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Commonwealth v. Robertson

Supreme Judicial Court of Massachusetts, Suffolk

August 31, 2018


          Heard: February 9, 2018.

         Indictments found and returned in the Superior Court Department on September 27, 2011.

         A pretrial motion to suppress evidence was heard by Patrick F. Brady, J., and the cases were tried before him.

          Elizabeth A. Billowitz for the defendant.

          Kathryn E. Leary, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth.

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

          CYPHER, J.

         The defendant, Anthony Robertson, appeals from his convictions of murder in the first degree, armed robbery, and carrying a firearm without a license. He argues that he did not receive a fair trial because eyewitnesses improperly identified him in court; the prosecutor misstated evidence in closing argument; the judge erred in declining to question jurors about potential racial bias; the Commonwealth improperly excluded black men from the jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and Commonwealth v. Soares, 377 Mass. 461, cert, denied, 444 U.S. 881 (1979); cellular telephone (cell phone) records that should have been suppressed were introduced; hearsay testimony was improperly admitted; a police officer offered extensive irrelevant testimony about the condition of the apartment where the defendant was arrested; and voluntary manslaughter is the degree of guilt most consonant with justice. The defendant also submitted a separate brief, pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981), arguing that the jury instructions and the prosecutor's closing argument were erroneous and trial counsel was ineffective.[1]

         Because the defendant's right to a fair trial as provided by Batson, supra, and Soares, supra, was violated, we vacate the verdicts and remand for a new trial. We address other claims of error that are likely to recur upon retrial.


         On June 26, 2011, the victim, Aaron Wornum, was with two friends, Erik Hicks and Jason Heard. The victim, who was wearing a necklace with a gold cross, was driving his friends to Hicks's home, through the Dorchester neighborhood in Boston. On the way, the victim said he had to meet a friend to pick up some money that the friend owed to him. The victim stopped the vehicle in a parking lot and spoke to the defendant on a cell phone about where to meet. The victim drove to a nearby street and spoke again to the defendant on the cell phone about where to find him. The defendant and his longtime friend, Emmitt Perry, walked around the corner from a nearby street. The victim then told the defendant on the cell phone that the victim saw him. The victim told Hicks and Heard that he saw the person he was meeting and got out of the vehicle.

         The victim, the defendant, and Perry spoke briefly and then started arguing, and the defendant or Perry grabbed the victim's shirt. The victim backed away from the defendant and Perry. Hicks got out of the vehicle to help the victim. The defendant drew a gun. The victim then ran to other side of the vehicle, leaving Hicks closest to gun. While the defendant pointed the gun at Hicks, Perry searched Hicks's pockets, taking a pack of cigarettes and two cell phones. The victim asked the defendant what he was doing and to not do this, repeatedly calling the defendant "Ant."[3] The defendant fired the gun in the direction of the victim. The defendant and Perry ran around the vehicle, toward the victim, and the defendant fired the gun again. The victim was on the ground when the gun was fired for a third time. At some point during this altercation, Heard ran from the vehicle. Emergency personnel quickly responded to the scene. The victim was pronounced dead at the hospital that evening.

         The defendant and Perry fled and went to the house of Tinea Jones. Jones was the mother of one of Perry's children and a friend of the defendant since childhood. According to Jones, the defendant looked scared and paranoid. He took a shower and asked for a ride to a nearby public transit station. A friend of Jones picked up the defendant and drove him to the station.


         1. Cell site location information evidence.

         The defendant argues that the judge erroneously denied his motion to suppress historical cell site location information (CSLI). He alleges that the warrant used to acquire this data lacked probable cause because the underlying affidavit was defective.

         The affidavit included the following information. Boston police officers were called to the corner of Sumner Street and East Cottage Street at 9:20 £.M- on June 26, 2011. The victim was lying on the ground, bleeding from the neck and head, suffering from several gunshot wounds. He was pronounced dead twenty-five minutes later at a local hospital. Two witnesses --identified as witnesses nos. 1 and 2 -- told officers that on the victim's way to drive them home, the victim made and received several cell phone calls making plans to meet someone. Both witnesses stated that as the victim drove down Sumner Street, two males came into view, and the victim said, "I see you now," stopped the vehicle, and got out. The witnesses provided descriptions of both men. After a very brief time, the men began pushing the victim back toward the vehicle, and both witnesses saw a gun in the hand of one of the men. Witness no. 1 got out of the vehicle to offer aid and saw the man with the gun shoot the victim. The defendant matched the initial descriptions provided by the two witnesses, and later, in a photographic array, witness no. 1 identified the defendant as the man with the gun. The victim's cell phone records revealed that a telephone number ending in 4076 (number 4076) appeared in incoming and outgoing calls seven times in the hours leading up to the shooting, and was the number from which the last call was made that was received by the victim moments before the shooting. During the investigation, a source identified number 4076 as the defendant's telephone number.

         We have "applied the requirement of probable cause to the defendant's historical CSLI because . . . where the information at issue covered a two-week period, analysis of this information was akin to tracking the defendant's movements for an extensive time period, and constituted a search under art. 14" of the Massachusetts Declaration of Rights. Commonwealth v. Augustine, 472 Mass. 448, 453-454 (2015) (Augustine II), citing Commonwealth v. Augustine, 467 Mass. 230, 254-255 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015). See Carpenter v. United States, 138 S.Ct. 2206, 2212, 2216-2217 (2018) (seven days of CSLI constituted search under Fourth Amendment to United States Constitution). When considering the sufficiency of a search warrant application, our review "begins and ends with the 'four corners of the affidavit'" (citation omitted). Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011). "In determining whether an affidavit justifies a finding of probable cause, the affidavit is considered as a whole and in a commonsense and realistic fashion. ..." Id. The affidavit should not be "parsed, severed, and subjected to hypercritical analysis." Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). We evaluate whether the affidavit underlying the warrant application satisfies the probable cause standard required by art. 14 de novo. Commonwealth v. Foster, 471 Mass. 236, 242 (2015).

         When reviewing the sufficiency of a search warrant application for historical CSLI, we determine whether, based on the affidavit in support of the search warrant, (1) the magistrate had a substantial basis to conclude that a particularly described offense has been, is being, or is about to be committed; and (2) the CSLI 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. Commonwealth v. Estabrook, 472 Mass. 852, 870 (2015). Inferences drawn from the affidavit must be reasonable and possible, but no showing that the inferences are correct or more likely true than not true is required. See Commonwealth v. Matias, 440 Mass. 787, 794-795 (2004) (contraband found in trash of multiunit apartment building examined in whole supplied probable cause to conclude that contraband came from defendant's apartment).

         The defendant argues that the affidavit was insufficient because it relied primarily on unsourced police information and misrepresented the quality of one of the eyewitnesses as having unequivocally identified the defendant from the photographic array. However, if the portions of the affidavit to which the defendant objects were redacted, the remaining facts nevertheless would satisfy the requirements of probable cause.

         The affidavit provided two percipient witness accounts of the shooting and stated that police had found the victim suffering from gunshot wounds, thus satisfying the first requirement for the search warrant. See Augustine I, 467 Mass. at 256 (first requirement for search warrant is satisfied when affidavit demonstrates ...

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