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SJC-12216
COMMONWEALTH vs. KEITH HOBBS.
Suffolk. December 7, 2018. - June 28, 2019.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.
Homicide. Cellular Telephone. Constitutional Law, Search and
seizure, Probable cause, Confrontation of witnesses.
Search and Seizure, Probable cause. Probable Cause.
Evidence, Disclosure of evidence, Hearsay, Admissions and
confessions, Admission by silence. Practice, Criminal,
Capital case, Motion to suppress, Disclosure of evidence,
Confrontation of witnesses, Conduct of prosecutor.
Indictments found and returned in the Superior Court
Department on October 26, 2012.
A pretrial motion to suppress evidence was heard by Charles
J. Hely, J.; the cases were tried before Janet L. Sanders, J.,
and a motion for a new trial, filed on May 8, 2017, was
considered by her.
Elizabeth Caddick for the defendant.
Cailin M. Campbell, Assistant District Attorney (Montez D.
Haywood, Assistant District Attorney, also present) for the
Commonwealth.
KAFKER, J. A jury convicted the defendant, Keith Hobbs, of
murder in the first degree on the theory of deliberate
2
premeditation in connection with the shooting death of the
victim, Demetrius Blocker.1 The defendant raises several issues
on appeal from his convictions and from the denial of his motion
for a new trial. First, he argues that the motion judge erred
in denying his pretrial motion to suppress the cell site
location information (CSLI) used by the Commonwealth in this
case. Three and one-half months of CSLI were collected, and
CSLI from the date of the murder figured prominently at trial.
Next, he alleges that several reversible errors were committed
during the course of his trial. Specifically, the defendant
argues (i) that the trial judge erred in permitting a police
detective to testify to his observations of the defendant's
gait; (ii) that the defendant's constitutional confrontation
rights were violated when the trial judge admitted hearsay
testimony that a particular cell phone number belonged to his
friend; (iii) that the trial judge erred in admitting other
hearsay testimony; and (iv) that the prosecutor's
characterization of a photograph of the defendant as a "booking
photo" amounted to misconduct. Finally, he argues that even if
no one error, standing alone, is sufficient to warrant the
reversal of his convictions, reversal is nonetheless warranted
due to cumulative error.
1 The jury also convicted the defendant on the related
charge of possession of a firearm without a license.
3
For the reasons stated infra, we conclude that there has
been no reversible error. After a thorough review of the
record, we also find no reason to exercise our authority under
G. L. c. 278, § 33E, to grant a new trial or to either reduce or
set aside the verdict of murder in the first degree. We
therefore affirm the defendant's convictions and the denial of
his motion for a new trial.
Background. We summarize the facts that the jury could
have found, reserving other facts for our discussion of specific
issues. At approximately 4 P.M. on December 16, 2010, a sole
gunman shot the victim in the arm, chest, and head while he sat
in a parked car outside a housing complex in the Roxbury section
of Boston. The shooter fled the scene on foot. Police and
emergency medical personnel soon arrived and attempted to save
the victim's life. These efforts proved unsuccessful, and the
victim was pronounced dead shortly thereafter.
Police immediately began to canvas the crime scene. In the
course of their investigation, police interviewed several
witnesses at the scene who provided detailed descriptions of the
suspected shooter. While their descriptions varied slightly,
these witnesses consistently described the suspected shooter as
a black- or brown-skinned male wearing a large black coat with a
fur collar, dark jeans, and dark shoes. Several witnesses also
stated that the man had a distinctive gait, describing his walk
4
as something akin to a limp.2 Police also learned that the
suspect had been seen throwing an object into a nearby Dumpster
as he left the scene following the shooting.
As police continued to search the crime scene, they
discovered four spent shell casings near where the victim was
shot and a .45 caliber handgun in the Dumpster identified by
witnesses. Subsequent ballistics testing revealed this firearm
to be the murder weapon. However, police were unable to recover
any fingerprints from either the firearm or the shell casings.
Acting on information from witnesses who described the
route the suspect took to flee the scene, police reviewed video
footage from surveillance cameras that were located throughout
the surrounding neighborhood. Surveillance video recordings
from the time frame immediately following the shooting captured
footage of a man in a puffy black jacket with a fur collar, dark
jeans, and dark sneakers who appeared to have a limp walking
away from the crime scene.
Even with this information in hand, police were unable to
immediately locate the suspect. In an attempt to identify him,
the police released one of the surveillance video recordings of
the suspect to the public in February 2011. To that end, the
2 However, no witnesses from the scene were able to
positively identify the defendant at trial.
5
recording was posted online and broadcast by television news
stations. Several days after the video recording was released
to the public, a man who identified himself as Michael Hobbs3
telephoned Boston police and expressed his belief that the
suspect in the recording was his brother, the defendant.
Michael reiterated this identification in a follow-up interview
with police, and again during subsequent testimony before a
grand jury. Before the grand jury, he testified that he was
able to identify the suspect as his brother due to the clothing
the suspect was wearing and the distinctive way that the suspect
walked.4 In addition to identifying the defendant as the suspect
in his initial call to police, Michael provided police with a
telephone number for a cell phone that he understood to belong
to the defendant.5 Police then requested a court order requiring
the defendant's cellular service provider to produce, among
3 We refer to members of the Hobbs family by their first
names to avoid confusion.
4 Michael recanted these identifications at trial, stating
that his brother walks "normal" and not in any distinctive way.
He then testified that upon reviewing the surveillance footage
further, he did not believe that the suspect in the footage was
his brother. The Commonwealth confronted this recantation with
his prior identifications and the grand jury testimony, which
was admitted in evidence for impeachment purposes and as
substantive evidence.
5 Trial testimony revealed that although this cell phone was
purchased and owned by the defendant's former girlfriend, the
defendant used it as his personal cell phone at all times
relevant to this case.
6
other information, the historical CSLI from the defendant's cell
phone spanning several months surrounding the day of the
killing. The application was granted. The CSLI from the date
of the killing was introduced at trial and showed that the
defendant's cell phone was located in the general vicinity of
the crime scene at and around the time of the killing.
