Commonwealth v. Gumkowski

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SJC-12670

COMMONWEALTH vs. MATTHEW GUMKOWSKI.

Bristol. January 4, 2021. - May 4, 2021.

Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.

Homicide. Cellular Telephone. Practice, Criminal, Motion to
suppress, Instructions to jury, Capital case.

Indictment found and returned in the Superior Court
Department on August 18, 2011.

A pretrial motion to suppress evidence was heard by Frances
A. McIntyre, J., and the case was tried before Robert J. Kane,
J.

Michael J. Fellows for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for
the Commonwealth.

LOWY, J. The defendant, Matthew Gumkowski, was convicted

by a jury of murder in the first degree on a theory of extreme

atrocity or cruelty for the killing of Joseph Kilroy.1 The

1 The defendant had also been indicted on related charges,
but at trial the Commonwealth proceeded only on the murder
indictment, under theories of extreme atrocity or cruelty,
 2

Commonwealth presented evidence that the defendant robbed the

victim, and then beat, strangled, and stabbed him to death. The

verdict came in the defendant's second trial, after the first

trial ended in a mistrial because the jury were unable to reach

a verdict.

In this direct appeal, the defendant argues first that his

cell site location information (CSLI)2 and any "fruits" derived

from it should have been suppressed, and second that seven

aspects of the jury instructions were erroneous. Discerning no

reversible error, we affirm, and we decline to exercise our

authority under G. L. c. 278, § 33E.

1. Background. We summarize the evidence at trial,

reserving certain details for our analysis of the issues.

The victim was found dead at his Attleboro apartment on

July 10, 2011. Sometime between 8:30 P.M. and 9 P.M., the

victim's downstairs neighbors heard noises that sounded like

furniture being moved about. Shortly after 9 P.M., the smoke

alarms sounded. When firefighters arrived minutes later, they

felony-murder, and deliberate premeditation. The jury did not
convict the defendant on the felony-murder or deliberate
premeditation theories.

2 "Cell[] site location information (CSLI) refers to a
cellular telephone service record or records that contain
information identifying the base station towers and sectors that
receive transmissions from a [cellular] telephone." (quotations
and citation omitted). Commonwealth v. Estabrook, 472 Mass.
852, 853 n.2 (2015).
 3

found the victim's body lying on the floor at the foot of the

bed. The fire that had started on the victim's bed was no

longer active, the sprinklers were on, and the contents of the

room were soaked. The victim had been beaten, strangled, and

stabbed. A medical examiner testified that, based on the

bleeding, the victim was likely alive when he suffered the blunt

force injuries, but was already dead or near death when he was

stabbed.

Police photographed the room to document its state at the

time the body was discovered. They tested for fingerprints at

the scene, and they recovered various objects from inside the

apartment for testing, but no usable fingerprints were found,

likely because of the sprinklers.

The defendant knew the victim and had bought drugs from him

in the past. In July 2011, the defendant was using

approximately a gram of heroin per day. On the morning of July

10, the defendant visited the victim's apartment, hoping to sell

him a ring. The victim knocked on the door of his neighbor

across the hall -- a former jeweler -- and asked him to look at

the ring. When the neighbor looked at the ring, he expressed

skepticism about its value. The neighbor saw another man

standing in the victim's apartment; the neighbor described the

man as white, with a medium build and blonde hair. The neighbor

later identified the defendant as the man who had been in the
 4

victim's apartment that morning from a photograph shown to him

by police.

The defendant's girlfriend testified that in the early

evening of July 10, she had been with the defendant in a park in

Attleboro, where she had fallen asleep. When she awoke around 8

P.M., the defendant was gone. She called the defendant several

times between 8:15 P.M. and 9:09 P.M., including on cell phones

borrowed from two strangers. Initially, she did not get an

answer, but she eventually spoke to the defendant. She then met

up with the defendant shortly after the 9:09 P.M. cell phone

call. State police Trooper Daniel Giossi testified that the

defendant's cell phone records showed calls taking place from

the defendant's cell phone between around 8 P.M. and 9:15 P.M.,

and the location data showed that the cell phone was in the

Attleboro area at the time of the calls.3

The defendant was arrested on July 12, 2011, at his

girlfriend's mother's house.4 The defendant became a suspect

3 The parties stipulated that the defendant's cell phone
records showed he was within a three-mile radius of the center
of downtown Attleboro between 8:13 P.M. and 8:45 P.M. on July
10.

4 The Commonwealth also introduced evidence showing the
defendant's activities between the night of July 10 and his
arrest. On July 10 after meeting up at the park, the defendant
and his girlfriend traveled to Pawtucket, Rhode Island, where
they stayed in a hotel. The next morning, they went to a pawn
shop. The defendant went inside while his girlfriend waited
outside; when he returned, he had money. The couple then
 5

after law enforcement examined both the victim's and the

defendant's cell phone records, as discussed infra. Before he

was taken into custody, police patted him down and found a

hypodermic needle in his pocket; testing later revealed traces

of heroin. While the defendant was being booked, an officer

noticed spots of blood on the defendant's shoes.

Deoxyribonucleic acid (DNA) testing revealed that the blood

matched that of the victim. Two additional spots of blood found

on a T-shirt and pack of cigarettes from the defendants'

backpack also matched that of the victim.

After his arrest, the defendant waived his Miranda rights

and was interviewed by police. That interview was recorded, and

the recording was entered in evidence. The defendant initially

denied involvement, but he eventually said that he had gone to

the victim's apartment on the evening of July 10 to buy heroin.

