Heard: February 9, 2018.
found and returned in the Superior Court Department on
September 27, 2011.
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
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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.
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.
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
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." 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.
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.
Cell site location information evidence.
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
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.
"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).
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 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
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 ...