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Commonwealth v. Holley

Supreme Judicial Court of Massachusetts, Suffolk

December 14, 2017

COMMONWEALTH
v.
REGINALD HOLLEY (and five companion cases [1]).

          Heard: September 8, 2017.

         Indictments found and returned in the Superior Court Department on December 12, 2012.

         Pretrial motions to suppress evidence were heard by Patrick F. Brady, J., and the cases were tried before him.

          Elizabeth A. Billowitz for Reginald Holley.

          Neil L. Fishman for Oasis Pritchett.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

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

          LENK, J.

         On the morning of October 17, 2012, Alfonso Rivas was in his apartment building anticipating a sale of marijuana to Reginald Holley when Rivas was fatally shot in the head. Holley and Oasis Pritchett were convicted of felony-murder in the first degree, armed robbery, and possession of a firearm without a license, as joint venturers, in connection with the victim's death. Prior to trial, both defendants had moved unsuccessfully to suppress text messages obtained from their cellular service provider. The text messages, which were introduced at trial, contained incriminating statements involving the defendants' plan to steal marijuana from the victim on the morning of the shooting.

         In this direct appeal, Holley and Pritchett challenge the sufficiency of the evidence supporting their felony-murder convictions and the introduction of their text messages at trial. They argue also that the judge erred in declining to instruct the jury on felony-murder in the second degree, and in dismissing a deliberating juror who was ill. Pritchett argues separately that the judge erred by denying his motion to sever, admitting evidence of prior bad acts, and declining to instruct the jury on the requirements of the hearsay exemption concerning joint venturer statements. Each defendant also requests relief under G. L. c. 278, § 33E. We affirm the convictions and, after careful review of the record, decline to set aside the verdicts or reduce the degree of guilt pursuant to our authority under G. L. c. 278, § 33E.

         1. Facts.

         We recite the facts the jury could have found, reserving certain details for later discussion.

         a. The shooting.

         The victim lived with his girl friend and their children in one of the two units on the third floor of an apartment building on Lyndhurst Street in the Dorchester section of Boston. The other apartment on that floor was vacant and left unlocked. The victim often used the vacant apartment to do homework and to sell marijuana to friends and close acquaintances. When selling to people he did not know well, such as individuals who had been referred to him, the victim would arrange to meet the buyers somewhere outside the apartment building. Shortly before his death, the victim had obtained a handgun to protect himself when he was selling marijuana, because he had been robbed during a previous sale. The victim stored his marijuana, and the proceeds from his marijuana sales, in empty cans of Enfamil brand baby formula.

         Sometime between 9 and 10 A.M. on October 17, 2012, the victim went to the vacant apartment to do homework. His girl friend remained in their apartment to watch television. At some point while the victim was in the vacant apartment, his girl friend placed a video call to the victim and the two spoke briefly. The victim owned a white iPhone cellular telephone that repeatedly flashed a light that resembled a "strobe light" when it rang. After the call, at around 11 A.M., the girl friend heard a "loud pop" and then a "thud." She tried to video-call the victim, but he did not respond. When she went into the hallway, she saw that the door to the vacant apartment was open and the lid of an Enfamil can was on the floor in front of the door. She entered the vacant apartment and saw the victim lying on the floor, shaking and bleeding from the head. She ran back to her apartment and telephoned 911.

         Emergency medical technicians and police responded within minutes. On their way up the stairs, they noticed what they described as a burgundy Red Sox baseball cap on the second-floor landing. They entered the vacant apartment and found the victim lying face down, barely breathing, nonresponsive, and bleeding from the right side of his head. Next to the victim was a cloth bag containing a firearm. Police found the plastic lid of an Enfamil can but did not find the Enfamil container itself, nor did they find any marijuana or money. The victim's iPhone was not in the apartment. The victim was transported to the hospital, where he died a few hours later.

         b. The investigation.