He told police that two other men were present while he was

there. The first man arrived to sell the victim cigarettes and

stayed ten to fifteen minutes. The defendant described the

second man but could not identify him, and said that the second

returned to Attleboro, where the girlfriend picked up a check,
and the two traveled to Providence, where she cashed the check
and gave a portion to the defendant. That evening, they had
dinner with a man they met in Providence and spent the night at
the man's home in North Attleboro. The next morning, all three
went to the beach, before traveling back to the girlfriend's
mother's home.
 6

man was still at the apartment when the defendant left. The

defendant stated that he left the apartment after purchasing

drugs. He explained that he had initially lied about visiting

the victim because he had been there to purchase drugs, and

because he later heard about the fire and homicide from the

news.

At trial, the defendant testified and provided a somewhat

different account of his time at the victim's apartment. He

identified the cigarette seller as a man named Brian Singer. He

stated that after Singer had left and while the second,

unidentified, man was in the apartment, the victim brandished a

knife and provoked a fight with the defendant over money that

the defendant owed him. The defendant said he struck the victim

several times in the face, and the victim dropped the knife. He

then grabbed his backpack and left. The defendant stated that

in his initial interview after being arrested, he had lied about

getting in a fight because he had seen the news and had heard

that there had been a fire and a homicide there.

2. Discussion. a. Motion to suppress. "When reviewing

the denial of a motion to suppress, we accept the judge's

findings of fact and will not disturb them absent clear error."

Commonwealth v. Watson, 455 Mass. 246, 250 (2009). However, we

undertake "an independent determination as to the correctness of
 7

the judge's application of constitutional principles to the

facts as found." Id.

The defendant's cell phone records in this case included

subscriber information, call logs, and CSLI.5 The subscriber

information and the call logs are not subject to the warrant

requirement under Commonwealth v. Augustine, 467 Mass. 230, 251

(2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015). Thus,

only the defendant's CSLI is at issue. The defendant seeks to

5 The motion judge made her decision before we issued our
decision in Commonwealth v. Augustine, 467 Mass. 230 (2014),
S.C., 470 Mass. 837 and 472 Mass. 448 (2015). Consequently, the
terminology she used to describe the various categories of
location data differs from our subsequent decisions defining
CSLI, "repoll numbers," and "pings." See Commonwealth v.
Almonor, 482 Mass. 35, 36 n.1 (2019) (pings); Commonwealth v.
Collins, 470 Mass. 255, 269 (2014) (repoll numbers); Augustine,
supra at 231 n.1 (CSLI). Thus, we look to the record, and not
to the judge's terminology.

The location information included "repoll numbers" as well
as "first cell" and "last cell" data. Trooper Giossi testified
that the combination of these three numbers indicates the
location of the tower to which a cell phone was connected when
it made a call, which shows the cell phone was likely within a
three-mile radius of that tower.

In its brief, the Commonwealth initially argued that this
information was not CSLI, but merely "repoll numbers," as the
motion judge found. An hour before oral argument, though, the
Commonwealth sent an e-mail message to the defense attorney,
conceding that this information was actually CSLI. See Collins,
470 Mass. at 269-270 (repoll numbers only provide location
within area of approximately one hundred miles and thus are not
comparable to CSLI). In its postargument brief, the
Commonwealth again conceded that the relevant location data was
CSLI.
 8

suppress both the CSLI itself, as well as any fruits derived

therefrom.

i. Investigation leading to defendant's arrest. We recite

the facts the motion judge found following an evidentiary

hearing, supplemented with undisputed facts from the record.

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

When officers discovered the victim's body at his

residence, they also found the victim's cell phone. However,

police were unable to extract any information from it because it

was soaked. A neighbor provided the victim's cell phone number,

and using that, Trooper Giossi obtained the victim's call logs

and other information from his service provider, Sprint. In the

call logs, Giossi focused on incoming and outgoing calls

occurring shortly before 9 P.M., when witnesses reported hearing

commotion coming from the victim's apartment. Giossi then made

a second request to Sprint for information pertaining to two of

those numbers pursuant to the exigent circumstances provision of

the Stored Communications Act (SCA), 18 U.S.C. § 2702(c)(4).6

6 Specifically, Giossi requested subscriber information and
call detail records with cell site information for the past
twenty-four hours. To make the request, he called Sprint and
requested that someone send him an "exigent circumstance
request." He filled out the request and sent it back to Sprint.

The motion judge noted that the information was obtained
pursuant to 18 U.S.C. § 2703, but that is inaccurate. Giossi
repeatedly referred to making an "exigent circumstance request,"
which would be under § 2702(c)(4).
 9

One of the numbers was registered to "Matthew Shady" and

listed a West Warwick, Rhode Island, address.7 In addition to

that subscriber information, the records showed the dates,

times, and durations of incoming and outgoing calls, as well as

CSLI. Troopers called the local police department and learned

that the West Warwick address was valid and that the resident

was the defendant. Local police had previously interacted with

the defendant and sent Giossi a photograph of the defendant, as

well as incident reports of some of his previous arrests. From

these documents, Giossi learned that the defendant was blonde

and muscular, and that he matched the description of the man

that Singer, a friend of the victim, had seen talking to the

victim on the morning of July 10. Giossi examined the

defendant's CSLI and determined that it placed his cell phone in

the Attleboro area on the evening of July 10.

On July 11, Giossi interviewed Singer, who had gone to the

victim's apartment at around 8 P.M. on the day of the murder to

sell the victim two packs of cigarettes, and who had stayed for

about twenty minutes. While Singer was there, the victim

introduced him to a man named "Matt." The man was muscular,

with a crew cut, blonde hair, blue eyes, and tattoos. Based on

7 Troopers did not receive any information pertaining to the
second number.
 10

this information, law enforcement prepared a photographic array,

including the photograph of the defendant that the West Warwick

police had sent. From the array, Singer identified the

defendant as the blonde man he had seen in the victim's

apartment.8

Troopers then attempted to locate the defendant. On the

defendant's call log, they noticed recent calls to a land line

telephone number, and subsequently ascertained the address

associated with it. On July 12, Giossi visited that address and

spoke with the occupant, Nita Rose. Rose stated that her

daughter was dating the defendant, and that the defendant had

left some of his property there and likely would return to

retrieve it.

