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SJC-12670
COMMONWEALTH vs. MATTHEW GUMKOWSKI.
Bristol. January 4, 2021. - May 4, 2021.
Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.
Homicide. Cellular Telephone. Practice, Criminal, Motion to suppress, Instructions to jury, Capital case.
Indictment found and returned in the Superior Court Department on August 18, 2011.
A pretrial motion to suppress evidence was heard by Frances A. McIntyre, J., and the case was tried before Robert J. Kane, J.
Michael J. Fellows for the defendant. Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.
LOWY, J. The defendant, Matthew Gumkowski, was convicted
by a jury of murder in the first degree on a theory of extreme
atrocity or cruelty for the killing of Joseph Kilroy.1 The
1 The defendant had also been indicted on related charges, but at trial the Commonwealth proceeded only on the murder indictment, under theories of extreme atrocity or cruelty, 2
Commonwealth presented evidence that the defendant robbed the
victim, and then beat, strangled, and stabbed him to death. The
verdict came in the defendant's second trial, after the first
trial ended in a mistrial because the jury were unable to reach
a verdict.
In this direct appeal, the defendant argues first that his
cell site location information (CSLI)2 and any "fruits" derived
from it should have been suppressed, and second that seven
aspects of the jury instructions were erroneous. Discerning no
reversible error, we affirm, and we decline to exercise our
authority under G. L. c. 278, § 33E.
1. Background. We summarize the evidence at trial,
reserving certain details for our analysis of the issues.
The victim was found dead at his Attleboro apartment on
July 10, 2011. Sometime between 8:30 P.M. and 9 P.M., the
victim's downstairs neighbors heard noises that sounded like
furniture being moved about. Shortly after 9 P.M., the smoke
alarms sounded. When firefighters arrived minutes later, they
felony-murder, and deliberate premeditation. The jury did not convict the defendant on the felony-murder or deliberate premeditation theories.
2 "Cell[] site location information (CSLI) refers to a cellular telephone service record or records that contain information identifying the base station towers and sectors that receive transmissions from a [cellular] telephone." (quotations and citation omitted). Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2 (2015). 3
found the victim's body lying on the floor at the foot of the
bed. The fire that had started on the victim's bed was no
longer active, the sprinklers were on, and the contents of the
room were soaked. The victim had been beaten, strangled, and
stabbed. A medical examiner testified that, based on the
bleeding, the victim was likely alive when he suffered the blunt
force injuries, but was already dead or near death when he was
stabbed.
Police photographed the room to document its state at the
time the body was discovered. They tested for fingerprints at
the scene, and they recovered various objects from inside the
apartment for testing, but no usable fingerprints were found,
likely because of the sprinklers.
The defendant knew the victim and had bought drugs from him
in the past. In July 2011, the defendant was using
approximately a gram of heroin per day. On the morning of July
10, the defendant visited the victim's apartment, hoping to sell
him a ring. The victim knocked on the door of his neighbor
across the hall -- a former jeweler -- and asked him to look at
the ring. When the neighbor looked at the ring, he expressed
skepticism about its value. The neighbor saw another man
standing in the victim's apartment; the neighbor described the
man as white, with a medium build and blonde hair. The neighbor
later identified the defendant as the man who had been in the 4
victim's apartment that morning from a photograph shown to him
by police.
The defendant's girlfriend testified that in the early
evening of July 10, she had been with the defendant in a park in
Attleboro, where she had fallen asleep. When she awoke around 8
P.M., the defendant was gone. She called the defendant several
times between 8:15 P.M. and 9:09 P.M., including on cell phones
borrowed from two strangers. Initially, she did not get an
answer, but she eventually spoke to the defendant. She then met
up with the defendant shortly after the 9:09 P.M. cell phone
call. State police Trooper Daniel Giossi testified that the
defendant's cell phone records showed calls taking place from
the defendant's cell phone between around 8 P.M. and 9:15 P.M.,
and the location data showed that the cell phone was in the
Attleboro area at the time of the calls.3
The defendant was arrested on July 12, 2011, at his
girlfriend's mother's house.4 The defendant became a suspect
3 The parties stipulated that the defendant's cell phone records showed he was within a three-mile radius of the center of downtown Attleboro between 8:13 P.M. and 8:45 P.M. on July 10.
4 The Commonwealth also introduced evidence showing the defendant's activities between the night of July 10 and his arrest. On July 10 after meeting up at the park, the defendant and his girlfriend traveled to Pawtucket, Rhode Island, where they stayed in a hotel. The next morning, they went to a pawn shop. The defendant went inside while his girlfriend waited outside; when he returned, he had money. The couple then 5
after law enforcement examined both the victim's and the
defendant's cell phone records, as discussed infra. Before he
was taken into custody, police patted him down and found a
hypodermic needle in his pocket; testing later revealed traces
of heroin. While the defendant was being booked, an officer
noticed spots of blood on the defendant's shoes.
Deoxyribonucleic acid (DNA) testing revealed that the blood
matched that of the victim. Two additional spots of blood found
on a T-shirt and pack of cigarettes from the defendants'
backpack also matched that of the victim.
After his arrest, the defendant waived his Miranda rights
and was interviewed by police. That interview was recorded, and
the recording was entered in evidence. The defendant initially
denied involvement, but he eventually said that he had gone to
the victim's apartment on the evening of July 10 to buy heroin.
