Hearsay Statements of Joint Venturers Admissible for Their Truth under Co-Conspirator Exception (Rule 801(d)(2)(E)) If Proponent Proves by Independent, Non-Hearsay Evidence (i) Existence of Joint Venture and (ii) That Statement Was in Furtherance of It

Commonwealth v. Holley, 2017 Mass. LEXIS 889 (Mass. Dec. 14, 2017):

On the morning of October 17, 2012, Alfonso Rivas was in his apartment building anticipating a sale of marijuana to Reginald Holley when Rivas was fatally shot in the head. Holley and Oasis Pritchett were convicted of felony-murder in the first degree, armed robbery, and possession of a firearm without a license, as joint venturers, in connection with the victim's death. Prior to trial, both defendants had moved unsuccessfully to suppress text messages obtained from their cellular service provider. The text messages, which were introduced at trial, contained incriminating statements involving [*2]  the defendants' plan to steal marijuana from the victim on the morning of the shooting.

In this direct appeal, Holley and Pritchett challenge the sufficiency of the evidence supporting their felony-murder convictions and the introduction of their text messages at trial. They argue also that the judge erred in declining to instruct the jury on felony-murder in the second degree, and in dismissing a deliberating juror who was ill. Pritchett argues separately that the judge erred by denying his motion to sever, admitting evidence of prior bad acts, and declining to instruct the jury on the requirements of the hearsay exemption concerning joint venturer statements. Each defendant also requests relief under G. L. c. 278, § 33E. We affirm the convictions and, after careful review of the record, decline to set aside the verdicts or reduce the degree of guilt pursuant to our authority under G. L. c. 278, § 33E.

1. Facts. We recite the facts the jury could have found, reserving certain details for later discussion.

a. The shooting. The victim lived with his girl friend and their children in one of the two units on the third floor of an apartment building on Lyndhurst Street in the Dorchester section of Boston. The other apartment [*3]  on that floor was vacant and left unlocked. The victim often used the vacant apartment to do homework and to sell marijuana to friends and close acquaintances. When selling to people he did not know well, such as individuals who had been referred to him, the victim would arrange to meet the buyers somewhere outside the apartment building. Shortly before his death, the victim had obtained a handgun to protect himself when he was selling marijuana, because he had been robbed during a previous sale. The victim stored his marijuana, and the proceeds from his marijuana sales, in empty cans of Enfamil brand baby formula.

Sometime between 9 and 10 a.m. on October 17, 2012, the victim went to the vacant apartment to do homework. His girl friend remained in their apartment to watch television. At some point while the victim was in the vacant apartment, his girl friend placed a video call to the victim and the two spoke briefly. The victim owned a white iPhone cellular telephone that repeatedly flashed a light that resembled a “strobe light” when it rang. After the call, at around 11 a.m., the girl friend heard a “loud pop” and then a “thud.” She tried to video-call the victim, but he did not [*4]  respond. When she went into the hallway, she saw that the door to the vacant apartment was open and the lid of an Enfamil can was on the floor in front of the door. She entered the vacant apartment and saw the victim lying on the floor, shaking and bleeding from the head. She ran back to her apartment and telephoned 911.

Emergency medical technicians and police responded within minutes. On their way up the stairs, they noticed what they described as a burgundy Red Sox baseball cap on the second-floor landing. They entered the vacant apartment and found the victim lying face down, barely breathing, nonresponsive, and bleeding from the right side of his head. Next to the victim was a cloth bag containing a firearm. Police found the plastic lid of an Enfamil can but did not find the Enfamil container itself, nor did they find any marijuana or money. The victim's iPhone was not in the apartment. The victim was transported to the hospital, where he died a few hours later.

b. The investigation. During the course of the investigation, police examined the victim's call records and learned that the last call the victim answered before the shooting came from Holley's telephone number. Police then [*5]  obtained information from the defendants' cellular telephone records through a warrant served on their cellular service provider, MetroPCS.2 Two days before the shooting, Holley sent Pritchett a text message stating, “Yo who can we stick … mainly for sum loud3 … git da V an joint bro.” Holley then called Pritchett and spoke to him on his cellular telephone. The next day, Holley sent a text message to the victim asking, “Bro U kno wea I can get a nice deal on a ounces of loud??” The victim and Holley thereafter exchanged text messages in which they arranged that the victim would sell Holley two ounces of marijuana for $650; they planned to meet the following day to make the exchange.

