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Appeals Court of Massachusetts.



Decided: October 26, 2021

By the Court (Wolohojian, Sullivan, & Ditkoff, JJ.1)


Following a jury trial at which he elected to represent himself with the assistance of standby counsel, the defendant was convicted of assault and battery by means of a dangerous weapon causing serious bodily injury, in violation of G. L. c. 265, § 15A (c) (i), and assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b). On appeal, the defendant argues that (1) his motion to suppress cell site location information (CSLI) associated with his cell phone should have been allowed; (2) even if the motion to suppress was properly denied, the CSLI records were unfairly prejudicial and should not have been admitted; (3) the defendant's own postcrime statement to the victim was inadmissible hearsay; (4) there was insufficient evidence to permit the jury to find beyond a reasonable doubt that the defendant was the person who shot the victim; and (5) the defendant, in representing himself, introduced unfairly prejudicial evidence that created a substantial risk of a miscarriage of justice such that a new trial is required. We affirm.

1. Historical CSLI records. a. The motion to suppress. The defendant argues that the police officer's affidavit did not establish probable cause to support a search warrant to obtain historical CSLI location records for the twelve-hour period from 11 p.m. on December 24, 2017, to 11 a.m. on December 25, 2017. See Commonwealth v. Augustine, 467 Mass. 230, 255 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015) (probable cause required to obtain search warrant for historical CSLI records). We review the affidavit de novo to determine whether it “satisfies the probable cause standard.” Commonwealth v. Robertson, 480 Mass. 383, 386 (2018). Our review “begins and ends with the four corners of the affidavit” (quotations omitted). Id. We consider the affidavit “as a whole and in a commonsense and realistic fashion.” Id., quoting Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). The affidavit should not be “parsed, severed, [or] subjected to hypercritical analysis” (citation omitted). Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). “Inferences drawn from the affidavit must be reasonable and possible, but no showing that the inferences are correct or more likely true than not true is required.” Robertson, supra at 387.

When reviewing a ruling on a motion to suppress, we “accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. White, 475 Mass. 583, 587 (2016), quoting Commonwealth v. Hernandez, 473 Mass. 379, 382-383 (2015). We therefore “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” White, supra, quoting Hernandez, supra.

The investigating officer's affidavit established the following. The defendant was the boyfriend of the victim's wife. The victim and his wife were in the midst of a contentious divorce. There was a history of conflict between the defendant and the victim, and between the defendant and the victim's father.2 At approximately 3 a.m. on December 25, 2017, two shots were fired into the pool house of the victim's parents’ house, striking the victim as he slept. The victim told police that he believed the defendant was the shooter. The property had a surveillance system that showed a “gray, silver[,] or gold” car going down the driveway of the house at 1:50 a.m., leaving at 1:51 a.m., and then returning at 2:44 a.m., just before the shooting took place. The driver, who appeared to be a man, parked directly behind the victim's truck. A man walked directly to the pool house, and fired two shots into the pool house at 2:45 a.m. The shooter calmly walked away and the vehicle departed.

The car captured by the surveillance system had distinctive tail lights and side trim. The defendant's 2003 Mercedes S430 had identical tail lights and side trim. Both the defendant and the victim's wife confirmed that the defendant owned a “gold or tan” 2003 Mercedes S430 sedan, which police believed was the “same vehicle” as the one observed in the surveillance footage from the time of the shooting. The defendant and the victim's wife provided police with their cell phone numbers, and a query of the New England State Police Information Network showed that both cell phone numbers were registered to the defendant.

An affidavit supporting an application for historical CSLI records must demonstrate “probable cause to believe [1] that a particularly described offense has been, is being, or is about to be committed, and [2] 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. There is no question that the affidavit demonstrated that a crime had been committed. The defendant nonetheless contends that the issuance of the warrant was improper -- and that his motion to suppress should therefore have been allowed -- because the affidavit did not establish that his historical CSLI records would “produce evidence of [the offense described]” or “aid in the apprehension of a person who the applicant has probable cause to believe ․ committed ․ such offense.” Commonwealth v. Hobbs, 482 Mass. 538, 545-546, quoting Commonwealth v. Augustine, 472 Mass. 448, 453 (2015).

