Commonwealth v. Louis

487 Mass. 759

169 N.E.3d 1173

COMMONWEALTH

v.Daniel LOUIS.

SJC-11512

Supreme Judicial Court of Massachusetts, Middlesex.

Argued February 1, 2021.

Decided June 28, 2021.

Alan Jay Black, Springfield, for the defendant.

Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.

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

KAFKER, J.

In 2012, a jury convicted the defendant of murder in the first degree on the theory of felony-murder, unlawful possession of a firearm, and attempted armed robbery.¹ On appeal, the defendant argues that his cell site location information (CSLI) and text messages were improperly admitted at trial. He further argues that he was prejudiced by defense counsel's failure to object to in-court and out-of-court identifications made by an eyewitness.

Discerning no error, we affirm the defendant's convictions and the denial of his motion for a new trial. After plenary review of the entirety of the record, we decline to exercise our authority under G. L. c. 278, § 33E, to reduce the verdict of murder in the first degree or order a new trial.

1. Facts. We summarize the facts that the jury could have found at the defendant's trial, reserving certain details for our discussion of the legal issues.

On September 30, 2010, Wallace Duarte, Benjamin Peirce, and Shaquan Jacobs devised a plan to rob Lauren Lob, an individual from whom Duarte had purchased marijuana in the past. At around 3 P.M. , the group visited a store to purchase supplies for the robbery. Meanwhile, Jacobs told the group that they could secure firearms for the robbery from the defendant and indicated that the defendant wanted to participate in the robbery. After calling the defendant, the group picked him up in the Roxbury section of Boston. The defendant placed a black duffel bag containing firearms in the trunk of the car and joined the group.

At around 8 P.M. , the men and Marina Del Mar, a friend of Peirce, drove to Lob's address in Newton to initiate the robbery. Their plot ultimately failed when Lob did not respond to Duarte's attempts to lure her via calls and text messages and did not answer her door. When the defendant expressed frustration that the plan failed, Peirce suggested that the group instead rob the victim, Adam Coveney, for Percocet tablets to resell.

Peirce initiated a text message conversation with the victim to lure him out of his Waltham apartment. As they neared the apartment, the defendant retrieved a gun from the trunk of the car, and he, Peirce, and Jacobs proceeded toward the building.

At approximately 11 P.M. , the defendant shot and killed the victim outside his apartment. The victim was found on the floor of the vestibule area of the apartment complex with a gunshot wound to the abdomen, was transported by ambulance, and died in the hospital. His cell phone contained a text message conversation with Peirce wherein Peirce sought to purchase Percocet. The last text message from Peirce was received three minutes before the shooting was reported in a 911 call.

Cell phone records obtained from various cellular service providers established a constant stream of communications among the coventurers, and location data placed them in the same areas at relevant times. In particular, Jacobs's and the defendant's cell phones showed telephone and text message communications between 3 P.M. and 4 P.M. , with the defendant's cell phone sending signals to a cell tower in Roxbury. The movements of the defendant's cell phone are also consistent with the description of the defendant's movements above: the CSLI from that cell phone demonstrated that the defendant traveled towards Jacobs's home between 4 P.M. and 5 P.M. and stopped near Jacobs's home from 5:30 P.M. to 8:45 P.M. The defendant's cell phone also moved towards the first attempted robbery location between 9:30 P.M. and 10:30 P.M. and sent a signal to a tower near the victim's apartment building shortly after 11 P.M.

