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19-P-428 Appeals Court
COMMONWEALTH vs. JOSIAH WATKINS.
No. 19-P-428.
Suffolk. March 6, 2020. - September 16, 2020.
Present: Rubin, Maldonado, & Shin, JJ.
Firearms. Evidence, Firearm, Expert opinion, Hearsay. Due
Process of Law, Assistance of counsel. Constitutional Law,
Assistance of counsel, Confrontation of witnesses. Social
Media. Practice, Criminal, Assistance of counsel,
Discovery, Postconviction relief, New trial, Instructions
to jury.
Indictments found and returned in the Superior Court
Department on August 14, 2017.
The cases were tried before Robert N. Tochka, J., and
motions for postconviction discovery and for a new trial were
heard by him.
Michael A. Waryasz for the defendant.
Ian MacLean, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. The defendant was convicted of possession of a
large capacity weapon in violation of G. L. c. 269, § 10 (m),
and unlawfully carrying a firearm in violation of G. L. c. 269,
2
§ 10 (a). Subsequent to his conviction, the defendant filed an
initial motion for a new trial, and the Commonwealth, in light
of a change in case law, moved to vacate the defendant's
conviction on the large capacity firearm charge. That motion
was allowed, the defendant withdrew his initial motion, and the
defendant was resentenced on the remaining conviction of
carrying a firearm without a license. The defendant
subsequently filed motions for postconviction discovery and for
a new trial. These motions were denied. The defendant now
brings a consolidated appeal from his conviction and the denial
of his motions.
Background. In an affidavit in support of an application
for a search warrant, the affiant, Boston Police Detective Brian
L. Ball, detailed the following regarding his investigation of
the defendant: On May 8, 2017, two police officers observed the
defendant via Snapchat. Snapchat is a social media application
that allows users to send or post still images or videos. Those
whose requests to be friends on Snapchat have been accepted may
be described as having been "friended" by the user posting
images or videos. A user may post images or videos to their
"story," which allows all those individuals with whom the user
is "friends" to view them on the user's Snapchat page, but they
remain available for viewing only for twenty-four hours.
3
On May 8, 2017, the defendant was seen by police in two
Snapchat videos. In one posted to the defendant's page, the
defendant brandished a distinctive firearm, a "TEC-9," with a
magazine separated from it. The defendant filmed a video of
himself, recording it in "selfie" style.1 In a subsequent video,
the defendant can be seen in the company of Luis Santos, who was
sitting on a bed loading a magazine into a TEC-9 and then aiming
the firearm at the camera in the cell phone the defendant was
holding. The defendant did not have a license to carry a
firearm.
In the videos, Santos and the defendant appear to be in a
bedroom. Having been released from custody of the Department of
Youth Services, but subject to monitoring, Santos was wearing a
global positioning system (GPS) device at the time these videos
were posted. After viewing the videos, the officers contacted
the electronic monitoring service department at the Department
of Youth Services and learned that Santos's GPS device placed
him at his home in the Dorchester section of Boston at the time
that the videos had been posted on Snapchat. According to the
1 For about a decade the word "selfie" has been widely used
colloquially to refer to photographic self-portraits "often
snapped at odd angles with smartphones[,]" and "typically made
to post on a social networking website (or sen[t] in a text
message)[.]" Steinmetz, The Top 10 Buzzwords of 2012, Time, Dec.
4, 2012, http://newsfeed.time.com/2012/12/04/top-10-news-
lists/slide/selfie [https://perma.cc/6GWH-NZLZ].
4
GPS device, which checks the wearer's location every three
minutes, Santos was in his home all day on May 8, 2017.
On May 8, 2017, officers monitoring Santos's Snapchat
account also observed a video posted to Santos's story depicting
Santos holding a firearm magazine, which was observed to be
loaded with live rounds. Officers observed another video posted
on May 7, 2017, wherein Santos assembled a TEC-9 and magazine on
a bed and laid out the ammunition to spell "44 SL." Finally, on
May 14, 2017, an officer observed another image, posted by
Santos, of a TEC-9 firearm. The image was captioned, "Shyt
change on my block trust issues I got put all my trust in semi
autos." The TEC-9 is a semiautomatic weapon.