He told police that two other men were present while he was
there. The first man arrived to sell the victim cigarettes and
stayed ten to fifteen minutes. The defendant described the
second man but could not identify him, and said that the second
returned to Attleboro, where the girlfriend picked up a check, and the two traveled to Providence, where she cashed the check and gave a portion to the defendant. That evening, they had dinner with a man they met in Providence and spent the night at the man's home in North Attleboro. The next morning, all three went to the beach, before traveling back to the girlfriend's mother's home. 6
man was still at the apartment when the defendant left. The
defendant stated that he left the apartment after purchasing
drugs. He explained that he had initially lied about visiting
the victim because he had been there to purchase drugs, and
because he later heard about the fire and homicide from the
news.
At trial, the defendant testified and provided a somewhat
different account of his time at the victim's apartment. He
identified the cigarette seller as a man named Brian Singer. He
stated that after Singer had left and while the second,
unidentified, man was in the apartment, the victim brandished a
knife and provoked a fight with the defendant over money that
the defendant owed him. The defendant said he struck the victim
several times in the face, and the victim dropped the knife. He
then grabbed his backpack and left. The defendant stated that
in his initial interview after being arrested, he had lied about
getting in a fight because he had seen the news and had heard
that there had been a fire and a homicide there.
2. Discussion. a. Motion to suppress. "When reviewing
the denial of a motion to suppress, we accept the judge's
findings of fact and will not disturb them absent clear error."
Commonwealth v. Watson, 455 Mass. 246, 250 (2009). However, we
undertake "an independent determination as to the correctness of 7
the judge's application of constitutional principles to the
facts as found." Id.
The defendant's cell phone records in this case included
subscriber information, call logs, and CSLI.5 The subscriber
information and the call logs are not subject to the warrant
requirement under Commonwealth v. Augustine, 467 Mass. 230, 251
(2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015). Thus,
only the defendant's CSLI is at issue. The defendant seeks to
5 The motion judge made her decision before we issued our decision in Commonwealth v. Augustine, 467 Mass. 230 (2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015). Consequently, the terminology she used to describe the various categories of location data differs from our subsequent decisions defining CSLI, "repoll numbers," and "pings." See Commonwealth v. Almonor, 482 Mass. 35, 36 n.1 (2019) (pings); Commonwealth v. Collins, 470 Mass. 255, 269 (2014) (repoll numbers); Augustine, supra at 231 n.1 (CSLI). Thus, we look to the record, and not to the judge's terminology.
The location information included "repoll numbers" as well as "first cell" and "last cell" data. Trooper Giossi testified that the combination of these three numbers indicates the location of the tower to which a cell phone was connected when it made a call, which shows the cell phone was likely within a three-mile radius of that tower.
In its brief, the Commonwealth initially argued that this information was not CSLI, but merely "repoll numbers," as the motion judge found. An hour before oral argument, though, the Commonwealth sent an e-mail message to the defense attorney, conceding that this information was actually CSLI. See Collins, 470 Mass. at 269-270 (repoll numbers only provide location within area of approximately one hundred miles and thus are not comparable to CSLI). In its postargument brief, the Commonwealth again conceded that the relevant location data was CSLI. 8
suppress both the CSLI itself, as well as any fruits derived
therefrom.
i. Investigation leading to defendant's arrest. We recite
the facts the motion judge found following an evidentiary
hearing, supplemented with undisputed facts from the record.
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
When officers discovered the victim's body at his
residence, they also found the victim's cell phone. However,
police were unable to extract any information from it because it
was soaked. A neighbor provided the victim's cell phone number,
and using that, Trooper Giossi obtained the victim's call logs
and other information from his service provider, Sprint. In the
call logs, Giossi focused on incoming and outgoing calls
occurring shortly before 9 P.M., when witnesses reported hearing
commotion coming from the victim's apartment. Giossi then made
a second request to Sprint for information pertaining to two of
those numbers pursuant to the exigent circumstances provision of
the Stored Communications Act (SCA), 18 U.S.C. § 2702(c)(4).6
6 Specifically, Giossi requested subscriber information and call detail records with cell site information for the past twenty-four hours. To make the request, he called Sprint and requested that someone send him an "exigent circumstance request." He filled out the request and sent it back to Sprint.
The motion judge noted that the information was obtained pursuant to 18 U.S.C. § 2703, but that is inaccurate. Giossi repeatedly referred to making an "exigent circumstance request," which would be under § 2702(c)(4). 9
One of the numbers was registered to "Matthew Shady" and
listed a West Warwick, Rhode Island, address.7 In addition to
that subscriber information, the records showed the dates,
times, and durations of incoming and outgoing calls, as well as
CSLI. Troopers called the local police department and learned
that the West Warwick address was valid and that the resident
was the defendant. Local police had previously interacted with
the defendant and sent Giossi a photograph of the defendant, as
well as incident reports of some of his previous arrests. From
these documents, Giossi learned that the defendant was blonde
and muscular, and that he matched the description of the man
that Singer, a friend of the victim, had seen talking to the
victim on the morning of July 10. Giossi examined the
defendant's CSLI and determined that it placed his cell phone in
the Attleboro area on the evening of July 10.
On July 11, Giossi interviewed Singer, who had gone to the
victim's apartment at around 8 P.M. on the day of the murder to
sell the victim two packs of cigarettes, and who had stayed for
about twenty minutes. While Singer was there, the victim
introduced him to a man named "Matt." The man was muscular,
with a crew cut, blonde hair, blue eyes, and tattoos. Based on
7 Troopers did not receive any information pertaining to the second number. 10
this information, law enforcement prepared a photographic array,
including the photograph of the defendant that the West Warwick
police had sent. From the array, Singer identified the
defendant as the blonde man he had seen in the victim's
apartment.8
Troopers then attempted to locate the defendant. On the
defendant's call log, they noticed recent calls to a land line
telephone number, and subsequently ascertained the address
associated with it. On July 12, Giossi visited that address and
spoke with the occupant, Nita Rose. Rose stated that her
daughter was dating the defendant, and that the defendant had
left some of his property there and likely would return to
retrieve it.
