Heard: October 11, 2016.
found and returned in the Superior Court Department on
December 21, 2011.
cases were tried before Peter M. Lauriat, J.
Elizabeth Caddick for Earl T. Fulgiam.
J. Horwich for Michael T. Corbin.
Zachary Hillman, Assistant District Attorney (John P. Pappas,
Assistant District Attorney, also present) for the
Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, &
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. 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.
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.
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; the witnesses could only guess at the race
or ethnicity of the men they observed.
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.
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.
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.
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.
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.
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
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.
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.
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. 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.
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 priorbecause 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.
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,
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.
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
Admission of cellular telephone records.
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) 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,
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.
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." 18 U.S.C. § 2703(d). We disagree.
Standard of review.
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).
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
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.
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. Augustine I, 467 Mass. at 256,
quoting Commonwealth v. Connolly,
454 Mass. 808, 825 (2009) . These claims fail.
Standard of review.
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) .
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.
Likelihood of success on the motion to suppress.
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
Subscriber and call ...