Argued September 9, 2014.
Bristol. Indictments found and returned in the Superior Court Department on November 21, 2007.
Pretrial motions to suppress evidence were heard by D. Lloyd Macdonald, J., and the cases were tried before Robert J. Kane, J.
Merritt Schnipper for the defendant.
Tara L. Blackman, Assistant District Attorney, for the Commonwealth.
Present: Kantrowitz, Grainger, & Hanlon, JJ.
[20 N.E.3d 956] Grainger, J.
A jury of the Superior Court found the defendant guilty of armed robbery while masked, G. L. 265, § 17, kidnapping for purposes of extortion, G. L. c. 265, § 26, [20 N.E.3d 957] and armed assault with intent to murder, G. L. c. 265, § 18( b ). The convictions were based on the armed invasion of a real estate agency following telephone conversations between the defendant and the agency's owner during which the defendant made an evening appointment for the ostensible purpose of discussing one or more properties of interest to him. The defendant appeals, asserting numerous procedural and evidentiary errors that we consider in turn, referring to the undisputed factual background as necessary to inform our discussion.
1. Production of telephone records.
The victim told the police that although the defendant was masked, his voice was recognizable as belonging to an individual who identified himself as " Marco" during several telephone calls that culminated in an evening appointment at the victim's office for the time of the robbery. The victim reported that the defendant spoke repeatedly during the robbery, making threats to the victim and referring to the victim's wife. In the course of investigating the robbery, Fall River police Detective Lawrence Ferreira examined the victim's phone, retrieving a voicemail message from " Marco." After obtaining call records from the victim's cellular telephone carrier, Detective Ferreira linked the defendant to the only number on the call list that the victim did not recognize. Ferreira then contacted the carrier, T-Mobile, and requested call records associated with that number. Ferreira informed the T-Mobile law enforcement relations officer, Ronald Witt, that the defendant's phone was being used to contact the victim's family and that the " suspect has threatened the victim's family with bodily harm." 
The defendant's phone records were produced by T-Mobile voluntarily and without the issuance of an administrative subpoena, G. L. c. 271, § 17B, although T-Mobile accompanied the production with a request for a subpoena within forty-eight hours. The record indicates that the assistant district attorney in charge of the case sent a grand jury subpoena to Witt the day following T-Mobile's production; that subpoena was not in evidence and is not in the record.
a. General Laws c. 271, § 17B.
The defendant asserts that the phone records produced by T-Mobile were obtained in violation of G. L. c. 271, § 17B, and that this violation warrants suppression of those records. Neither party contends that the defendant has a constitutional expectation of privacy in his phone records. Indeed, the defendant could not make such a claim. See Commonwealthv.Augustine, 467 Mass. 230, 244, 4 N.E.3d 846 (2014).[2 ...