2. Discussion. On appeal, the defendant argues that his text messages were improperly admitted in evidence at trial, that CSLI data from his cell phone was unconstitutionally admitted at trial without a warrant or probable cause, and that he was prejudiced by his counsel's failure to file a motion to suppress eyewitness Del Mar's out-of-court identification or to exclude her second, in-court identification at trial. We address each argument in turn.

a. Metro PCS records. On November 19, 2010, ten days after the defendant was charged, the Commonwealth filed a motion pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), seeking third-party records from the defendant's cellular service provider, Metro PCS. While the Commonwealth's motion originally requested production of, among other data, the defendant's text messages and CSLI, the prosecutor indicated at the start of the motion hearing that the Commonwealth was no longer seeking the text messages. Upon allowing the motion, the motion judge mistakenly ordered Metro PCS to produce the text messages despite the Commonwealth's oral withdrawal of its request at the hearing. As a result, Metro PCS's production included the defendant's text messages. Nevertheless, the trial judge ultimately denied the defendant's motion in limine to preclude the Commonwealth from mentioning these text messages and permitted the Commonwealth to introduce the messages at trial.

i. Text messages. The defendant appeals from the introduction of his text messages at trial. In his motion for a new trial, the defendant argued that his attorney provided ineffective assistance of counsel. On appeal, however, he claims that there was not probable cause to support the search under art. 14 of the Massachusetts Declaration of Rights and the Fourth Amendment to the United States Constitution.

A. Preservation of objection and standard of review. Before reaching the merits of the defendant's claims, we must first determine the proper standard of review. The Commonwealth suggests on appeal that the defendant's claims should be viewed as challenging ineffective assistance of counsel, while the defendant challenges lack of probable cause directly.

The procedural posture of the case is somewhat complicated but ultimately of no import, as the affidavit submitted in support of the Commonwealth's rule 17 motion for production of the text messages, CSLI, and other data established the requisite probable cause. Defense counsel initially opposed the motion on art. 14 and Fourth Amendment grounds. After the Commonwealth withdrew its request for text messages at the motion hearing, the defense had no reason to continue to pursue any objection to the text messages. When it was revealed that the text messages were produced in error, however, the defendant did not clearly renew his art. 14 and Fourth Amendment objections. His motion in limine and oral argument at trial on this issue only challenged lack of notice to the defense and possible violation of the Massachusetts wiretap statute. Indeed, defense counsel appeared to expressly decline to make a Fourth Amendment or art. 14 challenge at that time, and did not object to the trial judge's understanding that he was not alleging a lack of probable cause. Because the defendant did not raise these issues before the trial judge, they appear not to have been preserved. See Commonwealth v. Robinson, 83 Mass. App. Ct. 419, 424, 984 N.E.2d 872 (2013).²

But because the defendant was convicted of murder in the first degree, our ineffective assistance analysis focuses on whether a motion to suppress the text messages would have been successful. As we explained in Commonwealth v. Fulgiam, 477 Mass. 20, 29, 73 N.E.3d 798, cert. denied, ––– U.S. ––––, 138 S. Ct. 330, 199 L.Ed.2d 221 (2017),

"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 [315 N.E.2d 878] (1974). Commonwealth v. Wright, 411 Mass. 678, 681-682 [584 N.E.2d 621] (1992), S.C., 469 Mass. 447 [14 N.E.3d 294] (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 [931 N.E.2d 457] (2010)."

The issue here, therefore, is whether the affidavit originally submitted with the Commonwealth's rule 17 motion nonetheless established probable cause as required by art. 14 and the Fourth Amendment. If the affidavit established probable cause, then any motion to suppress would have been unsuccessful and the defendant cannot succeed on his ineffective assistance claim.

B. Probable cause. As always, probable cause must be established based only on the facts contained within the four corners of the Commonwealth's motion and supporting affidavit, including reasonable inferences to be drawn from the facts. See Commonwealth v. Morin, 478 Mass. 415, 425, 85 N.E.3d 949 (2017). "In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion; inferences drawn from the affidavit need only be reasonable and possible, not necessary or inescapable." Commonwealth v. Cavitt, 460 Mass. 617, 626, 953 N.E.2d 216 (2011).

To establish probable cause, the Commonwealth must demonstrate a nexus between the crime under investigation and the subject of its search, here, the cell phone data. See Commonwealth v. Snow, 486...