On the basis of this affidavit, on May 16, 2017, the police
obtained a search warrant for Santos's home and executed it that
same day. Pursuant to the search warrant, they found and seized
a TEC-9 firearm with twenty-three rounds of nine millimeter
ammunition inside the magazine, along with one loose round of
ammunition. The defendant was convicted based on his possession
of the firearm as shown in the eight- to ten-second Snapchat
video depicting him holding a TEC-9.
Discussion. 1. Knowledge of operability. In order to
convict the defendant of unlicensed carrying of a firearm
outside his residence or place of business, the Commonwealth was
required to prove that he "knowingly ha[d] in his possession; or
5
knowingly ha[d] under his control in a vehicle; a firearm,
loaded or unloaded, as defined in section one hundred and
twenty-one of chapter one hundred and forty." G. L. c. 269,
§ 10 (a). A firearm is defined as "a pistol, revolver or other
weapon of any description, loaded or unloaded, from which a shot
or bullet can be discharged and of which the length of the
barrel or barrels is less than [sixteen] inches or [eighteen]
inches in the case of a shotgun." G. L. c. 140, § 121. The
jury were instructed that "[t]he Commonwealth must . . . prove
the [d]efendant knew that the item was a firearm within the
common meaning of that term. If it was a conventional firearm
with its obvious dangers, the Commonwealth is not required to
prove that the [d]efendant knew that the item met the legal
definition of a firearm."
The defendant argues that this instruction misstates the
law and that the Commonwealth was required to prove beyond a
reasonable doubt that the defendant had actual knowledge the gun
in his possession was capable of discharging a shot or a bullet
in order for the knowledge requirement to be satisfied. The
defendant raised no objection to the jury charge at trial, but
we will assume without deciding that if, indeed, such knowledge
were an element of the offense, failure to instruct upon it
would have created in this case a substantial risk of a
miscarriage of justice. See Commonwealth v. Amirault, 424 Mass.
6
618, 647 n.21 (1997) ("when the elements of a crime are
incorrectly stated, there is a substantial risk that a person
has been convicted for a course of conduct that is not criminal
at all"). "Erroneous instructions that allow the jury to
convict without finding an essential element of an offense
create a substantial risk of a miscarriage of justice unless
either the element at issue can be ineluctably inferred from the
evidence such that the jury were required to find it, . . . or
the jury's verdicts on the other counts on which the defendant
was convicted compel the conclusion they necessarily found the
element on which they were not instructed" (quotation omitted).
Commonwealth v. Mitchell, 95 Mass. App. Ct. 406, 412 (2019).
In light of Commonwealth v. Cassidy, 479 Mass. 527, cert.
denied, 139 S. Ct. 276 (2018), this argument, when initially
made, had some force. Cassidy held that, to sustain a
conviction for possession of a large capacity firearm or feeding
device under G. L. c. 269, § 10 (m), the Commonwealth must prove
beyond a reasonable doubt that the defendant knew that the
firearm or feeding device met the legal definition of "large
capacity" set forth in G. L. c. 140, § 121; that is, the
defendant must know that the firearm or device was capable of
holding more than ten rounds of ammunition. Cassidy, supra at
529. The court interpreted the reach of the term "knowingly"
within G. L. c. 269, § 10 (m), to extend not only to the
7
defendant's possession of the weapon but to his possession
specifically of a large capacity weapon: "[O]nce the adverb
[knowingly] is understood to modify the object of [the verb
possess], there is no reason to believe it does not extend to
the phrase which limits that object. Thus, in G. L. c. 269,
§ 10 (m), 'knowingly' is an adverb that modifies . . . the
entire direct object of the verb, 'large capacity weapon'"
(quotation and citation omitted). Cassidy, supra at 535-536.
