Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Hobbs

Supreme Judicial Court of Massachusetts, Suffolk

June 28, 2019

COMMONWEALTH
v.
KEITH HOBBS.

          Heard: December 7, 2018.

         Indictments found and returned in the Superior Court Department on October 26, 2012.

         A pretrial motion to suppress evidence was heard by Charles J. Hely, J.; the cases were tried before Janet L. Sanders, J., and a motion for a new trial, filed on May 8, 2017, was considered by her.

          Elizabeth Caddick for the defendant.

          Cailin M. Campbell, Assistant District Attorney (Montez D. Haywood, Assistant District Attorney, also present) for the Commonwealth.

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

          KAFKER, J.

         A jury convicted the defendant, Keith Hobbs, of murder in the first degree on the theory of deliberate premeditation in connection with the shooting death of the victim, Demetrius Blocker.[1] The defendant raises several issues on appeal from his convictions and from the denial of his motion for a new trial. First, he argues that the motion judge erred in denying his pretrial motion to suppress the cell site location information (CSLI) used by the Commonwealth in this case. Three and one-half months of CSLI were collected, and CSLI from the date of the murder figured prominently at trial. Next, he alleges that several reversible errors were committed during the course of his trial. Specifically, the defendant argues (i) that the trial judge erred in permitting a police detective to testify to his observations of the defendant's gait; (ii) that the defendant's constitutional confrontation rights were violated when the trial judge admitted hearsay testimony that a particular cell phone number belonged to his friend; (iii) that the trial judge erred in admitting other hearsay testimony; and (iv) that the prosecutor's characterization of a photograph of the defendant as a "booking photo" amounted to misconduct. Finally, he argues that even if no one error, standing alone, is sufficient to warrant the reversal of his convictions, reversal is nonetheless warranted due to cumulative error.

         For the reasons stated infra, we conclude that there has been no reversible error. After a thorough review of the record, we also find no reason to exercise our authority under G. L. c. 278, § 33E, to grant a new trial or to either reduce or set aside the verdict of murder in the first degree. We therefore affirm the defendant's convictions and the denial of his motion for a new trial.

         Background.

         We summarize the facts that the jury could have found, reserving other facts for our discussion of specific issues. At approximately 4 £.M. on December 16, 2010, a sole gunman shot the victim in the arm, chest, and head while he sat in a parked car outside a housing complex in the Roxbury section of Boston. The shooter fled the scene on foot. Police and emergency medical personnel soon arrived and attempted to save the victim's life. These efforts proved unsuccessful, and the victim was pronounced dead shortly thereafter.

         Police immediately began to canvas the crime scene. In the course of their investigation, police interviewed several witnesses at the scene who provided detailed descriptions of the suspected shooter. While their descriptions varied slightly, these witnesses consistently described the suspected shooter as a black- or brown-skinned male wearing a large black coat with a fur collar, dark jeans, and dark shoes. Several witnesses also stated that the man had a distinctive gait, describing his walk as something akin to a limp.[2] Police also learned that the suspect had been seen throwing an object into a nearby Dumpster as he left the scene following the shooting.

         As police continued to search the crime scene, they discovered four spent shell casings near where the victim was shot and a .45 caliber handgun in the Dumpster identified by witnesses. Subsequent ballistics testing revealed this firearm to be the murder weapon. However, police were unable to recover any fingerprints from either the firearm or the shell casings.

         Acting on information from witnesses who described the route the suspect took to flee the scene, police reviewed video footage from surveillance cameras that were located throughout the surrounding neighborhood. Surveillance video recordings from the time frame immediately following the shooting captured footage of a man in a puffy black jacket with a fur collar, dark jeans, and dark sneakers who appeared to have a limp walking away from the crime scene.