Later that day, Rose called the State police to say that

she had just heard from her daughter, and that she expected her

daughter and the defendant to return to the house shortly.

Troopers returned to Rose's address and waited for the defendant

to arrive. As soon as he did, officers placed him under arrest.9

8 Singer did not testify at trial because officers were
unable to locate him. He was last seen in Ohio, but authorities
there were unable to locate him. His friends and family
indicated that as of the day he went missing, there had been no
activity on his bank accounts.

9 Before apprehending the defendant, investigators also
contacted the defendant's cell phone provider, which then
initiated a "ping" to ascertain the defendant's location in real
time. The motion judge found that that "ping" did not lead to
 11

ii. CSLI. Individuals have a reasonable expectation of

privacy in their CSLI, and thus the government needs a warrant

before searching more than six hours of CSLI data. See

Augustine, 467 Mass. at 255 & n.37. See also Carpenter v.

United States, 138 S. Ct. 2206, 2220 (2018).

Even though the defendant's motion was decided before

Augustine, the rule nonetheless applies. In Augustine, 467

Mass. at 257, we specified that the new rule requiring a warrant

for CSLI data applied to "cases in which a defendant's

conviction is not final, that is, to cases pending on direct

review in which the issue concerning the warrant requirement was

raised." Here, the defendant raised the issue in a motion to

suppress before his first trial, and Augustine was decided

before his conviction was final. Thus, the new rule applies

retroactively to his case, and a warrant was required for his

CSLI data.

Despite this, the Commonwealth argues that a warrant was

not required for the defendant's CSLI because the information

was turned over pursuant to the voluntary disclosure provision

of the SCA (18 U.S.C. § 2702), rather than the mandatory

the defendant's arrest; instead, officers located the defendant
thanks to their communication with Rose. The Commonwealth also
stipulated that it would not introduce the "ping" evidence at
trial. See Commonwealth v. Almonor, 482 Mass. 35, 36 n.1 (2019)
(defining "ping" evidence).
 12

provision analyzed in both Augustine and Carpenter (18 U.S.C.

§ 2703).10 See Augustine, 467 Mass. at 231; Carpenter, 138 S.

Ct. at 2212. This is wrong.

Both art. 14 of the Massachusetts Declaration of Rights and

the Fourth Amendment to the United States Constitution apply

only to State action.11 Commonwealth v. Leone, 386 Mass. 329,

333 (1982). "Evidence discovered and seized by private parties

is admissible without regard to the methods used, unless State

officials have instigated or participated in the search"

10The Stored Communications Act aims to "protect the
privacy of users of electronic communications during government
investigations" (quotation and citation omitted). Commonwealth
v. Chamberlain, 473 Mass. 653, 658 (2016). "Service providers
are permitted and indeed required to disclose customer records
to a 'governmental entity' when that entity has complied with
one of the limited number of formal processes for making a
demand, such as a warrant, a court order, or an administrative
subpoena, as set forth in the act." Id. at 658-659, citing 18
U.S.C. § 2703(c).

Another section of the statute permits providers to
disclose records to the government voluntarily in limited
circumstances. See 18 U.S.C. § 2702(c). "One such circumstance
is when 'the provider, in good faith, believes that an emergency
involving danger of death or serious physical injury to any
person requires disclosure without delay of information relating
to the emergency.'" Chamberlin, 473 Mass. at 659, citing 18
U.S.C. § 2702(c)(4).

11The Commonwealth does not frame its argument in terms of
State action, but that is the constitutional question underlying
its contention. The Commonwealth instead based its argument on
Chamberlain, 473 Mass. at 658-659, which is inapposite because
that case dealt only with statutory rights.
 13

(citation omitted). Commonwealth v. Brandwein, 435 Mass. 623,

632 (2002).

Here, law enforcement instigated the search when Giossi

contacted Sprint and requested the defendant's cell phone

records. That he did so using a voluntary disclosure provision

of the SCA, rather than a mandatory disclosure provision, does

not require a different conclusion. In either instance, if law

enforcement instigates the search by contacting the cell phone

company to request information, there is State action.12 That

Sprint could have refused to provide records in response to

Giossi's request does not change the fact that he instigated the

search. See Brandwein, 435 Mass. at 632.

Because law enforcement infringed upon the defendant's

reasonable expectation of privacy in his CSLI without a warrant,

the CSLI should have been suppressed.

iii. Harmless error. Next, we determine whether the

admission of defendant's CSLI data was harmless.13 Because the

12In Augustine, 467 Mass. at 240-241, we noted that one
factor showing State action was that the search was compelled by
the Commonwealth's subpoena. Yet this did not change our test
for State action from Brandwein, 435 Mass. at 632. Further,
although decided under the Fourth Amendment, Carpenter 138 S.
Ct. at 2213-2214, implicitly held that there was State action,
and the fact that police officers there used a mandatory
subpoena did not factor into the United States Supreme Court's
analysis.

13The Commonwealth did not argue harmless error in its
original brief; instead, it raised the issue for the first time
 14

defendant moved to suppress this evidence before trial, we

review the admission of the CSLI to determine whether it was

harmless beyond a reasonable doubt. Commonwealth v. Tavares,

482 Mass. 694, 709 (2019).

Our review under this standard considers a number of

factors, including

"[1] the importance of the evidence in the prosecution's
case; [2] the relationship between the evidence and the
premise of the defense; [3] who introduced the issue at
trial; [4] the frequency of the reference; [5] whether the
erroneously admitted evidence was merely cumulative of
properly admitted evidence; [6] the availability or effect
of curative instructions; and [7] the weight or quantum of
evidence of guilt."

