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Commonwealth v. Keown

Supreme Judicial Court of Massachusetts, Middlesex

October 23, 2017

COMMONWEALTH
v.
JAMES KEOWN.

          Heard: February 10, 2017.

         Indictment found and returned in the Superior Court Department on November 3, 2005.

         A pretrial motion to suppress evidence was heard by Sandra L. Hamlin, J., and the case was tried before her.

          Claudia L. Bolgen for the defendant.

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

          Eoghan Casey, pro se, amicus curiae, submitted a brief.

          Gregory T. Nojeim, of the District of Columbia, & Andrew Crocker & Stephanie Lacambra, of California, & Donald S. Bronstein, Committee for Public Counsel Services, & Chauncey B. Wood, Matthew R. Segal, Jessie J. Rossman, Alexis L. Shapiro, & Margaret L. Sullivan, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

          LOWY, J.

         The jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation for poisoning his wife, Julie Keown. On appeal, the defendant argues that (1) the trial judge erred in denying a motion to suppress certain computer evidence because the warrant used to obtain the evidence was defective; (2) the trial judge abused her discretion in declining to exclude evidence related to the defendant's computer username and Internet search results, the defendant's prior bad acts, and the victim's statements and electronic mail (e-mail) messages; (3) the prosecutor's closing argument was improper; and (4) the trial judge's instruction to the jury on the inference of malice lowered the Commonwealth's burden of proof. We affirm the defendant's conviction and decline to grant relief under G. L. c. 278, § 33E.[1]

         Background.

         We summarize the facts that could have been found by the jury and reserve certain details for the discussion of the issues. On September 4, 2004, the defendant took his wife, the victim, to Newton-Wellesley Hospital (hospital), where she lapsed into a coma from which she would never recover. The victim died on September 8 after being removed from life support. The medical examiner concluded that the cause of death was both acute and chronic ethylene glycol (EG) poisoning. EG is a transparent liquid that is used in a variety of different solvents, including antifreeze.

         The victim and the defendant were college sweethearts who had been married for seven and one-half years when they moved to Waltham from Missouri in January, 2004. The couple's move was prompted by the defendant falsely telling his wife and his employer that he had been accepted into Harvard Business School. Based on this misrepresentation, the employer, a consulting firm for nonprofit organizations, permitted him to move to Massachusetts and work remotely while he attended classes. The victim, a registered nurse, also reached an agreement with her employer, a health-related software design firm, to allow her to work remotely.

         The victim first showed signs of illness in May, 2004. At the end of July -- after weeks of flu-like symptoms, diarrhea, nausea, and malaise -- she visited a doctor. The doctor prescribed a medication for gastroesophageal reflux disease, which did not alleviate her symptoms. In early August, the victim visited an urgent care facility, where she was diagnosed with gastritis and continued on the same medication.

         The victim's condition continued to deteriorate, and on August 20, 2004, she awoke with slurred speech, an inability to walk, and dizziness. She went to the hospital with the defendant. The doctors at the hospital observed that the victim displayed signs of neurological impairment as well as abnormal kidney function. The doctors did not diagnose EG poisoning at this time but concluded that poisoning of some sort was the likely explanation. During her stay, a doctor asked the victim if she felt safe at home, to which she responded, "Yes, absolutely." Shortly after the victim's discharge on August 23, her parents came for a three-day visit and the group of four drove up to Maine. During the drive, Julie told her mother that the doctors at the hospital had asked her repeatedly, "Are you sure your husband isn't giving you something?" The victim laughed when recounting this for her mother and said she thought the questions were "completely ridiculous." When asked by the victim about these questions on the drive, the defendant said he had been "really getting annoyed" that the doctors kept asking whether the victim had been "getting some kind of poison."

         On the morning of September 4, 2004, the defendant spoke on the telephone with an on-duty doctor at the hospital about the victim's condition. The defendant told the doctor that the victim was confused, had difficulty walking, and had garbled speech. The doctor told the defendant that the victim should be brought back to the hospital immediately, but the defendant did not take the victim to the hospital until after 9 P.M. that night. By the time the victim was seen by a physician she was unconscious. The victim died four days later.

         During the victim's hospitalization, a doctor had asked the defendant whether the victim had been swallowing tablets or liquids and whether she was suicidal, which are routine questions in cases that involve toxicity. The defendant said that he had not found anything at home indicating that the victim had swallowed something and that she was not suicidal. When the doctor asked him why he had not immediately taken the victim to the emergency room following his morning telephone conversation with the doctor on September 4, the defendant said that the victim had refused. However, in the waiting room of the intensive care unit while the victim was still alive, the defendant told the victim's mother that the victim may have accidentally consumed a bottle of antifreeze while on a walk. The defendant also told this story on September 7 to a State police trooper, who had become involved after the victim's mother reported to the police that the victim was suffering from EG poisoning. The defendant further informed police that the victim was "talking about death" and had recently purchased chloroform on the Internet. In addition to these inconsistent explanations, the defendant, also on September 7, questioned a medical student assigned to the victim's case about the "hospital's role ... in determining cause of death" and, if ruled an accidental death, whether that would be "the end of the case." On that same day, the defendant allowed Waltham police officers to conduct a search of his residence. The search did not turn up any EG.

         Not long after the victim's death, the defendant abandoned his home in Massachusetts, without informing his landlord, and moved back to Missouri at some point in late 2004. He left many personal effects and computer equipment behind but brought a Sony VAIO laptop computer (laptop computer) with him. The defendant remained in Missouri until he was arrested in November, 2005.