         Even with this information in hand, police were unable to immediately locate the suspect. In an attempt to identify him, the police released one of the surveillance video recordings of the suspect to the public in February 2011. To that end, the recording was posted online and broadcast by television news stations. Several days after the video recording was released to the public, a man who identified himself as Michael Hobbs[3]telephoned Boston police and expressed his belief that the suspect in the recording was his brother, the defendant. Michael reiterated this identification in a follow-up interview with police, and again during subsequent testimony before a grand jury. Before the grand jury, he testified that he was able to identify the suspect as his brother due to the clothing the suspect was wearing and the distinctive way that the suspect walked.[4] In addition to identifying the defendant as the suspect in his initial call to police, Michael provided police with a telephone number for a cell phone that he understood to belong to the defendant.[5] Police then requested a court order requiring the defendant's cellular service provider to produce, among other information, the historical CSLI from the defendant's cell phone spanning several months surrounding the day of the killing. The application was granted. The CSLI from the date of the killing was introduced at trial and showed that the defendant's cell phone was located in the general vicinity of the crime scene at and around the time of the killing.

         The Commonwealth introduced further evidence identifying the defendant as the suspect in the surveillance video footage through Roseanne Robinson, the wife of the defendant's friend, Bonae Swain-Price. Robinson testified that the defendant and her husband knew each other well and that the defendant had lived with her family for a period of time.[6] She explained that, having observed the defendant's gait on prior occasions, she believed that one of his legs turned inward as he stepped forward, giving the appearance that he walked with a limp. She also testified that, based at least in part on her familiarity with the defendant's gait, she recognized the defendant as the suspect in the surveillance video recording that the police had released to the public. After watching the video recording, she remarked to her cousin that she thought the suspect in the recording looked like the defendant, and later told the defendant directly that she had "seen him on the news." In addition to her testimony regarding his gait, Robinson testified that she believed the suspect in the recording to be the defendant due to the clothing that the suspect was wearing. She explained that the defendant often wore dark shoes and dark jeans, and that her husband had given the defendant a large black jacket with a fur collar at some point before the date of the killing. Evidence also revealed that Swain-Price had possessed a .45 caliber handgun that matched the general description of the murder weapon, and that Swain-Price possessed this weapon while the defendant lived with Swain-Price and his family.

         Finally, the lead detective in the case testified that he had recently reviewed a video recording of the defendant walking and had observed that the defendant had "a distinctive walk," which appeared to him to be a limp.[7]

         After the case was submitted, the jury returned guilty verdicts on both charges and the defendant was subsequently sentenced to life in prison without the possibility of parole. The defendant now appeals.

         Discussion.

         1. Motion to suppress CSLI.

         The defendant appeals from the denial of his pretrial motion to suppress. On March 17, 2011, approximately three months after the killing in this case, and after identifying the defendant as a suspect, the Commonwealth filed an application, pursuant to 18 U.S.C. § 2703, requesting a court order that would require the defendant's cellular service provider to produce, among other information, the historical CSLI from the defendant's cell phone spanning December 1, 2010, through March 15, 2011.[8] The application was granted. A review of the CSLI revealed that the defendant's cell phone was in the vicinity of the crime scene at and around the time of the killing. Before trial, the defendant moved to suppress the CSLI, arguing that the Commonwealth did not have probable cause to obtain this information. The motion was denied, and the CSLI was eventually admitted in evidence at trial.

         When reviewing a ruling on a motion to suppress, we "accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law" (quotation and citation omitted). Commonwealth v. White, 475 Mass. 583, 587 (2016) . Accordingly, we make an "independent determination of the correctness of the judge's application of constitutional principles to the facts as found" (citation omitted). Id.

         Before the government may request and obtain historical CSLI, it ordinarily must first obtain a warrant based on probable cause.[9] See Carpenter v. United States, 138 S.Ct. 2206, 2221 (2018) (warrant required under Fourth Amendment to United States Constitution); Commonwealth v. Augustine, 467 Mass. 230, 232 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015) (warrant required under art. 14 of Massachusetts Declaration of Rights). Because the Commonwealth in this case requested the historical CSLI several years before we first articulated this warrant requirement in 2014, in Augustine I, it did not obtain a warrant.[10] The Commonwealth may nevertheless still satisfy the warrant requirement if it can establish that its "application for the § 2703[] order met the requisite probable cause standard of art. 14." Augustine I, supra at 256.