Commonwealth v. Seino, 479 Mass. 463, 467-468 (2018), quoting

Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). We then

must decide, based "on the totality of the record before us,

weighing the properly admitted and the improperly admitted

evidence together, [whether] we are satisfied beyond a

reasonable doubt that the tainted evidence did not have an

effect on the jury and did not contribute to the jury's

verdicts." Commonwealth v. Tyree, 455 Mass. 676, 701 (2010).

at oral argument, and then submitted a postargument letter. The
defendant argues that it is the Commonwealth's burden to prove
harmlessness and that the Commonwealth waived the issue by not
arguing it in its brief. Recognizing the unusual nature of the
situation -- where the Commonwealth conceded that the data was
CSLI the morning of oral argument -- we ordered postargument
briefing on the issue of harmless error. Because the defendant
has now had an opportunity to respond, we consider the issue.
 15

We hold that the introduction of the defendant's CSLI data

was harmless. First, it was cumulative of other evidence. The

Commonwealth introduced the CSLI in the form of a stipulation,

stating that the defendant's cell phone was located within a

three-mile radius of downtown Attleboro between 8:13 P.M. and

8:45 P.M. on July 10. This was cumulative of the defendant's

videotaped police station interview, where he stated that he

went to the victim's Attleboro home on the evening of July 10.

Moreover, the defendant's girlfriend testified that she was with

the defendant in Attleboro before and after the time of the

murder. Thus, the CSLI only corroborated other undisputed

evidence that the defendant was in Attleboro at around the time

of the murder. See Commonwealth v. Vazquez, 478 Mass. 443, 446

(2017) ("The CSLI evidence corroborated the Commonwealth's

other, very strong evidence of guilt by confirming . . . that

the defendant was in fact in the area of the crime at the time

of the shooting").

Second, the prosecutor did not mention the CSLI with any

frequency. In closing argument, the prosecutor stated that the

defendant's cell phone records showed he was in the victim's

room at the time of the murder, but it appears he was referring

to the call logs, not the CSLI, because he proceeded to

reference the girlfriend's calls to the defendant, and the

defendant's statement that he had been at the victim's apartment
 16

when he received one of them. The CSLI itself was never

referred to in closing.

Finally, the other evidence of guilt was substantial. The

defendant admitted to being in the victim's room on the night of

the murder. When he was arrested two days later, police found

blood with DNA matching the victim's on his shoe as well as

items in his backpack. Thus, we are convinced beyond a

reasonable doubt that the CSLI data "did not have an effect on

the jury and did not contribute to the jury's verdicts." Tyree,

455 Mass. at 701.14

iv. Fruits. Next, the defendant argues that not only

should the CSLI have been suppressed, but so should any fruits

derived from it. He argues that both the call logs and the

evidence seized during his arrest are tainted by the unlawfully

obtained CSLI data, thus constituting fruits of the poisonous

tree. See Wong Sun v. United States, 371 U.S. 471, 484 (1963).

Because neither of these categories of evidence was derived from

the CSLI, they are not fruits.

14The Commonwealth also argued at oral argument -- despite
not having briefed the issue -- that the CSLI should not be
suppressed because we should apply the "good faith" exception to
the exclusionary rule, which we have not recognized in the
Commonwealth. See Commonwealth v. Fredericq, 482 Mass. 70, 84
(2019). Because we find the error was harmless, we need not
address that argument.
 17

"Under what has become known as the 'fruit of the poisonous

tree' doctrine, the exclusionary rule bars the use of evidence

derived from an unconstitutional search or seizure." Tavares,

482 Mass. at 706, quoting Commonwealth v. Fredericq, 482 Mass.

70, 78 (2019). "In determining whether the evidence is

considered a fruit of the poisonous tree, we consider 'whether

. . . the evidence . . . has been come at by exploitation of

[that] illegality or instead by means sufficiently

distinguishable to be purged of the primary taint.'" Tavares,

supra, quoting Fredericq, supra.

First, the call logs were not fruits of the CSLI.15 The

Commonwealth received the call logs and the CSLI as a result of

the same request.16 The mere fact that the call logs were

requested contemporaneously and were produced on the same sheet

of paper as the CSLI does not render them a fruit; the logs were

not derived from the CSLI or obtained as a result of a CSLI

request. See Tavares, 482 Mass. at 706.17

15The call logs included incoming and outgoing calls, the
times and dates of those calls, and the duration of each call.
As discussed supra, the call logs are not subject to the warrant
requirement under Augustine, 467 Mass at 251.

16At the suppression hearing, Giossi testified that he
asked for the subscriber information and call detail records
with CSLI in the same request. Call detail records include both
call logs and CSLI.