We disagree. It is true that 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). But in the context of historical CSLI records, “the sought-after evidence is the location of the cell phone itself, not what information may be found in the cell phone's contents.” Hobbs, 482 Mass. at 546. The Supreme Judicial Court has recognized that “[i]n today's digital age, the real-time location of an individual's cell phone is a proxy for the real-time location of the individual.” Commonwealth v. Almonor, 482 Mass. 35, 45 (2019). Accordingly, “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 that time can reasonably be expected to be found in the CSLI records requested.”3 Hobbs, supra at 547. Where, as here, the affidavit establishes probable cause to believe that a particular offense was committed, the defendant committed it, and the defendant possessed a cell phone, there is sufficient nexus between the criminal activity and the sought-after CSLI records. Id. Therefore, the motion to suppress was properly denied. See Robertson, 480 Mass. at 388.

b. Whether the CSLI was unfairly prejudicial. The defendant next argues that, even if his motion to suppress was properly denied, the CSLI records and location maps made from them should not have been admitted because they were substantially more prejudicial than probative. Because the defendant did not object to the admission of this evidence, we review to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Bonds, 445 Mass. 821, 828-829 (2006). Here, we see no error.

Relevant evidence may be excluded “if its probative value is substantially outweighed by a danger of ․ unfair prejudice.” Mass. G. Evid. § 403 (2021). Under this standard, however, “the measure of prejudice is not whether the evidence simply is adverse to the party against whom it is offered” (citation omitted). Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187-188 (2013). “By design, all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided.” Id. at 188, quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). “Evidence is unfairly prejudicial only if it has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ ” Kindell, supra, quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980).

Here, the CSLI records and the maps made from them were highly probative because they showed the defendant's approximate location and direction of movement in the hours leading up to and just after the shooting. Although the CSLI evidence was prejudicial to the defendant in the sense that it placed him near the scene of the shooting at the time it occurred, that prejudice stemmed only from the evidence's probative value. The defendant has not shown that the evidence was “unfairly prejudicial” because it had an “undue tendency to suggest decision on an improper basis” (citation omitted). Kindell, 84 Mass. App. Ct. at 188.

2. Defendant's statement. The victim testified that approximately one month after the shooting, the defendant telephoned him and said, “Sleep with one eye open. I'm going to finish you off.” The defendant argues on appeal that this statement should not have been admitted because it was not an “admission” that tended to show the defendant's guilt, and because it was unfairly prejudicial. The defendant timely objected; we accordingly review to determine whether the trial judge abused his discretion in admitting the statement and, if so, whether the error was prejudicial. See Commonwealth v. Marshall, 434 Mass. 358, 363-364 (2001).

“An extrajudicial statement made by a party opponent is an exception to the rule against the introduction of hearsay, and is admissible unless subject to exclusion on other grounds.” Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). See Mass. G. Evid. § 801(d)(2)(A) (2021). This exception to the hearsay rule “encompasses any extrajudicial statement made by a party opponent regardless whether it is inculpatory or against the party's interest.” Spencer, supra. See M.S. Brodin & M. Avery, Massachusetts Evidence § 8.6.1, at 601-602 (2021 ed.).

Here, the defendant did not contest that he made the statement at issue, and it was offered against him by the Commonwealth, so the statement was admissible. Cf. Commonwealth v. McCowen, 458 Mass. 461, 485-486 (2010). The statement also was not unfairly prejudicial because, as we have explained above, its prejudice stemmed from its probativeness. Rulings that proffered evidence is relevant and not unfairly prejudicial are “entrusted to the trial judge's broad discretion and are not disturbed absent palpable error.” Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001).

3. Motion for a required finding of not guilty. The defendant next argues the evidence was insufficient to prove beyond a reasonable doubt that he was the person who shot the victim. We review the evidence to determine “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Circumstantial evidence and the inferences drawn from it may be sufficient to sustain a conviction, “so long as the inferences that must be drawn are ‘reasonable and possible’; they need not be ‘necessary or inescapable.’ ” Commonwealth v. Trotto, 487 Mass. 708, 716 (2021), quoting Commonwealth v. Fernandes, 478 Mass. 725, 739 (2018).