It might have seemed therefore, by a parity of reasoning,
that knowing possession of a firearm could not be proved without
knowledge that the firearm was an operable one that met the
legal definition of the proscribed item set forth in G. L. c.
140, § 121. Although there were appellate decisions construing
G. L. c. 269 § 10 (a), to require knowing possession, but not
knowledge of operability, subsequent to those decisions, the
Legislature had inserted the word "knowing" into the statute.
(In the version of the statute previously construed, the court
had, "mindful of the . . . need to avoid possible constitutional
doubts," implied a knowledge requirement to the act of
possession. Commonwealth v. Jackson, 369 Mass. 904, 916
[1976].) Cassidy's emphasis on the Legislature's decision
explicitly to put the word "knowing" in the statute could be
seen to have supported the defendant's argument. Cassidy, 479
Mass. at 535-536.
8
However, during the pendency of this appeal, the Supreme
Judicial Court decided Commonwealth v. Marrero, 484 Mass. 341,
347-348 (2020), in which it held that, with regard to § 10 (a),
knowledge that the item possessed is operable and therefore is a
firearm within the definition contained in G. L. c. 140, § 121,
is not an element of knowing possession of a firearm. Rather,
the court, reaffirming its decision in Commonwealth v. Sampson,
383 Mass. 750, 762 (1981), held that what is required is
"knowledge only that the 'instrument is a firearm within the
generally accepted meaning of that term.' See Sampson, supra at
762." Marrero, supra at 347. In reliance on Sampson, we held
in Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988 (1984),
that where "a conventional firearm with its obvious dangers is
involved, the Commonwealth need not prove that a defendant knows
the exact capabilities or characteristics of the gun which make
it subject to regulation." Under Marrero, Sampson, and Papa,
then, the jury instruction in this case was correct, which
disposes of this claim of error. The defendant argues further
that the evidence was insufficient to support the knowledge
element as he argues it should be construed. But given our
conclusion about the proper construction of the statute, this
argument too is unavailing.
2. Failure of the information in the affidavit. The
defendant argues next that he received ineffective assistance of
9
counsel in violation of his rights under the Sixth Amendment to
the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights. The standard we apply is the well-known
one from Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The
defendant must show first that trial counsel's conduct fell
"measurably below that which might be expected from an ordinary
fallible lawyer," and too that he was prejudiced by that
failure. Id.
The defendant argues that trial counsel should have filed a
motion to suppress the TEC-9 and other evidence seized pursuant
to the search warrant on the grounds that the information
providing the probable cause for the warrant was stale. In
particular, he argues that Snapchat videos and images that are
posted on a particular date may have been taken, created, or
recorded at an earlier date and uploaded much later, and that
therefore the Commonwealth failed to prove that the information
officers relied on from the timestamps on the defendant's and
Santos's Snapchat uploads was not stale. He also argues that
the police could not establish, even if the firearm had actually
been at Santos's house when the videos were posted on May 8,
2017, that it remained in Santos's house on May 16, 2017.
Both these contentions, however, are defeated by the image
posted by Santos of what appeared to be the TEC-9 on May 14,
2017. It included a present tense statement about Santos's
10
perceived need for semiautomatic weaponry. Given that, there
was probable cause to believe that the Snapchat image was taken
contemporaneously with its posting. It was posted two days
before the warrant was executed, and the inference that the
firearm remained in Santos's house was not based on stale
information. See Commonwealth v. Beliard, 443 Mass. 79, 85-86
(2004) ("in circumstances showing continuous illegal presence of
a number of weapons in the defendant's residence over extended
periods of time," even six week old information was not stale).
As a motion to suppress on staleness grounds would not have been
successful, trial counsel was not ineffective for failing to
file such a motion. See Commonwealth v. Comita, 441 Mass. 86,
91 (2004).
