Commonwealth v. Fulgiam , 477 Mass. 20 ( 2017 )

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SJC-11674
COMMONWEALTH vs. EARL T. FULGIAM
(and thirteen companion cases1).
Suffolk. October 11, 2016. - May 5, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.2
Homicide. Felony-Murder Rule. Robbery. Firearms. Cellular
Telephone. Constitutional Law, Search and seizure,
Probable cause. Search and Seizure, Warrant, Probable
cause. Probable Cause. Evidence, Fingerprints, Expert
opinion, Prior misconduct, Relevancy and materiality.
Witness, Expert. Practice, Criminal, Capital case,
Warrant.
Indictments found and returned in the Superior Court
Department on December 21, 2011.
The cases were tried before Peter M. Lauriat, J.
Elizabeth Caddick for Earl T. Fulgiam.
Esther J. Horwich for Michael T. Corbin.
Zachary Hillman, Assistant District Attorney (John P.
Pappas, Assistant District Attorney, also present) for the
Commonwealth.
1
Six against Earl T. Fulgiam and seven against Michael T.
Corbin.
2
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
HINES, J. On July 25, 2011, armed intruders entered the
apartment occupied by the victims, Kevin Thomas, Jr., and Billie
Marie Kee, who were robbed and killed. In May, 2013, a Superior
Court jury found the defendants, Earl T. Fulgiam and Michael T.
Corbin, guilty as joint venturers of murder in the first degree
of both victims based on the theories of deliberate
premeditation, extreme atrocity or cruelty, and felony-murder
with armed robbery as the predicate felony. The defendants also
were convicted of unlawful possession of a firearm and unlawful
possession of a large capacity feeding device.3 On appeal, the
defendants assert error in the admission of (1) certain cellular
telephone records in violation of their rights under art. 14 of
the Massachusetts Declaration of Rights and the Fourth and Sixth
Amendments to the United States Constitution; (2) fingerprint
cards attributed to the defendants without proper authentication
or reliability; and (3) expert testimony related to the
fingerprint analysis. Corbin independently claims that repeated
3
The defendants' convictions of armed robbery of the
victims were dismissed as duplicative and their convictions of
unlawfully carrying a loaded firearm were filed with the
defendants' consent. The defendants were sentenced to
consecutive terms of life without the possibility of parole;
from four to five years on the firearm convictions, to be served
from and after the sentences for murder; and from nine to ten
years on the unlawful possession of a large capacity feeding
device convictions, to be served concurrent with the firearms
convictions.
3
references to gang affiliation created a substantial likelihood
of a miscarriage of justice. We affirm the convictions and
decline to grant relief pursuant to G. L. c. 278, § 33E.
Background. We summarize the evidence as the jury could
have found it, reserving additional facts for later discussion.
On July 25, 2011, a couple who lived on the second floor of an
apartment building on Hyde Park Avenue, in the Hyde Park section
of Boston, awoke to the sound of gunshots at around 11:55 P.M.
They heard between six and eight gunshots that the woman
believed came from an apartment below. The couple looked out of
their bedroom window, and saw six or seven men running out of
the entrance to their building. The woman telephoned 911 at
11:57 P.M.4
The men split up. Some of them ran straight across Hyde
Park Avenue. At that moment, a passenger in a vehicle
approaching the victim's apartment building saw three men run in
front of her vehicle; one of the men carried what looked like a
white pillow case. The men got into a grey or silver sedan so
quickly that a man's foot was hanging outside the vehicle as it
sped away. None of the witnesses was able to give more than a
general description of the men, except that one man was
4
This neighbor placed four cellular telephone calls to 911
that evening. Only the calls placed at 11:57 P.M. and 12:41
A.M. are relevant here.
4
heavyset;5 the witnesses could only guess at the race or
ethnicity of the men they observed.
At 12:41 A.M. on July 26, 2011, Boston police responded to
the scene and were directed to the victim's apartment. They
found a large watch on the floor near the front entrance to the
building. Kee, dressed in a bloody shirt and underwear, was
found lying face down on the floor just inside the apartment.
She had suffered four gunshot wounds and multiple stab wounds,
and she was pronounced dead at the scene. Kee's cause of death
was gunshot wounds to the torso and injuries to the lungs, ribs,
and spine.
Thomas, dressed in a T-shirt, shorts, and socks, was found
in the front bedroom, lying on his back over a pile of clothing;
his legs were bound at the ankles with black wire. He had
suffered seven gunshot wounds and four stab wounds to his body,
and he was pronounced dead at the scene. Thomas's cause of
death was gunshot wounds to the torso and neck.
The victims' apartment had been ransacked. Broken glass
and blood were on the floor, clothes were strewn about, and the
cabinets and drawers were open in the kitchen and bathroom.
There were no signs of forced entry; the front door was ajar,
with the lock intact, and the back doors were locked from the
5
Fulgiam's height and weight are listed on his State police
fingerprint card as five feet, ten inches tall and 300 pounds.
5
inside. Although the officers observed no "land line" telephone
in the apartment, they did not recover any cellular telephones.
A curling iron with its cord cut and two knives with brownish-
red stains were found near Kee's body. The curling iron cord
matched the wire that was used to bind Thomas's ankles.
In the front bedroom, in a tall bureau, officers found a
packet of photographs, two of which depicted Thomas with Fulgiam
and Corbin, at Thomas's apartment, sitting on the couch in front
of stacks of United States currency. Near Thomas's body
officers found a black backpack with what appeared to be a bag
of marijuana inside.
On July 27, 2011, a subsequent search of the basement
revealed two plastic bags of what appeared to be "crack"
cocaine, and two digital scales. Based on the all of the
evidence that the police officers had found during their
investigation, they surmised that the assailants were likely
known to the victims and that the murders were likely the result
of a drug robbery.
In the front yard, officers recovered a loaded nine
millimeter semiautomatic pistol with a magazine and a loaded .38
caliber silver revolver. A diamond encrusted ring was found on
Hyde Park Avenue.
John Golden, Thomas's best friend, testified that Thomas
sold large amounts of marijuana and cocaine. On the day of the
6
murders, Golden saw approximately $5,000 in the bureau. When
Golden was shown the photograph depicting Thomas, Corbin, and
Fulgiam with the bundles of cash, Golden estimated the amount to
be between $12,000 and $13,000. Police were able to determine
the date of the photograph as May 11, 2011. Golden also
identified the watch and the ring that had been recovered as
belonging to Thomas. Golden described Thomas as being
"paranoid," so much so that he insisted that even trusted
friends call before coming to his apartment.
On July 29, 2011, a latent print from the nine millimeter
semiautomatic pistol recovered from the scene was
"individualized," or matched, to Fulgiam. Thirteen spent nine
millimeter shell casings, eight spent nine millimeter bullets,
and four bullet fragments were recovered from the scene and from
the victims. Analysis of the firearms revealed that the nine
millimeter semiautomatic contained a magazine that held twenty
rounds of ammunition; eight were recovered in the magazine. All
of the bullets, bullet fragments, and shell casings had been
fired from the nine millimeter semiautomatic pistol.
A detective learned that the victims' cellular telephones
had not been recovered, so he requested and obtained traces on
both. Thomas's cellular telephone records showed that a certain
cellular telephone number was listed in Thomas's telephone
records for July 25, 2011. Police learned that this telephone
7
had been stolen that afternoon between 4:30 P.M. and 5:30 P.M.