17The defendant argues that this reasoning renders the
exclusionary rule toothless because it does not disincentivize
 18

Second, the defendant's arrest -- and the clothing seized

from him postarrest -- are also not fruits of the CSLI. The

defendant became a suspect not as a result of his CSLI, but

through information garnered from his call logs and subscriber

information. Police began investigating the defendant because

his cell phone number was one of two numbers that had been in

contact with the victim's cell phone shortly before the victim's

death. Police then requested the defendant's cell phone records

from Sprint. The defendant's subscriber information showed his

cell phone was registered to an address in West Warwick, Rhode

Island. The investigators then called the West Warwick police

department and learned that the defendant was blonde with blue

eyes and a muscular build -- matching the description of both

the man whom the victim's neighbor saw discussing a ring that

morning and the man whom Singer saw in the victim's apartment

around 8 P.M. on the night of the murder. Police used a

photograph of the defendant sent by West Warwick police to

conduct a photographic array with Singer, who identified the

police from securing and using CSLI without a warrant. On the
contrary, if police unlawfully obtain CSLI, any fruits derived
therefrom must be suppressed unless the Commonwealth proves that
the evidence is untainted. See Commonwealth v. Blevines, 438
Mass. 604, 610-611 (2003). The fact that the call logs were not
derived from the CSLI, and thus are not a fruit, does not gut
the exclusionary rule. Rather, that is simply how the rule
works.
 19

defendant as the blonde male he had seen talking to the victim

shortly before his death.18

Police did also look at the defendant's CSLI. It showed

that he had been within three miles of Attleboro around the time

of the murder. Yet the CSLI was merely "cumulative and

corroborative" of other evidence, and thus did not lead to the

defendant becoming a suspect. Vazquez, 478 Mass. at 446.

Finally, the defendant was located and arrested through, as

the motion judge put it, "traditional investigative techniques,"

not through the CSLI. To locate the defendant, police started

by contacting the telephone numbers on the victim's call log.

They noticed a land line telephone number, figured out its

location, and visited it. There they found Rose, the

defendant's girlfriend's mother. Rose stated that the defendant

had left some of his belongings in her home, and that she

expected him to return. Later that day, Rose called one of the

officers, stating that her daughter and the defendant had just

called and that they would be returning to the house soon.

Police went to Rose's house. When the defendant arrived, they

placed him under arrest.19 Thus, the apprehension and arrest of

18 The neighbor also identified the defendant from a
photographic array, although that evidence was not introduced at
the suppression hearing.
19 Other officers who did not testify at the suppression

hearing contacted Sprint to request a "ping" of the defendant's
cell phone to attempt to locate him prior to his arrest. But,
 20

the defendant was also not a fruit of any unlawfully obtained

evidence, and therefore evidence obtained as a result should not

be suppressed.

b. Jury instructions. Next, the defendant argues that his

counsel was ineffective for failing to object to seven portions

of the jury instructions, and that the failure to object created

a substantial likelihood of a miscarriage of justice. We

disagree.

"Because the defendant was convicted of murder in the first

degree, rather than evaluating claims of ineffective assistance

under the traditional standard of Commonwealth v. Saferian, 366

Mass. 89, 96 (1974), we apply instead the more favorable

standard of G. L. c. 278, § 33E, to determine whether there was

a substantial likelihood of a miscarriage of justice" (footnote

omitted). Seino, 479 Mass. at 472 , citing Commonwealth v.

Wright, 411 Mass. 678, 681–682 (1992), S.C., 469 Mass. 447

(2014). "That is, we determine whether defense counsel erred in

the course of the trial and, if so, 'whether that error was

likely to have influenced the jury's conclusion.'" Seino, supra

at 472-473, quoting Wright, supra at 682.

as the motion judge found, the pings were "not material in his
arrest in that he was apprehended through traditional
investigative measures."
 21

"When evaluating jury instructions, we consider the charge

in its entirety, to determine the probable impact, appraised

realistically . . . upon the jury's factfinding function"

(quotation and citation omitted). Commonwealth v. Walker, 466

Mass. 268, 284 (2013). "Jury instructions must be construed as

a whole to prevent isolated misstatements or omissions from

constituting reversible error." Id., citing Commonwealth v.

Owens, 414 Mass. 595, 607 (1993). We examine each portion of

the jury instructions in turn.

i. Factual questions. First, the defendant argues that

the following instruction asked the jury to find facts that were

immaterial to any element of the crime and placed a burden on

the defendant to prove that someone else had killed the victim:

"Now, I say this to you. You're charged with finding the
facts. It's your job. I have nothing to do with it. To
find the facts. In this case, you are being asked to
determine what happened at Apartment 9 located at 49 Dunham
Street in Attleboro during the evening hours of July the
10th, 2011. That inquiry by this jury presents, among
others, the following examinations. One, who was there
that night? Two, when did each party arrive? Three, what
was each party's purpose in going to that apartment that
night? Four, what did each party do? And five, what was
the sequence of events? And I'm going to repeat those.
Who was there that night? When did each party arrive?
What was each party's purpose in going to Room No. 9 at 49
Dunham Street? What did each party do inside that room?
What was the sequence of events?"

The defendant likens this instruction to the one reviewed

in Bihn v. United States, 328 U.S. 633 (1946). There, multiple

defendants were tried for conspiracy, and a crucial issue for
 22

one of the defendants was whether she stole ration coupons from

a bank. Id. at 634-635. The judge instructed the jury:

"Who would have a motive to steal them? Did she take these
stamps? You have a right to consider that. She is not
charged with stealing, but with conspiracy to do all these
things, and you have a right to consider whether she did
steal them, on the question of intent. Did she steal them?
Who did if she didn't? You are to decide that."

Id. at 636-637. The United States Supreme Court held that with

respect to the defendant in question, the charge was prejudicial

error, because it essentially shifted the burden of proof to the

defendant by "putting on [the defendant] the burden proving her

innocence by proving the identity of some other person as the

thief" (citation omitted). Id. at 637.

Although the judge's instruction here was ill advised,

trial counsel's failure to object did not create a substantial

likelihood of a miscarriage of justice. Looking at the

instructions as a whole, we do not believe it would have

substantially affected the jury's function as the sole finder of

the facts. See Walker, 466 Mass. at 284. First, the judge

began the instruction by reiterating that he had no role in

finding the facts; that was the sole province of the jury. This

harkened back to one of his initial instructions, where he

stated, "I'm going to bring up suggestions. Not requirements."