The Commonwealth introduced further evidence identifying
the defendant as the suspect in the surveillance video footage
through Roseanne Robinson, the wife of the defendant's friend,
Bonae Swain-Price. Robinson testified that the defendant and
her husband knew each other well and that the defendant had
lived with her family for a period of time.6 She explained that,
having observed the defendant's gait on prior occasions, she
believed that one of his legs turned inward as he stepped
forward, giving the appearance that he walked with a limp. She
also testified that, based at least in part on her familiarity
with the defendant's gait, she recognized the defendant as the
suspect in the surveillance video recording that the police had
released to the public. After watching the video recording, she
remarked to her cousin that she thought the suspect in the
recording looked like the defendant, and later told the
defendant directly that she had "seen him on the news." In
6 Roseanne Robinson also testified that her husband used the
defendant's cell phone from time to time.
7
addition to her testimony regarding his gait, Robinson testified
that she believed the suspect in the recording to be the
defendant due to the clothing that the suspect was wearing. She
explained that the defendant often wore dark shoes and dark
jeans, and that her husband had given the defendant a large
black jacket with a fur collar at some point before the date of
the killing. Evidence also revealed that Swain-Price had
possessed a .45 caliber handgun that matched the general
description of the murder weapon, and that Swain-Price possessed
this weapon while the defendant lived with Swain-Price and his
family.
Finally, the lead detective in the case testified that he
had recently reviewed a video recording of the defendant walking
and had observed that the defendant had "a distinctive walk,"
which appeared to him to be a limp.7
After the case was submitted, the jury returned guilty
verdicts on both charges and the defendant was subsequently
sentenced to life in prison without the possibility of parole.
The defendant now appeals.
7 Several other witnesses, however, testified that the
defendant did not walk in a distinctive manner. For example,
the defendant's sister, Nicole, and his former girlfriend both
testified that they had never noticed anything distinctive about
the defendant's gait during the time that they had known him.
8
Discussion. 1. Motion to suppress CSLI. The defendant
appeals from the denial of his pretrial motion to suppress. On
March 17, 2011, approximately three months after the killing in
this case, and after identifying the defendant as a suspect, the
Commonwealth filed an application, pursuant to 18 U.S.C. § 2703,
requesting a court order that would require the defendant's
cellular service provider to produce, among other information,
the historical CSLI from the defendant's cell phone spanning
December 1, 2010, through March 15, 2011.8 The application was
granted. A review of the CSLI revealed that the defendant's
cell phone was in the vicinity of the crime scene at and around
the time of the killing. Before trial, the defendant moved to
suppress the CSLI, arguing that the Commonwealth did not have
probable cause to obtain this information. The motion was
denied, and the CSLI was eventually admitted in evidence at
trial.
When reviewing a ruling on a motion to suppress, we "accept
the judge's subsidiary findings of fact absent clear error but
8 Cell site location information (CSLI) refers to a cell
phone "service record or records that contain information
identifying the base station towers and sectors that receive
transmissions from a [cellular] telephone" (quotation and
citation omitted). Commonwealth v. Augustine, 467 Mass. 230,
231 n.1 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass.
448 (2015). Once obtained, law enforcement can use this
information to identify the approximate location of the cell
phone based on the cell phone's communication with a particular
cell site. See id. at 238.
9
conduct an independent review of his ultimate findings and
conclusions of law" (quotation and citation omitted).
Commonwealth v. White, 475 Mass. 583, 587 (2016). Accordingly,
we make an "independent determination of the correctness of the
judge's application of constitutional principles to the facts as
found" (citation omitted). Id.
Before the government may request and obtain historical
CSLI, it ordinarily must first obtain a warrant based on
probable cause.9 See Carpenter v. United States, 138 S. Ct.
2206, 2221 (2018) (warrant required under Fourth Amendment to
United States Constitution); Commonwealth v. Augustine, 467
Mass. 230, 232 (2014) (Augustine I), S.C., 470 Mass. 837 and 472
Mass. 448 (2015) (warrant required under art. 14 of
Massachusetts Declaration of Rights). Because the Commonwealth
in this case requested the historical CSLI several years before
we first articulated this warrant requirement in 2014, in
Augustine I, it did not obtain a warrant.10 The Commonwealth may
9 The Commonwealth need not obtain a warrant, however, if it
requests six hours or less of "telephone call" CSLI.
Commonwealth v. Estabrook, 472 Mass. 852, 858 & n.12 (2015).
10Although the Commonwealth requested the historical CSLI
in 2011, the defendant's trial did not occur until after we
announced the warrant requirement in Augustine I. Moreover, the
defendant challenged the sufficiency of the Commonwealth's
application pursuant to 18 U.S.C. § 2703 before trial. The
warrant requirement therefore applies in this case. Augustine
I, 467 Mass. at 257 (warrant requirement applies to "cases in
10
nevertheless still satisfy the warrant requirement if it can
establish that its "application for the § 2703[] order met the
requisite probable cause standard of art. 14." Augustine I,
supra at 256.
An affidavit in support of a search warrant for historical
CSLI must "demonstrate 'probable cause to believe [1] that a
particular described offense has been, is being, or is about to
be committed, and [2] that [there is a substantial basis to
believe that the CSLI being] 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, is
committing, or is about to commit such offense.'" Commonwealth
v. Estabrook, 472 Mass. 852, 870 (2015), quoting Augustine I,
467 Mass. at 256. See Commonwealth v. Robertson, 480 Mass. 383,
387 (2018). See also Commonwealth v. Holley, 478 Mass. 508, 521
(2017).
We review the affidavit de novo to determine if it
"satisfies the probable cause standard." Robertson, 480 Mass.
at 386. Ordinarily, we look to the "four corners of the
affidavit to determine whether . . . [the] application
establishes probable cause" (quotation omitted). Estabrook, 472
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").
11
Mass. at 866. The affidavit is to be evaluated "as a whole and
in a commonsense and realistic fashion," and not "parsed,
severed, and subjected to hypercritical analysis" (citations
omitted). Robertson, supra. "[I]nferences drawn from the
affidavit need only be reasonable, not required" (citation
omitted). See Commonwealth v. Augustine, 472 Mass. 448, 455
(2015) (Augustine II). "[N]o showing that the inferences are
correct or more likely true than not true is required."
Robertson, supra at 387.