On the morning of the shooting, Holley sent the victim a text message at 8:21 a.m. stating, “I'll be off at 9 … ill hit u up tho.” The victim responded, “Oo forreal … wasn't even hip . . But ya whenever ur ready bruh … Koo.” Approximately forty minutes later, Holley sent a text message to Pritchett saying, “I got a stick … not a big one tho … its for two. Ounces of loud … wanna get it.” The following exchange then took place:

Pritchett: “Wen”

Holley: “ASAP. Wanna meet me …  [*6]  I live on Esmond st … ”

Pritchett: “Who u stay there wit”

Holley: “I got a roommate bro”

Pritchett: “Oh so wat u want me to do

“So wea u at now”

Holley: “I can get my Hans on a joint but then shits is too big … nigga got a couple rifles. SawedOff … no hand joints … u got a Hand joint

“I just got off … I'm getting dropped off now … ”

Pritchett: “Off of work”

Holley: “Yea work”

Pritchett: “I got a couple”

After this exchange, Holley called Pritchett at 9:09 a.m. and spoke to him for a few minutes. Less than ten minutes later, Holley sent Pritchett a text message saying, “Dnt bro a revolver … cock back … so he Cam Hea it.”

At 9:37 a.m., Pritchett called Holley. Cell site data4 records show that, during that call, Pritchett's cellular telephone connected to a cellular telephone tower (cell tower) near his home on Blue Hill Avenue, while Holley's cellular telephone connected to a cell tower near his home on Esmond Street. Between 9:44 and 9:49 a.m., Pritchett's cellular telephone connected with a cell tower further from his house, on a route leading to Holley's house.

Between 9:54 and 9:58 a.m., Pritchett and Holley exchanged text messages to coordinate a meeting at Holley's [*7]  house. At 10:01 a.m., Pritchett called Holley. Pritchett's cellular telephone connected to a cell tower on Talbot Avenue, closer to Holley's house, while Holley's cellular telephone connected to a cell tower on his street. When Pritchett called Holley again two minutes later, both of their cellular telephones used the same cell tower on Holley's street.

At 10:22 a.m., Holley sent the victim a text message saying “I'm bout to head down their … ” and the victim responded, “Koo.” At 10:29 a.m., Holley replied, “15 min,” and the victim responded, “Ok.” Video surveillance footage from the entryway of the victim's building showed the victim walk down the interior stairs, prop open the interior entry door, and then walk back up the stairs at 10:30 a.m.5

At 10:54 a.m., Holley's cellular telephone connected to a cell tower at an intersection that was just a few blocks from the victim's apartment. At 10:56 a.m., Holley's telephone connected with a cell tower approximately several blocks away from closer to the victim's apartment. At the same time, the victim's call records show that he answered a call from Holley; at that point, the victim's telephone connected to a tower a few blocks from his [*8]  apartment. This was the last time a call was answered from the victim's cellular telephone.

Footage from the video surveillance cameras in the victim's apartment building showed two young, African-American males enter the building at 10:57 a.m. that morning. One was wearing a gray hooded sweatshirt with a dark coat over it and a maroon baseball cap; he was speaking on a cellular telephone as he climbed the stairs. The other was wearing a black, white, and red plaid jacket with the hood up and a dark vest over it. The surveillance video showed the same two individuals run down the stairs and out of the building at 11 a.m. As they ran out, the first individual, with the gray sweatshirt, was no longer wearing the baseball cap. The police reviewed the footage from all surveillance cameras in the front and back of the building from approximately 10:15 a.m. until 11:05 p.m. that day, but saw no other significant activity. Investigating officers also reviewed surveillance footage taken from a nearby post office, which had cameras that showed the entrance to the victim's building. On this footage, the same two individuals can be seen entering the victim's building.

At approximately the same [*9]  time as the events on the video surveillance footage, two people were involved in an automobile accident on the street where the victim lived. They were exchanging insurance information when they heard a loud bang; one ducked and said, “Someone's shooting.” Approximately one minute later, the man involved in the accident (the witness) saw two men come out of the victim's apartment building. They walked past in a rush, scanned up and down the street, and began running toward Allston Street, in the direction of the Massachusetts Bay Transportation Authority's (MBTA) Shawmut station. The men were wearing several layers of clothing and jackets.6 The witness had been on the street approximately twenty to thirty minutes before he saw the two men leave the victim's apartment building; in that time, he did not see anyone else enter that building.