Further, while the instruction posed factual questions to the

jury that were tangential to finding the elements of the crime,
 23

unlike in Bihn, the judge did not require the jury to find these

tangential facts.

ii. Bias. Second, the defendant argues that the judge

undermined the defendant's credibility by instructing the jury

that he "has a bias." The comment came at the end of the

judge's general instructions regarding credibility:

"Credibility, jurors. What do we mean by that? You know
about it. Sure, you do. You use it in your everyday
affairs. Think about this. Do people come up to you and
tell you to believe something? Ask you to say yes? And
it's something that you want to think about. What do you
do? What's the first thing? Well, you're watching the
person. Sure, you are. You want to figure out from your
common sense whether or not this person is believable. So
you're watching demeanor. You're also listening carefully
to the words and asking yourself he just said that, but
then he said this, and those two don't make sense. If he
said this, then that doesn't follow. You're listening to
him to see whether this is double talk, or sales talk, or
this is the genuine article. Three, you're thinking what's
in it for him or her. Is there bias? Is there self
interest? All of that comes into play. So you are in a
sense evaluating all the time in your lives believability.
And I say to you that you're going to use essentially those
same tools when you go into that jury room, and you use
your common sense and life's experiences to decide this.

"You're going to be asking about consistency. You're going
to ask yourself about coherency. Does it appeal to common
sense and logic? And you're going to ask yourself about
how it was presented, and you will also ask yourself about
bias or interest. And bear this in mind. The defendant
has a bias. He has an interest. So do the police. So do
the police. Anyone who works for an agency that's involved
in the case has a bias. So don't think the only person
with a bias is the defendant, because that's not so."

"It is appropriate for a judge to mention that interest in

the case is a criterion, along with others which the judge
 24

detailed, for assessing the credibility of witnesses."

Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 368 (1991), citing

Commonwealth v. Perez, 390 Mass. 308, 320 (1983). In Perez,

supra at 314 n.3, the judge instructed the jury, "You are

entitled to weigh this evidence, this testimony of the

defendant, and you are entitled, of course, in weighing the

testimony of the defendant, to consider, if you see fit, the

interest of the defendant in the outcome of the case which is

before you." We held that "[w]hile it is not a model charge, we

conclude that the judge did not impose on the jury his opinion

of the witness's credibility." Id. at 321.

The same is true here. While the judge should not have

stated "the defendant has a bias," taken in context the comment

did not communicate to the jury the judge's own opinion

regarding the defendant's credibility. See Perez, 390 Mass. at

321. Rather, it was immediately followed with the reminder,

stated and then repeated, that the police, too, have a bias, as

does anyone who works for an agency involved in the case. Thus,

even though the defendant's potential bias should not have

specifically been mentioned, this is not a case where his bias

was "singled out for special comment." United States v.

Rollins, 784 F.2d 35, 37 (1st Cir. 1986). Thus, trial counsel's

failure to object did not amount to a substantial likelihood of
 25

a miscarriage of justice.20 We emphasize, however, that the

utmost care is required when instructing the jury about a

defendant's testimony or failure to testify. Even an unintended

suggestion by the judge that the defendant's testimony is

subject to greater scrutiny risks error.

iii. Contradiction between an exhibit and a witness.

Third, the defendant argues that the judge invaded the fact-

finding province of the jury by instructing them that if an

exhibit contradicted a witness, the jury should use the exhibit

as "[a] reason not to believe a witness." The instruction was

as follows:

"Now, there's another way to look at credibility. Say to
yourself, you know, I believe something in those exhibits.
And you know what? What's in those exhibits backs up this
witness. That's called corroboration. If, on the other
hand, the exhibit contradicts the witness, what do you use
that for? A reason not to believe a witness. And go back
to this, jurors. If someone's being sincere with you, you
move onto reliability. If someone's insincere and is
winking at the oath, how can you believe that person? So

20The defendant also argues that the judge did not inform
the jury to what extent the defendant's potential bias may have
influenced his credibility. See United States v. Gleason, 616
F.2d 2, 15 (2nd Cir. 1979) ("Where the court points out that
testimony of certain types of witnesses may be suspect . . . it
must also direct the jury's attention to the fact that it may
well find these witnesses to be truthful"). While again it
would have been preferable for the judge to state as much
explicitly, he did, in his illustration about how one evaluates
credibility in one's everyday life, state, "you're thinking
what's in it for him or her. Is there bias? Is there self
interest? All of that comes into play." This comment showed
that bias is but one of many factors to be evaluated in
determining credibility, in addition to, among others, the
person's demeanor and word choice.
 26

that is what I would say as to your consideration of
credibility."

The defendant argues that this instruction "improperly informed

the jury precisely what effect certain evidence should have on

their deliberations" and was particularly prejudicial because

the Commonwealth had argued in closing that the jury should not

believe the defendant's testimony, and look instead to

statements the defendant made in his recorded interview. Thus,

the defendant argues the instruction mirrored the Commonwealth's

theory of the case.

We disagree. The judge did not state that exhibits should

be believed over witness testimony, but rather any

contradictions could be considered when assessing witness

credibility. Moreover, the judge had previously instructed the

jury that they had "full authority over the evidence," including

whether to believe or disbelieve some or all of a witness's

testimony. Thus, in the context of the instructions as a whole,

counsel's failure to object to this instruction did not create a

substantial likelihood of a miscarriage of justice.

iv. Jurors should be "controlled" by the video recording

of the defendant's statement to police. Fourth, the defendant

argues that the judge again invaded the fact-finding province of

the jury when he instructed:

"You've got a video, jurors. You've got a video of what
the interview consisted of at the Attleboro police station.
 27

That's going to be given to you. You're going to have the
ability to play it. Indeed, you should be controlled by
it. What he said on the video, you're going to see.
You're going to see it. If it conflicts with what the
lawyers said he said, you're going to follow the video."