Later that day, Rose called the State police to say that
she had just heard from her daughter, and that she expected her
daughter and the defendant to return to the house shortly.
Troopers returned to Rose's address and waited for the defendant
to arrive. As soon as he did, officers placed him under arrest.9
8 Singer did not testify at trial because officers were unable to locate him. He was last seen in Ohio, but authorities there were unable to locate him. His friends and family indicated that as of the day he went missing, there had been no activity on his bank accounts.
9 Before apprehending the defendant, investigators also contacted the defendant's cell phone provider, which then initiated a "ping" to ascertain the defendant's location in real time. The motion judge found that that "ping" did not lead to 11
ii. CSLI. Individuals have a reasonable expectation of
privacy in their CSLI, and thus the government needs a warrant
before searching more than six hours of CSLI data. See
Augustine, 467 Mass. at 255 & n.37. See also Carpenter v.
United States, 138 S. Ct. 2206, 2220 (2018).
Even though the defendant's motion was decided before
Augustine, the rule nonetheless applies. In Augustine, 467
Mass. at 257, we specified that the new rule requiring a warrant
for CSLI data applied to "cases in which a defendant's
conviction is not final, that is, to cases pending on direct
review in which the issue concerning the warrant requirement was
raised." Here, the defendant raised the issue in a motion to
suppress before his first trial, and Augustine was decided
before his conviction was final. Thus, the new rule applies
retroactively to his case, and a warrant was required for his
CSLI data.
Despite this, the Commonwealth argues that a warrant was
not required for the defendant's CSLI because the information
was turned over pursuant to the voluntary disclosure provision
of the SCA (18 U.S.C. § 2702), rather than the mandatory
the defendant's arrest; instead, officers located the defendant thanks to their communication with Rose. The Commonwealth also stipulated that it would not introduce the "ping" evidence at trial. See Commonwealth v. Almonor, 482 Mass. 35, 36 n.1 (2019) (defining "ping" evidence). 12
provision analyzed in both Augustine and Carpenter (18 U.S.C.
§ 2703).10 See Augustine, 467 Mass. at 231; Carpenter, 138 S.
Ct. at 2212. This is wrong.
Both art. 14 of the Massachusetts Declaration of Rights and
the Fourth Amendment to the United States Constitution apply
only to State action.11 Commonwealth v. Leone, 386 Mass. 329,
333 (1982). "Evidence discovered and seized by private parties
is admissible without regard to the methods used, unless State
officials have instigated or participated in the search"
10The Stored Communications Act aims to "protect the privacy of users of electronic communications during government investigations" (quotation and citation omitted). Commonwealth v. Chamberlain, 473 Mass. 653, 658 (2016). "Service providers are permitted and indeed required to disclose customer records to a 'governmental entity' when that entity has complied with one of the limited number of formal processes for making a demand, such as a warrant, a court order, or an administrative subpoena, as set forth in the act." Id. at 658-659, citing 18 U.S.C. § 2703(c).
Another section of the statute permits providers to disclose records to the government voluntarily in limited circumstances. See 18 U.S.C. § 2702(c). "One such circumstance is when 'the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.'" Chamberlin, 473 Mass. at 659, citing 18 U.S.C. § 2702(c)(4).
11The Commonwealth does not frame its argument in terms of State action, but that is the constitutional question underlying its contention. The Commonwealth instead based its argument on Chamberlain, 473 Mass. at 658-659, which is inapposite because that case dealt only with statutory rights. 13
(citation omitted). Commonwealth v. Brandwein, 435 Mass. 623,
632 (2002).
Here, law enforcement instigated the search when Giossi
contacted Sprint and requested the defendant's cell phone
records. That he did so using a voluntary disclosure provision
of the SCA, rather than a mandatory disclosure provision, does
not require a different conclusion. In either instance, if law
enforcement instigates the search by contacting the cell phone
company to request information, there is State action.12 That
Sprint could have refused to provide records in response to
Giossi's request does not change the fact that he instigated the
search. See Brandwein, 435 Mass. at 632.
Because law enforcement infringed upon the defendant's
reasonable expectation of privacy in his CSLI without a warrant,
the CSLI should have been suppressed.
iii. Harmless error. Next, we determine whether the
admission of defendant's CSLI data was harmless.13 Because the
12In Augustine, 467 Mass. at 240-241, we noted that one factor showing State action was that the search was compelled by the Commonwealth's subpoena. Yet this did not change our test for State action from Brandwein, 435 Mass. at 632. Further, although decided under the Fourth Amendment, Carpenter 138 S. Ct. at 2213-2214, implicitly held that there was State action, and the fact that police officers there used a mandatory subpoena did not factor into the United States Supreme Court's analysis.
13The Commonwealth did not argue harmless error in its original brief; instead, it raised the issue for the first time 14
defendant moved to suppress this evidence before trial, we
review the admission of the CSLI to determine whether it was
harmless beyond a reasonable doubt. Commonwealth v. Tavares,
482 Mass. 694, 709 (2019).
Our review under this standard considers a number of
factors, including
"[1] the importance of the evidence in the prosecution's case; [2] the relationship between the evidence and the premise of the defense; [3] who introduced the issue at trial; [4] the frequency of the reference; [5] whether the erroneously admitted evidence was merely cumulative of properly admitted evidence; [6] the availability or effect of curative instructions; and [7] the weight or quantum of evidence of guilt."
