Commonwealth v. Mack

          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 ...