Heard: May 6, 2016.
found and returned in the Superior Court Department on
December 15, 2006.
pretrial motion to suppress evidence was heard by Gary A.
Nickerson, J.; a second pretrial motion to suppress evidence
was considered by John P. Connor, Jr., J.; the cases
were tried before Barbara A. Dortch-Okara, J., and a
motion for a new trial was considered by her.
Jennifer H. O'Brien for the defendant.
T. Mastin, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.
evening of September 25, 2006, James Cadet was shot and
killed. The defendant, David T. Miller, who lived in the same
apartment complex as the victim, was indicted for the murder
three months later after several witnesses, as well as
evidence seized during a search of his apartment building,
linked him to the crime.
trial began in February, 2009. The defendant was allowed to
conduct the trial pro se but standby counsel, who had been
appointed to assist him, actively participated throughout the
February 24, the jury returned verdicts of guilty of murder
in the first degree, on a theory of deliberate premeditation,
and of the unlawful possession of a firearm.
next day, standby counsel for the defendant was contacted by
a juror who stated that she was troubled by the verdict, and
eventually submitted a letter to the judge addressing her
defendant subsequently filed a motion for a new trial based
on information set forth in the juror's letter, arguing
that extraneous material had reached the jury room and
tainted the jury's verdict. The motion was denied in
November, 2009, and the defendant's appeal therefrom was
consolidated with his direct appeal.
appeal, the defendant claims error in (1) the denial of his
motions to suppress certain evidence, (2) the denial of his
motion for a new trial, and (3) the admission of certain
evidence at trial. He also requests relief under G. L. c.
278, § 33E. We affirm the defendant's convictions.
defendant does not challenge the legal sufficiency of the
evidence at trial, so we briefly summarize the relevant
approximately 9:30 £.M. on September 25, Fall River
police officers arrived at the Sunset Hill housing
development (Sunset Hill) to find the victim lying on a
walkway. He had been shot numerous times and had succumbed to
witnesses observed a large person, ostensibly the shooter,
wearing a dark, hooded sweatshirt in the vicinity of the
crime scene shortly after hearing gunshots. One witness saw
the victim fall on the shooter and the shooter kick the
victim multiple times before fleeing the scene. As the
shooter fled, another witness recognized him as the defendant
based on his gait.
time of the shooting, the defendant lived in a unit in Sunset
Hill that belonged to his girl friend, Christina Helger. The
victim, who had been friends with the defendant, was also a
resident of Sunset Hill. However, on the day before the
murder the defendant and the victim got into an argument
after Helger had allowed the victim to use her bathroom while
the defendant was not home. As a result of this argument, the
victim later returned to Helger's apartment brandishing a
firearm. The victim pointed the weapon toward her apartment
and stated that there would be "problems" if she
and the defendant did not leave Sunset Hill. The victim then
left without further incident.
day of the murder, Helger twice spoke with the some of the
defendant's friends over the telephone. These telephone
calls led her to drive to a nearby fast food restaurant, meet
the defendant's friends, and direct them to her
apartment. Ultimately she and the group of friends entered
Sunset Hill, and got as far as the first building, when they
heard gunshots and fled the scene.
five minutes of hearing the gunshots, Helger received a
telephone call from the defendant, who asked her to pick him
up on a street adjacent to Sunset Hill. When Helger picked
the defendant up, he instructed her to drive to Boston.
way there, the defendant told Helger that "[the victim]
got shot, and that [the defendant] did what he had to
do." Additionally, he began to pray, and he instructed
Helger that, if asked, she should lie and say that they had
left Fall River at 6 P..M. The defendant also told Helger to
put her hands up if they were stopped by the police because
the police would think that the defendant had "something
on him" and he did not want Helger to get shot.
arriving in Boston, Helger observed the defendant wiping
blood off his face. The defendant then purchased new shoes at
a store and threw the pair of shoes he had been wearing in a
trash barrel. After visiting his brother at his brother's
house, the defendant and Helger spent the night at a hotel in
following day, Helger and the defendant traveled to his
mother's house, where he destroyed the subscriber
identity module located in his cellular telephone.
police recovered a black, hooded sweatshirt with the
victim's blood, along with a pair of gloves that tested
positive for gunshot residue, on the sidewalk of a street
near Sunset Hill. They also recovered, insofar as relevant
here, twelve .223 caliber shell casings from the scene of the
crime. It was later determined that the .223 caliber
cartridge casings were fired from a Ruger Mini-14 rifle
(rifle) recovered from the residence located in the
Dorchester section of Boston.
trial, Steve Smith, another Sunset Hill resident, identified
the rifle recovered from the Dorchester residence as the
rifle that he had given to the defendant approximately two
weeks before the shooting, in exchange for "crack"
cocaine. Smith also gave the defendant multiple rifle
magazines and numerous rounds of .223 caliber ammunition
during that transaction. Shortly after the shooting, the
police executed a search warrant for the defendant's
apartment and recovered, from the basement of a
neighbor's unit that shared basement space with the unit
in which the defendant was living, a rifle case, .223 caliber
ammunition, and rifle magazines, which Smith identified at
trial as having previously been his.
The grand jury transcript.
in prison awaiting trial, the defendant sent a letter to a
relative, in which he requested that the recipient contact
his sister in order to have her instruct his stepfather not
to testify before the grand jury or at the defendant's
defendant attached six pages of grand jury transcript to the
letter. That transcript recounted the testimony of Detective
John McDonald of the Fall River police department, who had
interviewed the stepfather during the course of the
investigation. According to McDonald's grand jury
testimony, the defendant told the stepfather that he shot the
victim, then took the victim's gun and shot him with that
weapon, spit on the victim's face, and kicked him in the
defendant's letter and the attached grand jury transcript
were intercepted, pursuant to an order, by a prison official.
The letter and grand jury transcript were subsequently
admitted in evidence at trial.
Motions to suppress.
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. Scott, 440 Mass. 642, 646 (2004), quoting
Commonwealth v. Jiminez, 438 Mass. 213, 218 (2002) .
Evidence seized from the basement.
defendant first contends that evidence obtained from the
basement unit of the apartment adjoining his was beyond the
scope of a search warrant and therefore was improperly seized
and admitted in evidence at trial. The undisputed facts
presented at the motion hearing are as follows. Shortly after
the death of the victim, the Fall River police department
executed a search warrant. The search warrant authorized the
police to search unit 316 of Sunset Hill, which at the time
was occupied by the defendant and Helger.
the execution of the warrant, police officers recovered a
plastic bag containing two metal ammunition clips loaded with
.223 caliber ammunition, and they also found loose .223
caliber ammunition rounds. The police also recovered a rifle
carrying case from the same area. The defendant asserts (and
the Commonwealth does not dispute) that these items were
seized from the basement of unit 315, a neighbor's
apartment, and were thus outside the scope of the warrant for
the search of his apartment (unit 316), ...