The affidavit accompanying the Commonwealth's § 2703
application in this case included the following information.
Boston police officers responded to a report of a gunshot victim
in Roxbury on December 16, 2010. Upon arriving at the crime
scene, police found the victim lying on the ground and suffering
from multiple gunshot wounds. The victim was later pronounced
dead at a local hospital. Four .45 caliber shell casings were
found at the scene, and several witnesses described the shooter
as a black Hispanic male with curly hair and a thin beard, who
was wearing a puffy black jacket with a fur collar. Witnesses
also reported seeing the shooter throw an object into a nearby
Dumpster. Police thereafter recovered from the Dumpster a .45
caliber firearm that was still warm, indicating to police that
it had recently been fired. Acting on information from
witnesses who described the route the suspect took following the
12
shooting, police reviewed footage from surveillance cameras,
located in the surrounding neighborhood, that had captured
images of a black or black Hispanic male in a puffy black jacket
with a fur collar walking down the street. On February 25,
2011, after police released this surveillance footage to the
public, the defendant's brother telephoned police and stated
that, based on his independent review of the surveillance
footage, he believed that the man in the footage wearing the
puffy black jacket with a fur collar was the defendant. The
defendant's brother also stated that the defendant tended to
"hang[] out around" the area in the vicinity of the street on
which the victim lived. Additionally, the defendant's brother
told police that he did not know his brother's whereabouts, as
he had not seen the defendant in several months and his family
could not get in touch with him. Finally, the defendant's
brother provided police with a telephone number for a cell phone
that he understood to belong to the defendant. The defendant's
association with the cell phone's number was subsequently
corroborated by the defendant's former girlfriend.
The defendant argues that the foregoing information was
insufficient to satisfy the requisite probable cause standard.
We disagree. As to the first requirement, based on the facts
discussed supra, there is no question that the affidavit
demonstrated probable cause to believe that "a particularly
13
described offense ha[d] been . . . committed," and that the
defendant had committed the offense. Augustine II, 472 Mass. at
453, quoting Augustine I, 467 Mass. 256. Cf. Robertson, 480
Mass. at 387 (probable cause to believe particular offense
occurred where police found victim suffering from gunshot wound
and percipient witnesses gave accounts of shooting to police).
Whether the affidavit satisfied the second requirement,
that there be a substantial basis to believe that the sought-
after CSLI "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," is a closer
question. Augustine II, 472 Mass. at 453, quoting Augustine I,
467 Mass. 256. See Robertson, 480 Mass. at 387; Holley, 478
Mass. at 521. The defendant argues that the affidavit fails to
satisfy this requirement (i) because it did not establish the
requisite nexus between the sought-after evidence and the
crimes, and (ii) because its request for CSLI was
unconstitutionally overbroad. We address each argument in turn.
a. Nexus. The defendant first argues that the affidavit
categorically failed to establish the requisite nexus "between
the crime[s] alleged and the article to be search or seized"
(quotation and citation omitted), White, 475 Mass. at 588,
because there was no assertion in the affidavit that the
defendant actually used or possessed his cell phone during the
14
commission of the crimes. We disagree, as neither this court
nor the United States Supreme Court has required such a showing
to satisfy the nexus requirement where the sought-after evidence
is CSLI. See, e.g., Carpenter, 138 S. Ct. at 2221; Estabrook,
472 Mass. at 870; Augustine II, 472 Mass. at 453.
The affidavit in support of a search warrant application
must demonstrate a nexus between "the crime [for which there is
probable cause to search] and the items sought, and the location
to be searched." Commonwealth v. Alexis, 481 Mass. 91, 102
(2018). See Holley, 478 Mass. at 521. The nexus "need not be
based on direct observation" and it "may be found in the type of
crime, the nature of the [evidence] sought, and normal
inferences as to where such evidence may be found" (emphasis
added; quotation omitted). White, 475 Mass. at 589. To
establish the requisite nexus, the affidavit must demonstrate 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" (citation
omitted). Alexis, supra. See Holley, supra; Augustine II, 472
Mass. at 455.
In the context of historical CSLI, the sought-after
evidence is the location of the cell phone itself, not what
information may be found in the cell phone's contents. That
15
location can also be reasonably expected to be the location of
the person possessing the cell phone. We have repeatedly
recognized that cell phones have become "an indispensable part
of daily life and exist as almost permanent attachments to
[their users'] bodies" (quotations omitted). Commonwealth v.
Almonor, 482 Mass. 35, 45 (2019), quoting Augustine I, 467 Mass.
at 245-246. "Cell phones 'physically accompany their users
everywhere' such that tracking a cell phone results in 'near
perfect surveillance' of its user." Almonor, supra, quoting
Carpenter, 138 S. Ct. at 2218; Augustine I, supra at 246.
Accordingly, in light of the inseparability of person from cell
phone, an affidavit establishing that a suspect committed a
crime and that the suspect was known to own or use a particular
cell phone, along with the reasonable inferences drawn
therefrom, demonstrates a substantial basis to believe that the
CSLI from that cell phone was "related to the criminal activity
under investigation, and that [the CSLI] reasonably may be
expected to be located in the place to be searched at the time
the search warrant issues" (citation omitted). Alexis, 481
Mass. at 102. More precisely, the location of a suspect's cell
phone at the time of the criminal activity provides evidence
directly related to his or her participation, or lack thereof,
in the criminal activity, and the location of the cell phone at
16
that time can reasonably be expected to be found in the CSLI
records requested.
