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Commonwealth v. Bin

Supreme Judicial Court of Massachusetts, Middlesex

October 9, 2018


          Heard: May 11, 2018.

         Indictments found and returned in the Superior Court Department on December 6, 2012. The cases were tried before Kathe M. Tuttman, J.

          The cases were tried before Kathe M. Tuttman, J. Theodore F. Riordan (Deborah Bates Riordan also present) for the defendant.

          Jamie M. Charles, Assistant District Attorney (David M. Solet also present) for the Commonwealth.

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

          GAZIANO, J.

         A Superior Court jury convicted the defendant of murder in the first degree, as a joint venturer, in the shooting death of Quintin Koehler on July 7, 2012, at his grandmother's house in Billerica. The Commonwealth proceeded on a theory of felony-murder, with armed home invasion and attempted armed robbery as the predicate felonies. At trial, the Commonwealth argued that the defendant was one of four intruders who entered the victim's home intending to rob him of drugs and money, a struggle ensued, one of the other men fatally shot the victim, and all four intruders fled from the scene together with two others, who had remained in their vehicles.[1]

         In this direct appeal, the defendant challenges the sufficiency of the evidence that he was present at the scene, knew that any of the alleged accomplices were armed, or shared any intent to commit either the armed home invasion or the robbery. The defendant argues also that cell site location information (CSLI) evidence was introduced through an unqualified witness and should have been excluded. In addition, the defendant maintains that the judge erred when, in response to a jury question, she did not instruct the jury, as defense counsel requested, that they were allowed to reach factually inconsistent verdicts. Finally, the defendant asks this court to abolish the felony-murder rule, and also asks us to use our extraordinary power under G. L. c. 278, § 33E, to reduce the verdict of murder or to order a new trial. For the reasons that follow, we affirm the convictions and decline to exercise our authority to grant relief under G. L. c. 278, § 33E.[2]

         1. Facts.

         We recite the facts that the jury could have found, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), reserving some facts for later discussion of particular issues.

         The victim, Quintin Koehler, lived in Billerica in his grandmother's house. He worked in landscaping, and also sold marijuana and other drugs from the house. He had a roommate who was his partner in both enterprises.

         In March, 2012, the victim and his roommate began purchasing marijuana from Ashley Marshall, at a music studio in Lynn.[3] They purchased marijuana in one- to four-pound increments and subsequently resold it in smaller quantities. The roommate would coordinate purchases with Marshall through text messages, using coded language to establish the quantity and price of a purchase. At one meeting at the music studio, the victim and his roommate saw a tall man with a shaved head who had a number of tattoos, including one on the back of his head that read, "LYNN, MASS."[4]

         In June, 2012, one of Marshall's friends, Adam Bradley, told her that he needed someone to rob, and inquired about the possibility of robbing the victim and his roommate. At first, Marshall declined to help Bradley because the victim and his roommate were friends of her cousin. On July 6, 2012, Bradley came to the music studio and reiterated that he wanted to rob the victim and his roommate. After initially refusing, Marshall agreed to help. Around 5 P..M., Marshall sent the victim's roommate several text messages asking if he wanted to purchase marijuana. She was attempting to ascertain whether the roommate had cash in the house.[5] The roommate, who had had reservations about dealing with Marshall and had not made any recent purchases from her, did not respond.

         Marshall used an Internet Web site to direct Bradley to the victim's house. She also drew a layout of the inside of the house on a piece of notebook paper. Before leaving, Bradley asked Marshall if he needed to bring weapons; Marshall said that he did not, because the victim and his roommate were "little kids" who would not offer any resistance. Bradley returned to the studio later that evening and made a number of telephone calls. Shortly thereafter, approximately twenty Asian men arrived at the studio. Before they left, Bradley showed them the Web site with directions to the victim's house. After telephoning Marshall repeatedly throughout the night of July 6 to July 7, 2012, Bradley arrived at the music studio on the morning of July 7, 2012; Marshall testified that he appeared to be "frantic."

         The Commonwealth's theory at trial was that Bradley was assisted in the attempted armed robbery by the defendant, Steven Touch, Jason Estabrook, Gabriel Arias, and Sophan Keo.[6] The victim's brother, Ryan Koehler, [7] who had been present at the scene and had attempted to force the armed intruders out of the house in the minutes before his brother was shot, described some of the assailants in detail, but was able to give only a vague description of others. Forensic evidence at the scene, medical records, and statements by Marshall tied some of the men to the scene. As evidence of the joint enterprise involving all of the men, the Commonwealth relied heavily on surveillance video footage of two white automobiles that seemed to be acting in concert for approximately one hour before, and immediately after, the shooting, and extensive evidence of cellular telephone calls among the men, as well as CSLI showing a pattern of movement of all of their cellular telephones toward and away from the victim's Billerica home at the time of the shooting.

         Keo owned a white Honda Civic with distinctive blue after-market headlights. Touch regularly used his girl friend's white Toyota Corolla with her permission.

         At 2:51 A.M. on July 7, 2012, an officer of the Billerica police department, who was on routine patrol, entered the license plate of Keo's vehicle in the police computer system. Surveillance footage taken by a camera at a Billerica convenience store on Route 3A, near the victim's home, shows that at 3:19 A.M. and 3:33 A.M., a Honda Civic drove past the store. At 3:25 A.M. and 3:33 A.M., a Toyota Corolla drove past the store. At 3:38 A.M., both vehicles entered a parking lot across the street from the convenience store, in view of the surveillance camera, and each vehicle extinguished its lights. At 3:40 A.M., both vehicles' lights were turned on, and they left the parking lot eleven seconds apart.