The defendant argues that this instruction, like the previous

one, communicated to jurors that they should give greater weight

to the defendant's recorded statements to police than to his

testimony at trial. The defendant acknowledges that the last

sentence asks jurors to contrast the video recording with

statements by lawyers -- which are not evidence -- and states

that the video evidence should control over what lawyers said

about the recording. The defendant nonetheless argues that

jurors could understand the instruction to mean instead that the

recording should control "over other evidence and testimony and

over any misstatements made by the lawyers."

We disagree. The instruction clearly refers only to

comparing the recording to the lawyer's statements, not to

comparing the recording to other evidence. While it would have

been prudent for the judge to say that all the evidence -- not

just the video recording -- controls over statements by the

attorneys, the instruction was not error. In the context of the

instructions as a whole, a reasonable juror would have

understood this instruction as referring back to an instruction

the judge had given before closing arguments: that lawyers are

not witnesses and cannot provide information that is not found
 28

directly or inferentially in the evidence. Thus, the

instruction was not error, and consequently trial counsel was

not ineffective for failing to object.

v. Direct and circumstantial evidence. Fifth, the

defendant argues that the judge's instruction on the difference

between direct and circumstantial evidence essentially

diminished the Commonwealth's burden of proof. Specifically,

the judge illustrated the concepts of direct and circumstantial

evidence by giving two hypothetical examples. In the first --

which illustrated direct evidence -- the judge described a

defendant who was charged with leaving the scene of an accident.

In the example, a victim felt something strike her car, which

caused her to hit a tree. Two days later, a witness told police

that on the night in question he had been a passenger in a car

when the driver started to text, struck a car that struck a

tree, and then drove off. The witness identified the victim's

car as the one that had been struck by the defendant's vehicle.

The judge described the witness's testimony as direct evidence.

In the second example, which illustrated circumstantial

evidence, the judge used the same hypothetical, but instead of a

witness who saw the accident, the evidence came from various

other sources. A neighbor who heard the crash stated she saw a

dark Ford Taurus with a license plate starting with "1-0" leave

the scene. The police then searched Registry of Motor Vehicle
 29

records to identify owners of dark Ford Tauruses with license

plates starting with 1-0, and found the defendant. The location

of the car crash was consistent with the most efficient route of

travel to the defendant's home. When police visited the

defendant's home, they found a Taurus with damage consistent

with the accident. Paint chips on the Taurus were consistent

with the paint from the victim's car. The defendant admitted to

driving his Taurus the night of the accident, but denied

striking a car.

The defendant first argues that the charge was unbalanced

because it only illustrated how to infer guilt and not how to

infer innocence. See United States v. Dove, 916 F.2d 41, 46

(2nd Cir. 1990) (to explain difference between direct and

circumstantial evidence, trial judge used unbalanced

hypothetical that "merely instructed how to look for evidence of

. . . guilt"). We recently analyzed a similar hypothetical by

the same trial judge in Commonwealth v. Silva, 482 Mass. 275,

286-290 (2019). There, although we did not explicitly address

the unbalanced nature of the charge, we held that, taken as a

whole, the instructions were not error; however, we

"underscore[d] that, moving forward, . . . it is better practice

to avoid examples in which hypothetical individuals commit

crimes." Id. at 290. We hold the same here. See United States

v. Hensley, 982 F.3d 1147, 1161 (8th Cir. 2020) (unbalanced
 30

hypothetical was not error but "discourag[ing] the use of such

one-sided jury instructions"); United States v. Salameh, 152

F.3d 88, 142-143 (2d Cir. 1998), cert. denied, 526 U.S. 1028

(1999) (noting unbalanced hypotheticals are "disfavored" but did

not constitute prejudicial error in circumstances, because most

circumstantial evidence in case pointed towards guilt).

Next, the defendant argues that the hypothetical describes

a situation similar to the facts at trial and thus acted as a

roadmap showing how to find the defendant guilty. This argument

was not raised in Silva because the facts from the hypothetical

used there did not mirror those of the case. Here, we are

troubled that the hypothetical too closely tracks the facts of

the defendant's case.

To illustrate this, we compare the two. The neighbor who

witnessed a Ford Taurus leaving the scene is akin to the

neighbor who saw Gumkowski21 in Kilroy's apartment the day of the

murder. Investigators visiting the home and finding the

defendant is akin to investigators arresting Gumkowski at Rose's

home. The paint chip on the Taurus consistent with paint from

the victim's car is akin to the blood on Gumkowski's shoe that

was consistent with Kilroy's DNA. The defendant admitting to

driving the Taurus on the night of the accident but denying

21Here we refer to Gumkowski by name to distinguish him
from the defendant in the judge's hypothetical.
 31

striking the car is akin to Gumkowski admitting to going to

Kilrow's apartment on the night of the murder but denying

committing it.

The hypothetical used in this case is far more similar to

the facts of the defendant's case than instructions that have

been objected to on similar grounds. Compare Commonwealth v.

Shea, 398 Mass. 264, 270 & n.3 (1986) (rejecting defendant's

argument that hypothetical about missing piece of chocolate cake

too closely paralleled facts of his case); Commonwealth v. Gil,

393 Mass. 204, 222 (1984) ("We do not think that the

coincidental similarity between the well-known 'footprints in

the snow' example and the evidence of footprints on the floor at

the scene of the crime would make the jury reasonably believe

that the judge was expressing his belief in the Commonwealth's

theory of the case or was favoring a particular inference

propounded by the prosecutor"); Commonwealth v. Vaughn, 32 Mass.