Consequently, there is a sufficient nexus between the
criminal activity for which probable cause has been established
and the physical location of the cell phone recorded by the CSLI
of the person the applicant has probable cause to believe has
committed the offense, at least for the time and place of the
criminal activity. A direct observation of a suspect's actual
use of the cell phone during the commission of the crime is thus
not required to establish the requisite nexus between the crime
and CSLI.11 See Estabrook, 472 Mass. at 870 (no mention of
11Indeed, a request for CSLI without a direct observation
of a suspect's use of the cell phone during the commission of
the crime does not raise the same nexus concerns raised in other
contexts. For example, in Commonwealth v. White, 475 Mass. 583,
591-592 (2016), we held that when police seek access to the
contents of a cell phone, it is not enough for the averring
officer to state that "given the type of crime under
investigation, the [cell phone] likely would contain evidence"
of the crime. Rather, we held that "even where there is
probable cause to suspect the defendant of a crime, police may
not seize or search his or her [cell phone] to look for evidence
unless they have information establishing the existence of
particularized evidence likely to be found there." Id. at 590-
591. Critical to our decision, however, was that the search
that law enforcement seeks to conduct is of a "computer-like"
device. Id. at 589. See Commonwealth v. Holley, 478 Mass. 508,
524 (2017), quoting Commonwealth v. Dorelas, 473 Mass. 496, 502
(2016) ("We have cautioned that 'given the properties that
render [a modern cell phone] distinct from the closed containers
regularly seen in the physical world, a search of its many files
must be done with special care and satisfy a more narrow and
demanding standard'"). In these circumstances, without a
particularized showing of facts demonstrating that the device
17
defendant's cell phone use in affidavit, but concluding
affidavit established probable cause that CSLI would produce
evidence of crime by indicating "whether [defendant's cell
phone] . . . was located near the victim's home on the night of
the shooting and, therefore, whether [defendant] was in the area
of the shooting when it occurred"). See also United States v.
Hunt, 718 Fed. Appx. 328, 332 (6th Cir. 2017) (probable cause
and requisite nexus for CSLI where affidavit demonstrated that
location of defendant's cell phone would corroborate informant's
assertions that defendant owned cell phone and frequently
traveled to Chicago to purchase drugs); United States v. Gibbs,
547 Fed. Appx. 174, 179 (4th Cir. 2013) (per curiam), cert.
denied, 573 U.S. 949 (2014) (probable cause established where
affidavit established existence of criminal activity, link
between person whose cell phone was to be tracked and that
criminal activity, and whether location information would likely
reveal evidence of crime); United States vs. Christian, U.S.
Dist. Ct., No. 1:16-cr-207 (LMB) (E.D. Va. May 24, 2017), aff'd,
737 Fed. Appx. 165 (4th Cir. 2018) (per curiam), cert. denied,
139 S. Ct. 1204 (2019) (no requirement that affidavit
contains evidence of a crime, law enforcement would be permitted
to review vast amounts of sensitive and private data without
establishing the necessary nexus between the cell phone and the
crime. White, supra at 589-592. These same concerns are not
present in the context of CSLI, where the cell phone's location,
and not its contents, is sought.
18
demonstrate cell phone itself was used to conduct criminal
activity because, "[i]n the context of a [cell phone location]
warrant, the place to be searched is the subject [cell] phone,
and the item to be seized is location data. Therefore, the
nexus requirement is satisfied by an inference that the subject
[cell] phone will be a source of location information regarding
criminal activity"). See generally Alexis, 481 Mass. at 102
("There must be probable cause to conclude not only that an
individual committed a crime, but also that there is a nexus
between the crime and the items sought, and the location to be
searched").
In the instant case, the affidavit demonstrated probable
cause that the defendant committed the killing, and also
established that he possessed a cell phone. After the footage
of the suspect was released to the public, a man called police
and positively identified the suspect in the footage as being
his brother, the defendant. The defendant's brother also gave
police a telephone number that he claimed was the telephone
number for the defendant's cell phone. The defendant's
association with the telephone number was thereafter
corroborated by the defendant's former girlfriend. These facts
demonstrated the requisite nexus between the CSLI and the
killing. Cf. Estabrook, 472 Mass. at 870.
19
b. Overbreadth. The defendant next argues that the
application's request for three and one-half months of
historical CSLI was unconstitutionally overbroad because the
affidavit did not establish probable cause for the entire amount
of data.12 In effect, the defendant argues that the
Commonwealth's affidavit failed to furnish the requisite nexus
between the full three and one-half months of CSLI and the
crimes that occurred. Accordingly, he argues, the search was
unreasonable under the Fourth Amendment and art. 14.
Such an extended collection of CSLI, both before and after
the killing, raises significant constitutional questions. See
Carpenter, 138 S. Ct. at 2217 (noting that review of extended
amounts of CSLI can "provide[] an intimate window into a
person's life, revealing not only his [or her] particular
movements, but through them his [or her] familial, political,
professional, religious, and sexual associations" [quotation and
citation omitted]); Augustine I, 467 Mass. at 248-249. Indeed,
the sensitive and private nature of this type of data is
12The Commonwealth argues, and the motion judge concluded,
that in light of the evidence of the defendant's involvement in
the crimes, as well as his having escaped apprehension and his
itinerancy in the months following the shooting, the affidavit
demonstrated probable cause that the full three and one-half
months of CSLI "[would] aid in the apprehension of a person who
the applicant has probable cause to believe has committed . . .
such offense" (citation omitted). See Commonwealth v.
Augustine, 472 Mass. 448, 453 (2015).
20
precisely why both this court and the United States Supreme
Court have held that the Fourth Amendment and art. 14 require a
warrant based on probable cause before this data may be obtained
by the government. See Carpenter, supra; Augustine I, supra.
We recognize, however, that defining the permissible parameters
of time for CSLI searches that are justified by probable cause
is difficult. This is a "fact-intensive inquiry, and must be
resolved based on the particular facts of each case." Holley,
478 Mass. at 522, quoting Commonwealth v. Morin, 478 Mass. 415,
426 (2017).
The affidavit in this case clearly demonstrated a
substantial basis to believe that historical CSLI from the
defendant's cell phone would provide relevant evidence related
to the crimes and his flight from the crime scene. The
affidavit therefore established, at a minimum, the requisite
nexus for the CSLI for the date of the killing, December 16,
2010. As we have noted, however, the Commonwealth sought CSLI
for a far greater period of time than the day of the killing;
they sought and received three and one-half months of CSLI.
This extended request was in part the result of the failure to
identify the defendant as a suspect for nearly two and one-half
months, and the absence of any evidence of his current location
once he was identified as a suspect. Although the delay in
identifying the defendant as a suspect and the difficulty in
21
apprehending him made it difficult to define the permissible
scope of the CSLI request, we assume, without deciding, that at
least some of this three and one-half month period of time was
unnecessary to either the investigation or apprehension of the
defendant.