         During this time, there were repeated calls among cellular telephones registered to, or used by, the defendant and the other five men; although none of the alleged accomplices lived in Billerica, the calls connected to towers in the Billerica area, heading toward the victim's house. Evidence of the cell towers that were accessed, the times and duration of the calls, and the locations of the cell towers on a map relative to the victim's house was introduced by a State police trooper who was a member of its technical surveillance unit, as well as a member of the Federal Bureau of Investigation's cellular analysis survey team.

         According to the CSLI records, a telephone registered to the defendant traveled from Revere to Billerica during the period immediately prior to the shooting. On July 7, 2012, the defendant's cellular telephone activated a cellular tower in Revere at 1:41 A.M., a cellular tower in Burlington at 2:43 A.M. and 2:45 A.M., and a cellular tower in Billerica at 2:46 A.M., 2:47 A.M., 3:34 A.M., 3:37 A.M., 3:38 A.M., 3:44 A.M., and 3:46 A.M. A cellular telephone associated with Bradley activated a cellular tower in Lynn at 1:14 A.M, a cellular tower near Wakefield at 2:31 A.M, and a cellular tower in Bedford at 3:50 A.M.[8] Between 1:33 A.M. and 3:37 A.M., the defendant's telephone connected with Keo's telephone three times. During the early morning hours of July 7, it also connected with a telephone associated with Touch five times, and received two text messages from that number, [9] and connected with Arias's telephone four times.

         At approximately 3:50 A.M. on July 7, 2012, the victim and his brother, Ryan, were watching a movie in the victim's bedroom when they heard loud noises from the kitchen. The brothers ran into the kitchen to investigate and discovered three men, each with a firearm, standing near the door. Ryan described one man as being blonde with blue eyes, wearing a grey bandana and a hat, and holding a semiautomatic weapon.[10] Ryan testified at trial that he was focused on this man as he entered the kitchen, following his brother, because the man was pointing the weapon at him. Ryan was able to describe the other two men only as wearing dark clothing; he said that he did not know their height, age, or race.[11] The first man told the victim to "get down on the ground." The victim responded that the men should "take the fake ass BB guns and . . . shove them up their candy ass and get the fuck out of the house." The blonde intruder then racked the firearm.[12] The victim instructed Ryan to get a sword from the victim's bedroom. Before Ryan could do so, the victim armed himself with a tea kettle from the top of the stove, and Ryan grabbed a frying pan.

         Ryan then noticed a fourth man, who was larger and heavier, wearing a red T-shirt, black shorts with a blue stripe, and black sneakers, near the refrigerator. When the man ran at the victim, Ryan tackled him to the ground and the victim used the tea kettle to hit him in the head "with everything he had." As the brothers were trying to push the man toward the door, three shots rang out and the victim slumped to the floor. While Ryan attempted to put pressure on the wound, the intruders fled through the broken kitchen door.[13] The victim was taken to the hospital, where he died of a gunshot wound to the head.

         Neither the cellular telephone of the defendant nor the cellular telephones of the other alleged accomplices registered any activity between 3:50 A.M- and 3:53 A.M- At 3:53 A.M-, the cellular telephone associated with Bradley contacted the telephone associated with Touch and activated a cellular tower in Burlington. At 3:59 A.M., the telephone associated with Bradley called the defendant's cellular telephone. During this call, the defendant's telephone activated a cellular tower in Burlington, and Bradley's telephone activated a cellular tower in Woburn. Beginning at 5:15 A.M, the defendant's cellular telephone activated a tower in Lowell, the city listed on his driver's license, multiple times; one of these calls, at 6:20 A.M, was to Touch's telephone.

         At around 5:20 A.M., Estabrook drove to the North Shore Medical Center seeking treatment for a head injury, shoulder pain, and back pain.[14] He reported that he had been in a fight and that "they hit me with a tea kettle to the head." He was wearing a red shirt, black shorts, and black high-top sneakers.[15]

         Investigating officers recovered two hats at the victim's house that had not been present during the evening before the shooting, when family members and friends had stopped by to see Ryan, who had been away for six months at a residential treatment facility. One hat, a navy blue Boston Red Sox baseball cap, was found on the porch just outside the kitchen door. The other, a black and red Chicago Bulls baseball cap, was found in the area between the kitchen and the laundry room. The major deoxyribonucleic acid (DNA) profile on the headband of the Red Sox cap was consistent with the defendant's DNA; the contributors to the minor profile could not be identified. The frequency of the major profile was approximately 1 in 59.07 billion in the Caucasian population, 1 in 81.9 billion in the African-American population, 1 in 92.94 billion in the Hispanic population, and 1 in 211.2 billion in the Asian population.[16]The band of the Bulls cap contained a primary DNA profile consistent with the DNA profile of an individual police concluded had not been present at the scene, because he had a curfew that required him to be in his house at night, and was being monitored by a GPS bracelet, which did not register a violation on July 7, 2012. A secondary profile found on the headband was not associated with any of the suspects.

         Later on the morning of July 7, 2012, one of the victim's neighbors found a pair of rubber gloves on a side street adjacent to his house that he had not noticed the previous day. He telephoned the police; officers responded and retrieved the gloves. Forensic testing of the gloves was undertaken at the State police crime laboratory. The major DNA profile on the gloves matched the DNA profile of Adam Bradley. Analysts at the crime laboratory also found gunshot primer particles on the gloves, which allowed a forensic scientist to conclude that the person who wore the gloves either had handled a firearm or had been in close proximity to a firearm.

         2. Defendant's ...

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