The owner told police that he did not recognize Thomas's
cellular telephone number or the number later identified as
Fulgiam's cellular telephone number, both of which were listed
in his call detail records for July 25, 2011. The Commonwealth
issued administrative subpoenas for Fulgiam's cellular telephone
call detail records and for a cellular telephone number ending
in 2898, which was later connected to Corbin.6 The police
discovered that Corbin and Thomas had been in contact, via short
message service messages (text messages), or telephone calls,
several times on July 25, 2011. Fulgiam and Corbin also had
been in telephonic contact that day.
On August 8, 2011, two detectives interviewed Fulgiam at
his home. At this time the police had not sought an arrest
warrant for Fulgiam. Fulgiam told the detectives that he and
Thomas had known one another since the early to mid-2000s, and
that he knew Thomas very well. Fulgiam admitted that he and
Thomas were in the drug business together and that he would meet
6
Fulgiam's call detail and subscriber information was
originally obtained through an administrative subpoena,
discussed infra, issued on August 4, 2011. On August 16, 2011,
additional administrative subpoenas issued for both Fulgiam and
Corbin's subscriber and call detail information. Both Fulgiam
and Corbin's cellular telephone records information, including
call detail information records, subscriber information, cell
site location information (CSLI), and, for Corbin, the content
of text messages, were subsequently obtained through a court
order pursuant to 18 U.S.C. § 2703(d) (2006), also discussed
infra.
8
with Thomas one or two times per month, at one of their homes to
conduct business. He estimated that it had been about one month
since he had last met with Thomas, but could not remember
whether it had been at his home or at Thomas's home. He last
communicated with Thomas via text message on July 17. Fulgiam
had Thomas's cellular telephone number, and he stated that he
changed his own cellular telephone number two weeks prior7
because a woman had been stalking him. Fulgiam was not aware of
Thomas having disputes with anyone and noted that Thomas had a
lot more money than he did. Fulgiam opined that whoever killed
Thomas had to have been close to him.
The two detectives interviewed Corbin at his home on August
10, 2011. At that time, he was not under arrest. One of the
detectives had previously been in telephonic contact with
Corbin,8 who agreed to meet with the detectives. Corbin told the
detectives that he had known Thomas since Corbin was thirteen
years old. Corbin was equivocal about when his last
communication with Thomas occurred; he first said it had been a
7
The murders occurred exactly two weeks before the day of
Fulgiam's interview.
8
Corbin's cellular telephone account was not listed in his
name, nor did the address given match where Corbin was living at
the time of his interview with police. Corbin's cellular
telephone service provider, Metro PCS, is an advance pay company
which offers a plan providing thirty days of service for a
monthly fee of forty dollars. The company does not conduct a
credit check or verify customer's identification information.
9
month prior, but later said it could have been weeks or days
before Thomas was killed. He stated that the last time he was
in Thomas's apartment was on May 1, 2011, but that he had been
in the apartment many times. Corbin mentioned that Thomas was
not a showy guy, and that he had a watch and ring, but only wore
them on the weekends. He also noted that Thomas was a smart and
careful person and that one had to inform Thomas before coming
to his home.
On September 14, 2011, police learned that fingerprint
analysts had individualized to Corbin's right thumbprint a
latent print found on the curling iron that had been recovered
from the victim's home. On October 27, 2011, pursuant to a
search warrant, detectives seized Corbin's cellular telephone
ending with the number 2898 (2898 number) and discovered
photographs of Fulgiam, as well as both Fulgiam and Thomas's
numbers programmed into the contact list. That same day, the
police obtained arrest warrants for Corbin and Fulgiam.
Discussion. 1. Admission of cellular telephone records.
a. Fulgiam's claim. On August 15, 2011, after a review of
Thomas's cellular telephone records, the Commonwealth sought and
received a court order, pursuant to 18 U.S.C. § 2703(d) (2006)
(§ 2703[d] order), for the historical cell site location
10
information (CSLI)9 and other cellular telephone account
information for several cellular telephone numbers that were in
contact with Thomas's cellular telephone on July 25, 2011, the
day of the murder. Under the authority of the § 2703(d) order,
the Commonwealth obtained Fulgiam's CSLI for the period from
July 20, 2011, through July 30, 2011.
A review of the CSLI associated with Fulgiam's cellular
telephone number revealed that on the evening of July 25, 2011,
Fulgiam's cellular telephone activated a cell tower located at
an address which is located directly behind the victim's
apartment, six times between 11:30 P.M. and 11:55 P.M. The last
time Fulgiam's cellular telephone activated the cell tower at
that location was the same time that the neighbors awoke to
gunshots and two minutes before one of them telephoned 911 the
first time.
Fulgiam argues that the Commonwealth improperly obtained
the CSLI for his cellular telephone without probable cause and
that, in any event, the application for the § 2703(d) order was
9
"[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.'" Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2
(2015), quoting Commonwealth v. Augustine, 467 Mass. 230, 231
n.1 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448
(2015). "'Historical' CSLI refers to CSLI relating to and
generated by cellular telephone use that has already occurred at
the time of the order authorizing the disclosure of such data."
Augustine I, supra.
11
insufficient to show that his CSLI would be "relevant and
material to an ongoing criminal investigation."10 18 U.S.C.
§ 2703(d). We disagree.
i. Standard of review. In Commonwealth v. Augustine, 467
Mass. 230, 232 (2014) (Augustine I), S.C., 470 Mass. 837 (2015),
we concluded that government-compelled production of CSLI by
cellular telephone service providers was a search in the
10
Fulgiam also argues that the Commonwealth relied on
information obtained by an invalid administrative subpoena
issued on August 4, 2011, pursuant to G. L. c. 271, § 17B, to
support its August 15, 2011, application for a § 2703(d) order.
We agree that this administrative subpoena was of questionable
validity where it was signed on behalf of the assistant district
attorney by an administrative assistant. Section 17B requires
strict compliance with the provision that such administrative
subpoenas are issued by attorneys general or district attorneys.
See Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 727 (1997)
(common-law exception to § 17B's requirement, which allows
assistant attorneys general and assistant district attorneys to
sign such subpoenas). However, the information that the
Commonwealth obtained pursuant to the August 4 subpoena did not
prejudice Fulgiam. See id. at 728. By August 8, 2011, the
police already had connected Fulgiam to his cellular telephone
account when Fulgiam met with detectives and provided his
cellular telephone number to them. Based on this knowledge, the
police were able to connect Fulgiam's cellular telephone number
to the stolen cellular telephone, as the police already had the
call detail records for that account. The only information that
the police were able to obtain through the August 4 subpoena
that was not already in their possession was the fact that
Fulgiam's cellular telephone had contact with Corbin's cellular
telephone on July 25, 2011. However, even without the
connection to Corbin, the Commonwealth's application for a
§ 2703(d) order contained sufficient facts showing that
Fulgiam's cellular telephone information would be relevant and
material to the ongoing criminal investigation. Consequently,
the information the Commonwealth obtained from Fulgiam's
cellular telephone account from the August 4 subpoena did not
create a substantial likelihood of a miscarriage of justice.