         During the course of the investigation, police examined the victim's call records and learned that the last call the victim answered before the shooting came from Holley's telephone number. Police then obtained information from the defendants' cellular telephone records through a warrant served on their cellular service provider, MetroPCS.[2] Two days before the shooting, Holley sent Pritchett a text message stating, "Yo who can we stick . . . mainly for sum loud [3] . . . git da V an joint bro. " Holley then called Pritchett and spoke to him on his cellular telephone. The next day, Holley sent a text message to the victim asking, "Bro U kno wea I can get a nice deal on a ounces of loud??" The victim and Holley thereafter exchanged text messages in which they arranged that the victim would sell Holley two ounces of marijuana for $650; they planned to meet the following day to make the exchange.

         On the morning of the shooting, Holley sent the victim a text message at 8:21 A.M. stating, "I'll be off at 9 . . . ill hit u up tho." The victim responded, "Oo forreal . . . wasn't even hip . . But ya whenever ur ready bruh . . . Koo." Approximately forty minutes later, Holley sent a text message to Pritchett saying, "I got a stick . . . not a big one tho . . . its for two. Ounces of loud . . . wanna get it." The following exchange then took place:

Pritchett: "Wen" Holley: "ASAP. Wanna meet me ... I live on Esmond st . . ."
Pritchett: "Who u stay there wit"
Holley: "I got a roommate bro"
Pritchett: "Oh so wat u want me to do
"So wea u at now"
Holley: "I can get my Hans on a joint but then shits is too big . . . nigga got a couple rifles. SawedOff ... no hand joints . . . u got a Hand joint
"I just got off . . .I'm getting dropped off now ..."
Pritchett: "Off of work"
Holley: "Yea work"
Pritchett: "I got a couple"

         After this exchange, Holley called Pritchett at 9:09 A.M. and spoke to him for a few minutes. Less than ten minutes later, Holley sent Pritchett a text message saying, "Dnt bro a revolver . . . cock back . . . so he Cam Hea it."

         At 9:37 A.M., Pritchett called Holley. Cell site data[4] records show that, during that call, Pritchett's cellular telephone connected to a cellular telephone tower (cell tower) near his home on Blue Hill Avenue, while Holley's cellular telephone connected to a cell tower near his home on Esmond Street. Between 9:44 and 9:49 A.M., Pritchett's cellular telephone connected with a cell tower further from his house, on a route leading to Holley's house.

         Between 9:54 and 9:58 A.M., Pritchett and Holley exchanged text messages to coordinate a meeting at Holley's house. At 10:01 h-U-r Pritchett called Holley. Pritchett's cellular telephone connected to a cell tower on Talbot Avenue, closer to Holley's house, while Holley's cellular telephone connected to a cell tower on his street. When Pritchett called Holley again two minutes later, both of their cellular telephones used the same cell tower on Holley's street.

         At 10:22 A.M., Holley sent the victim a text message saying "I'm bout to head down their ..." and the victim responded, "Koo." At 10:29 A.M., Holley replied, "15 min, " and the victim responded, "Ok." Video surveillance footage from the entryway of the victim's building showed the victim walk down the interior stairs, prop open the interior entry door, and then walk back up the stairs at 10:30 A.M.[5]

         At 10:54 A.M., Holley's cellular telephone connected to a cell tower at an intersection that was just a few blocks from the victim's apartment. At 10:56 A.M., Holley's telephone connected with a cell tower approximately several blocks away from closer to the victim's apartment. At the same time, the victim's call records show that he answered a call from Holley; at that point, the victim's telephone connected to a tower a few blocks from his apartment. This was the last time a call was answered from the victim's cellular telephone.

         Footage from the video surveillance cameras in the victim's apartment building showed two young, African-American males enter the building at 10:57 A.M. that morning. One was wearing a gray hooded sweatshirt with a dark coat over it and a maroon baseball cap; he was speaking on a cellular telephone as he climbed the stairs. The other was wearing a black, white, and red plaid jacket with the hood up and a dark vest over it. The surveillance video showed the same two individuals run down the stairs and out of the building at 11 A.M. As they ran out, the first individual, with the gray sweatshirt, was no longer wearing the baseball cap. The police reviewed the footage from all surveillance cameras in the front and back of the building from approximately 10:15 A.M. until 11:05 £.M. that day, but saw no other significant activity. Investigating officers also reviewed surveillance footage taken from a nearby post office, which had cameras that showed the entrance to the victim's building. On this footage, the same two individuals can be seen entering the victim's building.

