the area between the kitchen and the laundry room.
The major deoxyribonucleic acid (DNA) profile on the headband of
the Red Sox cap was consistent with the defendant's DNA; the
contributors to the minor profile could not be identified. The
frequency of the major profile was approximately 1 in 59.07
billion in the Caucasian population, 1 in 81.9 billion in the
14A still image from surveillance footage from the hospital
parking lot shows a motor vehicle, consistent with the vehicle
operated by Touch, at 5:12 A.M.
15This clothing is consistent with Ryan's description of
the clothing worn by the fourth man in the victim's kitchen.
12
African-American population, 1 in 92.94 billion in the Hispanic
population, and 1 in 211.2 billion in the Asian population.16
The band of the Bulls cap contained a primary DNA profile
consistent with the DNA profile of an individual police
concluded had not been present at the scene, because he had a
curfew that required him to be in his house at night, and was
being monitored by a GPS bracelet, which did not register a
violation on July 7, 2012. A secondary profile found on the
headband was not associated with any of the suspects.
Later on the morning of July 7, 2012, one of the victim's
neighbors found a pair of rubber gloves on a side street
adjacent to his house that he had not noticed the previous day.
He telephoned the police; officers responded and retrieved the
gloves. Forensic testing of the gloves was undertaken at the
State police crime laboratory. The major DNA profile on the
gloves matched the DNA profile of Adam Bradley. Analysts at the
crime laboratory also found gunshot primer particles on the
gloves, which allowed a forensic scientist to conclude that the
person who wore the gloves either had handled a firearm or had
been in close proximity to a firearm.
2. Defendant's theory of the case. The defendant argued
that the Commonwealth presented insufficient evidence that he
had been present at the scene. His strategy for doing this was
16 The defendant is Asian.
13
to question the credibility and reliability of much of the
Commonwealth's evidence. The defendant extensively cross-
examined Ryan and impeached him with evidence of his prior
convictions of, inter alia, armed home invasion (with a shotgun)
and causing serious bodily injury. To further the suggestion
that Ryan's testimony was unreliable, defense counsel called a
State police trooper who testified that, when he arrived at the
scene at approximately 4:30 A.M., he was given the descriptions
of three suspects that Ryan had provided when officers first
arrived. Additionally, during an extended interview on July 8,
2012, Ryan told officers that he had seen the blonde-haired
intruder holding a gun and two other men. The State police
trooper also testified that, during the interview on July 8,
2012, Ryan described the noise from the kitchen as the sound of
a door being knocked down. In his closing argument, the
defendant highlighted that this statement was inconsistent with
Ryan's grand jury testimony that he thought the sound was the
family dog knocking something over. The defendant suggested
that Ryan's testimony was unreliable and that his feelings of
guilt at heading toward the sound rather than telephoning police
or hiding, thus resulting in his brother's death, had caused his
story to change.
The defendant also challenged the forensic evidence found
at the scene. He argued that the Red Sox baseball cap with the
14
defendant's DNA could have been borrowed or stolen, and did
nothing to establish the defendant's presence at the scene, just
as the Bulls cap found in the laundry room near the back door
contained the DNA of an individual who the Commonwealth
acknowledged had not been present at the time of the incident.
Additionally, in cross-examining the Commonwealth's expert
witness on CSLI and during his closing argument, the defendant
advanced a theory that three or four vehicles must have been
used, and argued that the Commonwealth's theory that only two
vehicles had been used was not consistent with the most likely
interpretation of the telephone calls as having been made
between people who were in different vehicles, rather than
between those who were in the same vehicle.17 Based on the calls
placed between various cellular telephones, defense counsel thus
argued that only certain individuals would have been in vehicles
together, and, accordingly, at least a third vehicle must have
been used, with likely a fourth as well.
3. Discussion. In this appeal, the defendant argues, as
he did in the Superior Court, that there was insufficient
evidence to establish that he was present at the scene, that he
possessed a firearm or knew that any of the intruders had a
17Adam Bradley and Jason Estabrook have been convicted of
murder in the first degree and related offenses. Steven Touch
and Sophan Keo are currently awaiting trial on indictments of
murder in the first degree and other related offenses.