12
constitutional sense, requiring a warrant under art. 14 of the
Massachusetts Declaration of Rights. We determined, however,
that the warrant requirement was a "new" rule applicable only to
those cases where the defendant raised the warrant issue before
or during the trial and the defendant's conviction was not final
at the time that Augustine I was decided. See id. at 257.
Although Fulgiam's case was on direct appeal when Augustine I
was decided, he did not challenge the sufficiency of the
§ 2703(d) order as a basis for access to his CSLI either before
or during the trial. Therefore, we review to determine "whether
the unobjected-to admission of the CSLI evidence that was
obtained without a search warrant created a substantial
likelihood of a miscarriage of justice." Commonwealth v. Broom,
474 Mass. 486, 493 (2016).
ii. Analysis. Because Fulgiam does not have the benefit
of Augustine I, the Commonwealth only had to meet the standard
set forth in § 2703(d) in order to obtain Fulgiam's CSLI. See
Broom, 474 Mass. at 492. Section 2703(d) requires that an order
"shall issue only if the governmental entity offers specific and
articulable facts showing that there are reasonable grounds to
believe that the contents of a wire or electronic communication,
or the records or other information sought, are relevant and
material to an ongoing criminal investigation." The
Commonwealth met that burden.
13
The application recited the following facts that, taken
together, established reasonable grounds to believe that
Fulgiam's CSLI was "relevant and material" to the ongoing
investigation into the Thomas and Kee murders. First, based on
the review of Thomas's cellular telephone records, the police
were aware that Thomas's cellular telephone was involved in an
ongoing text message dialog with the stolen cellular telephone
between 11:05 P.M. and 11:32 P.M. on the night of the murders
and that the stolen cellular telephone was in contact with
Fulgiam's cellular telephone twice that day. Fulgiam's last
communication with the stolen cellular telephone was a text
message sent at 11:37 P.M., at or near the time of the murders.
At 11:57 P.M., shortly after this last contact between Fulgiam's
cellular telephone and the stolen cellular telephone, the police
received the first 911 call for a disturbance at the victims'
apartment. Second, Fulgiam had admitted to police that he knew
Thomas and that they were in the drug business together. Based
on the affiant's training and experience, that business
connection, the lack of forced entry into the apartment
(suggesting that the victims knew the assailants), and the
ransacked condition of the crime scene placed Fulgiam's cellular
telephone records squarely within the realm of information
"relevant and material" to the ongoing investigation into the
murder of the victims. Thus, Fulgiam cannot demonstrate that
14
the § 2703(d) order was invalid and that as a consequence, the
Commonwealth's access to his CSLI created a substantial
likelihood of a miscarriage of justice. See Broom, 474 Mass. at
493.
b. Corbin's claims. Using the § 2703(d) order issued on
August 15, the Commonwealth obtained Corbin's cellular telephone
subscriber and call detail information, CSLI, and text messages
for the period from July 20 through July 30, 2011. Corbin, like
Fulgiam, did not challenge the Commonwealth's access to these
records either before or during the trial. On appeal, however,
Corbin argues that the Commonwealth's access to and use of these
records at trial was unlawful on statutory and constitutional
grounds, and that his trial counsel was constitutionally
ineffective in failing to file a motion to suppress the records.
More specifically, Corbin claims that (1) the application for
the § 2703(d) order (§ 2703[d] application) failed to make the
required showing that the records were "relevant and material"
to an ongoing criminal investigation; and (2) the access to and
use of the content of his text messages at trial was improper
because the § 2703(d) application failed to establish probable
cause to believe "that a particularly described offense has
been, is being, or is about to be committed, and that [the
content of the text messages being sought] will produce evidence
of such offense or will aid in the apprehension of a person who
15
the applicant has probable cause to believe has committed, is
committing, or is about to commit such offense" as required by
18 U.S.C. § 2703(a) and art 14.11 Augustine I, 467 Mass. at 256,
quoting Commonwealth v. Connolly, 454 Mass. 808, 825 (2009).
These claims fail.
i. Standard of review. Where, as here, the defendant has
been convicted of murder in the first degree, we review his
claim of ineffective assistance of counsel to determine whether
the alleged lapse created a "substantial likelihood of a
miscarriage of justice," a standard more favorable to the
defendant than the constitutional standard otherwise applied
under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), S.C., 469
Mass. 447 (2014). We focus more broadly on whether there was
error and, if so, whether any such error "was likely to have
influenced the jury's conclusion." Id. If the defendant's
claim of ineffective assistance of counsel is based on the
failure to file a motion to suppress, he must "show that the
motion to suppress would have been successful, and that failing
to bring such a motion . . . created a substantial likelihood of
a miscarriage of justice." Commonwealth v. Banville, 457 Mass.
530, 534 (2010).
11
Corbin does not challenge the use of his cellular
telephone CSLI at trial.
16
If the failure to file a motion to suppress resulted from
counsel's tactical decision not to do so, the defendant must
demonstrate that this strategic choice was "manifestly
unreasonable" when made (quotations and citation omitted).
Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). Here,
however, the record is unclear as to whether counsel's decision
was tactical, as the defendant did not file a motion for new
trial on this ground, clarifying the record on trial counsel's
reason for his choice.
ii. Likelihood of success on the motion to suppress.
Because the analysis of the likelihood of success on a motion to
suppress the subscriber and call detail information is governed
by a legal standard that is different from that applicable to
text messages, we consider each category of information
separately.
A. Subscriber and call detail information. To secure a
§ 2703(d) order allowing access to subscriber and call detail
information, the application must establish "specific and
articulable facts showing that there are reasonable grounds to
believe that the [information sought is] relevant and material
to an ongoing criminal investigation." 18 U.S.C. § 2703(d).
Corbin argues that the Commonwealth's application was
insufficient to meet this test. We disagree.
17
The § 2703(d) application, reciting a series of calls and
text messages between Thomas and Corbin on the day of the
murders,12 was more than sufficient to establish that Corbin's
subscriber and call detail information was "relevant and
material" to the investigation into the murders of Thomas and
Kee. Id. The application included information that (1) Thomas
and Corbin personally knew one another; (2) there appeared to be
no forced entry at the crime scene, suggesting the victims knew
the assailants; (3) the crime scene had been ransacked and,
based on the affiant's training and experience, the murders
appeared to be a result of a drug robbery; (4) drug dealers tend
to communicate via cellular telephone to coordinate drug
purchases; and (5) on the day of the murders, Corbin's cellular
telephone number had multiple telephonic communications,
including text messages, with both Fulgiam and Thomas. Given
these facts, a motion to suppress on this ground was
demonstrably lacking in merit. Thus, Corbin has failed to meet
his burden to establish that the failure to file a motion to
suppress the use of the subscriber and call detail information
created a substantial likelihood of a miscarriage of justice.
12
After securing Thomas's cellular telephone records, the
police focused their investigation on the calls to and from
Thomas's cellular telephone. The Commonwealth had associated
Corbin with his cellular telephone account prior to its
§ 2703(d) application and used such information in the
application.
18
B. Text messages. Corbin argues that counsel was
ineffective in failing to file a motion to suppress the content
of the text messages where the Commonwealth obtained access
without a warrant under 18 U.S.C. § 2073(a) and art. 14. We
agree that, on both statutory and constitutional grounds, a
warrant was required to obtain access to the content of Corbin's
text messages and that a motion to suppress challenging the
Commonwealth's access on these grounds likely would have been
successful.
