2017 YEAR IN REVIEW

1. 2017 YEAR IN REVIEW Cases from the Supreme Judicial Court & the Appeals Court

2. Disclaimer • This list is the product of five appellate attorneys reviewing all of the 2017 published opinions from the Appeals Court and Supreme Judicial Court. • We hope it provides a decent review of the most important happenings in Massachusetts’s appellate courts. • We are not covering topics we expected to be discussed by other panels/presenters today. • Reasonable minds can differ about what’s “important” and oversights happen. Please excuse any omissions.

3. JURY ISSUES

4. FLASHBACK: Sanchez v. Roden, 753 F. 3d 279 (1st Cir. 2014). • MAC unreasonably applied clearly established federal law by “reject[ing] Sanchez's racial discrimination claim in a single sentence that merely acknowledged the presence of other black people on the jury.” • Ignored right of juror in question not to be discriminated against. • MAC “sent the unmistakable message that a prosecutor can get away with discriminating against some African Americans . . . so long as a prosecutor does not discriminate against all such individuals.”

5. Commonwealth v. Jones, 477 Mass. 307 • In 1st degree murder case, ADA used 5/13 peremptories against black jurors. • Trial judge: no prima facie showing of discrimination b/c “of the 7 jurors there is an African-American woman.” • This was abuse of discretion: • Raw # of black jurors struck by ADA inconclusive, but • % of black jurors struck “suggests” D made prima facie showing. • Record reveals no race-neutral reason for challenged strike.

6. Commonwealth v. Jones, continued • Citing Sanchez, emphasizes that presence of one empanelled African-American juror cannot be dispositive. • Unlike Sanchez, Jones goes straight to a new trial • SJC has “long disfavored” federal approach of remand for evidentiary hearing on reason for strike, because the “conditions of empanelment . . . cannot be easily recreated.”

7. Commonwealthv. Oberle, 476 Mass 539 (2017) • Burden of prima facie showing of discrimination not “a terribly weighty one,” so judge did not abuse discretion in requiring explanation for defense attempt to use 4th of first 4 peremptories on women. • In examining proffered explanation, judge considers whether it is “adequate and genuine.” • Explanation here may have been adequate, but judge did not abuse discretion in finding that it was not genuine.

8. Commonwealth v. Butler, 92 Mass. App. Ct. 1119 (1:28) • 2016-- MAC (Cypher, J.) found judge w/in discretion in finding no prima facie case of discrimination against men. • Rubin dissent highlights majority’s error in considering actions of CW after the objection and final composition of jury, both of which are irrelevant to question of prima facie case at time of challenge. • On remand in light of Oberle and Jones, MAC reversed: at time of objection CW had peremptorily challenged 20% of women and 71% of men, and all 5 seated jurors were women. Judge had to ask for explanation for 5th strike. • CW’s FAR application is pending. • Butler, Sanchez, and Jones are all Suffolk County cases.

9. Commonwealth v. Nelson, 91 Mass. App. Ct. 645 (Kafker, J.) • Prospective juror was “a little” more likely to believe a cop – “at least 51% they might be telling the truth.” • No abuse of discretion in denying for-cause challenge, once juror said he’d keep open mind and listen to evidence. • “Better practice” would have been to clarify that juror understood his 51% proposition was improper.

10. Commonwealth v. Nelson, continued • Dicta- even if juror should have been removed, D would lose; though he used all peremptories, he: • Didn’t ask for additional peremptories • Said he was content w/ jury • Didn’t use peremptory on challenged juror but instead on 2 jurors he had not challenged for cause. • Court is thus “unable to conclude” that he “was forced to accept a juror whom he otherwise would have peremptorily challenged.”

11. Eyewitness identification

12. Commonwealth v. Thomas, 476 Mass. 451 • Cross-interlocutory appeals, in 2nd-degree murder case. • Cops did a simultaneous photo array, which include D’s picture; did not follow Silva-Santiago protocol • Cops also showed her single photograph of gun, which, with their encouragement, she ID’ed as the gun.

13. Commonwealth v. Thomas, continued • If cops conducting ID procedure after Silva-Santiago don’t follow its protocol, what should be consequence? • Court asks if failure to follow protocol led to procedure “so unnecessarily suggestive” as to require reversal. • Judge considers totality of the circumstances, including W’s familiarity w/ perpetrator; risk of mis-ID from failure to follow protocol is reduced if W knows perpetrator. Here, b/c she did, suppression isn’t warranted. • Unanswered: is suppression required when cops don’t follow Silva-Santiago and perpetrator is unknown to W?