Video surveillance from the MBTA shows the two individuals who had entered and left the victim's apartment building arriving at the Shawmut MBTA station at 11:04 a.m.7 They bought one ticket that they both used to walk through the turnstile. The men walked down the stairs to the inbound platform and sat on a bench. The one wearing the grey sweatshirt [*10]  pulled a light-colored cylindrical object out of his clothing and placed it under the bench,8 and then the two stood up and walked away. The two men then took a different set of stairs to the outbound platform.

At 11:17 a.m.,9 the ticket the two men had used to enter Shawmut station was used on the 815 MBTA bus from Ashmont station, one station away from Shawmut on the MBTA's Red Line. Video surveillance from the 815 bus shows the same two men get on the bus at Ashmont station and sit down next to each other; the bus headed back in the direction from which the men had come, toward the victim's home. Two minutes before the video footage showed the two men getting onto this bus, Pritchett's cellular telephone had connected with a cell tower a few blocks from Ashmont station.

Between 11:15 a.m. and 12:29 p.m., the defendants collectively received approximately one dozen calls that connected from cell towers located on MBTA Route 23, the route of the 815 bus, which ran along Washington Street from Ashmont station to a bus stop a few blocks away from Pritchett's house on Blue Hill Avenue. At 11:22 a.m., the surveillance video from the 815 bus shows that one of the two men10 pulled from his pants [*11]  pocket a black cellular telephone and then a white cellular telephone, which was flashing a light resembling a strobe light; he manipulated the device with the flashing light.11 According to the victim's cellular telephone records, his telephone received a call at approximately the same time, which connected to a cell tower near the 815 bus's location along Route 23; the call went unanswered. A few minutes later, Pritchett's and Holley's telephones each connected with a nearby cell tower.

At 11:32 a.m., the MBTA surveillance footage shows the individual again take out the telephone with the flashing light. At the same time, the victim's cellular telephone received another call; that call connected to a cell tower on the Sprint network that is approximately six blocks from the MetroPCS tower that Holley's telephone connected with at 11:32 a.m.12 On the video footage, the individual handed the flashing telephone to an unidentified man then sitting next to him,13 who manipulated the telephone so that it stopped flashing. The victim's cellular telephone records showed no further activity after 11:32 a.m., and the telephone did not connect to any cell towers after that time.

At 11:42 a.m., the [*12]  two individuals got off the bus at the stop closest to Pritchett's house. At 11:52 a.m., and again at 1:39 p.m., Holley's telephone connected with a cell tower one block from Pritchett's house. Pritchett's telephone connected to the same tower at 12:29 p.m.

At 2:35 p.m., Holley sent a text message to Pritchett saying, “I'm home.” A little over one hour later, Holley sent another message: “He died.” Pritchett asked, “How u kno,” and Holley responded, “Word of mouth.” Approximately one and one-half hours later, Holley sent a text message to Pritchett saying, “U good bro.” Beginning at 6:56 p.m., and continuing into the next day, Holley also sent the following texts to third parties: “I got loud on deck”; “Babe cum blow this loud”; “Loud on deck”; Kush on deck“; and ”I got Kush for sale.“

Between 1:50 a.m. and 2:25 a.m. on the morning after the shooting, Pritchett engaged in the following text message exchange with a third party:

Pritchett: “I fucked up”

Third Party: “So whos prego”

Pritchett: “No no no real shit pj”

Third Party: “So baby wats wrng”

“Jus do it”

“Please jus tell me”

“U didnt do kno hot shit rite”

Pritchett: “Yea”

Third Party: “Wat u mean o waT u doin out here”

“Tlk nigga”

Pritchett [*13] : “I fucked up”

“Dont b saying anything i fucked up”

Third Party: “Im not wtf say sumthn o”

“Is that all u keep sayn”

Pritchett: “Sumthin happend today I might go down for it”

Third Party: “I need to c u tonite if dats da case ur gonna leave me lonely out here n these streets”

Pritchett: “Im sorry im good tho i hope”

Third Party: “I wanna c u”