I. Warrant requirement for access under § 2703(a). Access
to the "contents of wire or electronic communications in
electronic storage" is governed by 18 U.S.C. § 2703(a), which
provides that "[a] governmental entity may require the
disclosure by a provider of electronic communication service[13]
of the contents of a wire or electronic communication, that is
in electronic storage in an electronic communications system for
one hundred and eighty days or less only pursuant to a warrant
. . . (in the case of a State court, using State warrant
procedures) by a court of competent jurisdiction" (emphases
supplied). Because it is undisputed that Corbin's "electronic
communications" (text messages) met the temporal requirement of
13
The Stored Communications Act, 18 U.S.C. §§ 2701-2712
(2006), defines an electronic communication service as "any
service which provides users thereof the ability to send or
receive wire or electronic communications." 18 U.S.C.
§ 2510(15) (2006). See 18 U.S.C. § 2711.
19
§ 2703(a), the dispositive issue is whether this content was
held in "electronic storage" by "a provider of electronic
communication service." Id.
The Commonwealth argues that the warrant requirement of
§ 2703(a) does not apply to Corbin because text messages are
held by a provider of a "remote computing service"14 rather than
an "electronic communication service" and that, as a
consequence, access may be obtained without a warrant under
§ 2703(b). We reject the Commonwealth's argument because we
agree with the defendant that the text messages at issue here
were held by a provider of an "electronic communication service"
for less than 180 days, which triggered the warrant
requirement.15
14
A "remote computing service" is defined as "the provision
to the public of computer storage or processing services by
means of an electronic communications system." 18 U.S.C.
§ 2711(2) (2006). In practice, this phrase is understood to
refer to the use of "remote computers [to] store extra files or
process large amounts of data" by commercial customers. See
Kerr, A User's Guide to the Stored Communications Act, and a
Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208,
1213-1214 (2004).
15
General Laws c. 271, § 17B, is the analog to 18 U.S.C.
§ 2703(a), which treats the government's access to the content
of electronic communications in a different manner from
noncontent information. Both laws demand a higher standard of
proof, beyond "relevant and material to an ongoing criminal
investigation," 18 U.S.C. § 2703(d), to access the content of
electronic communications. Compare 18 U.S.C. § 2703(a)
(allowing access to content of electronic communications stored
in electronic communications service for 180 days or less only
pursuant to warrant), with G. L. c. 271, § 17B (specifically
20
Although the Supreme Court has not defined "electronic
communication service" as used in § 2703(a), we adopt the
approach in Quon v. Arch Wireless Operating Co., 529 F.3d 892
(9th Cir. 2008), overruled on other grounds sub nom. City of
Ontario, Cal. v. Quon, 560 U.S. 756 (2010), where the court's
analysis focused on the actual services offered to the consumer
to determine whether the entity is a provider of "electronic
communication service" or "remote computing service." See id.
at 900, 901. Relying on the plain language of the statute, the
Quon court concluded that the definition of "electronic
communications service" as "any service which provides users . .
. the ability to send or receive wire or electronic
communications[,]" 18 U.S.C. § 2510(15) (2006), applied "[o]n
its face" to the text messaging service at issue in that case.
Id. at 901. That same logic applies here to the text message
service provided by Corbin's cellular telephone carrier.
This interpretation is consistent with the heightened
protection for the content of electronic communications. In
Riley v. California, 134 S. Ct. 2473 (2014), the United States
Supreme Court held that police officers must secure a search
warrant prior to searching a cellular telephone, as modern
cellular telephones contain "vast quantities of [digital]
excluding access to content of electronic communications from
statute).
21
personal information." Id. at 2485. See United States v.
Warshak, 631 F.3d 266, 286 (6th Cir. 2010) (electronic mail
messages "require[] strong protection under the Fourth
Amendment; otherwise, the Fourth Amendment would prove an
ineffective guardian of private communication, an essential
purpose it has long been recognized to serve"). A search of the
content of text messages implicates similar privacy interests.
Just as the government may not intercept private telephone calls
or written communications without a warrant, we conclude that
the Commonwealth may not obtain the content of text messages
without a warrant. See United States v. Jacobsen, 466 U.S. 109,
114 (1984) (warrantless searches of letters and other sealed
packages is presumptively unreasonable); Katz v. United States,
389 U.S. 347, 361 (1967) (Harlan, J., concurring).
II. Warrant requirement under art. 14. Because the United
States Supreme Court has yet to decide whether access to the
content of text messages requires compliance with the warrant
requirement of § 2703(a), we consider the issue under art. 14,
as articulated in Augustine I. We conclude that a warrant was
required to obtain access to the content of Corbin's text
messages. Access to the content of a text message constitutes a
search requiring a showing of probable cause which in this
context means "probable cause to believe 'that the particularly
described offense has been, is being, or is about to be
22
committed, and that [the text message content 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.'"
Augustine I, 467 Mass. at 256, quoting Connolly, 454 Mass. at
825.
A warrant with probable cause was required because Corbin
had a reasonable expectation of privacy in the content of his
text messages. "The measure of the defendant's [reasonable]
expectation of privacy is (1) whether the defendant has
manifested a subjective expectation of privacy in the object of
the search, and (2) whether society is willing to recognize that
expectation as reasonable." Commonwealth v. Montanez, 410 Mass.
290, 301 (1991). See Katz, 389 U.S. at 361 (Harlan, J.,
concurring). As the Commonwealth notes, the defendant did not
file a motion for a new trial or a motion to suppress, and for
that reason, the judge did not hold an evidentiary hearing to
determine whether Corbin had a subjective expectation of privacy
in the contents of the text messages from the 2898 number. The
record, however, establishes that Corbin had a subjective
expectation of privacy in the content of his text messages. See
Montanez, supra at 301.
As mentioned above, Corbin provided the police with his
cellular telephone number prior to his arrest. At trial he
23
offered the CSLI associated with the cellular telephone account
as evidence that he was not in Hyde Park on July 25, 2011,
implicitly claiming ownership of the cellular telephone account;
and the cellular telephone associated with the 2898 number was
seized from Corbin pursuant to a search warrant prior to his
arrest. Moreover, the Commonwealth consistently attributed the
cellular telephone account to Corbin. See Commonwealth v.
Augustine, 472 Mass. 448, 452 n.6 (2015) (Augustine II)
(cellular telephone owned by another treated as belonging to
defendant where he paid bills and used it exclusively). To be
sure, the fact that a defendant's name is not listed as the
subscriber of the account could diminish his subjective
expectation of privacy. However, on the facts of this case,
Corbin's implicit acknowledgment of ownership satisfied his
burden. See Commonwealth v. Genest, 371 Mass. 834, 836 (1977)
(defendant has burden to show reasonable expectation of
privacy).
Similarly, Corbin had an objectively reasonable expectation
of privacy in his text messages. In Augustine I, 467 Mass. at
255, we recognized an objectively reasonable expectation of
privacy in a defendant's CSLI records. We further stated "that
the nature of cellular telephone technology and CSLI and the
character of cellular telephone use in our current society
render the third-party doctrine of [United States v.] Miller[,
24
425 U.S. 435 (1976),] and Smith [v. Maryland, 442 U.S. 735
(1979),] inapposite." Augustine I, supra at 245. The same
result applies here with respect to the content of text messages
stored on a cellular telephone service provider's servers.