15
firearm, or that he intended to commit any crime. The defendant
also argues that the admission of the CSLI evidence requires a
new trial, because the records were not self-explanatory and the
State police trooper who testified about them was not a
representative of the cellular telephone provider and was not
otherwise qualified to explain them. In addition, the defendant
challenges the judge's decision not to instruct the jury, in
response to their question, "if we find the defendant guilty of
one or more of the underl[ying] felonies, can we still find him
not guilty of felony murder?" that they could reach factually
inconsistent verdicts. He also asks this court to exercise our
extraordinary authority under G. L. c. 278, § 33E, to grant him
relief.
a. Sufficiency of the evidence. In determining whether
the Commonwealth met its burden of proof to establish each
element of the offense charged, we apply the familiar Latimore
standard. See Latimore, 378 Mass. at 677-678. "[The] question
is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Id. at 677, quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979). Although a conviction may be based
entirely on circumstantial evidence, and inferences drawn need
only be reasonable, not inescapable, see Commonwealth v. Rakes,
16
478 Mass. 22, 32, 45 (2017), a "conviction may not rest on the
piling of inference upon inference or on conjecture and
speculation." Commonwealth v. Lao, 443 Mass. 770, 779 (2005),
citing Commonwealth v. Swafford, 441 Mass. 329, 339–343 (2004).
As the defendant was convicted as a joint venturer, "we
must determine whether the evidence showed that he knowingly
participated in the commission of the crime charged, alone or
with others, with the intent required for the offense." Rakes,
478 Mass. at 32. See Commonwealth v. Zanetti, 454 Mass. 449,
467-468 (2009). Under the theory of felony-murder, "[o]nce a
defendant participates in the underlying felony, with the intent
or shared intent to commit that felony, he or she becomes liable
for a death that 'followed naturally and probably from the
carrying out of the joint enterprise.'" Commonwealth v. Morin,
478 Mass. 415, 421 (2017), quoting Commonwealth v. Hanright, 466
Mass. 303, 307 (2013). "[I]t is no defen[s]e for the associates
engaged with others in the commission of a robbery, that they
did not intend to take life in its perpetration, or that they
forbade their companions to kill." Morin, supra, quoting
Commonwealth v. Devereaux, 256 Mass. 387, 392 (1926).
Evidence before the jury could have allowed them to
conclude that Bradley, with the assistance of Marshall, formed a
plan to rob the victim and his roommate, and enlisted others in
the enterprise. Bradley requested Marshall's help in setting up
17
a robbery of the victim and his roommate, and Marshall then sent
text messages to the roommate purportedly offering to sell
marijuana. Bradley made telephone calls from Marshall's studio
in Lynn, after which Marshall testified that she saw a number of
Asian men arrive and that Bradley showed them the location of
the victim's house using an Internet Web site. Two white
automobiles -- one that looked to be a vehicle registered to
Keo, and one that appeared to be a vehicle registered to Touch's
girl friend, but routinely used by Touch -- headed to Billerica
in a close procession, stopped briefly at a parking lot, then
drove together towards the victim's house; their movements were
captured on surveillance footage from a security camera at a
convenience store near the crime scene. CSLI records
established that telephones associated with the defendant,
Bradley, Touch, Keo, and Arias repeatedly activated cellular
towers near Billerica in the minutes before and after the
shooting; the telephones all traveled toward Billerica prior to
the shooting, and traveled away from Billerica in the minutes
after the shooting. Four men, three of whom were armed, broke
down the door and entered the victim's home, where the victim
was shot and killed.
While the defendant challenged Ryan's testimony as to
whether there were three or four men present in the victim's
kitchen, the primary focus of the trial, and particularly this
18
appeal, was whether the defendant knowingly participated in the
armed home invasion that resulted in the victim's death.
With respect to the defendant's knowing participation in a
plan to rob the victim and his roommate, the Commonwealth
presented evidence that a baseball cap with the defendant's DNA
on the inner band was found immediately outside the door through
which the intruders gained access to the kitchen, as well as
evidence that the defendant's telephone traveled from Revere to
Burlington and then to Billerica in the hours before the
shooting, that the telephone activated cellular towers in
Billerica minutes before the incident, and that it then traveled
away from Billerica in the minutes after the victim was shot.
Additionally, evidence of the defendant's possible state of mind
at the time of the armed home invasion and shooting was
introduced through evidence of his lengthy affiliation with most
of the other alleged accomplices, some of whom he had known
since childhood, and all but one of whom were described in trial
testimony as being members of the Bloods gang.
Taken together, the evidence at trial would have allowed a
jury to conclude that the defendant was one of the four men in
the kitchen at the time of the shooting, and that he was armed
with a firearm. See Commonwealth v. Netto, 438 Mass. 686, 701-
702 (2003) (defendant's fingerprint in home, in conjunction with
testimony that print was "fairly fresh" and evidence that
19
defendant had been excluded from residence for one week prior to
killing, was sufficient evidence of her presence). Contrast
Commonwealth v. Morris, 422 Mass. 254, 256-258 (1996) (evidence
that defendant's fingerprint was on mask found at scene of armed
home invasion did not, alone, establish defendant's presence).