“Well I hope thngs work out for u luv u it cnt b dat serious cuz u would wanna c me as i would u u wont even tlk to me so Iono ttyl”

Pritchett: “I have go sumwhere i will c u tomorrow”

Third Party: “U cnt call me n tell me u love me”

“God forbid u do go dwn jus kno ima rememba dis so dnt expect shit frm me”

Pritchett: “On my life u need to chill”

Investigating officers also reviewed surveillance footage obtained from Holley's employer, United Parcel Service, for the week of October 16-19, 2012. The footage from the days Holley appeared at work showed that on October 16 and October 17 (the morning of the shooting), Holley wore a maroon Boston Red Sox baseball cap to work. On October 19, however, he wore a different hat.

c. Forensic evidence. Police searched the victim's apartment building and several items from the vacant apartment, including the baseball cap, [*14]  for fingerprints.14 None of the viable fingerprints were a match to Pritchett or Holley's fingerprints. Police also examined footprints found at the crime scene. None matched the shoes collected from Holley, Pritchett, or the victim.15 Some “reddish brown stains” from the entryway to the building, the baseball cap, Holley's jacket, and Pritchett's shoes were submitted to the police crime laboratory for deoxyribonucleic acid (DNA) testing. Test results indicated that Holley was one of two possible contributors to the DNA from the baseball cap and the jacket; the victim was a contributor to the stains in the front entryway. The stains on the shoes were insufficient for DNA testing.

d. Firearm evidence. The Commonwealth presented evidence that, a few days before the shooting, Pritchett was hired to help a doctor clean out the house of his late uncle. The doctor had brought a friend, and had hired a contractor and his assistant, Pritchett, to go through the uncle's house room by room, sorting items to keep and items to be discarded.

The uncle owned two guns that he kept in a red bag: a Taurus Model 85 .38 caliber revolver and a Jennings .32 caliber semiautomatic pistol. The bag also contained [*15]  bullets, a cleaning kit, and the receipts for the handguns. The doctor had placed the uncle's bag in a separate pile of items that he was planning to keep. After the cleaning was completed and Pritchett and the mover left, the doctor went to check on the pile of items he planned to keep. The red bag was still in the pile, with the bullets, receipts, and cleaning kit inside, but the two handguns were missing.

The doctor spoke to his friend about the missing guns; the friend suggested that he call the mover. The mover disclaimed any knowledge. The mover then called Pritchett, who told the mover that he had no knowledge of the missing guns. The next day, however, the doctor's friend sent a text message to Pritchett, saying, “Hey man dude noticed guns are gone and he's gona call [the mover] and ask him. I said I don't know anything so just say you don't either.” Pritchett responded, “We might of thought them in the trash.” The doctor's friend responded, “That's what I said but he said the bag they were in is still there. So just say you don't know anything like I did and well be cool.” Pritchett answered “Ok.” The doctor never located the guns.

A ballistics expert analyzed bullet fragments [*16]  from the victim's body and generated a list of many potential firearms that could have fired the bullet. When asked during cross-examination whether the Taurus model 85 could have fired the bullet, even though it had not been included in his initial report, the expert testified that he could not exclude such a firearm as the possible weapon. The expert also determined that the Jennings pistol could not have fired the bullet that killed the victim.

***

g. Instruction regarding statements of joint venturers. Pritchett argues that the judge erred in declining to instruct the jury that hearsay statements of joint venturers may be considered for their truth only if the jury first determine, on the basis of independent, nonhearsay evidence, that a joint venture existed. Pritchett maintains that, without such an instruction, the jury should not have considered any hearsay statements contained in the text messages admitted at trial.26

HN15[] “We recognize, as an exception to the hearsay rule, that a statement made by a coconspirator or joint venturer may be admitted for its truth against the other coconspirators or joint venturers.” Commonwealth v. Mattier, 474 Mass. 261, 276-277, 50 N.E.3d 157 (2016), citing Mass. G. Evid. § 801(d)(2)(E) (2016). To admit such evidence, a court must find, by a preponderance of the evidence, the existence of a joint venture independent of the statement being offered. Commonwealth v. Rakes, 478 Mass. 22, 37 (2017). See Mass. G. Evid., supra. Where the judge makes this preliminary determination, the statement of the joint venturer may be presented to the jury. Rakes, supra. Before considering the statement as bearing on the defendant's [*44]  guilt, however, the jury must make “their own independent determination, again based on a preponderance of the evidence other than the statement itself, that a joint venture existed and that the statement was made in furtherance thereof.” Id.

