Heard: September 8, 2017.
found and returned in the Superior Court Department on
December 12, 2012.
motions to suppress evidence were heard by Patrick F. Brady,
J., and the cases were tried before him.
Elizabeth A. Billowitz for Reginald Holley.
L. Fishman for Oasis Pritchett.
M. Campbell, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.
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.
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,
recite the facts the jury could have found, reserving certain
details for later discussion.
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.
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.
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.
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. Two days before the shooting, Holley
sent Pritchett a text message stating, "Yo who can we
stick . . . mainly for sum loud  . . . 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
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"
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."
A.M., Pritchett called Holley. Cell site data 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.
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
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.
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.
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.
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. 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.
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. 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,  and then the two stood up
and walked away. The two men then took a different set of
stairs to the outbound platform.
11:17 A.M.,  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.
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 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. 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
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. On the video footage, the individual
handed the flashing telephone to an unidentified man then
sitting next to him,  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.
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.
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
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"