To prove the underlying felony of armed home invasion, the
Commonwealth was required to prove that the defendant or other
joint venturers "'knowingly enter[ed] the dwelling place of
another'; 'knowing or having reason to know that one or more
persons are present within'; 'while armed with a dangerous
weapon'; and 'use[d] force or threaten[ed] the imminent use of
force upon any person within such dwelling place whether or not
injury occur[red], or intentionally cause[d] any injury to any
person within such dwelling place.'" See Commonwealth v.
Stokes, 440 Mass. 741, 747 (2004), quoting G. L. c. 265, § 18C.
For both armed home invasion and attempted armed robbery, the
Commonwealth must prove either that the defendant was armed or
that he knew that his joint venturers were armed. See
Commonwealth v. Brown, 477 Mass. 805, 812 (2017).
The defendant argues that there was insufficient evidence
that he was armed or knew that any of the intruders were armed,
or that he shared their intent to commit an armed offense. We
do not agree. Viewing the evidence in the light most favorable
to the Commonwealth, the jury reasonably could have determined
20
that the defendant was one of the men in possession of a firearm
in the kitchen of the victim's home. Ryan testified that three
of the intruders were armed.18 The unarmed intruder was the
fourth man, who was hit with a tea kettle. Based on Estabrook's
medical records at the emergency room, including a statement
that he had been struck by a tea kettle during a fight, and
images from the hospital surveillance camera that showed him
wearing clothing consistent with Ryan's description, the jury
reasonably could have concluded that this unarmed man was
Estabrook, who reported to medical personnel the unusual
instrument that had been used during the fight. Given the
permissible inference that Keo and Touch, the fifth and sixth
men, had remained with their vehicles, the jury reasonably could
have inferred that the defendant was in the kitchen and was
armed with a firearm.19
18The defendant called a police witness who testified that
Ryan informed him that he saw two firearms in the kitchen,
rather than three. Ryan testified that there were three armed
men, and that the fourth man, who was hit by the tea kettle, was
unarmed. We resolve this inconsistency in favor of the
Commonwealth.
19While Marshall testified that she told Bradley that he
did not need to bring firearms, the defendant was not present
when Marshall made this remark. In any event, Bradley
disregarded that suggestion and brought a firearm with him to
the victim's house. His decision to carry a weapon suggests
that Bradley did not tell the other intruders that they were
robbing "little kids" who were unlikely to offer resistance.
Regardless, the testimony was clear that three of the four
intruders in the victim's kitchen were carrying firearms.
21
b. CSLI records. The defendant contends that the CSLI
records were not properly admitted because they were not self-
explanatory and the Commonwealth did not offer a qualified
witness to explain them. He argues that a "[company]
representative or other qualified individual needed to explain
those records to the jury. The person used by the Commonwealth
. . . was not so qualified. Whereas the verdicts relied on that
improperly admitted evidence, the defendant's convictions must
be reversed."
It is well established that CSLI records are business
records. See Commonwealth v. Williams, 475 Mass. 705, 722 n.22
(2016), citing Commonwealth v. Augustine, 467 Mass. 230, 232
(2014); United States v. Burgos-Montes, 786 F.3d 92, 119 (1st
Cir.), cert. denied, 136 S. Ct. 599 (2015). A "record [that]
was made in good faith in the regular course of business" may be
admissible, in the judge's discretion, notwithstanding that it
is hearsay. G. L. c. 233, § 78. See Mass. G. Evid. § 803(6)(A)
(2018).
Pursuant to G. L. c. 233, § 78, a trial judge has
discretion to require a party offering a business record to call
as a witness a "person who made the entry, writing or record
offered or the original or any other entry, writing, document or
account from which the entry, writing or record offered or the
facts therein stated were transcribed or taken, or who has
22
personal knowledge of the facts stated in the entry, writing or
record offered." Here, the judge consulted with counsel at
sidebar before the telephone records were introduced, and asked
the defendant if he had any objection. The defendant renewed
the objection he had made in his motion to suppress, which had
been denied prior to trial, that the records should not be
admitted due to the administrative subpoena that had been used
to obtain them. The judge then inquired whether the defendant
"ha[d] any objection with regard to the authenticity of these
records." The defendant did not. Because the defendant did not
object to the admission of the CSLI as an unauthenticated
business record when prompted by the judge at sidebar, we review
the judge's determination for a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Fulgiam, 477 Mass.
20, 27, cert. denied, 138 S. Ct. 330 (2017).