         An affidavit in support of a search warrant for historical CSLI must "demonstrate 'probable cause to believe [1] that a particular described offense has been, is being, or is about to be committed, and [2] that [there is a substantial basis to believe that 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), quoting Augustine I, 467 Mass. at 256. See Commonwealth v. Robertson, 480 Mass. 383, 387 (2018). See also Commonwealth v. Holley, 478 Mass. 508, 521 (2017) .

         We review the affidavit de novo to determine if it "satisfies the probable cause standard." Robertson, 480 Mass. at 386. Ordinarily, we look to the "four corners of the affidavit to determine whether . . . [the] application establishes probable cause" (quotation omitted). Estabrook, 472 Mass. at 866. The affidavit is to be evaluated "as a whole and in a commonsense and realistic fashion," and not "parsed, severed, and subjected to hypercritical analysis" (citations omitted). Robertson, supra. "[I]nferences drawn from the affidavit need only be reasonable, not required" (citation omitted). See Commonwealth v. Augustine, 472 Mass. 448, 455 (2015) (Augustine II). "[N]o showing that the inferences are correct or more likely true than not true is required." Robertson, supra at 387.

         The affidavit accompanying the Commonwealth's § 2703 application in this case included the following information. Boston police officers responded to a report of a gunshot victim in Roxbury on December 16, 2010. Upon arriving at the crime scene, police found the victim lying on the ground and suffering from multiple gunshot wounds. The victim was later pronounced dead at a local hospital. Four .45 caliber shell casings were found at the scene, and several witnesses described the shooter as a black Hispanic male with curly hair and a thin beard, who was wearing a puffy black jacket with a fur collar. Witnesses also reported seeing the shooter throw an object into a nearby Dumpster. Police thereafter recovered from the Dumpster a .45 caliber firearm that was still warm, indicating to police that it had recently been fired. Acting on information from witnesses who described the route the suspect took following the shooting, police reviewed footage from surveillance cameras, located in the surrounding neighborhood, that had captured images of a black or black Hispanic male in a puffy black jacket with a fur collar walking down the street. On February 25, 2011, after police released this surveillance footage to the public, the defendant's brother telephoned police and stated that, based on his independent review of the surveillance footage, he believed that the man in the footage wearing the puffy black jacket with a fur collar was the defendant. The defendant's brother also stated that the defendant tended to "hang[] out around" the area in the vicinity of the street on which the victim lived. Additionally, the defendant's brother told police that he did not know his brother's whereabouts, as he had not seen the defendant in several months and his family could not get in touch with him. Finally, the defendant's brother provided police with a telephone number for a cell phone that he understood to belong to the defendant. The defendant's association with the cell phone's number was subsequently corroborated by the defendant's former girlfriend.

         The defendant argues that the foregoing information was insufficient to satisfy the requisite probable cause standard. We disagree. As to the first requirement, based on the facts discussed supra, there is no question that the affidavit demonstrated probable cause to believe that "a particularly described offense ha[d] been . . . committed," and that the defendant had committed the offense. Augustine II, 472 Mass. at 453, quoting Augustine I, 467 Mass. 256. Cf. Robertson, 480 Mass. at 387 (probable cause to believe particular offense occurred where police found victim suffering from gunshot wound and percipient witnesses gave accounts of shooting to police).

         Whether the affidavit satisfied the second requirement, that there be a substantial basis to believe that the sought-after CSLI "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 . . . such offense," is a closer question. Augustine II, 472 Mass. at 453, quoting Augustine I, 467 Mass. 256. See Robertson, 480 Mass. at 387; Holley, 478 Mass. at 521. The defendant argues that the affidavit fails to satisfy this requirement (i) because it did not establish the requisite nexus between the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.