Commonwealth v. Seino, 479 Mass. 463, 467-468 (2018), quoting
Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). We then
must decide, based "on the totality of the record before us,
weighing the properly admitted and the improperly admitted
evidence together, [whether] we are satisfied beyond a
reasonable doubt that the tainted evidence did not have an
effect on the jury and did not contribute to the jury's
verdicts." Commonwealth v. Tyree, 455 Mass. 676, 701 (2010).
at oral argument, and then submitted a postargument letter. The defendant argues that it is the Commonwealth's burden to prove harmlessness and that the Commonwealth waived the issue by not arguing it in its brief. Recognizing the unusual nature of the situation -- where the Commonwealth conceded that the data was CSLI the morning of oral argument -- we ordered postargument briefing on the issue of harmless error. Because the defendant has now had an opportunity to respond, we consider the issue. 15
We hold that the introduction of the defendant's CSLI data
was harmless. First, it was cumulative of other evidence. The
Commonwealth introduced the CSLI in the form of a stipulation,
stating that the defendant's cell phone was located within a
three-mile radius of downtown Attleboro between 8:13 P.M. and
8:45 P.M. on July 10. This was cumulative of the defendant's
videotaped police station interview, where he stated that he
went to the victim's Attleboro home on the evening of July 10.
Moreover, the defendant's girlfriend testified that she was with
the defendant in Attleboro before and after the time of the
murder. Thus, the CSLI only corroborated other undisputed
evidence that the defendant was in Attleboro at around the time
of the murder. See Commonwealth v. Vazquez, 478 Mass. 443, 446
(2017) ("The CSLI evidence corroborated the Commonwealth's
other, very strong evidence of guilt by confirming . . . that
the defendant was in fact in the area of the crime at the time
of the shooting").
Second, the prosecutor did not mention the CSLI with any
frequency. In closing argument, the prosecutor stated that the
defendant's cell phone records showed he was in the victim's
room at the time of the murder, but it appears he was referring
to the call logs, not the CSLI, because he proceeded to
reference the girlfriend's calls to the defendant, and the
defendant's statement that he had been at the victim's apartment 16
when he received one of them. The CSLI itself was never
referred to in closing.
Finally, the other evidence of guilt was substantial. The
defendant admitted to being in the victim's room on the night of
the murder. When he was arrested two days later, police found
blood with DNA matching the victim's on his shoe as well as
items in his backpack. Thus, we are convinced beyond a
reasonable doubt that the CSLI data "did not have an effect on
the jury and did not contribute to the jury's verdicts." Tyree,
455 Mass. at 701.14
iv. Fruits. Next, the defendant argues that not only
should the CSLI have been suppressed, but so should any fruits
derived from it. He argues that both the call logs and the
evidence seized during his arrest are tainted by the unlawfully
obtained CSLI data, thus constituting fruits of the poisonous
tree. See Wong Sun v. United States, 371 U.S. 471, 484 (1963).
Because neither of these categories of evidence was derived from
the CSLI, they are not fruits.
14The Commonwealth also argued at oral argument -- despite not having briefed the issue -- that the CSLI should not be suppressed because we should apply the "good faith" exception to the exclusionary rule, which we have not recognized in the Commonwealth. See Commonwealth v. Fredericq, 482 Mass. 70, 84 (2019). Because we find the error was harmless, we need not address that argument. 17
"Under what has become known as the 'fruit of the poisonous
tree' doctrine, the exclusionary rule bars the use of evidence
derived from an unconstitutional search or seizure." Tavares,
482 Mass. at 706, quoting Commonwealth v. Fredericq, 482 Mass.
70, 78 (2019). "In determining whether the evidence is
considered a fruit of the poisonous tree, we consider 'whether
. . . the evidence . . . has been come at by exploitation of
[that] illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.'" Tavares,
supra, quoting Fredericq, supra.
First, the call logs were not fruits of the CSLI.15 The
Commonwealth received the call logs and the CSLI as a result of
the same request.16 The mere fact that the call logs were
requested contemporaneously and were produced on the same sheet
of paper as the CSLI does not render them a fruit; the logs were
not derived from the CSLI or obtained as a result of a CSLI
request. See Tavares, 482 Mass. at 706.17
15The call logs included incoming and outgoing calls, the times and dates of those calls, and the duration of each call. As discussed supra, the call logs are not subject to the warrant requirement under Augustine, 467 Mass at 251.
16At the suppression hearing, Giossi testified that he asked for the subscriber information and call detail records with CSLI in the same request. Call detail records include both call logs and CSLI.
17The defendant argues that this reasoning renders the exclusionary rule toothless because it does not disincentivize 18
Second, the defendant's arrest -- and the clothing seized
from him postarrest -- are also not fruits of the CSLI. The
defendant became a suspect not as a result of his CSLI, but
through information garnered from his call logs and subscriber
information. Police began investigating the defendant because
his cell phone number was one of two numbers that had been in
contact with the victim's cell phone shortly before the victim's
death. Police then requested the defendant's cell phone records
from Sprint. The defendant's subscriber information showed his
cell phone was registered to an address in West Warwick, Rhode
Island. The investigators then called the West Warwick police
department and learned that the defendant was blonde with blue
eyes and a muscular build -- matching the description of both
the man whom the victim's neighbor saw discussing a ring that
morning and the man whom Singer saw in the victim's apartment
around 8 P.M. on the night of the murder. Police used a
photograph of the defendant sent by West Warwick police to
conduct a photographic array with Singer, who identified the
police from securing and using CSLI without a warrant. On the contrary, if police unlawfully obtain CSLI, any fruits derived therefrom must be suppressed unless the Commonwealth proves that the evidence is untainted. See Commonwealth v. Blevines, 438 Mass. 604, 610-611 (2003). The fact that the call logs were not derived from the CSLI, and thus are not a fruit, does not gut the exclusionary rule. Rather, that is simply how the rule works. 19
defendant as the blonde male he had seen talking to the victim
shortly before his death.18
Police did also look at the defendant's CSLI. It showed
that he had been within three miles of Attleboro around the time
of the murder. Yet the CSLI was merely "cumulative and
corroborative" of other evidence, and thus did not lead to the
defendant becoming a suspect. Vazquez, 478 Mass. at 446.