Because we conclude that probable cause was required to
obtain the content of Corbin's text messages, we next consider
whether the application established the requisite probable cause
for access to Corbin's text messages. See id at 256.
The application established a personal relationship between
Thomas and Corbin, that Corbin was in telephonic contact with
both Thomas and Fulgiam on the day of the murders, and that the
circumstances of the murders suggested a connection to drugs.
Although the fact that Thomas and Corbin may have used their
cellular telephones to communicate with each other on the day of
the murders elevated their relationship to a matter of
importance in the investigation, it did not, without more,
justify intrusion into the content of that communication.16 In
16
On July 25, 2011, between 2:15 P.M. and 7:27 P.M., Corbin
and Thomas exchanged the following text messages:
Thomas: "What hapnd bro i need that"
"I need 2 c u like yesterday i have 2 get a whip manana n i
def need that bread i would appreciate if u didnt hold me
up"
"This is what i didnt want 2 happen we discussed this b4
bro straightn me first remember dnt make it bad bro"
25
contrast to Fulgiam, nothing in the application indicated a drug
connection between Corbin and Thomas, such that Corbin might
have a motive for murder. Other than the cellular telephone
communication between Thomas and Corbin, the application failed
to recite any facts that might have implicated Corbin in the
crimes or suggested that the content of his text messages would
aid in the apprehension of a suspect in the murders. See
Augustine I, 467 Mass. at 256. Given these shortcomings in the
application, we conclude that the Commonwealth failed to
establish the requisite probable cause and, therefore,
improperly obtained the content of Corbin's text messages.
The Commonwealth argues that, in any event, Corbin lacked
standing to challenge the access to the content of the text
messages because the cellular telephone account was held under a
Corbin: "Bro u know i do what i can 2 get u first but i
called u. I cant hold these niggers up."
Thomas: "n my bread u feel me wit out me it neva would
have been there 2 flip anything"
"U cant hold anyone up when its not there bread thats free
money i should have mine off the top than play with urs not
mine bro we talkd about this ur flip"
Corbin: "I see u going through some thing cause we never
kicked it like this. im going 2 put as much 2gether 4 u
not in 2 long"
Thomas: "Good look lol naw cause someone did somethng
simular just cause i say im somewhre u cant assumd my
schedule or do ur own thng thats all im tryna say talk"
"2 you when u come bro"
26
fictitious name or held by someone other than Corbin. "A
defendant has standing either if [he] has a possessory interest
in the place searched or in the property seized or if [he] was
present when the search occurred." Commonwealth v. Williams,
453 Mass. 203, 208 (2009). The Commonwealth argues that the
defendant has not made the requisite showing that he had a
possessory interest in the cellular telephone account for the
2898 number because Corbin did not move for a new trial and file
an affidavit averring such a possessory interest in the account,
or present any affirmative evidence showing such an interest.
However, the Commonwealth consistently has asserted that the
listed account holder for the 2898 number was Corbin. In its
§ 2703(d) application, the Commonwealth associated the 2898
number with Corbin. Throughout the trial the Commonwealth
asserted that Corbin sent the text messages it offered in
evidence, and it offered Corbin's CSLI to show that there was no
activity on his cellular telephone during the murders.
Moreover, a detective testified that another detective was in
telephonic contact with Corbin using the 2898 number. Finally,
the cellular telephone associated with the 2898 number was
seized from Corbin and searched pursuant to search warrant.17
17
The Commonwealth obtained Corbin's cellular telephone
pursuant to a search warrant on October 27, 2011; however, it
previously had obtained the content of his text messages
pursuant to its August 15 § 2703(d) application.
27
Given these facts, Corbin has standing to challenge the
warrantless search of the content of the text messages sent from
the 2898 number.18 See Williams, supra at 208.
Last, we reject the Commonwealth's argument that customers
of cellular service providers such as Metro PCS, which are
advance-pay services, assume the risk that the content of
information stored on its servers will be disclosed to third
parties. To support its argument, the Commonwealth notes that
companies such as Metro PCS do not conduct credit checks or
verify the identity of its customers, and that as a consequence,
customers who engage the services of such companies have a less
objectively reasonable expectation of privacy. In determining a
subscriber's reasonable expectation of privacy, we decline to
distinguish between those who choose not to submit to a credit
check, or do not have credit, or are not the named account
18
Corbin established standing here, in part, through his
implicit acknowledgment of ownership of the cellular telephone
account associated with the 2898 number, prior to and during
trial. We note that a defendant, connected to a cellular
telephone account with a cellular telephone service provider
under an assumed name, will not automatically have standing to
challenge the search of the information relating to the cellular
telephone account. Such a defendant, as here, must establish
both standing and a reasonable expectation of privacy in order
to challenge such a search. See Commonwealth v. Williams, 453
Mass. 203, 207-208 (2009). Additionally, we acknowledge that
the posture of this case made the determination of standing and
reasonable expectation of privacy more difficult. The better
practice is to assert this claim through a motion for a new
trial and present affirmative evidence to support a defendant's
entitlement to challenge such a search.
28
holder on a cellular telephone account and those customers who
identify themselves or have established credit.
iii. Substantial likelihood of a miscarriage of justice.
We now ask whether the admission of the text messages, which
could have been suppressed, created a substantial likelihood of
a miscarriage of justice and "likely . . . influenced the jury's
conclusion." Williams, 453 Mass. at 205, quoting Wright, 411
Mass. at 682. We conclude that it did not.
Corbin's defense was that he was innocent and that Thomas,
as a high level drug dealer, was in a dangerous business.
Corbin claimed that many people knew Thomas was a drug dealer
and, for that reason, he was a target for drug robbery.
Corbin's argument that the content of his text messages was the
only evidence from which the jury could find a motive and
opportunity for Corbin to commit the murders is belied by the
record. Much of the information about Thomas's status as a high
level drug dealer came in through other evidence.19
In addition, based on evidence wholly independent of the
text messages, Corbin's involvement in the murders was not a
19
Thomas's best friend testified that Thomas was selling "a
few thousand dollars" worth of marijuana per week and
approximately $4,000 or $5,000 worth of cocaine per week.
Additionally, that friend testified that it was common in the
drug business for a higher level dealer to supply drugs to
"street-level" dealers for sale, and the jury heard evidence
that Fulgiam admitted to being in the drug business with Thomas
and that Thomas had a lot more money than Fulgiam.
29
close question. The discovery of Corbin's fingerprint on the
barrel of the curling iron found near Kee's body was highly
inculpatory, as was the evidence of Corbin's telephonic contact
with Fulgiam, Thomas, and the stolen cellular telephone on the
day of the murders. The inference that Corbin was in possession
of the cellular telephone stolen a few hours before the murders,
and that he used this telephone to contact Thomas on multiple
occasions, including within two hours of the murders, also was
highly inculpatory. The jury also heard evidence that Thomas,
Corbin, and Fulgiam were involved in the drug business together
and that the murders were likely connected to a drug robbery.
