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Commonwealth v. Fulgiam

Supreme Judicial Court of Massachusetts, Suffolk

May 5, 2017

COMMONWEALTH
v.
EARL T. FULGIAM (and thirteen companion cases[1]).

          Heard: October 11, 2016.

         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.

          Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.[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 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 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 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 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 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 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 prior[7]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 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 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 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 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.

         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 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 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) .

         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 ...


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