Finally, the defendant was located and arrested through, as
the motion judge put it, "traditional investigative techniques,"
not through the CSLI. To locate the defendant, police started
by contacting the telephone numbers on the victim's call log.
They noticed a land line telephone number, figured out its
location, and visited it. There they found Rose, the
defendant's girlfriend's mother. Rose stated that the defendant
had left some of his belongings in her home, and that she
expected him to return. Later that day, Rose called one of the
officers, stating that her daughter and the defendant had just
called and that they would be returning to the house soon.
Police went to Rose's house. When the defendant arrived, they
placed him under arrest.19 Thus, the apprehension and arrest of
18 The neighbor also identified the defendant from a photographic array, although that evidence was not introduced at the suppression hearing. 19 Other officers who did not testify at the suppression
hearing contacted Sprint to request a "ping" of the defendant's cell phone to attempt to locate him prior to his arrest. But, 20
the defendant was also not a fruit of any unlawfully obtained
evidence, and therefore evidence obtained as a result should not
be suppressed.
b. Jury instructions. Next, the defendant argues that his
counsel was ineffective for failing to object to seven portions
of the jury instructions, and that the failure to object created
a substantial likelihood of a miscarriage of justice. We
disagree.
"Because the defendant was convicted of murder in the first
degree, rather than evaluating claims of ineffective assistance
under the traditional standard of Commonwealth v. Saferian, 366
Mass. 89, 96 (1974), we apply instead the more favorable
standard of G. L. c. 278, § 33E, to determine whether there was
a substantial likelihood of a miscarriage of justice" (footnote
omitted). Seino, 479 Mass. at 472 , citing Commonwealth v.
Wright, 411 Mass. 678, 681–682 (1992), S.C., 469 Mass. 447
(2014). "That is, we determine whether defense counsel erred in
the course of the trial and, if so, 'whether that error was
likely to have influenced the jury's conclusion.'" Seino, supra
at 472-473, quoting Wright, supra at 682.
as the motion judge found, the pings were "not material in his arrest in that he was apprehended through traditional investigative measures." 21
"When evaluating jury instructions, we consider the charge
in its entirety, to determine the probable impact, appraised
realistically . . . upon the jury's factfinding function"
(quotation and citation omitted). Commonwealth v. Walker, 466
Mass. 268, 284 (2013). "Jury instructions must be construed as
a whole to prevent isolated misstatements or omissions from
constituting reversible error." Id., citing Commonwealth v.
Owens, 414 Mass. 595, 607 (1993). We examine each portion of
the jury instructions in turn.
i. Factual questions. First, the defendant argues that
the following instruction asked the jury to find facts that were
immaterial to any element of the crime and placed a burden on
the defendant to prove that someone else had killed the victim:
"Now, I say this to you. You're charged with finding the facts. It's your job. I have nothing to do with it. To find the facts. In this case, you are being asked to determine what happened at Apartment 9 located at 49 Dunham Street in Attleboro during the evening hours of July the 10th, 2011. That inquiry by this jury presents, among others, the following examinations. One, who was there that night? Two, when did each party arrive? Three, what was each party's purpose in going to that apartment that night? Four, what did each party do? And five, what was the sequence of events? And I'm going to repeat those. Who was there that night? When did each party arrive? What was each party's purpose in going to Room No. 9 at 49 Dunham Street? What did each party do inside that room? What was the sequence of events?"
The defendant likens this instruction to the one reviewed
in Bihn v. United States, 328 U.S. 633 (1946). There, multiple
defendants were tried for conspiracy, and a crucial issue for 22
one of the defendants was whether she stole ration coupons from
a bank. Id. at 634-635. The judge instructed the jury:
"Who would have a motive to steal them? Did she take these stamps? You have a right to consider that. She is not charged with stealing, but with conspiracy to do all these things, and you have a right to consider whether she did steal them, on the question of intent. Did she steal them? Who did if she didn't? You are to decide that."
Id. at 636-637. The United States Supreme Court held that with
respect to the defendant in question, the charge was prejudicial
error, because it essentially shifted the burden of proof to the
defendant by "putting on [the defendant] the burden proving her
innocence by proving the identity of some other person as the
thief" (citation omitted). Id. at 637.
Although the judge's instruction here was ill advised,
trial counsel's failure to object did not create a substantial
likelihood of a miscarriage of justice. Looking at the
instructions as a whole, we do not believe it would have
substantially affected the jury's function as the sole finder of
the facts. See Walker, 466 Mass. at 284. First, the judge
began the instruction by reiterating that he had no role in
finding the facts; that was the sole province of the jury. This
harkened back to one of his initial instructions, where he
stated, "I'm going to bring up suggestions. Not requirements."