Moreover, although we recognize that trial counsel was faced
with the task of downplaying the impact of the text messages
once they were admitted in evidence, he affirmatively used this
content in his closing argument to establish that (1) Thomas had
a significant amount of drugs and money in his apartment most of
the time; (2) Thomas was a "tempting" target for robbery; and
(3) the nature of Thomas's business was such that persons other
than Corbin could have a motive to kill Thomas. Against the
backdrop of this highly incriminating evidence, we cannot say
that the jury's exposure to Corbin's text messages likely
influenced the jury's verdict. Therefore, Corbin cannot meet
his burden to establish that trial counsel's failure to file a
30
motion to suppress the content of his text messages created a
substantial likelihood of a miscarriage of justice.
2. Fingerprint analysis. The Commonwealth presented the
following evidence to prove its contention that the fingerprint
analysis placed both defendants at the scene of the crime during
the murders. Although police criminalists were able to obtain
several latent fingerprints20 from items at the scene,
ultimately, only five latent prints were individualized21 to
defendants. Four latent prints were recovered from the magazine
of the nine millimeter semiautomatic pistol, and one thumbprint
was recovered from the barrel of the curling iron found near
Kee's body.
During her testimony, a fingerprint analyst explained that
latent print analysts compare the latent prints recovered from
crime scenes to known prints, i.e., fingerprint impressions
taken in a controlled setting, either in ink or on a scanner.
Insofar as relevant here, police produced a card, known as a
"ten-print" card, which includes the ten fingerprint
20
A latent print is "a fingerprint that generally can't be
seen right away, and [one] would need further processing in
order for it to be seen."
21
Individualization is "when a latent print examiner comes
to a conclusion that there is a sufficient amount of detail of
quality and quantity of those details between the latent print
and the known fingerprint to arrive at that conclusion, to
establish that the latent print originated from the known print
or that donor."
31
impressions, the name of the person who is being fingerprinted,
typically a signature of that person, and other identifying
information, such as date of birth and address. Police latent
print analysts access the known prints through certain
databases. The latent print analysts use a method known as
analysis, comparison, evaluation, and verification, or ACE-V, to
compare the latent prints recovered to known prints.
With respect to Corbin's fingerprint, the analyst explained
that she began by using the ACE-V methodology to determine that
the latent print had sufficient quality and quantity of detail
for comparison purposes. Next, she obtained possible matches
through a fingerprint database, including the ten-print card of
Corbin that was maintained by the State police and created on
July 7, 2005.22 Finally, after performing the ACE-V methodology
again, the analyst "individualized the right thumb" of Corbin to
the latent print recovered from the curling iron.
With respect to Fulgiam's fingerprints, four of seven
latent fingerprints that were recovered from the magazine of the
nine millimeter semiautomatic pistol were individualized to him.
The analyst explained, over objection, that she generated the
Fulgiam's known ten-print card, maintained by the State police
and created on July 18, 2011, for comparison with the recovered
22
Corbin's ten-print card was admitted in evidence over
objection.
32
latent prints.23 Next, applying the ACE-V methodology, she
individualized the four latent prints to Fulgiam.
a. Ten-print cards. The defendants argue that the judge
erred in admitting the ten-print cards under the business
records exception to the hearsay rule. See G. L. c. 233, § 78;
Mass. G. Evid. § 803(6)(A) & note (2017). More specifically,
the defendants argue that because the statements underlying the
ten-print card were made by persons having no business duty to
report the information accurately, the statements fall outside
the scope of the business records exception to the hearsay rule.
We disagree.
The business records exception to the hearsay rule
provides, in relevant part: "a writing or record, . . . made as
a memorandum or record of any act, transaction, occurrence or
event, shall not be inadmissible in any civil or criminal
proceeding as evidence of the facts therein stated because it is
transcribed or because it is hearsay or self-serving." G. L.
c. 233, § 78. A record falls within the scope of the business
records exception to the hearsay rule, set forth in § 78, "if
the judge finds that it was (1) made in good faith; (2) made in
the regular course of business; (3) made before the action
23
As discussed infra, both Corbin and Fulgiam vigorously
contested the assertion that the ten-print cards associated with
them actually contained their fingerprints because the ten-print
cards lacked certain identifying information, including both
Corbin and Fulgiam's signatures.
33
began; and (4) the regular course of business to make the record
at or about the time of the transaction or occurrences
recorded." Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005),
citing DiMarzi v. American Mut. Ins. Co., 389 Mass. 85, 105
(1983). If such findings are made, the record "is presumed to
be reliable and therefore admissible." Wingate v. Emery Air
Freight Corp., 385 Mass. 402, 406 (1982).
This presumption, however, does not automatically extend to
the out-of-court statements made by a secondary source that the
record preparer relies on when creating the record. The
essential element underlying the presumption of reliability is
the theory that "entries in these records are routinely made by
those charged with the responsibility of making accurate entries
and are relied on in the course of doing business." Id. Where
the person providing information to the preparer is unconnected
to the business, and thus is under no business duty to provide
accurate information, this essential element is lost. Although
§ 78 provides that preparer's personal knowledge (or lack
thereof) goes to the record's weight, not its admissibility,
this provision does not negate the requirement that, where the
information contained within the record is offered for its
truth, the source from which the preparer obtained the
information "must carry the same indicia of reliability, arising
34
from regularity and business motives, that bring his own act of
recording the information within the statutory exception." Id.
To demonstrate that the preparer's hearsay source bears the
same indicia of reliability as the preparer, the proponent need
not produce each speaker. Beal Bank, SSB, 444 Mass. at 816.
Rather, the proponent need only present evidence demonstrating
that the hearsay source "reported the information as a matter of
business duty or business routine." Wingate, 385 Mass. at 406.
Such was the case in Beal Bank, SSB, where the proponent bank
introduced, as its own business record, a printout of a report
produced and provided to it by the bank's loan servicing agent
(agent). Beal Bank SSB, supra at 816. In determining that the
judge did not abuse his discretion in admitting the document as
a business record, we noted that because the agent serviced the
bank's loans pursuant to a contract, the bank manager's
testimony regarding the records was sufficient to support the
admission of the documents. Id. at 817. Key to this
determination was the existence of a business relationship
between the bank and it agent. We noted, "this is not a case
where the bank is simply receiving information from another
business. Rather, [the agent] is the bank's servicing agent; it
has a business duty [to accurately report] the information to
the bank; and the bank routinely accesses and relies on that
information." Id.
35
In this case, the Commonwealth introduced two ten-print
cards created by the State police, each of which bore ten
fingerprints and identifying information associated with the
defendants.24 As a threshold matter, we determine that the ten-
print cards meet the statutory requirements under the business
records exception.25 The admissibility of the identifying
information provided by the persons being fingerprinted and
reflected on the ten-print card, however, is not so easily
established. Unlike in Beal Bank, SSB, here, the persons being
fingerprinted had neither a contractual obligation nor a
business duty to provide accurate and reliable identifying
information. Thus, the protections that "arise[] from
regularity and business motives," Wingate, 385 Mass. at 406,
are inapplicable here.
24
Specifically, one of the ten-print cards reflected
Corbin's name, aliases, date of birth, sex, race, place of
birth, height, weight, eye and hair color, and Social Security
number. The other reflected Fulgiam's name, date of birth, sex,
race, place of birth, height, weight, and eye and hair color.
Neither ten-print card reflected the signature of the person
fingerprinted, although the ten-print card provides space for
such information.
