Commonwealth v. Hobbs

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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.