Further, while the instruction posed factual questions to the
jury that were tangential to finding the elements of the crime, 23
unlike in Bihn, the judge did not require the jury to find these
tangential facts.
ii. Bias. Second, the defendant argues that the judge
undermined the defendant's credibility by instructing the jury
that he "has a bias." The comment came at the end of the
judge's general instructions regarding credibility:
"Credibility, jurors. What do we mean by that? You know about it. Sure, you do. You use it in your everyday affairs. Think about this. Do people come up to you and tell you to believe something? Ask you to say yes? And it's something that you want to think about. What do you do? What's the first thing? Well, you're watching the person. Sure, you are. You want to figure out from your common sense whether or not this person is believable. So you're watching demeanor. You're also listening carefully to the words and asking yourself he just said that, but then he said this, and those two don't make sense. If he said this, then that doesn't follow. You're listening to him to see whether this is double talk, or sales talk, or this is the genuine article. Three, you're thinking what's in it for him or her. Is there bias? Is there self interest? All of that comes into play. So you are in a sense evaluating all the time in your lives believability. And I say to you that you're going to use essentially those same tools when you go into that jury room, and you use your common sense and life's experiences to decide this.
"You're going to be asking about consistency. You're going to ask yourself about coherency. Does it appeal to common sense and logic? And you're going to ask yourself about how it was presented, and you will also ask yourself about bias or interest. And bear this in mind. The defendant has a bias. He has an interest. So do the police. So do the police. Anyone who works for an agency that's involved in the case has a bias. So don't think the only person with a bias is the defendant, because that's not so."
"It is appropriate for a judge to mention that interest in
the case is a criterion, along with others which the judge 24
detailed, for assessing the credibility of witnesses."
Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 368 (1991), citing
Commonwealth v. Perez, 390 Mass. 308, 320 (1983). In Perez,
supra at 314 n.3, the judge instructed the jury, "You are
entitled to weigh this evidence, this testimony of the
defendant, and you are entitled, of course, in weighing the
testimony of the defendant, to consider, if you see fit, the
interest of the defendant in the outcome of the case which is
before you." We held that "[w]hile it is not a model charge, we
conclude that the judge did not impose on the jury his opinion
of the witness's credibility." Id. at 321.
The same is true here. While the judge should not have
stated "the defendant has a bias," taken in context the comment
did not communicate to the jury the judge's own opinion
regarding the defendant's credibility. See Perez, 390 Mass. at
321. Rather, it was immediately followed with the reminder,
stated and then repeated, that the police, too, have a bias, as
does anyone who works for an agency involved in the case. Thus,
even though the defendant's potential bias should not have
specifically been mentioned, this is not a case where his bias
was "singled out for special comment." United States v.
Rollins, 784 F.2d 35, 37 (1st Cir. 1986). Thus, trial counsel's
failure to object did not amount to a substantial likelihood of 25
a miscarriage of justice.20 We emphasize, however, that the
utmost care is required when instructing the jury about a
defendant's testimony or failure to testify. Even an unintended
suggestion by the judge that the defendant's testimony is
subject to greater scrutiny risks error.
iii. Contradiction between an exhibit and a witness.
Third, the defendant argues that the judge invaded the fact-
finding province of the jury by instructing them that if an
exhibit contradicted a witness, the jury should use the exhibit
as "[a] reason not to believe a witness." The instruction was
as follows:
"Now, there's another way to look at credibility. Say to yourself, you know, I believe something in those exhibits. And you know what? What's in those exhibits backs up this witness. That's called corroboration. If, on the other hand, the exhibit contradicts the witness, what do you use that for? A reason not to believe a witness. And go back to this, jurors. If someone's being sincere with you, you move onto reliability. If someone's insincere and is winking at the oath, how can you believe that person? So
20The defendant also argues that the judge did not inform the jury to what extent the defendant's potential bias may have influenced his credibility. See United States v. Gleason, 616 F.2d 2, 15 (2nd Cir. 1979) ("Where the court points out that testimony of certain types of witnesses may be suspect . . . it must also direct the jury's attention to the fact that it may well find these witnesses to be truthful"). While again it would have been preferable for the judge to state as much explicitly, he did, in his illustration about how one evaluates credibility in one's everyday life, state, "you're thinking what's in it for him or her. Is there bias? Is there self interest? All of that comes into play." This comment showed that bias is but one of many factors to be evaluated in determining credibility, in addition to, among others, the person's demeanor and word choice. 26
that is what I would say as to your consideration of credibility."
The defendant argues that this instruction "improperly informed
the jury precisely what effect certain evidence should have on
their deliberations" and was particularly prejudicial because
the Commonwealth had argued in closing that the jury should not
believe the defendant's testimony, and look instead to
statements the defendant made in his recorded interview. Thus,
the defendant argues the instruction mirrored the Commonwealth's
theory of the case.
We disagree. The judge did not state that exhibits should
be believed over witness testimony, but rather any
contradictions could be considered when assessing witness
credibility. Moreover, the judge had previously instructed the
jury that they had "full authority over the evidence," including
whether to believe or disbelieve some or all of a witness's
testimony. Thus, in the context of the instructions as a whole,
counsel's failure to object to this instruction did not create a
substantial likelihood of a miscarriage of justice.
iv. Jurors should be "controlled" by the video recording
of the defendant's statement to police. Fourth, the defendant
argues that the judge again invaded the fact-finding province of
the jury when he instructed:
"You've got a video, jurors. You've got a video of what the interview consisted of at the Attleboro police station. 27
That's going to be given to you. You're going to have the ability to play it. Indeed, you should be controlled by it. What he said on the video, you're going to see. You're going to see it. If it conflicts with what the lawyers said he said, you're going to follow the video."