App. Ct. 435, 443 (1992) ("Although we do not think the judge

committed reversible error, the similarity of the analogy to the

Commonwealth's evidence makes use of that particular analogy

ill-advised in the instant circumstances of this case" [citation

omitted]); Hensley, 982 F.3d at 1161 (very short hypothetical

illustrating concept of substantial step "track[ed] closely with

the facts of [the] defendant's case"); Dove, 916 F.2d at 46
 32

(hypothetical about "whether Jack shot Mary" was "not analogous

to the facts of this case").

In those cases, the illustrations were less in depth than

the hypothetical used here. Here, the hypothetical closely

mirrored the circumstances of the defendant's case and arguably

served to emphasize the prosecution's theory of the case,

illustrating to the jurors how they could find the defendant

guilty. Thus, the instruction was erroneous. Consequently,

trial counsel was ineffective for failing to object.

Looking at the instructions as a whole, however, the error

did not create a substantial likelihood of a miscarriage of

justice. First, as in Silva, 482 Mass. at 289, the judge made

clear that the jury could not premise a verdict on speculative

inferences.22 Second, the judge stated that jurors should not

take anything he had said to demonstrate his view on the case,

and that if he had done so unintentionally, they should

disregard it.23 See Hensley, 982 F.3d at 1160-1161 (judge's use

22Specifically, the judge stated: "One, you can only draw
a reasonable inference from evidence that you believe. Two,
that inference has to be reasonable. In other words, it can't
be a guess."

23The judge instructed: "Jurors, I am neutral in this
case. I have no role in the facts. And if I ever suggested to
you that I have a view of this case, that's arrogant on my part.
That is not something I want to convey. I respect you; and if I
did that unconsciously, you disregard it."
 33

of hypothetical similar to facts case not reversible error

because judge also instructed that jury "should not take

anything I have said or done during the trial as indicating what

I think of the evidence or what I think your verdict should

be"). Third, the hypothetical did not infringe on the

instructions on reasonable doubt. Compare Silva, supra (judge's

hypothetical to explain circumstantial evidence entirely

separate from "unambiguous and adequate instruction on

reasonable doubt"), with Commonwealth v. Pomerleau, 10 Mass.

App. Ct. 208, 214 (1980) (use of examples to explain reasonable

doubt was reversible error). Fourth, it is clear from a review

of the entire record that the judge was scrupulously focused on

the defendant receiving a fair trial. And finally, the

Commonwealth's case against the defendant was strong, and thus

any error was likely not to have influenced the jury's verdict.

Cf. Commonwealth v. Garcia, 379 Mass. 422, 442 (1980) (error in

jury instructions was harmless where "case involve[d]

overwhelming evidence of guilt").24 In sum, although the

24In Silva, 482 Mass. at 288, an additional mitigating
factor was that the jury did not convict on a theory of
deliberate premeditation, which showed "they understood the high
degree of certainty required to find the defendant guilty."
While here, similarly, the jury did not convict on either
deliberate premeditation or felony murder, we do not believe
this fact mitigates the error in the jury instructions. The
erroneous hypothetical did not speak to the hypothetical
defendant's intent or any underlying felony, so there is no
 34

instruction -- and counsel's subsequent failure to object --

were error, those errors did not create a substantial likelihood

of a miscarriage of justice.

vi. Reasonable inferences. Sixth, the defendant argues

that at the close of the hypothetical illustrating

circumstantial evidence, the judge insinuated an inference of

guilt would be reasonable. At the close of the hypothetical,

the judge stated: "And in this instance, you could be asked do

you draw a reasonable inference that the defendant [in the

hypothetical] did this. And in looking at that question, you

certainly can apply your common sense, your powers of logic."

The defendant argues that a juror would likely understand

this instruction as implying that any inference they might draw

of the defendant's guilt would be a reasonable one. Although we

have made our concerns with the hypothetical clear, we do not

think this closing element created a substantial likelihood of a

miscarriage of justice. While the words may have subtly implied

that such an inference would be reasonable, a reasonable jury

would not have interpreted them as "a conclusive direction by

[the judge] to find murder in the first degree once the jury

were convinced of the [underlying] facts." Commonwealth v.

Skinner, 408 Mass. 88, 95 (1990). Compare id. at 94-95

reason it would have affected the jury's fact finding concerning
the elements of deliberate premeditation or felony-murder.
 35

(reversible error where judge instructed "not only that [the

jury] could infer premeditation from certain subsidiary facts

and malice, but that the finding of those facts and malice

'would constitute first-degree murder'").

vii. Drawing of inferences. Seventh, the defendant argues

that the judge's instructions on inferences implied that intent

had to be proved beyond a reasonable doubt, but the other

elements of the crime did not. The judge instructed:

"And here are the rules that apply to drawing a reasonable
inference. One, you can only draw a reasonable inference
from evidence that you believe. Two, that inference has to
be reasonable. In other words, it can't be a guess.
Three, that where the inference constitutes an element of
the crime -- intent. Intent, which I told you can well be
the subject of circumstantial evidence -- it has to be
proven beyond a reasonable doubt."

Looking at the jury instructions as a whole, it is clear that

the judge properly instructed the fact that proof beyond a

reasonable doubt is necessary for every element of the offense.

As the judge outlined the elements of each charged crime, he

repeatedly emphasized that the Commonwealth had the burden to

prove each element beyond a reasonable doubt. Thus, a

reasonable juror would have understood the challenged

instruction to show that intent is one example of an element

that must be proved beyond a reasonable doubt, not that it was

the only one. There was no error.
 36

c. Relief pursuant to G. L. c. 278, § 33E. We have

reviewed the record in accordance with our statutory duty under

G. L. c. 278, § 33E, and we identify no basis upon which to

order a new trial or to reduce the degree of guilt.

Judgment affirmed.