The question then presented is what a court should suppress
when the requisite nexus exists for historical CSLI spanning a
shorter period of time than that authorized by the search
warrant -- or in this case, the § 2703 order. More
specifically, does either the Fourth Amendment or art. 14
require total suppression of the entire amount of CSLI
collected, or is the proper remedy to suppress only the CSLI for
which there is not the requisite nexus to the crime? Given the
uncertainty in the case law regarding overbroad requests for
CSLI, and the limited briefing before the court on the issue
presented, we proceed cautiously on this issue. We conclude
that, in these circumstances, where the requisite nexus for
probable cause clearly exists for a reasonable period of time
encompassing the commission of and flight from the crime, as
well as the defendant's immediate apprehension,13 the CSLI for
13We once again emphasize the significant constitutional
issues raised by the collection of extended amounts of
historical CSLI, and the importance of limiting the requests
accordingly. See Augustine I, 467 Mass. at 248-249. As we have
noted, law enforcement may have other available alternatives to
22
this period of time need not be suppressed so long as the CSLI
for which there is not the requisite nexus to the crime is not
relied on or otherwise exploited by the Commonwealth at trial.
Our decision in Holley is instructive in this regard.
There, the defendant challenged a search warrant authorizing the
search of a cell phone for seventeen days' worth of broad
categories of electronic records, including text messages.
Holley, 478 Mass. at 524. At trial, however, the Commonwealth
only introduced two days' worth of text messages, which had been
redacted such that only text messages relevant to the crimes
were put before the jury. Id. at 525. Having already concluded
that the requisite nexus existed between the text messages and
the crimes, id. at 522-524, and that therefore the Commonwealth
had probable cause to search the text messages, we held that the
defendant was not prejudiced by the broad scope of the warrant,
as the text messages were "sufficiently limited in content and
scope such that the Commonwealth did not capitalize on the lack
of particularity in the warrant." Id. at 525.
The case here is analogous to Holley. Although the § 2703
order in this case should have been much more limited in its
scope based on facts set forth in the affidavit, the trial
aid in the apprehension of suspects, such as a warrant for the
real-time location data of the suspect's cell phone. See
generally Commonwealth v. Almonor, 482 Mass. 35 (2019).
23
record reveals that the only CSLI that was meaningfully used and
relied on by the Commonwealth at trial was from the date of the
killing.14 To that end, maps showing the approximate locations
of the defendant's cell phone on December 16, 2010, were
introduced in evidence and were the subject of the testimony
from several witnesses. Additionally, references to CSLI during
the Commonwealth's opening statement and closing argument were
limited to CSLI from the date of the killing. As in Holley, 478
Mass. at 525, on this record, the CSLI relied on at trial was
limited in content and scope such that the Commonwealth did not
capitalize on the overbreadth of the § 2703 order. The
defendant therefore suffered no prejudice from the broad scope
of the warrant.15 See id. See also United States v. Abboud, 438
14Although CSLI and other cell phone information from the
arguably overbroad aspects of the § 2703 order were introduced
in evidence at various other points at trial, this evidence was
never discussed by the witnesses or relied on by the
Commonwealth. Indeed, this evidence was not incriminating, and
the defendant has not identified how its admission prejudiced
him in any way. There was also ample other evidence of the
defendant's guilt, including the eyewitness testimony, the
surveillance recording, and the identifications by his brother
and his friend's wife. The improperly admitted evidence
therefore had no effect on the jury or their findings.
Accordingly, we are satisfied that the admission of this
evidence was harmless beyond a reasonable doubt.
15We note that our approach here is also consistent with
the principles underlying the severance doctrine, a remedy which
has traditionally been applied when a "search warrant is issued
to search a certain place for several items, but is later
determined that some but not all of those items are described
24
F.3d 554, 576 (6th Cir.), cert. denied, 549 U.S. 976 (2006)
(where probable cause existed only for defendant's business
with sufficient particularity, or that probable cause had been
established as to some but not all of the items described." 2
W.R. LaFave, Search and Seizure § 4.6(f), at 814 (5th ed. 2012).
In these circumstances, we have held that "the infirmity of part
of a warrant requires the suppression of evidence seized
pursuant to that part of the warrant . . . but does not require
the suppression of anything described in the valid portions of
the warrant." Commonwealth v. Lett, 393 Mass. 141, 144–145
(1984). See Aday v. Superior Court of Alameda County, 55 Cal.
2d 789, 796-799 (1961) (seminal decision on severance). We
have, in this context, been "persuaded that 'it would be harsh
medicine indeed if a warrant which was issued on probable cause
and which did particularly describe certain items were to be
invalidated in toto merely because the affiant and magistrate
erred in seeking and permitting a search for other items as
well.'" Lett, supra at 145, quoting 2 W.R. LaFave, Search and
Seizure § 4.6(f), at 111–112 (1978 & Supp. 1984).
In determining whether the severance doctrine applies,
courts have been careful to consider whether total suppression
of the evidence seized as a result of the search would
effectuate the purposes of the exclusionary rule. Lett, 393
Mass. at 145. See United States v. Cook, 657 F.2d 730, 735 (5th
Cir. 1981). These purposes include "the deterrence of unlawful
police conduct, the dissociation of the courts from such
misconduct, and the preclusion of the benefit to the prosecution
from unconstitutional police activity." Lett, supra. See
United States v. Christine, 687 F.2d 749, 757 (3d Cir. 1982);
Cook, supra. "Where none of these purposes will be served,
rigid adherence to the exclusionary rule only can frustrate the
public interest in admitting the evidence obtained." Lett,
supra. See United States v. Fitzgerald, 724 F.2d 633, 636 (8th
Cir. 1983), cert. denied, 466 U.S. 950 (1984) ("In deciding
whether particular evidence should be suppressed in any given
case, then, courts properly weigh the deterrent effect of the
suppression against its societal costs"). In these
circumstances, severance and partial, rather than total,
suppression can "effect[] a pragmatic balance" between the "cost
to society of excluding probative evidence" and the deterrent
effect of suppression. Lett, supra. See Christine, supra at
758.
25
records covering three-month period in 1999, no prejudice
suffered from overbroad search warrant authorizing search of
records from January 1996 through May 2002 because records from
overbroad portion of warrant were not relied on by government at
trial).