The defendant argues that this instruction, like the previous
one, communicated to jurors that they should give greater weight
to the defendant's recorded statements to police than to his
testimony at trial. The defendant acknowledges that the last
sentence asks jurors to contrast the video recording with
statements by lawyers -- which are not evidence -- and states
that the video evidence should control over what lawyers said
about the recording. The defendant nonetheless argues that
jurors could understand the instruction to mean instead that the
recording should control "over other evidence and testimony and
over any misstatements made by the lawyers."
We disagree. The instruction clearly refers only to
comparing the recording to the lawyer's statements, not to
comparing the recording to other evidence. While it would have
been prudent for the judge to say that all the evidence -- not
just the video recording -- controls over statements by the
attorneys, the instruction was not error. In the context of the
instructions as a whole, a reasonable juror would have
understood this instruction as referring back to an instruction
the judge had given before closing arguments: that lawyers are
not witnesses and cannot provide information that is not found 28
directly or inferentially in the evidence. Thus, the
instruction was not error, and consequently trial counsel was
not ineffective for failing to object.
v. Direct and circumstantial evidence. Fifth, the
defendant argues that the judge's instruction on the difference
between direct and circumstantial evidence essentially
diminished the Commonwealth's burden of proof. Specifically,
the judge illustrated the concepts of direct and circumstantial
evidence by giving two hypothetical examples. In the first --
which illustrated direct evidence -- the judge described a
defendant who was charged with leaving the scene of an accident.
In the example, a victim felt something strike her car, which
caused her to hit a tree. Two days later, a witness told police
that on the night in question he had been a passenger in a car
when the driver started to text, struck a car that struck a
tree, and then drove off. The witness identified the victim's
car as the one that had been struck by the defendant's vehicle.
The judge described the witness's testimony as direct evidence.
In the second example, which illustrated circumstantial
evidence, the judge used the same hypothetical, but instead of a
witness who saw the accident, the evidence came from various
other sources. A neighbor who heard the crash stated she saw a
dark Ford Taurus with a license plate starting with "1-0" leave
the scene. The police then searched Registry of Motor Vehicle 29
records to identify owners of dark Ford Tauruses with license
plates starting with 1-0, and found the defendant. The location
of the car crash was consistent with the most efficient route of
travel to the defendant's home. When police visited the
defendant's home, they found a Taurus with damage consistent
with the accident. Paint chips on the Taurus were consistent
with the paint from the victim's car. The defendant admitted to
driving his Taurus the night of the accident, but denied
striking a car.
The defendant first argues that the charge was unbalanced
because it only illustrated how to infer guilt and not how to
infer innocence. See United States v. Dove, 916 F.2d 41, 46
(2nd Cir. 1990) (to explain difference between direct and
circumstantial evidence, trial judge used unbalanced
hypothetical that "merely instructed how to look for evidence of
. . . guilt"). We recently analyzed a similar hypothetical by
the same trial judge in Commonwealth v. Silva, 482 Mass. 275,
286-290 (2019). There, although we did not explicitly address
the unbalanced nature of the charge, we held that, taken as a
whole, the instructions were not error; however, we
"underscore[d] that, moving forward, . . . it is better practice
to avoid examples in which hypothetical individuals commit
crimes." Id. at 290. We hold the same here. See United States
v. Hensley, 982 F.3d 1147, 1161 (8th Cir. 2020) (unbalanced 30
hypothetical was not error but "discourag[ing] the use of such
one-sided jury instructions"); United States v. Salameh, 152
F.3d 88, 142-143 (2d Cir. 1998), cert. denied, 526 U.S. 1028
(1999) (noting unbalanced hypotheticals are "disfavored" but did
not constitute prejudicial error in circumstances, because most
circumstantial evidence in case pointed towards guilt).
Next, the defendant argues that the hypothetical describes
a situation similar to the facts at trial and thus acted as a
roadmap showing how to find the defendant guilty. This argument
was not raised in Silva because the facts from the hypothetical
used there did not mirror those of the case. Here, we are
troubled that the hypothetical too closely tracks the facts of
the defendant's case.
To illustrate this, we compare the two. The neighbor who
witnessed a Ford Taurus leaving the scene is akin to the
neighbor who saw Gumkowski21 in Kilroy's apartment the day of the
murder. Investigators visiting the home and finding the
defendant is akin to investigators arresting Gumkowski at Rose's
home. The paint chip on the Taurus consistent with paint from
the victim's car is akin to the blood on Gumkowski's shoe that
was consistent with Kilroy's DNA. The defendant admitting to
driving the Taurus on the night of the accident but denying
21Here we refer to Gumkowski by name to distinguish him from the defendant in the judge's hypothetical. 31
striking the car is akin to Gumkowski admitting to going to
Kilrow's apartment on the night of the murder but denying
committing it.
The hypothetical used in this case is far more similar to
the facts of the defendant's case than instructions that have
been objected to on similar grounds. Compare Commonwealth v.
Shea, 398 Mass. 264, 270 & n.3 (1986) (rejecting defendant's
argument that hypothetical about missing piece of chocolate cake
too closely paralleled facts of his case); Commonwealth v. Gil,
393 Mass. 204, 222 (1984) ("We do not think that the
coincidental similarity between the well-known 'footprints in
the snow' example and the evidence of footprints on the floor at
the scene of the crime would make the jury reasonably believe
that the judge was expressing his belief in the Commonwealth's
theory of the case or was favoring a particular inference
propounded by the prosecutor"); Commonwealth v. Vaughn, 32 Mass.