14. Commonwealth v. Thomas, continued • Science is unclear as to whether sequential or simultaneous photo arrays are better, so Court leaves choice of which to use to law enforcement. • ID of gun as one used in shooting inadmissible on evidentiary grounds, b/c it was unreliable and W’s confidence was inflated by cop’s confirmatory statements. • But ID of defendants and inanimate objects are different, and Silva-Santiago protocol does not apply to inanimate objects. Law enforcement should create protocols for ID of inanimate objects.

15. Commonwealth v. Dew, 478 Mass. 304 • Cops did showup w/defendant and another guy 30 minutes after knifepoint robbery of pizza delivery guy, who immediately identified D. • “Good reason” to do show up: w/in half hour of crime, public safety concerns, need for efficient investigation. • Fact that there was PC to arrest D beforeshowup -- and thus time for less suggestive procedure – doesn’t make showup impermissible. Whether police acted permissibly “does not depend on the availability or reasonableness of pursuing an alternative ID procedure.” • Why not relevant to whether procedure is unnecessarily suggestive?

16. Commonwealth v. Dew, continued • Rejects argument that b/c showups are inherently suggestive, they cannot produce the unequivocal out-of-court ID that is a prerequisite to an in-court ID under Collins, 470 Mass. 255 (2014). Unequivocal just means “clear and free from doubt.” • But judge can exclude in-court ID if probative value is substantially outweighed by unfair prejudice. • Not so here, b/c other evidence corroborated D’s guilt.

17. Commonwealth v. Dew, (Gants, C.J., concurring; joined by J. Budd) • Abuse of discretion to allow the in-court ID. • Charge is masked armed robbery! Likelihood of reliable ID 18 months later “in a courtroom where the defendant was the only black male is so small that it borders on the microscopic.” • As for majority’s conclusion that ID had probative value b/c it corroborated other evidence, “a Ouija board has probative value if it points to the guilt of a defendant because it corroborates the other compelling evidence of his guilt.”

18. Commonwealth v. Collins, 92 Mass. App. Ct. 395 • Eyewitness paused over 2 photos in array before saying, of defendant’s, “he looks like the person.” • MAC holds ID was unequivocal, so witness could ID defendant in-court. • Distinguishes case from SJC Collins, 450 Mass. 255, by emphasizing fact that witness in that case thought that two photographs “looked like the person.” • Court leans heavily on abuse of discretion standard to reach this result.

19. PRIOR BAD ACTS Commonwealth v. Veiovis, 477 Mass. 472 (2017)

20. Majority opinion (Gants, C.J.) • Photos hanging in collage on D’s wall of human dissections and amputation, and of machete, cleaver, etc were admissible: • probative of D’s identity as 3rd man in killing, b/c co-D said one participants enjoyed cutting victims up, and this “idiosyncratic” evidence matches that description • probative of his state of mind, as person fascinated by dissection – relevant b/c actual dismemberment served no pragmatic purpose • provides motive for otherwise inexplicable dismemberment.

21. Dissent (Lowy, J., joined by Lenk, J.) • “To say that other conduct is permissibly probative of ‘identity,’ rather than impermissibly probative of character, merely b/c a defendant’s character makes him more likely to be guilty, is an exercise in circular logic that renders the prohibition on the character inference inert.” • Likewise, admitting “photos as ‘state of mind’ evidence where [they] reflect only a general character trait of the defendant eviscerates any distinction between evidence of a character trait and that of state of mind.”

22. SUFFICIENCY AND PROBABLE CAUSE: WINNING IN THE SJC AFTER LOSING IN THE APPEALS COURT

23. Commonwealth v. Maguire, 476 Mass. 156 • MAC held evidence was sufficient for open and gross lewd and lascivious behavior (over dissent by Milkey, J.). • SJC reverses, emphasizing that open and gross lewdness has both subjective element – was someone shocked or alarmed? – and objective element – was that reaction reasonable? Evidence insufficient that cop witness was in fact shocked or alarmed by conduct. • FN 1 suggests that objective element not based on generic reasonable person; court might consider whether “there was evidence to demonstrate that it was reasonable for an experienced police officer to be ‘shocked and alarmed’ by the conduct.”

24. Commonwealth v. Tejeda, 476 Mass. 817 • After swallowing bag of apparent heroin in front of cop, D charged w/ misleading police officer. • Trial judge allowed motion to dismiss. MAC reversed. • SJC affirms trial judge: To mislead, nonverbal conduct must 1) be intended to create a false impression in mind of another 2) be reasonably likely to lead investigation in materially different direction. • Neither true here. Impeding conduct ≠ misleading conduct. • “The officers knew exactly where to find the plastic bag if they were so inclined.”