3. Admission of the firearm certificate. At trial,
firearm examiner Christopher Finn testified that the weapon in
evidence was an Intratec TEC-9 firearm that was capable of
discharging a bullet and that it met the statutory definition of
a firearm under G. L. c. 140, § 121. Prior to the conclusion of
Finn's direct examination, the judge allowed, over defense
counsel's objection, the introduction of Finn's notarized report
(report). Although the defendant's objection at trial was not
spelled out, on appeal he raises three claims of error with
respect to the report's admission.
11
The defendant argues first that the report was inadmissible
because it contains hearsay, not from Finn as the primary
examiner, but from reviewing examiner Detective Tyrone Camper,
who also signed the report. Indeed, the defendant goes further
and asserts that this signature constitutes testimonial hearsay
of the reviewing examiner, admission of which violated his right
to confrontation. As the defendant puts it, "Here, Mr. Camper's
signature as the reviewing examiner is the functional equivalent
of testifying that he has reviewed and accepts Mr. Finn's
analysis and findings. It is his statement, made out of court,
for the proof of the matter asserted, that the firearm tested
meets the statutory definition and, thus, is a hearsay
statement, which should be held inadmissible without any
exception."
To begin with, the premise of this argument is incorrect.
The second analyst's signature indicates only that he
"[r]eviewed" the report. The Supreme Judicial Court has
previously held that, unlike a statement that a second analyst
"concurs" in or "verified" the conclusion of the first analyst,
a statement that another expert merely "reviewed" that analysis,
did not amount to expert hearsay testimony:
"Expert testimony as to the opinions or conclusions of a
second, nontestifying expert constitutes inadmissible
hearsay. See Commonwealth v. Whitaker, 460 Mass. 409, 421-
422 (2011). Here, the judge allowed the analyst's
testimony that the other analyst 'reviewed' her work, but
12
did not allow testimony that the second analyst verified
her work. The analyst . . . did not testify as to the
second analyst's independent conclusions. The analyst's
testimony stands in stark contrast to the expert testimony
at issue in Whitaker, where the fingerprint analyst expert
witness testified that two secondary analysts 'concurred'
with his conclusions regarding individualization. Id. at
421. Accordingly, we conclude that the judge did not err
in admitting the fingerprint analyst's testimony confirming
that another fingerprint analyst reviewed her findings."
Commonwealth v. Fulgiam, 477 Mass. 20, 45-46, cert. denied, 138
S. Ct. 330 (2017).
To be sure, here, we are faced not with a statement about
what the second analyst, Detective Camper, said, but with his
own statement contained within the report. Nonetheless, even if
that statement qualifies as inadmissible testimonial hearsay
admitted in violation of the defendant's confrontation rights,
something we need not and do not decide, and even if the
defendant's objection on that ground were preserved by his
unspecified objection to the admission of the report, he would
not be entitled to relief. That is because the statement that
Camper reviewed the report -- unlike a statement of verification
or concurrence -- is of almost no significance. Any error from
its introduction was harmless beyond a reasonable doubt. See
Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 304 (2012) ("To
the extent that it was error to permit the certificates of
chemical analysis to be submitted to the jury with the
13
[nontestifying] primary chemist's signature . . . , the error
was harmless beyond a reasonable doubt").
The defendant argues next that the information in the
report was cumulative and that it improperly bolstered Finn's
testimony. It was, however, not an abuse of discretion for the
judge to admit the report when confirmatory of Finn's oral
testimony and properly authenticated by him.
The defendant's third argument is that notarization of the
report provided a badge of enhanced propriety. Given that a
statute specifically allows a ballistic "certificate" to be
admitted, we are unpersuaded by anything before us that this
notarized report contained "an additional level of perceived
integrity" that would have been viewed by a reasonable juror as
more powerful than that conveyed by ballistic certificates
routinely admitted as accompanying the examiner's live
testimony. See G. L. c. 140, § 121A. We therefore see no abuse
of discretion or other error of law in the report's admission.