App. Ct. 435, 443 (1992) ("Although we do not think the judge
committed reversible error, the similarity of the analogy to the
Commonwealth's evidence makes use of that particular analogy
ill-advised in the instant circumstances of this case" [citation
omitted]); Hensley, 982 F.3d at 1161 (very short hypothetical
illustrating concept of substantial step "track[ed] closely with
the facts of [the] defendant's case"); Dove, 916 F.2d at 46 32
(hypothetical about "whether Jack shot Mary" was "not analogous
to the facts of this case").
In those cases, the illustrations were less in depth than
the hypothetical used here. Here, the hypothetical closely
mirrored the circumstances of the defendant's case and arguably
served to emphasize the prosecution's theory of the case,
illustrating to the jurors how they could find the defendant
guilty. Thus, the instruction was erroneous. Consequently,
trial counsel was ineffective for failing to object.
Looking at the instructions as a whole, however, the error
did not create a substantial likelihood of a miscarriage of
justice. First, as in Silva, 482 Mass. at 289, the judge made
clear that the jury could not premise a verdict on speculative
inferences.22 Second, the judge stated that jurors should not
take anything he had said to demonstrate his view on the case,
and that if he had done so unintentionally, they should
disregard it.23 See Hensley, 982 F.3d at 1160-1161 (judge's use
22Specifically, the judge stated: "One, you can only draw a reasonable inference from evidence that you believe. Two, that inference has to be reasonable. In other words, it can't be a guess."
23The judge instructed: "Jurors, I am neutral in this case. I have no role in the facts. And if I ever suggested to you that I have a view of this case, that's arrogant on my part. That is not something I want to convey. I respect you; and if I did that unconsciously, you disregard it." 33
of hypothetical similar to facts case not reversible error
because judge also instructed that jury "should not take
anything I have said or done during the trial as indicating what
I think of the evidence or what I think your verdict should
be"). Third, the hypothetical did not infringe on the
instructions on reasonable doubt. Compare Silva, supra (judge's
hypothetical to explain circumstantial evidence entirely
separate from "unambiguous and adequate instruction on
reasonable doubt"), with Commonwealth v. Pomerleau, 10 Mass.
App. Ct. 208, 214 (1980) (use of examples to explain reasonable
doubt was reversible error). Fourth, it is clear from a review
of the entire record that the judge was scrupulously focused on
the defendant receiving a fair trial. And finally, the
Commonwealth's case against the defendant was strong, and thus
any error was likely not to have influenced the jury's verdict.
Cf. Commonwealth v. Garcia, 379 Mass. 422, 442 (1980) (error in
jury instructions was harmless where "case involve[d]
overwhelming evidence of guilt").24 In sum, although the
24In Silva, 482 Mass. at 288, an additional mitigating factor was that the jury did not convict on a theory of deliberate premeditation, which showed "they understood the high degree of certainty required to find the defendant guilty." While here, similarly, the jury did not convict on either deliberate premeditation or felony murder, we do not believe this fact mitigates the error in the jury instructions. The erroneous hypothetical did not speak to the hypothetical defendant's intent or any underlying felony, so there is no 34
instruction -- and counsel's subsequent failure to object --
were error, those errors did not create a substantial likelihood
of a miscarriage of justice.
vi. Reasonable inferences. Sixth, the defendant argues
that at the close of the hypothetical illustrating
circumstantial evidence, the judge insinuated an inference of
guilt would be reasonable. At the close of the hypothetical,
the judge stated: "And in this instance, you could be asked do
you draw a reasonable inference that the defendant [in the
hypothetical] did this. And in looking at that question, you
certainly can apply your common sense, your powers of logic."
The defendant argues that a juror would likely understand
this instruction as implying that any inference they might draw
of the defendant's guilt would be a reasonable one. Although we
have made our concerns with the hypothetical clear, we do not
think this closing element created a substantial likelihood of a
miscarriage of justice. While the words may have subtly implied
that such an inference would be reasonable, a reasonable jury
would not have interpreted them as "a conclusive direction by
[the judge] to find murder in the first degree once the jury
were convinced of the [underlying] facts." Commonwealth v.
Skinner, 408 Mass. 88, 95 (1990). Compare id. at 94-95
reason it would have affected the jury's fact finding concerning the elements of deliberate premeditation or felony-murder. 35
(reversible error where judge instructed "not only that [the
jury] could infer premeditation from certain subsidiary facts
and malice, but that the finding of those facts and malice
'would constitute first-degree murder'").
vii. Drawing of inferences. Seventh, the defendant argues
that the judge's instructions on inferences implied that intent
had to be proved beyond a reasonable doubt, but the other
elements of the crime did not. The judge instructed:
"And here are the rules that apply to drawing a reasonable inference. One, you can only draw a reasonable inference from evidence that you believe. Two, that inference has to be reasonable. In other words, it can't be a guess. Three, that where the inference constitutes an element of the crime -- intent. Intent, which I told you can well be the subject of circumstantial evidence -- it has to be proven beyond a reasonable doubt."
Looking at the jury instructions as a whole, it is clear that
the judge properly instructed the fact that proof beyond a
reasonable doubt is necessary for every element of the offense.
As the judge outlined the elements of each charged crime, he
repeatedly emphasized that the Commonwealth had the burden to
prove each element beyond a reasonable doubt. Thus, a
reasonable juror would have understood the challenged
instruction to show that intent is one example of an element
that must be proved beyond a reasonable doubt, not that it was
the only one. There was no error. 36
c. Relief pursuant to G. L. c. 278, § 33E. We have
reviewed the record in accordance with our statutory duty under
G. L. c. 278, § 33E, and we identify no basis upon which to
order a new trial or to reduce the degree of guilt.
Judgment affirmed.