25. Commonwealth v. Dragotta, 476 Mass. 680 • D convicted after bench trial of recklessly permitting A&B – bodily injury on her baby, by leaving her in care of boyfriend (who accidentally hurt her) while she showered. • Published MAC decision (Kafker, J.) affirmed. • SJC reverses in notably humane opinion that details D’s attentive parenting and questions “what more a reasonable person in Dragotta’s position should have done.”

26. Commonwealth v. Squires, 476 Mass. 703 • MAC panel found sufficient evidence of possession of burglarious tools, noting that ordinary tools can be burglarious when intended for such a purpose. • SJC reverses: “It is insufficient to merely show possession of ordinary tools in proximity to a statutory place to establish burglarious intent.” • Dissent (Gaziano, J., w/ Lowy & Botsford) - “commonsense view of the evidence.”

27. Commonwealth v. Squires, continued • As to co-D Steven Angier, court departs from usual rule that if D dies after FAR is granted, FAR allowance is vacated. • Where there is a co-D raising identical issue, and it was Angier who presented substantive appellate argument on sufficiency issue, “fairness dictates” that “even posthumously, [he] should have the same outcome as Squires.”

28. ELECTRONIC SEARCHES

29. Commonwealth v. Fulgiam, 477 Mass. 20 • First degree murder conviction affirmed. • Warrant required for access to text message content under 2703(a) and art. 14. • PC that text message will produce evidence of offense or aid in apprehension. • But trial counsel’s failure to file MTS not a substantial likelihood of miscarriage of justice where D’s “involvement in murders was not a close question.” • *Ds using cells under “assumed name” “will not automatically have standing” but here evidence clear D controlled phone.

30. Commonwealth v. Holley, 478 Mass. 508 • First degree murder conviction affirmed. • Warrants to provider for texts supported by PC connecting cell communications to the crime. • Reasonable to infer nexus between crime & texts “because [defendant] called the victim . . . only a few minutes before the shooting” so PC to search for real-time texts related to crime. • The warrants likely over-broad, see Dorelas (cell phone searches must satisfy a more narrow and demanding particularity standard) but OK b/c the prosecution only used text messages from the time surrounding crime.

31. Commonwealth v. Johnson, 91 Mass. App. Ct. 296 • pretrial release GPS device data not a search. • MAJORITY (Meade, J.): No reasonable expectation of privacy in two months of GPS data (searched during conditional release). D consented & did not manifest a subjective expectation of privacy in his location.   • DISSENT (Wolohojian, J.): Consent to wear GPS not necessarily consent to subsequent search, for matters unrelated to conditions of release.

32. Commonwealth v. Johnson, 91 Mass. App. Ct. 296 (cont.) • DAR granted in case with same defendant, where historical GPS data (searched after D was no longer on conditional release) linked D to break-ins.

33. Commonwealth v. Keown, 478 Mass. 232 First-degree murder in poison case, conviction affirmed. • Warrant for search of laptop met PC • (1)Nexus: Nexus between crime & laptop met by • (a)D’s sophistication w/ computers & affidavit that D forged docs related to educ., • (b) concealment of educ. was motive of murder, • (c) D would have conducted computer research for poisoning technique.

34. Commonwealth v. Keown, 478 Mass. 232 (cont.) • (b)Particularity: Search terms related to means or motive. Ex ante protocols would be preferable, but not required. • (c) Reasonableness: 69 search terms related to categories of evidence in affidavit; 325 out of 400,000 files.

35. Commonwealth v. Molina, 476 Mass. 388 • Affirming child porn conviction. • Overbreadth: Search not overbroad simply b/c it occurred in shared space. Warrant described sufficient nexus between child porn and items to be searched. • Court hints it might require protocol to limit intrusiveness of electronic searches, where it is unclear whether they belong to suspect; invited AG to develop guidance. • Administrative subpoena to Verizon, for subscriber information under G. L. c. 271, § 17B requires only a showing that the records are relevant & material to ongoing investigation, not PC. No content disclosed under subpoena.

36. Commonwealth v. Martinez, 476 Mass. 410 • Warrant issued for search of apartment, based on IP address file-sharing child porn. • PC met where affidavit avers that particular IP address had been used to share child porn. Doesn’t matter that the warrant could not identify particular subscriber. • A “showing of PC to search a place (as opposed to arrest a person) need not identify a specific criminal suspect – although it frequently does.”