In sum, we conclude as a matter of law that the requisite
nexus for probable cause existed to support the collection and
review of CSLI from the defendant's cell phone for a reasonable
period of time encompassing the commission of, and flight from,
the killing in this case. The search of and use of this CSLI
evidence was thus justified and separable from the overbroad
portions of the CSLI authorized by the § 2703 order for which
there was no nexus articulated by the Commonwealth between the
CSLI and the crimes, as there was no attempt to exploit the
overbroad portions of the CSLI evidence at trial. Cf. Holley,
478 Mass. at 525. We therefore cannot say that the motion judge
erred in denying the defendant's motion to suppress the CSLI in
this case.
We turn now to the alleged errors at trial.
2. Admission of detective's testimony. Shortly before
trial, the Commonwealth disclosed its intention to admit prison
surveillance video footage (prison video) that had recently been
captured and that purported to show that the defendant had a
distinctive gait while he was incarcerated. The Commonwealth
26
offered that this evidence would allow the jurors to compare the
defendant's gait with the gait of the suspect in the
surveillance video footage from the day of the shooting that
would be admitted in evidence. The defense objected, arguing
that the new evidence was not timely disclosed to the defense
and that the prejudicial effect of admitting video footage of
the defendant in a prison setting years after the shooting in
this case substantially outweighed its probative value. The
trial judge agreed with the defense as to the latter argument,
and precluded the Commonwealth from admitting the prison video.
The trial judge did, however, permit the lead detective in the
case to testify about his observations of the defendant's gait
in the prison video without making reference to the fact that
the video footage he reviewed was of the defendant in prison.
Further, the trial judge did not allow the detective to opine as
to whether he believed the defendant was the same man as the
suspect in the surveillance footage.
At trial, the detective provided the following description
of the defendant's gait as seen in the prison video:
"[The defendant] had a distinctive walk. It appeared that
he had a limp with his left leg going out to the side a
little bit. Again, not again, he was clearly pigeon-toed
to me with his left leg pointing inward. He seemed to have
something with his right foot where it appeared at times
that he was walking on the inside of his foot, pointing
[his] right foot outwards."
27
Following this testimony, the Commonwealth asked the detective
to describe the gait of the suspect in the surveillance footage
from the day of the shooting. He described the suspect's gait
as follows:
"I observed what I believe to be a limp with his left leg
coming out a little bit. I believe I observed that [the
suspect] appears to be pigeon-toed with his left foot
pointing inwards, and I also observed what I believe to be,
it appears as [if] he's walking on the inside of his foot
pointing his right foot outwards."
The detective went on to comment on the appearance of the
suspect in the video recording, describing that he observed that
the suspect was wearing "dark-colored jeans, a black coat with a
fur collar," along with "black sneakers, which appeared to have
some red on them, and he appeared to be wearing a hooded
sweatshirt with perhaps white stripes or white designs on the
hood of the sweatshirt." This testimony concluded without the
detective ever offering an opinion as to whether he thought the
defendant was the suspect in the surveillance video footage.
On appeal, the defendant argues that the trial judge abused
her discretion in admitting this testimony and that this error
warrants a reversal of his convictions. We disagree.
First, the defendant argues that the detective's testimony
describing his observations about the defendant's gait as seen
in the prison video was error because the Commonwealth did not
timely disclose its intention to admit this evidence at trial.
28
We discern no error. A trial judge "possesse[s] considerable
discretion in dealing with the problem created by the
prosecution's late disclosure" of evidence. Commonwealth v.
Hamilton, 426 Mass. 67, 70 (1997). When the ground for the
exclusion of evidence involves late disclosure by the
prosecution, "without any showing of bad faith on [the
prosecution's] part . . . a defendant is required to show
material prejudice from the disclosure before a new trial can be
considered." Id. See Commonwealth v. Bresilla, 470 Mass. 422,
432 (2015). The defendant has demonstrated neither that the
Commonwealth acted in bad faith nor that he was materially
prejudiced by the late disclosure of this evidence. The prison
video was turned over to the defense on May 23, 2015, but the
detective did not testify until more than two weeks later on
June 10, 2015. As the trial judge noted, defense counsel had a
full and fair opportunity to consult with his expert and to
prepare to cross-examine the Commonwealth's witness on this
issue. The trial judge therefore did not abuse her discretion
in allowing the detective to testify on this basis.
Next, the defendant argues that even if this evidence was
timely, the detective's testimony was improper because he
effectively identified the defendant as the suspect in the
surveillance footage. Because the defendant did not object to
the testimony on these grounds at trial, we review any error for
29
substantial likelihood of a miscarriage of justice.
Commonwealth v. Almeida, 479 Mass. 562, 568 (2018) (where
"grounds for objection" made at trial differ from those raised
on appeal, "the standard of review that applies to [the] claim
is whether there was a substantial likelihood of a miscarriage
of justice"). Where the jury are capable of "viewing [a]
videotape and drawing their own conclusions regarding whether
the [individual] in the videotape was the defendant," opinion
testimony from a police officer as to the identity of the
individual in the recording is ordinarily not admissible.
Commonwealth v. Austin, 421 Mass. 357, 366 (1995). See
Commonwealth v. Pina, 481 Mass. 413, 429-430 (2019) (noting that
"testimony of a police officer, with its possibly greater
imprint of authority as to identification of a defendant . . .
is not permissible absent some compelling reason that the police
officer is in a better position than the jury to identify the
defendant"). See also Commonwealth v. Wardsworth, 482 Mass.
454, 476 (2019). Here, however, although the detective
described the defendant's gait and the gait of the suspect in
the surveillance video recording in nearly identical terms, he
did not directly offer his opinion as to whether he believed
that the two gaits were similar or that he believed the
defendant was the suspect in the surveillance video footage.
Rather, the officer merely described his observations of the
30
defendant's gait in both of the video recordings he observed.
The jury were free to determine whether they believed the
detective's description of the defendant's gait was similar to
the gait of the suspect in the surveillance video footage -- a
video recording that they had the repeated opportunity to see.
