Supreme Judicial Court of Massachusetts, Barnstable
Heard: January 11, 2019.
Indictments
found and returned in the Superior Court Department on
January 11, 2013.
The
cases were tried before Gary A. Nickerson, J.
Sharon
Dehmand for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
Present: Gants, C.J., Lenk, Gaziano, Cypher, & Kafker,
JJ.
KAFKER, J.
Andrew
Stanley was shot and killed in his home in Hyannis while his
hands and feet were bound by handcuffs, zip ties, and duct
tape. The ensuing police investigation resulted in the
arrests of four coventurers, including the defendant, Eddie
Mack. A jury convicted the defendant of murder in the first
degree on the theories of felony-murder and extreme atrocity
or cruelty.[1], [2] The defendant appeals from his
convictions, arguing that he is entitled to a new trial for
several reasons. Specifically, he argues that a new trial is
warranted because (i) the publicity surrounding his case
deprived him of his right to a fair trial; (ii) fingerprint
evidence was admitted in error for want of proper
authentication; (iii) evidence from a coventurer's cell
phone was admitted in error; (iv) his defense counsel was
constitutionally ineffective for failing to move to suppress
evidence obtained from searches of two cell phones; and (v)
the prosecutor made two statements unsupported by the
evidence during closing argument. The defendant also alleges
numerous other errors in a separate brief that he contends is
filed in accordance with Commonwealth v. Moffett,
383 Mass. 201 (1981). Finally, he argues that we should
exercise our authority under G. L. c. 278, § 33E, to
grant him a new trial or to reduce or set aside the verdict
of murder in the first degree.
For the
reasons set forth below, we affirm the defendant's
convictions and decline to grant extraordinary relief
pursuant to G. L. c. 278, § 33E.
Background.
The
facts that the jury could have found in this case were set
forth in detail in Commonwealth v. Webster, 480
Mass. 161, 162-164 (2018). We summarize many of them once
again here, reserving certain details for discussion of
specific issues.
At
approximately 1:20 P..M. on July 11, 2012, police responded
to reports of shots fired at a home in Hyannis. Upon arrival,
police officers heard moaning and yelling coming from the
home. After one officer saw an individual he recognized as
Keiko Thomas looking out a window of the home, the officers
heard gunfire. Three men were then seen fleeing from the home
and jumping over an adjacent fence. An officer recognized one
of the fleeing men as the defendant. Officers pursued the men
on foot and apprehended Thomas and another individual, David
Evans. The fourth coventurer, Steven Webster, was not
apprehended until several months later.
With
the aid of a canine unit, the police eventually tracked down
and apprehended the defendant, who was hiding behind an air
conditioning unit outside a nearby liquor store. Police
recovered several items near the area where the defendant had
been hiding, including a large amount of marijuana inside the
air conditioning unit and a large amount of cash and several
cell phones underneath a pallet next to the unit. Two of the
cell phones were later determined to belong to the defendant
and the victim, respectively. Following his apprehension, the
defendant was taken back to the crime scene and was
identified by a witness as one of the men whom the witness
saw fleeing the victim's home following the
shooting.[3]
Inside
the home, police found the victim lying unresponsive on the
floor. His hands and feet were bound with handcuffs, duct
tape, and zip ties. He had numerous abrasions, injuries from
blunt force trauma, and marks on his body consistent with the
use of a stun gun. The cause of death was a single gunshot
wound to the torso. In the parking lot next to the home,
police located a backpack containing the following: two
firearms, one of which was a loaded .45 caliber Colt handgun;
gloves; a roll of duct tape consistent with the duct tape
used to bind the victim; a stun gun; an aerosol can; zip
ties; and a black face mask, which had Webster's
deoxyribonucleic acid (DNA) on it.[4] A spent shell casing found
at the scene was later determined to have been fired from the
Colt handgun. The bullet retrieved from the victim's body
was consistent with having come from that type of firearm.
Through
the course of their investigation, investigators recovered
forensic evidence tying each of the coventurers to the crime
scene.[5] For example, investigators found a piece
of duct tape containing the defendant's fingerprint at
the scene, and his palm print was located on the lower part
of a window of the home. Footwear impressions from a chair
cushion and the kitchen and driveway of the home also were
determined to be consistent with the type of popular shoe
that the defendant was wearing at the time of his
apprehension. Additionally, tire impressions found in the
dirt and gravel of the backyard of the home were consistent
with the pattern made by the tires of a Chevrolet Impala
vehicle that Evans had rented a few days prior to the
killing. Webster's DNA was located on the interior and
exterior handles of the rear passenger's side door of the
vehicle. Finally, cell site location information evidence
placed the cell phones belonging to Webster, Evans, and the
defendant in the Barnstable area on the day of the killing.
Investigators
also used cell phone records to establish that the
coventurers were in frequent communication with each other
via calls and text messages prior to and on the day of the
killing. Specifically, these records showed that from July 1
to July 11, Webster called or sent text messages to numbers
associated with Evans numerous times. On July 3, Webster sent
a text message to Evans that stated, "Got some heat
lined up," and "Bring dem rollie up, in the arm
rest." On July 7, Webster sent another text message to
Evans, stating, "I am to go snatch my lil heat by
Norfolk and cum bak." On July 8, the defendant sent a
text message to Evans saying, "Gotta come down so I can
explain it better bro so we can get better understandin feel
me." On July 9, Evans sent a text message to Webster
asking, "So, what about mack?" Webster responded,
"We out their what time was u tryna head out
their?" Evans replied, "We gotta see dude at nine
tho." The day before the killing, the defendant sent
another text message to Evans asking, "Yal good?"
Evans responded, "Yup. We out there tomorrow night
cuz." On the day of the killing, the defendant sent a
text message to Evans approximately one hour before the
police responded to the victim's home, asking, "Yal
ready?" Evans responded, "Waiting on u." Mack
responded one minute later, saying, "We at table . . .
Com On." Following the shooting, at 2:21 P.M., Webster
--the only coventurer who had yet to be apprehended by that
point -- telephoned the defendant, using a calling feature to
block the caller's identification.
The
jury eventually returned guilty verdicts on all five charges,
and the defendant was subsequently sentenced to life in
prison without the possibility of parole. The defendant now
appeals.
Discussion.
The
defendant argues that he is entitled to a new trial for the
reasons identified supra. We address each argument
in turn.
1.
Right ...