The cellular telephone records contain an affidavit of the
keeper of the records certifying that they are true and
complete, and there is no evidence or allegation to the
contrary. The records are clearly relevant and central to the
Commonwealth's case, and were described in depth by the State
police trooper after he was accepted as an expert witness
following an extensive voir dire. We conclude that the judge
did not abuse her discretion in allowing the introduction of the
CSLI as business records.
23
Even where evidence may be relevant and otherwise
admissible, a trial judge has discretion to exclude it if its
probative value is substantially outweighed by the risk of
confusion. Mass. G. Evid. § 403 (2018). See Commonwealth v.
Rosa, 422 Mass. 18, 25 (1996) ("When prejudice, including
confusion of the jury, is possible, the judge must weigh the
probative value of the evidence against such danger"). "The
trial judge [is] best situated to assess the extent to which
[business records] might have been confusing to the jury."
Commonwealth v. Dabney, 478 Mass. 839, 860 (2018).
The judge conducted a voir dire hearing at which she
herself posed certain questions to the State police trooper who
later testified about the CSLI. The trooper also was questioned
extensively by the defendant's and his codefendant's counsel.
He testified to having received training from State and Federal
agencies, including a Department of Defense contractor, on the
uses of CSLI and how to obtain it. The trooper also said that
he served as a member of the Federal Bureau of Investigation's
cellular analysis survey team. The judge concluded that the
trooper was qualified as an expert in the area of CSLI. The
trooper then testified as an expert and explained to the jury
how cellular telephones interact with cellular towers, the
manner in which cellular telephone service providers produce
24
records, and how the defendant's service provider created
"basically [an] Excel spreadsheet[]" with relevant information.
The defendant argues that the Commonwealth never elicited
that the trooper was trained by the defendant's service provider
on how to interpret that company's records. In addition to his
years of professional experience and training, however, and
consistent with his testimony that he previously had worked with
similar records, the trooper discussed and explained differences
between the records of multiple different service providers,
including the defendant's. This testimony supported the judge's
conclusion that the trooper was a qualified expert, and was
familiar with the defendant's service provider's particular
format.20
Furthermore, the defendant relies on Dabney, 478 Mass. at
859, in support of his argument that the judge should have
excluded the CSLI as more prejudicial than probative, given the
absence of testimony from an employee of the cellular service
20To support his contention that a qualified individual is
needed to "decipher" the CSLI, the defendant cites two cases
from other jurisdictions. In Blue Coast, Inc. v. Suarez Corp.
Indus., 870 A.2d 995, 1007 (R.I. 2005), there was no witness to
introduce the records, and in Horner v. Commonwealth, 105 Pa.
Commw. 59, 65-66 (1987), the witness who offered to introduce
graphical records had received only a one-day training session
on the records, "ten to fifteen years" before the case, and had
not worked with the records in ten years. These cases are
factually distinct from the instant case, however, given that
the Commonwealth in this case called a witness with relevant
training and ongoing experience to explain the records.
25
provider. In that case, the court determined that there was no
error in a Superior Court judge's discretionary ruling limiting
cross-examination of a witness concerning an invoice from a
particular Web site on the ground that the business record would
confuse the jury, absent an explanation from an employee of that
company, because the witness had no ability to explain the
meaning of certain information listed on the invoices. Id. at
859-860. Here, the State police trooper was able to do what the
witness in Dabney was not: he coherently explained the service
provider's records and differentiated the terms that provider
used to designate specific items from the terms used by other
cellular telephone service providers. In these circumstances,
we discern no error in the judge's discretionary determination
that the records were not unduly prejudicial.
The defendant also challenges the admission of charts
created by the trooper from the CSLI records, on the ground that
the jury might have been confused and believed that the charts
were the actual CSLI data proffered by the service provider.
The witness made clear, however, that he had created some of the
reports that were presented to the jury, and that he had placed
certain information pertaining to certain calls on a map using a
specific computer program to do so. Additionally, the entire
set of CSLI records, which contained the data that was the basis
of the trooper's testimony and his summary, was introduced by
26
the Commonwealth through the deputy police chief who had
obtained the records from the service provider. The judge did
not abuse her discretion in allowing introduction of the
witness's reports and charts summarizing the CSLI reports. See
Commonwealth v. Carnes, 457 Mass. 812, 825 (2010) ("Summaries of
testimony are admissible, provided that the underlying records
have been admitted in evidence and that the summaries accurately
reflect the records"); Mass. G. Evid. § 1006 (2018).
c. Jury instruction on inconsistent verdicts. The
defendant argues that the judge improperly failed to inform the
jury, in response to their question, that they could return
factually inconsistent verdicts. We review the judge's response
for an abuse of discretion. See Commonwealth v. Monteagudo, 427
Mass. 484, 488 (1998), quoting Commonwealth v. Waite, 422 Mass.