25
The Commonwealth's witness, a State police trooper,
testified that the ten-print records were maintained in the
State police's identification unit, located in Sudbury, and
confirmed that such records were typically produced, entered,
and maintained for administrative purposes in good faith, in the
ordinary course of business of the State police. The trooper
also confirmed that the ten-print cards were created prior to
the commencement of the case.
36
Here, the officer who creates the ten-print card has a duty
to ensure that the person who is being fingerprinted is
accurately identified. Otherwise, such cards would have little
value to law enforcement. Moreover, G. L. c. 268, § 34A,
states: "[w]hoever knowingly and willfully furnishes a false
name or Social Security number to a law enforcement officer or
law enforcement official following an arrest shall be punished
by a fine or not more than $1,000 or by imprisonment in a house
of correction for not more than one year or by both such fine
and imprisonment." Therefore, based on the officers' duty to
ensure the ten-print cards are created with accurate
information, and the arrestees' legal obligation to provide
accurate information, we conclude that the identifying
information on the cards is reliable and brings the identifying
evidence reflected on the ten-print card within the scope of the
business records exception to the hearsay rule. See Wingate,
385 Mass. at 406.
The defendants argue that the ten-print cards do not fall
within the scope of the business records exception to the
hearsay rule because the Commonwealth failed to present evidence
that the person taking the fingerprints verified the identities
of the persons fingerprinted. See United States v. Vigneau, 187
F.3d 70, 77 (1st Cir. 1999), cert. denied, 528 U.S. 1172 (2000)
(admission of sender's name, address, and telephone number
37
reflected on Western Union "To Send Money" form for truth was
error where Western Union did not have practice of verifying
such information). Although we agree that verification may be a
best practice, we conclude that the presence or absence of
independent verification bears on the weight of the record
rather than its admissibility under the business records
exception. In addition, the defendants point out that important
information, including signatures of the person taking the
fingerprints, and signatures of the persons being fingerprinted
are missing. These issues also go to the weight, which may be
subject to intense scrutiny on cross-examination, rather than
the admissibility of the evidence.
We are also not persuaded by Corbin's argument that the
ten-print cards were inadmissible because the Commonwealth
presented testimony from a witness who did not actually take or
maintain the ten-print cards. Section 78 makes clear, as has
this court, that the admissibility of a document under the
business records exception does not turn on the personal
knowledge of the record's preparer. See Wingate, 385 Mass. at
406, quoting G. L. c. 233, § 78 ("'personal knowledge by the
entrant or maker' is a matter affecting the weight [rather than
the admissibility] of the record"). Accordingly, we conclude
38
that the ten-print were properly admitted under the business
records exception to the hearsay rule.26
Last, the defendants argue that the admission of the ten-
print cards violated the right of confrontation as guaranteed by
the Sixth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights. We disagree.
The Supreme Court of the United States has made clear that the
confrontation clause "guarantees a defendant the opportunity to
confront any person, in the 'crucible of cross examination,'
whose 'testimonial' statements are introduced against him."
Commonwealth v. Siny Van Tran, 460 Mass. 535, 552 (2011),
quoting Crawford v. Washington, 541 U.S. 36, 51-52, 61 (2004).
Similarly, art. 12 "commands that 'every subject shall have a
right . . . to meet the witnesses against him face to face.'"
Commonwealth v. Amirault, 424 Mass. 618, 628 (1997), quoting
art. 12. "It is the testimonial character of any item of
evidence that triggers the confrontation right, notwithstanding
its admissibility under statute, State rule, or a common-law
hearsay exception." Siny Van Tran, 460 Mass. at 552, citing
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 323 (2009).
However, "[m]ost of the hearsay exceptions covered statements
26
Because of our conclusion, we need not address Corbin's
argument that trial counsel's failure to object to the validity
of the ten-print card constituted ineffective assistance of
counsel.
39
that by their nature were not testimonial -- for example,
business records or statements in furtherance of a conspiracy."
Melendez-Diaz, 557 U.S. at 324, citing Crawford, 541 U.S. at 56.
The Court clarified, "[b]usiness and public records are
generally admissible absent confrontation not because they
qualify under an exception to the hearsay rules, but because --
having been created for the administration of an entity's
affairs and not for the purpose of establishing or proving some
fact at trial -- they are not testimonial." Melendez-Diaz,
supra.
Fingerprint records are nontestimonial because they are
created for the "administration of an entity's affairs" rather
than to establish or prove some fact at trial. Commonwealth v.
Weeks, 77 Mass. App. Ct. 1, 5 (2010). See Melendez-Diaz, 557
U.S. at 324. Here, the trooper testified that ten-print cards
are created in the ordinary course of business in good faith,
and Corbin and Fulgiam's ten-print cards were created prior to
the commencement of the trial. The ten-print cards were
business records under G. L. c. 233, § 78. Because the ten-
print cards are business records, we conclude that the admission
of the ten-print cards did not violate the defendants' right to
confront witnesses against them protected by the Sixth Amendment
and art. 12.
40
b. Testimony of fingerprint analyst. The defendants
challenge the admission of the Commonwealth's fingerprint expert
witness testimony on several grounds. The defendants first
argue that the Commonwealth's expert witness improperly
testified to the result of her fingerprint analysis in absolute
terms, stating that she had individualized the defendants'
fingerprints to prints found at the scene of the crime.
According to the defendants, the introduction of expert
fingerprint testimony stating the results of fingerprint
analysis in absolute terms is inconsistent with recent science
questioning the accuracy and reliability of fingerprint analysis
and the ACE-V methodology. Because the defendants did not
object to this aspect of the testimony at trial, our inquiry is
whether any error created a substantial likelihood of a
miscarriage of justice. Wright, 411 Mass. at 682.
We have on several occasions addressed the issue of the
ACE-V methodology and expert testimony based on it. See, e.g.,
Commonwealth v. Gambora, 457 Mass. 715, 724-728 (2010), and
Commonwealth v. Patterson, 445 Mass. 626, 641-655 (2005). In
Gambora, supra at 724, we discussed in great depth a 2009 report
published by the National Research Council for the National
Academy of Sciences (NAS Report), which raised several issues
regarding the reliability of certain aspects of the ACE-V
41
methodology and the expert testimony that relies upon it.27 The
central issue raised in the NAS Report was "the need to prevent
overstatement of the accuracy of fingerprint comparisons, and
for additional research." Commonwealth v. Joyner, 467 Mass.
176, 181 (2014), quoting Gambora, supra at 726. Although we
stated that "courts historically have found fingerprint evidence
to be admissible," Joyner, supra at 180, quoting Patterson, 445
Mass. at 644, we also noted that "[t]estimony to the effect that
a latent print matches, or is 'individualized' to, a known
27
In Gambora we stated:
"The [NAS] report does not appear to question the
underlying theory which grounds fingerprint identification
evidence; as the report states, there is scientific
evidence supporting the theory that fingerprints are unique
to each person and do not change over a person's
life. . . . However, the NAS report adds, '[u]niqueness and
persistence are necessary conditions for friction ridge
identification [i.e., fingerprint identification] to be
feasible, but those conditions do not . . . guarantee that
prints from two different people are always sufficiently
different that they cannot be confused, or that two
impressions made by the same finger will also be
sufficiently similar to be discerned as coming from the
same source'" (citations omitted).