37. Commonwealth v. Mauricio, 477 Mass. 588 • Warrantless search of contents of digital camera unlawful. • Search incident to arrest: Applying the reasoning of Riley v. California (cell phone content) to digital cameras seized pursuant to arrest, under art. 14, search of photos did not meet either of the justifications for exception: (1), prevention of harm to officers or (2) destruction of evidence. • Inventory search. Not where the police searched for photos to discover if the camera had been stolen.

38. Commonwealth v. Perkins, 478 Mass. 97 • MTS search of apartment and seizure of cell phones denied. • Nexus: Warrant described “detailed and specific knowledge concerning D’s use of a cell phone to arrange drug transactions.” Seizure of nine cell phones found in the apartment supported by PC. • Contrast Commonwealth v. White (no information establishing existence of particularized info to be found on cell phone), Commonwealth v. Broom (conclusory opinion that subject likely to store info on cell phone insufficient).

39. Foregone Conclusion

40. In re Grand Jury, 92 Mass. App. Ct. 531 • Foregone conclusion exception to 5AM self-incrimination applied to order to enter Iphone passcode in Grand Jury investigation. • CW bears the burden to show knowledge of the • (1) existence of evidence demanded, • (2) possession and control by D, and • (3) authenticity of evidence

41. In re Grand Jury, 92 Mass. App. Ct. 531 (cont.) • Here, CW knew that: • Iphone contained files that were relevant to its investigation, • PIN was necessary to access Iphone, • D possessed and controlled the Iphone, and • D knew the passcode. • The CW is not required to demonstrate knowledge of the specific content of the Iphone, just its existence and location.

42. Emergency & Exigency

43. Commonwealth v. Arias, 92 Mass. App. Ct. 439 • Reversing MTS under emergency aid doctrine. • PC notrequired because the purpose of entry is not to investigate criminal activity. • CW’s burden of establishing: • (1) objectively reasonable grounds to believe emergency, & • (2) police conduct following entry must be reasonable.

44. Commonwealth v. Arias, 92 Mass. App. Ct. 439 (cont.) • Objectively reasonable grounds to believe home invasion in progress, or safety risk to potential victims: • (1) 911 caller’s report that 3 men had racked a semiautomatic weapon (heard, not seen), • (2) observation of D matching description, • (3)D retreat into building upon seeing police, locking door behind him, • (4) Recent police investigation into break ins in the area.

45. Commonwealth v. Sanborn, 477 Mass. 393 • Service of abuse prevention order requires compliance with 4AM & art. 14. • Police can’t stop of a vehicle in the absence of : • (1) warrant, • (2) reasonable suspicion of criminal activity or civil traffic violation, or • (3) reasonable belief emerg. intervention required. • Here, police followed and stopped the D for the sole purpose of serving the order (and then arrested him for OUI).

46. Commonwealth v. Sanborn, 477 Mass. 393 (cont.) • Three-judge concurrence (Gants, C. J.) suggests that vehicle stop to search abuse prevention order may be reasonable “where service by the usual means proves futile or is plainly going to be futile.”

47. Commonwealth v. Saywhan, 91 Mass. App. Ct. 706 • Limiting scope of protective search of home when executing arrest warrant. • No justification to search second floor bedroom, where D was handcuffed and secured without incident or resistance just inside the front door, and no indication anyone else present in the home. • Arrest had been completed, and police could have left via the front door, with no need to secure upstairs. • The fact that D was wanted for a shooting has some weight, but not enough to overcome other factors.

48. Commonwealth v. Tuschall, 476 Mass. 581 • Emergency aid exception did not justify warrantless entry into apartment where neighbor reported “a smell like drugs” coming from the apartment, police smelled “a strong chemical odor.” • (1) No danger akin to a fire, explosion, or other threatened accident. D was seen leaving apt in good health. • (2) No basis to conclude girlfriend was in apartment and in danger, because she failed to answer her cell phone, when police only called her twice, and made no inquiries with family or employer. • D’s statement at the station suppressed as fruit of poisonous tree.

49. GENERAL SEARCH & SEIZURE

50. Commonwealth v. Leslie, 477 Mass. 48 • Important case on “curtilage” – extends Fourth Amendment protections to the areas around the home. • Police need a warrant (or some exception) to search in a home’s curtilage. • Clarifies that multi-family homes have curtilage too, even though defendant doesn’t have “exclusive control” over those areas. • Notes that the “curtilage” test is different than the “reasonable expectation of privacy” test under Katz. • Any unlicensed physical intrusion into curtilage is a search, regardless of one’s expectation of privacy in that area.