4. Posttrial discovery. Finally, the defendant argues
that the judge erred in denying his motion for a new trial based
on a claim of ineffective assistance of counsel without first
ordering discovery concerning the manner in which the police
intercepted the defendant's Snapchat communications. In the
trial court, the defendant argued that he was denied the
effective assistance of counsel because counsel should have
14
sought, through discovery, to determine whether the police
intercepted the defendant's Snapchat videos through the use of
an informant, or by officers requesting that the defendant
"friend" them. He argued that counsel could have used that
information in support of a claim that a warrant was required
before the use of the latter investigative technique.
On appeal, however, the defendant does not renew that
claim. He argues for the first time, rather, that the discovery
should have been requested because the manner in which the
Snapchat communications were intercepted may have been
selectively applied to African-American men. His argument here
is that trial counsel was ineffective for failing to investigate
that possibility in order to raise a selective prosecution
defense.2 Since this claim of error is unpreserved, he can
prevail only if there was error that created a substantial risk
of a miscarriage of justice. See Commonwealth v. Alphas, 430
Mass. 8, 13 (1999). We find no error.
The defendant notes that in a pending criminal case,
Commonwealth vs. Dilworth, Superior Ct., No. 1884-CR-00453
(Suffolk County Jan. 18, 2019), a defendant sought and received
an order of discovery that required the Boston Police Department
2 Because no issue is raised here with respect to the Fourth
Amendment to the United States Constitution implications of any
method of obtaining the Snapchat postings made by a criminal
suspect, we express no opinion on the question.
15
to produce information about the manner in which officers used
Snapchat as an investigative tool, in support of an allegation
that Boston police have used Snapchat in a racially
discriminatory fashion, targeting African-American and Hispanic
individuals by seeking to friend them on Snapchat without their
knowledge. See Commonwealth v. Dilworth, 485 Mass. 1001, 1001-
1002 (2020). Although that discovery order was on appeal at the
time of oral argument in this case, the Supreme Judicial Court
has recently affirmed an order of the single justice of that
court declining interlocutory review of the underlying order of
discovery. Id. at 1003.
In his memorandum of decision allowing Dilworth's motion
for discovery, the trial judge wrote that "[t]he officer [who
Dilworth unwittingly friended] did not identify himself as a
police officer, and he did not use either the name or photo of
anyone known to Dilworth." The judge allowed discovery of
Boston police reports that memorialized the use of Snapchat as
an investigative tool, Form 26 reports, for the one-year period
from August 1, 2017, to July 31, 2018. Dilworth, 485 Mass. at
1002. The defendant argues before us that, through discovery,
trial counsel should similarly have sought to obtain information
about the way in which the police gained access to the
defendant's Snapchat account in order to raise a similar
selective prosecution defense. See id. at 1003 (Dilworth seeks
16
to raise "a selective prosecution defense . . . lead[ing] to a
successful motion to suppress or a motion to dismiss").
The trial judge in this case concluded that an informant
had been used to obtain the Snapchat videos, and that,
therefore, no discovery was necessary in order to determine the
manner by which the videos were obtained. His conclusion was
understandable; it was based on a confusingly worded assertion
by the Commonwealth on the record before the start of trial.3
Before us, however, the Commonwealth made clear that it has not
and should not be understood to have said that an informant
provided the Snapchat videos and images to the police. Nor will
it confirm that the police utilized the method of friend request
described by the trial judge in Dilworth.
We may assume, however, without deciding, that, as the
defendant apparently suspects, the defendant's Snapchat videos
were obtained by the same method described by the trial judge in
Dilworth: police, not posing as anyone the defendant knew,
3 The Commonwealth moved in limine to limit the scope of the
defendant's cross-examination on the police use of Snapchat
during their investigation. The prosecutor stated on the record
during arguments on this motion that "[t]he Commonwealth's
position is that any further information relative to how they
obtained that video on social media is privileged, as it's akin
to a surveillance privilege, as well as it's also somewhere
between the nexus of the privilege as to a confidential
informant. And under both of those criteria, the [d]efendant
would be unable to meet his burden to turn over any further
information."
17
sought to friend the defendant and he unwittingly agreed.