Although there was no direct evidence that the defendant was the shooter, the circumstantial evidence was sufficient to draw that conclusion beyond a reasonable doubt. See Trotto, 487 Mass. at 716 (inference from evidence must be “reasonable and possible” and not rest on “conjecture or speculation” [citation omitted]). The defendant knew the victim and had an antagonistic relationship with him and his family. At the time of the shooting, the defendant was dating the victim's wife. The defendant and the victim had been involved in a physical altercation only a few months before the shooting. On the night in question, the defendant was intoxicated and agitated. He left the victim's wife's house sometime between 12:30 a.m. and 1:30 a.m. in his gold 2003 Mercedes sedan, which looked like the car captured on the surveillance system. That car was driven by a man who shot the victim. The historical CSLI records showed that between approximately 1:36 a.m. and 1:48 a.m., the defendant moved from the victim's wife's house in the direction of the victim's house. These same records also show that the defendant was located near the victim's house at 2:47 a.m., two minutes after the shooting.

4. Defendant's right to self-representation. After a colloquy, the defendant elected to exercise his right to waive counsel. He represented himself at trial, assisted by appointed standby counsel. Now represented by appellate counsel, the defendant argues that his trial was fundamentally unfair because, in conducting his own defense, the defendant introduced inadmissible, and unfairly prejudicial, prior bad act evidence. Put otherwise, the defendant's claim is essentially that the trial judge should have, sua sponte, prohibited him from introducing evidence harmful to his cause. The defendant cites no case law for this proposition, and we decline to impose such a requirement on trial judges.

Criminal defendants may elect to represent themselves at trial. See art. 12 of the Massachusetts Declaration of Rights. But “pro se litigants are held to the same standards as practicing members of the bar.” Commonwealth v. Jackson, 419 Mass. 716, 719 (1995), citing Commonwealth v. Barnes, 399 Mass. 385, 392 (1987). “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.” Jackson, supra at 720, quoting Faretta v. California, 422 U.S. 806, 835 (1975). Although a defendant may “conduct his own defense ultimately to his own detriment,” his choice to represent himself “must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” Commonwealth v. Martin, 425 Mass. 718, 721 (1997), quoting Faretta, supra at 834. Therefore, “even in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice ‘with eyes open.’ ” Commonwealth v. Mott, 2 Mass. App. Ct. 47, 52 (1974), quoting United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965).

Here, the trial judge conducted a colloquy with the defendant to ensure he understood the importance of his right to counsel, the seriousness of the charges against him, and that he was waiving his right to counsel knowingly and voluntarily. The defendant was ably assisted by standby counsel at motion hearings and throughout the trial. The record also shows that the defendant received advice and warnings from his standby counsel and cautionary explanations from the trial judge before embarking on the lines of questioning that led to the admission of evidence he now argues unfairly prejudiced him. Any tactical or strategic errors made by the defendant in presenting his defense “were inherent in the risk he assumed [in choosing to represent himself],” Jackson, 419 Mass. at 721, and did not create a substantial risk of a miscarriage of justice.

Judgments affirmed.


2.   Incidents of conflict included a physical altercation between the defendant and the victim outside a court house on September 27, 2017, and a “road rage” incident involving the defendant and the victim's father that occurred on July 4, 2017, and resulted in “several collisions” between the defendant's car and the father's car, which caused the father's paralysis.

3.   The defendant's reliance on White, 475 Mass. at 590-591, for the proposition that “even where there is probable cause to suspect the defendant of a crime, police may not seize or search his or her cellular telephone to look for evidence unless they have information establishing the existence of particularized evidence likely to be found there,” is misplaced. White entailed the warrantless seizure of a cell phone and a search of its contents. The case did not involve a search of historical CSLI data. The Supreme Judicial Court has recognized that “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 [such as the search involved in White].” Hobbs, 482 Mass. at 547 n.11. Therefore, in an affidavit supporting an application for a search warrant for historical CSLI, “[a] direct observation of a suspect's actual use of the cell phone during the commission of the crime is ․ not required.” Id. at 547.

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