         Following the arrest, the defendant's mother obtained the laptop computer and mailed it to the defendant's attorney in Massachusetts. A warrant was issued that authorized the examination of the contents of the laptop computer. The search, which was performed by a computer forensics investigator, yielded important evidence in the Commonwealth's case against the defendant. Prior to trial, the defendant moved to suppress evidence from the search of the laptop computer. The trial judge denied this motion.

         At trial, the Commonwealth argued that the defendant had poisoned his wife to hide from her the fact that the couple was on the edge of financial ruin and to reap the benefits of her life insurance policy. In support of this theory, the Commonwealth introduced evidence that the defendant had embezzled from his employer and forged his admissions letter to Harvard Business School. The employer discovered these frauds in July, 2004, and promptly fired the defendant. Financial records from the end of August, 2004, also introduced in evidence, tended to show that the couple's finances were nearly depleted. In addition, evidence of the victim's e-mail messages sent to friends and acquaintances shortly before her final admission to the hospital supported a conclusion that the victim was not aware that the defendant had been fired, that he had never attended Harvard Business School, [2] and that they had virtually no money left.

         The Commonwealth also introduced the following: evidence that a number of searches had been conducted on the laptop computer while the victim was still alive for queries such as "antifreeze death human" and "poison recipe"; evidence that the taste of EG can be masked by putting it in Gatorade and the defendant had been insistent that the victim drink Gatorade in the days and weeks before her death; and testimony by the medical examiner that the victim's symptoms throughout the summer suggested that she had been given small doses of EG over a length of time and then a lethal dose prior to her final admission to the hospital. The medical examiner further testified that the victim's manner of death was inconsistent with suicide.

         The defendant's position at trial was that the victim's death was the result of either an accident or suicide. The defendant further argued that the victim was aware of the defendant's deceits, in order to rebut the Commonwealth's theory of motive, namely, that the defendant killed the victim so she would not discover his web of lies. The primary evidence offered of the victim's knowledge of the defendant's lies was that she told some people her husband was at Harvard University to finish his bachelor's degree, and others that he was at Harvard Business School. The jury found the defendant guilty of murder in the first degree on a theory of deliberate premeditation. The defendant's appeal from his conviction is before us pursuant to G. L. c. 278, § 33E.

         Discussion.

         1. The laptop computer warrant.

         Prior to trial, the defendant brought a motion to suppress evidence obtained from the search of the laptop computer as well as an additional hard drive.[3] That motion was denied and information found during a search of the laptop computer was used at trial. The defendant renews his challenge to the search on three grounds: (1) the search warrant affidavit did not establish probable cause for the search; (2) the warrant failed to describe the items to be seized with sufficient particularity; and (3) the search was conducted in an unreasonable manner.[4] We conclude that the affidavit in this case established probable cause to search the laptop computer for evidence relating to the victim's death, the warrant described the items to be searched with sufficient particularity, and the search was conducted reasonably.

         a. Probable cause.

         The general principles governing our consideration of a claim that probable cause to support a search warrant is lacking are well known. "Under the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights], a search warrant may issue only on a showing of probable cause." Commonwealth v. Anthony, 451 Mass. 59, 68 (2008) . "The probable cause necessary to support the issuance of a search warrant does not require definitive proof of criminal activity." Id. at 69. The probable cause inquiry is limited to the "four corners of the affidavit, " Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428 (1995), but a magistrate may also consider "[a]11 reasonable inferences which may be drawn from the information in the affidavit." Commonwealth v. Dorelas, 473 Mass. 496, 501 (2016), quoting Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). In addition, "[a]n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. McDermott, 448 Mass. 750, 767, cert, denied, 552 U.S. 910 (2007), quoting Commonwealth v. Cinelli, 389 Mass. 197, 213, cert, denied, 464 U.S. 860 (1983). Search warrants should not be "subjected to hypercritical analysis, " but rather should be "interpreted in a realistic and commonsense manner." Anthony, supra at 69, quoting Donahue, supra. "Importantly, '[w]e give considerable deference to a magistrate's determination of probable cause.'" Dorelas, supra, quoting McDermott, supra.

         The defendant's probable cause argument focuses on a supposed insufficient nexus between the suspected criminal activity (murder) and the items sought (the laptop computer).[5] We disagree.

         Nexus between the crime and the items sought "may be found in 'the type of crime, the nature of the . . . items [sought], the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [items of the sort sought].'" Anthony, 451 Mass. at 70, quoting Cinelli, 389 Mass. at 213.

         Here, the affidavit drew sufficient nexus between the suspected criminal activity and the items sought by the warrant. First, the affidavit established the defendant's sophistication with computers by noting he had been employed as a Web designer. The affidavit also established that the defendant had forged contracts and documents from Harvard Business School, based on the affiant's conversation with the defendant's former boss. One could reasonably infer that he created these forgeries by using a computer. See Donahue, 430 Mass. at 712. Second, these forgeries relate specifically to the motive alleged in the affidavit: that the defendant had been lying to his wife about his accomplishments and their finances and killed her to prevent her from finding out about these deceits and to obtain her life insurance benefits. Third, the affidavit specified that the victim had died from EG poisoning, which the affiant noted, based on his nearly twenty years of investigatory experience, would likely have involved research that a computer savvy person like the defendant would have conducted online in 2004. Accordingly, the connection between the search of the computer and the suspected criminal activity was sufficient. Contrast Commonwealth v. White, ...


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