792, 807 n.11 (1996) ("The proper response to a jury question
must remain within the discretion of the trial judge, who has
observed the evidence and the jury firsthand and can tailor
supplemental instructions accordingly").
During deliberations, the jury asked the following: "if we
find the defendant guilty of one or more of the underl[ying]
felonies, can we still find him not guilty of felony murder?"
The prosecutor argued that the answer to the question was "no,"
and asked the judge to reinstruct the jury not to consider the
consequences of their verdict. At first, the defendant agreed
27
that "the correct legal answer" is "no." The judge declined to
answer the question "no." She reasoned that this answer would
have foreclosed the possibility of an acquittal based on the
Commonwealth's failure to prove that the killing did not occur
during the commission of the predicate felonies.
The judge responded to the question by reinstructing the
jury on felony-murder, explaining:
"If the Commonwealth has proved beyond a
reasonable doubt that the defendant knowingly
participated in and shared the intent required for
either or both of the charged felonies, armed home
invasion of Ryan Koehler or attempted armed robbery of
Quintin Koehler as I have defined those offenses for
you, and the Commonwealth has proved beyond a
reasonable doubt that the death occurred during the
commission of the felony or felonies, then the
Commonwealth has proved the offense of felony murder."
The defendant, after the jury resumed deliberations, asked
the judge to reinstruct the jury, "[I]f the question deals with
can you find the defendant guilty, not guilty of the murder and
still find him guilty of indictments two [armed home invasion]
and three [attempted armed robbery], the answer is yes." The
judge declined to give this instruction.
On appeal, the defendant argues that the jury were
inquiring about their ability to render a factually inconsistent
verdict, and that the judge's answer on felony-murder was
nonresponsive. It is undisputed that juries do have the
authority to render factually inconsistent verdicts, which
28
allows juries to "compromise and to act out of leniency." See
Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 33 (1984), citing
United States v. Martorano, 557 F.2d 1, 9 (1st Cir. 1977), cert.
denied, 435 U.S. 922 (1978). That the jury has the power to
return inconsistent verdicts, however, does not give the
defendant the right to a jury instruction informing the jury of
their authority to do so. See Commonwealth v. Dickerson, 372
Mass. 783, 812 (1977) (Quirico, J., concurring), abrogated on
other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002).
We decline the defendant's invitation to require a judge to
inform the jury that they may disregard the law as it has been
explained to them. The judge properly instructed the jury
during her final charge that "[i]t is your duty as jurors to
accept the law as I state it to you." Their power to disregard
her instruction does not mean "that the trial judge must inform
them of the existence of that power and instruct them on what
factors they may or must consider when they are contemplating
the return of a verdict other than one required on the facts
found by them and the law applicable thereto." Dickerson, supra
(Quirico, J., concurring). See United States v. Moran-Toala,
726 F.3d 334, 343 (2d Cir. 2013) (trial judge erred in
instructing jury that it was permissible to render inconsistent
verdicts).
29
d. Felony-murder. The defendant urges this court to
abolish the common-law doctrine of felony-murder because, inter
alia, it is inconsistent with jurisprudence on mens rea
generally in criminal cases. In Brown, 477 Mass. at 823, we
declined to abolish entirely the felony-murder rule.21 Instead,
we prospectively narrowed the application of that rule to
eliminate felony-murder as an independent theory of liability.
See id. at 825, 832-833 (Gants, C.J., concurring). As a result,
a defendant no longer may be convicted of murder absent proof of
one of the three prongs of malice. Id. The defendant does not
argue that Brown was wrongly decided, nor does he provide any
reason for the court to revisit its decision in that case, and
we decline to do so.
e. Relief pursuant to G. L. c. 278, § 33E. We have
carefully reviewed the entire record, pursuant to our duty under
G. L. c. 278, § 33E, and discern no reason to order a new trial
or to reduce the degree of guilt.
4. Conclusion. The judgments of murder in the first
degree and armed home invasion are affirmed. The judgment of
attempted armed robbery is vacated and set aside, and the matter
21The defendant's initial brief was filed before this
court's decision in Commonwealth v. Brown, 477 Mass. 805, 823
(2017). While his reply brief was filed after that decision,
the reply brief does not address the court's holding in Brown.
30
is remanded to the Superior Court, where that conviction shall
be dismissed as duplicative.
So ordered.