         At approximately the same time as the events on the video surveillance footage, two people were involved in an automobile accident on the street where the victim lived. They were exchanging insurance information when they heard a loud bang; one ducked and said, "Someone's shooting." Approximately one minute later, the man involved in the accident (the witness) saw two men come out of the victim's apartment building. They walked past in a rush, scanned up and down the street, and began running toward Allston Street, in the direction of the Massachusetts Bay Transportation Authority's (MBTA) Shawmut station. The men were wearing several layers of clothing and jackets.[6] The witness had been on the street approximately twenty to thirty minutes before he saw the two men leave the victim's apartment building; in that time, he did not see anyone else enter that building.

         Video surveillance from the MBTA shows the two individuals who had entered and left the victim's apartment building arriving at the Shawmut MBTA station at 11:04 A.M.[7] They bought one ticket that they both used to walk through the turnstile. The men walked down the stairs to the inbound platform and sat on a bench. The one wearing the grey sweatshirt pulled a light-colored cylindrical object out of his clothing and placed it under the bench, [8] and then the two stood up and walked away. The two men then took a different set of stairs to the outbound platform.

         At 11:17 A.M., [9] the ticket the two men had used to enter Shawmut station was used on the 815 MBTA bus from Ashmont station, one station away from Shawmut on the MBTA's Red Line. Video surveillance from the 815 bus shows the same two men get on the bus at Ashmont station and sit down next to each other; the bus headed back in the direction from which the men had come, toward the victim's home. Two minutes before the video footage showed the two men getting onto this bus, Pritchett's cellular telephone had connected with a cell tower a few blocks from Ashmont station.

         Between 11:15 A.M. and 12:29 P.M., the defendants collectively received approximately one dozen calls that connected from cell towers located on MBTA Route 23, the route of the 815 bus, which ran along Washington Street from Ashmont station to a bus stop a few blocks away from Pritchett's house on Blue Hill Avenue. At 11:22 A.M., the surveillance video from the 815 bus shows that one of the two men[10] pulled from his pants pocket a black cellular telephone and then a white cellular telephone, which was flashing a light resembling a strobe light; he manipulated the device with the flashing light.[11] According to the victim's cellular telephone records, his telephone received a call at approximately the same time, which connected to a cell tower near the 815 bus's location along Route 23; the call went unanswered. A few minutes later, Pritchett's and Holley's telephones each connected with a nearby cell tower.

         At 11:32 A.M., the MBTA surveillance footage shows the individual again take out the telephone with the flashing light. At the same time, the victim's cellular telephone received another call; that call connected to a cell tower on the Sprint network that is approximately six blocks from the MetroPCS tower that Holley's telephone connected with at 11:32 A.M.[12] On the video footage, the individual handed the flashing telephone to an unidentified man then sitting next to him, [13] who manipulated the telephone so that it stopped flashing. The victim's cellular telephone records showed no further activity after 11:32 A.M., and the telephone did not connect to any cell towers after that time.

         At 11:42 A.M., the two individuals got off the bus at the stop closest to Pritchett's house. At 11:52 A.M., and again at 1:39 P.M., Holley's telephone connected with a cell tower one block from Pritchett's house. Pritchett's telephone connected to the same tower at 12:29 £.M.

         At 2:35 P.M., Holley sent a text message to Pritchett saying, "I'm home." A little over one hour later, Holley sent another message: "He died." Pritchett asked, "How u kno, " and Holley responded, "Word of mouth." Approximately one and one-half hours later, Holley sent a text message to Pritchett saying, "U good bro." Beginning at 6:56 P.M., and continuing into the next day, Holley also sent the following texts to third parties: "I got loud on deck"; "Babe cum blow this loud"; "Loud on deck"; Rush on deck"; and "I got Rush for sale."

         Between 1:50 A.M. and 2:25 A.M. on the morning after the shooting, Pritchett engaged in the following text message exchange with a third party:

Pritchett: "I fucked up"
Third party: "So whos prego"
Pritchett: "No no no real shit pj"
Third party: "So baby wats wrng"
"Jus do it"
"Please jus tell me"

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