There was no identification made by the detective, and there was
therefore no error.16
Finally, the defendant argues that notwithstanding the
detective's description of the defendant's gait in the prison
video, his description of the gait and the appearance of the
suspect in the surveillance video footage from the day of the
shooting improperly invaded the province of the jury to draw
their own conclusions as to the suspect's appearance and gait.
This is a closer question, as the officer could have been
limited to describing the defendant's gait in the prison video
and the jury left to make its own comparison. Because the
defendant did not object to this specific testimony, we review
any error to determine whether it created a substantial
16Even were we to assume that this testimony amounted to
impermissible lay opinion as to the identity of the suspect in
the surveillance footage, the error did not create a substantial
likelihood of a miscarriage of justice, as it was cumulative of
other identifications made by his brother and Robinson. Cf.
Commonwealth v. Pina, 481 Mass. 413, 429-430 (2019) (no
prejudicial error where police officer's opinion that defendant
was suspect in surveillance video recording was cumulative of
other identification evidence properly admitted); Commonwealth
v. Vacher, 469 Mass. 425, 441-442 (2014).
31
likelihood of a miscarriage of justice. Commonwealth v. Barry,
481 Mass. 388, 407 (2019).
Even if it was error to admit this testimony, it is clear
that it did not likely influence the jury's conclusion. See
Commonwealth v. Brown, 474 Mass. 576, 586 (2016) (no substantial
likelihood of miscarriage of justice where erroneously admitted
evidence did not likely influence jury's conclusion). The
amount of evidence regarding the appearance of the suspect in
the surveillance video footage was substantial. In addition to
the fact that the jury were able to view the footage themselves,
several witnesses from the scene of the shooting testified that
the suspect was wearing a large black coat with a fur collar,
dark jeans, and dark shoes. Several others also testified that
the suspect walked with what appeared to be a limp.
Additionally, each of the witnesses who was shown the
surveillance video recording of the suspect identified the
suspect in the recording as the man they had seen at the crime
scene. The detective's testimony describing the gait and
appearance of the suspect in the surveillance video footage was
therefore cumulative of other evidence at trial. We are
satisfied that his testimony did not likely influence the jury,
32
and therefore did not create a substantial likelihood of a
miscarriage of justice.17
3. Right to confront witnesses. During the detective's
testimony, the Commonwealth introduced call logs listing
telephone numbers with which the defendant's cell phone had
connected with at various times. The Commonwealth questioned
the detective about a particular telephone number with which the
defendant's cell phone had connected several times on the date
of the killing. In the course of the questioning, the detective
testified that this telephone number belonged to Swain-Price.
Earlier trial testimony showed that Swain-Price and the
defendant were friends, and that the defendant had been living
with Swain-Price at or around the time of the shooting.
Although the detective testified that the number belonged to
Swain-Price, no evidence was offered demonstrating how he had
learned this information. At sidebar, the Commonwealth
disclosed that Swain-Price himself had told the detective that
17In his motion for a new trial, the defendant also argues
that his trial counsel was ineffective for failing to object to
the introduction of this evidence on this basis. As explained
supra, even assuming error, the admission of this evidence did
not create a substantial likelihood of a miscarriage of justice.
Accordingly, counsel was not ineffective for failing to object
to this testimony. See Commonwealth v. Lessieur, 472 Mass. 317,
326, cert. denied, 136 S. Ct. 418 (2015) (claims of ineffective
assistance of counsel reviewed to determine whether there
"exists a substantial likelihood of a miscarriage of justice").
33
it was his telephone number during a police interview. Swain-
Price did not testify at trial.
On appeal, the defendant argues that because the
detective's knowledge of Swain-Price's connection to the
telephone number was based on testimonial hearsay and because
Swain-Price did not testify, the admission of this testimony
violated the defendant's confrontational rights under the Sixth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights. The Commonwealth concedes
that the admission of this testimony was error, and we agree.
Defense counsel objected to this testimony, although not on the
constitutional grounds argued before us on appeal. We therefore
review to determine whether its admission constituted
prejudicial error. See Commonwealth v. Imbert, 479 Mass. 575,
579 (2018); Commonwealth v. Grady, 474 Mass. 715, 720 (2016).
Although the admission of this testimony was error, we
conclude that it was not prejudicial, because there is no doubt
that it "did not influence the jury, or had but very slight
effect" (citation omitted). Commonwealth v. Cruz, 445 Mass.
589, 591 (2005). Indeed, the defendant has not identified, and
we cannot find, how the introduction of this testimony
prejudiced him in any way. The defendant asserts that this
evidence provided a critical link between the defendant and the
murder weapon because there was testimony that Swain-Price owned
34
a .45 caliber handgun that looked similar to the murder weapon.
We are not persuaded that a call log purporting to show that the
defendant called Swain-Price on the date of the killing linked
the defendant to the murder weapon. At most, the call log
established that the defendant knew Swain-Price. This fact,
however, had already been established by other evidence at
trial, including the fact that the defendant lived with Swain-
Price for a period of time. We are therefore confident that
that evidence had no influence on the jury. Cruz, supra.
4. Hearsay testimony of defendant's sister. One of the
Commonwealth's witnesses, Robinson, testified to a conversation
between the defendant and Swain-Price that she overheard on the
day the police released surveillance footage of the shooting
suspect to the public. Specifically, Robinson testified that
she heard the defendant tell her husband that the defendant's
sister, Nicole, had called him earlier that day and told him
that she had "seen him on [television]." Defense counsel lodged
an objection to this testimony, arguing that it was
impermissible hearsay. In response, the trial judge prohibited
the prosecutor from inquiring further on Nicole's identification
of the defendant and then instructed the jury on the general
definition and parameters of hearsay. The judge did not,
however, explicitly strike the testimony or give a limiting
instruction.
35
On appeal, the defendant argues that Robinson's testimony
amounted to reversible error due to its potential prejudice. As
defense counsel objected to this testimony, we review for
prejudicial error. See Imbert, 479 Mass. at 579.
The testimony at issue contained hearsay within hearsay --
or, "totem pole" hearsay. The first layer of hearsay was the
defendant's out-of-court statement to Swain-Price. The second
layer of hearsay was Nicole's out-of-court statement to the
defendant. Totem pole hearsay is admissible only if each of the
multiple hearsay statements falls within an exception to the
hearsay rule. Commonwealth v. DePina, 476 Mass. 614, 623
(2017). See Mass. G. Evid. § 805 (2019) ("Hearsay within
hearsay is not excluded by the rule against hearsay if each part
of the combined statements conforms with an exception to the
rule . . .").