Commonwealth v. Gambora, 457 Mass. 715, 724-725 (2010), citing
National Research Council, Strengthening Forensic Science in the
United States, A Path Forward 143-144 & n.34 (2009) (NAS
Report). Moreover, we stated that although the NAS Report does
not draw the conclusion that fingerprint evidence lacks such
reliability that courts should no longer deem it admissible, the
report does "stress the subjective nature of the judgments that
must be made by the fingerprint examiner at every step of the
ACE-V process, including an examiner's ultimate conclusion that
a latent print is 'individualized' to a specific, identified,
known print." Gambora, supra at 725, citing NAS Report at 139,
141.
42
print, if it is to be offered, should be presented as an
opinion, not a fact, and opinions expressing absolute certainty
about, or the infallibility of, an 'individualization' of a
print should be avoided." Gambora, supra at 729 n.22.
The defendants contend that the fingerprint expert witness
failed to heed this court's cautionary advice and presented her
findings based on her application of the ACE-V methodology to
latent prints found on the scene as fact rather than opinion.
We agree, but we are persuaded that the testimony did not create
a substantial likelihood of a miscarriage of justice. Wright,
411 Mass. at 682.
Fingerprint analysts testifying as expert witnesses must
clearly frame their findings in the form of an opinion to avoid
improper testimony. See Mass. G. Evid. § 702 & note (2017).
See also Joyner, 467 Mass. at 183 n.9 ("Gambora permits a
fingerprint expert to opine on whether two fingerprints match,"
thus it is "helpful" to ask expert to testify as to his or her
opinion). Here, the analyst testified that individualization
signifies that the print examiner has "come[] to the conclusion
that there is a sufficient amount of quality and quantity of
those details between the latent print and the known fingerprint
. . . to establish that the latent [print] originated from the
known print or that donor." She testified on several occasions
43
that she individualized fingerprints of the defendants to latent
prints found at the scene of the crime.
However, portions of the analyst's testimony implicitly
suggested the fallibility of fingerprint analysis. Contrast
Commonwealth v. Wadlington, 467 Mass. 192, 205 (2014)
(fingerprint analyst improperly testified as to her belief of
"no error rate in [her] area of science"). For example, she
agreed that latent prints are obtained from an "uncontrolled
setting," and that various factors, including pressure, can
affect the way the fingerprint is recorded. Moreover, as in
Gambora, we note that the vigorous cross-examination of the
analyst countered any possible misconception that
individualization is infallible. Specifically, defense counsel
for Fulgiam questioned her on her inability to determine when
the latent prints were deposited, and counsel highlighted the
fact that fingerprints are "somewhat delicate." Defense counsel
for Corbin also questioned her on issues regarding the surface
from which the latent print on the curling iron was taken and
regarding the fact that the latent print recovered is not
"exactly similar" to the known prints.
Finally, the Commonwealth's evidence linking the defendants
to the crime, separate and apart from the fingerprint evidence,
was strong. Thus, even though we conclude that the analyst's
testimony regarding individualization was erroneously presented
44
as fact, we determine that the error did not create a
substantial likelihood of a miscarriage of justice.
The defendants also argue that the judge erred in allowing
the analyst to testify that another fingerprint analyst had
reviewed her work.28 According to the defendants, this testimony
amounted to "improper vouching" and hearsay expert testimony.
We are not persuaded that this testimony was error. 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 did not allow testimony that the second
analyst verified her work.29 The analyst testified as to the
ACE-V process, wherein verification or review by another
fingerprint analyst is a step in the process, and did not
testify as to the second analyst's independent conclusions. The
28
During the analyst's testimony, counsel for Fulgiam
preemptively objected to any questioning by the Commonwealth
regarding whether the analyst's findings were verified by
another fingerprint examiner. While the judge sustained the
objection, the judge indicated that the witness would be allowed
to testify that another fingerprint analyst reviewed her work.
29
Despite the judge's ruling prohibiting the Commonwealth
from questioning the analyst regarding whether another analyst
verified her work, following the colloquy, the Commonwealth
questioned whether her work was "verified." After the analyst
testified in the affirmative, Fulgiam objected. The judge
sustained the objection as to the use of the word "verified,"
but reiterated that he would allow the testimony regarding what
the second analyst did when he examined the analyst's findings.
45
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.
Nonetheless, judges must use caution in allowing testimony
regarding the verification step in ACE-V analysis, as
"verifying" suggests that a nontestifying expert concurs with
the testifying expert's conclusion. Such testimony would be
improper hearsay testimony. See Commonwealth v. Chappell, 473
Mass. 191, 202 (2015).
3. Gang references. Corbin argues that the Commonwealth
improperly and repeatedly referenced gang affiliation during the
trial, despite the fact that the judge granted Fulgiam's motion
in limine to exclude such references. This argument has no
merit. Corbin merely speculates that the jury would conclude
that the defendants were affiliated with gangs based on the
neighborhoods in which the men grew up.30 Additionally, the
prosecutor's closing argument was proper; there was testimony
30
During their interviews with detectives, Fulgiam and
Corbin told the detectives that Fulgiam was originally from the
Academy Homes Development in the Roxbury section of Boston,
Corbin was from Humboldt Avenue in Roxbury, and Thomas was from
Heath Street in the Jamaica Plain section of Boston.
46
that six or seven men were seen fleeing the victim's apartment
building immediately after the witnesses heard gun shots. It is
within permissible bounds for the prosecutor to infer that a
"team" of men committed the murders. There was no error. See
Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).
4. Review pursuant to G. L. c. 278, § 33E. After a full
review of the trial record, we affirm the convictions and
decline to grant extraordinary relief pursuant to G. L. c. 278,
§ 33E.
So ordered.
LOWY, J. (concurring). I agree that the ten-print card
qualifies for the business record exception to the rule against
hearsay. However, I write separately because the card in this
case involves two levels of hearsay: the ten-print card itself
and the information provided by the individual to fill out the
card. I believe the court does not precisely address each
level.
The business records exception to the rule against hearsay
allows information recorded for a business purpose and contained
in a business record in evidence for its truth. See Mass. G.
Evid. § 803(6)(A) (2017). This rule includes out-of-court
statements: if the statement is recorded for a business purpose
and the individual making the statement does so for a business
purpose, the statement is admissible for its truth. See id. If
an out-of-court statement contained in a business record is not
made pursuant to a business purpose, it still may be admissible
if the out-of-court statement is recorded for a business purpose
and the statement falls within another hearsay exception or
exclusion. As the majority points out, an arrestee's legal
obligation does not equate with a business purpose.
However, I believe that the information provided to fill
out the ten-print card fell within the hearsay exclusion for an
opposing party's statement. Mass. G. Evid. § 801(d)(2)(a)
(2017). For the reasons stated by the court, including the
2
defendant's legal obligation to provide identifying information,
the totality of the circumstances established a more than
adequate basis for the judge to conclude -- as a preliminary
question of fact on which admissibility depends and as a matter
of conditional relevance -- that Corbin was the individual who
provided the information. See Mass. G. Evid. § 104(a), (b)
(2017). The ten-print card was properly admitted because the
information in the ten-print card was admissible under an
exclusion from the rule against hearsay, and the ten-print card
was admissible as a business record. Mass. G. Evid.
§ 801(d)(2)(A); § 803(6)(A).