Nonetheless, there was no error in denying the motion for a new
trial without allowing posttrial discovery, even if that
discovery might have revealed something about the racial
composition of the group of individuals whom the police asked to
friend on Snapchat because, at least on this record, failure to
seek such discovery at the time of trial in this case was not
performance by counsel that fell below what would have been
expected of an ordinary fallible lawyer. Saferian, 366 Mass. at
96.
The defendant argues only that counsel should have sought
this discovery because of the pendency of the Dilworth
litigation. At the time of trial in this case in May 2018,
however, Dilworth had not yet brought his motion for discovery
alleging that Boston police were Snapchat "friending" in a
racially discriminatory manner. That motion was not brought
until October 2018. In order to hold that defense counsel here
was ineffective on the ground put forward by the defendant for
the first time on appeal, we would have to conclude that every
criminal defense lawyer in every criminal case in Boston in
which a Snapchat posting was used as evidence was required, as
of the time of trial in this case, even prior to the motion
being filed in the Dilworth litigation, to seek discovery and to
pursue the line of inquiry regarding a possible selective
18
prosecution defense embarked upon by counsel in the Dilworth
litigation. Given that no lawyer in any case had brought any
such motion, and that the defendant has not placed in the record
any information about what evidence might have been available to
counsel at that time that could have given rise to a suspicion
that racial discrimination was involved in the use of Snapchat
by Boston police, we do not think that on this record such a
conclusion is warranted.4 This does not mean that the defendant
4 At the time of argument before us, the Commonwealth had
not yet complied with the discovery order in the Dilworth
litigation, and no determination has been made in any court
about the factual basis of Dilworth's selective prosecution
claim. The trial judge decided only that Dilworth made the
threshold showing that racial profiling may have resulted in his
being targeted by police using Snapchat and that the reports
documenting the police use of Snapchat as an investigative tool
from the time period of his arrests were material and relevant
to his equal protection claim. The judge therefore granted
Dilworth's motion to obtain these documents under Mass. R. Crim.
P. 17 (a) (2), 378 Mass. 885 (1979), and issued a summons for
the records. As the judge noted in granting Dilworth's motion,
however, these documents may ultimately show a lack of
discrepancy by race in Boston Police Department's use of
Snapchat to investigate African-American and Hispanic
individuals as opposed to white individuals, or a race-neutral
explanation for an existing racial disparity in Boston Police
Department's use of Snapchat may ultimately defeat Dilworth's
equal protection claim.
The Commonwealth sought relief from the judge's order from
a single justice of the Supreme Judicial Court pursuant to G. L.
c. 211, § 3, arguing that the judge erred in concluding that
Dilworth had met his initial burden. The single justice denied
the Commonwealth's petition without a hearing on the grounds
that the matter did not warrant the court's exercise of its
extraordinary power under G. L. c. 211, § 3. Dilworth, 485
Mass. at 1002. The Commonwealth appealed the single justice's
decision to the Supreme Judicial Court. After oral argument in
19
will not be entitled to seek relief should it turn out that the
Boston police indeed utilized Snapchat as an investigatory tool
in a racially discriminatory manner.5 It means that there was no
error in the denial without posttrial discovery of the
defendant's motion for a new trial on the grounds of ineffective
assistance of counsel.
Conclusion. The judgment is affirmed. The orders on the
motions for postconviction discovery and for a new trial are
also affirmed.
So ordered.
this case, the Supreme Judicial Court issued a decision
affirming the single justice's action declining to review the
trial judge's order. Id. at 1003.
5 Any evidence of racial discrimination with respect to the
use of Snapchat that is uncovered, whether in the Dilworth
litigation, in this case through further motion practice, or
otherwise, may amount to newly discovered evidence that could
not with due diligence have been discovered at the time of
trial, which may form the basis for a new trial motion in this
case, seeking either a new trial at which the Snapchat evidence
will be excluded, or dismissal, see Commonwealth v. Franklin,
376 Mass. 885, 895 (1978) (remedy for selective prosecution is
dismissal), though of course we express no opinion on any
further motion or motions that may be brought in this case.