The defendant's out-of-court statement to Swain-Price was
clearly admissible as a statement of a party opponent. See
Commonwealth v. Cruzado, 480 Mass. 275, 278 (2018); Mass. G.
Evid. § 801(d)(2)(a) (statement not hearsay where "statement is
offered against an opposing party and . . . was made by the
party"). Nicole's out-of-court statement to the defendant that
she had seen him on television, however, was, if offered for the
truth of the matter asserted, hearsay that does not fit within
36
any recognized exception.18 The Commonwealth argues that
Nicole's statement and the defendant's response fit within the
adoptive admission exception to the rule against hearsay. See
Mass. G. Evid. § 801(d)(2)(B). We disagree. An adoptive
admission by silence can be imputed to a defendant only where it
is "apparent that the [defendant] has heard and understood the
statement, that he [or she] had an opportunity to respond, and
that the context was one in which he [or she] would have been
expected to respond to an accusation." Commonwealth v.
Olszewski, 416 Mass. 707, 719 (1993), cert. denied, 513 U.S. 835
(1994). See Commonwealth v. Ferreira, 481 Mass. 641, 658
(2019). The Commonwealth argues that the exception applies here
because after the defendant's sister told him she had seen him
on television, "he did not deny that he was involved with the
murder." It was not "apparent" from the challenged testimony,
however, that the defendant responded to his sister's statement
with silence. Indeed, there was no testimony at all about what,
18Although the Commonwealth arguably had the opportunity to
admit Nicole's statement as a prior out-of-court identification,
see Mass. G. Evid. § 801(d)(1)(C) (2019), it chose not to call
her as a witness in its case-in-chief. Instead, the
Commonwealth sought to circumvent the need for her direct
testimony by admitting her prior identification through a third
party without making her available for cross-examination.
Commonwealth v. Barbosa, 463 Mass. 116, 130 (2012) ("A witness's
pretrial identification is admissible for substantive purposes,
even in the absence of an in-court identification, provided the
identifying witness testifies at trial and is subject to cross-
examination").
37
if any, response the defendant gave, as the trial judge ended
the line of questioning as soon as Robinson testified regarding
the statement. The Commonwealth has therefore failed to show
that the defendant either understood the statement or had an
opportunity to respond. Accordingly, this exchange does not fit
within the adoptive admission exception to the rule against
hearsay. See Olszewski, supra. See also DePina, 476 Mass. at
624 ("We have cautioned . . . against the use of adoptive
admissions by silence . . ."). Its admission thus constituted
an error. We conclude, however, that the error was harmless, as
it did not influence the jury in any way. Cruz, 445 Mass. at
591.
Although Nicole's statement that she had seen the defendant
on television was admitted in error, the testimony was
cumulative of other evidence at trial and was therefore
harmless. Cf. Commonwealth v. Evans, 439 Mass. 184, 191, cert.
denied, 540 U.S. 923 and 540 U.S. 973 (2003) (no prejudice where
hearsay involving prior identification evidence was cumulative
of other properly admitted evidence). The evidence showed that
both Robinson and the defendant's brother, Michael -- both of
whom knew the defendant well -- also stated that they had seen
him on television in the surveillance footage that was released
to the public. Although Michael recanted this identification on
direct examination at trial, the Commonwealth introduced
38
evidence that he had identified the defendant as the suspect in
the surveillance video footage several times, including in a
telephone call to police soon after the footage had been
released, again several months later during an in-person
interview with police, and again under oath before a grand jury.
Moreover, the trial judge terminated the Commonwealth's line of
questioning on Nicole's purported identification immediately
after it was referenced, and the Commonwealth refrained from
mentioning it at any other point during the trial. We therefore
find "with fair assurance" that the jury in this case were "not
substantially swayed by the error" (citation omitted). Cruz,
445 Mass. at 591. Cf. Commonwealth v. Spray, 467 Mass. 456, 471
(2014); Evans, supra.
5. Prosecutorial misconduct. Near the end of trial, the
defense discussed with its expert witness a photograph of the
defendant that was taken during his booking. While cross-
examining the expert, the prosecutor characterized the
photograph as a "booking photo." The defendant did not object
to this statement at trial, but the trial judge nevertheless
immediately instructed the prosecutor to avoid characterizing
the photograph as a "booking photo" in the future. The
defendant argues that this characterization amounted to
prosecutorial misconduct and therefore constituted an error.
Because the defense did not object to this statement when it was
39
made, we review any error to determine if it gave rise to a
substantial likelihood of a miscarriage of justice. DePina, 476
Mass. at 624-625.
The defendant does not argue that this alleged error,
standing alone, warrants reversal. He only argues that it
should be considered in his final argument that reversal is
required due to cumulative error. Even assuming, without
deciding, that the prosecutor's characterization of the
photograph constituted error, such an error certainly did not
give rise to a substantial likelihood of a miscarriage of
justice in this case. The photograph was labeled "booking
photo" by the defense expert and was seen by the jury. Although
the parties agreed to redact the reference to "booking" from the
photograph before the case was submitted to the jury, the jury
were well aware that the photograph purportedly had been taken
at the defendant's booking. The prosecutor's characterization
of the photograph therefore likely did not influence the jury's
conclusion.
6. Cumulative error and G. L. c. 278, § 33E. Finally, the
defendant argues that even if no one specific error argued supra
requires that he be granted a new trial, the combined effect of
the mistakes was so prejudicial as to create a substantial
likelihood of a miscarriage of justice. We disagree. The
cumulative error was no more prejudicial than the individual
40
errors, which, as explained supra, had minimal, if any, impact
on the verdicts in this case. See Commonwealth v. Fuller, 421
Mass. 400, 410-414 (1995).
Additionally, after a thorough review of the record, we
find no reason to exercise our authority under G. L. c. 278,
§ 33E, to grant a new trial or to either reduce or set aside the
verdict of murder in the first degree.
Conclusion. For these reasons, we affirm the defendant's
convictions and the denial of his motion for a new trial.
So ordered.