Insofar as the hearsay statements of the defendants were admitted against both of them, the judge should have made a preliminary finding regarding their admissibility and then, where warranted, instructed the jury that they could consider those statements only if they first found independent, nonhearsay evidence of a joint venture. Nevertheless, the judge's failure to do so does not constitute reversible error because it did not prejudice the defendants. See Commonwealth v. Szlachta, 463 Mass. 37, 45, 971 N.E.2d 1281 (2012) (where defendant objects to judge's refusal to give requested instruction, “we review the judge's action to determine whether there was error and, if so, whether the error prejudiced the defendant”).

The Commonwealth introduced overwhelming independent, nonhearsay evidence establishing the existence of a joint venture by, at the very least, a preponderance of the evidence. This evidence included surveillance videos showing Holley and Pritchett entering and leaving the victim's apartment building [*45]  together within a few minutes; entering the MBTA station using a single ticket and sitting next to each other on a bench, and then walking out of the station together; getting onto the bus and sitting next to each other; and interacting with each other during the ride. The cell site location data further corroborated their locations, and was consistent with the images seen in the various surveillance videos. See, e.g., Commonwealth v. Odware, 429 Mass. 231, 236-237, 707 N.E.2d 347 (1999) (judge's failure to give requested instruction “on the possibility that the witnesses made a good faith error in identifying [defendant]” was not prejudicial error due to “overwhelming evidence against the defendant”). Pritchett is not entitled to a new trial on this basis.

***

Judgments affirmed.

 


At that time, the defendants' cellular service provider, MetroPCS, maintained copies of all text messages in the ordinary course of its business, as part of a customer's telephone records. The victim's cellular service provider, Sprint Corporation, on the other hand, does not appear to have kept copies of its customers' text messages. The victim's text messages that were admitted at trial were obtained through Holley's MetroPCS records.

Evidence at trial established that “loud” is a slang term for high-quality marijuana.

Cellular telephone towers, also known as cell sites, contain antennae and electronic communications equipment that enable cellular telephones to place and receive calls. At the time of the defendants' trial, there were over 1,000 Sprint Corporation cell sites in Boston and “a lot” of MetroPCS sites. Cellular telephones usually connect to the tower nearest to them that has the strongest signal. A cell tower that is physically closer to the location of a particular cellular telephone would not be used for the connection if the signal from that tower is weaker, or if it is too busy. While the precise location of a particular cellular telephone cannot be determined from cellular telephone records, those records do show the tower to which a cellular telephone connected when it placed or received a specific call.

To enter the victim's apartment building, a visitor would have to pass through two sets of doors at the entrance. A resident could unlock the first entryway door remotely for a visitor using an intercommunication device (intercom), which would permit the visitor to enter the vestibule. The second entryway door, however, had to be manually opened from inside in order for a visitor to gain access to the apartments and the stairwell.

The witness described both men as young, tall, and African-American. He observed that one of them had braided “cornrows” in his hair and was wearing a red jacket, and the other was wearing an olive green jacket with a hood.

Both of their hoods were down, showing that both had their hair in “cornrows.”

The man in the video footage appeared to be Holley.

Due to technical difficulties, the bus's time stamp was seventeen hours and fifty minutes earlier than the actual time.

10 The man in the video footage appeared to be Pritchett.

11 When police seized Pritchett's cellular telephone, it did not have a flashing feature.

12 Because the victim's cellular telephone provider, Sprint, Corp., was different from that of the defendants, who used MetroPCS, the cell towers that the victim's telephone connected to were different from those used by the defendants' telephones.

13 When the unidentified man got onto the bus, he appeared to recognize the man who looked like Pritchett. A short time later, the man who looked like Pritchett left his seat next to the man resembling Holley and sat down next to this unidentified man at the back of the bus. The two men appeared to have been talking when the telephone started flashing.

14 Police seized a number of other objects as well, including a Pepsi can, a white plastic bottle, a Brisk lemonade bottle, and an Enfamil container.

15 Bloody footprints near the victim were later determined to have been made by first responders providing medical assistance.

26 Pritchett does not specify which text messages required such an instruction.

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