Commonwealth v. Fulgiam

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SJC-11674

COMMONWEALTH vs. EARL T. FULGIAM

(and thirteen companion cases1).

Suffolk. October 11, 2016. - May 5, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.2

Homicide. Felony-Murder Rule. Robbery. Firearms. Cellular

Telephone. Constitutional Law, Search and seizure,

Probable cause. Search and Seizure, Warrant, Probable

cause. Probable Cause. Evidence, Fingerprints, Expert

opinion, Prior misconduct, Relevancy and materiality.

Witness, Expert. Practice, Criminal, Capital case,

Warrant.

Indictments found and returned in the Superior Court

Department on December 21, 2011.

The cases were tried before Peter M. Lauriat, J.

Elizabeth Caddick for Earl T. Fulgiam.

Esther J. Horwich for Michael T. Corbin.

Zachary Hillman, Assistant District Attorney (John P.

Pappas, Assistant District Attorney, also present) for the

Commonwealth.

1

Six against Earl T. Fulgiam and seven against Michael T.

Corbin.

2

Justice Botsford participated in the deliberation on this

case prior to her retirement.

2

HINES, J. On July 25, 2011, armed intruders entered the

apartment occupied by the victims, Kevin Thomas, Jr., and Billie

Marie Kee, who were robbed and killed. In May, 2013, a Superior

Court jury found the defendants, Earl T. Fulgiam and Michael T.

Corbin, guilty as joint venturers of murder in the first degree

of both victims based on the theories of deliberate

premeditation, extreme atrocity or cruelty, and felony-murder

with armed robbery as the predicate felony. The defendants also

were convicted of unlawful possession of a firearm and unlawful

possession of a large capacity feeding device.3 On appeal, the

defendants assert error in the admission of (1) certain cellular

telephone records in violation of their rights under art. 14 of

the Massachusetts Declaration of Rights and the Fourth and Sixth

Amendments to the United States Constitution; (2) fingerprint

cards attributed to the defendants without proper authentication

or reliability; and (3) expert testimony related to the

fingerprint analysis. Corbin independently claims that repeated

3

The defendants' convictions of armed robbery of the

victims were dismissed as duplicative and their convictions of

unlawfully carrying a loaded firearm were filed with the

defendants' consent. The defendants were sentenced to

consecutive terms of life without the possibility of parole;

from four to five years on the firearm convictions, to be served

from and after the sentences for murder; and from nine to ten

years on the unlawful possession of a large capacity feeding

device convictions, to be served concurrent with the firearms

convictions.

3

references to gang affiliation created a substantial likelihood

of a miscarriage of justice. We affirm the convictions and

decline to grant relief pursuant to G. L. c. 278, § 33E.

Background. We summarize the evidence as the jury could

have found it, reserving additional facts for later discussion.

On July 25, 2011, a couple who lived on the second floor of an

apartment building on Hyde Park Avenue, in the Hyde Park section

of Boston, awoke to the sound of gunshots at around 11:55 P.M.

They heard between six and eight gunshots that the woman

believed came from an apartment below. The couple looked out of

their bedroom window, and saw six or seven men running out of

the entrance to their building. The woman telephoned 911 at

11:57 P.M.4

The men split up. Some of them ran straight across Hyde

Park Avenue. At that moment, a passenger in a vehicle

approaching the victim's apartment building saw three men run in

front of her vehicle; one of the men carried what looked like a

white pillow case. The men got into a grey or silver sedan so

quickly that a man's foot was hanging outside the vehicle as it

sped away. None of the witnesses was able to give more than a

general description of the men, except that one man was

4

This neighbor placed four cellular telephone calls to 911

that evening. Only the calls placed at 11:57 P.M. and 12:41

A.M. are relevant here.

4

heavyset;5 the witnesses could only guess at the race or

ethnicity of the men they observed.

At 12:41 A.M. on July 26, 2011, Boston police responded to

the scene and were directed to the victim's apartment. They

found a large watch on the floor near the front entrance to the

building. Kee, dressed in a bloody shirt and underwear, was

found lying face down on the floor just inside the apartment.

She had suffered four gunshot wounds and multiple stab wounds,

and she was pronounced dead at the scene. Kee's cause of death

was gunshot wounds to the torso and injuries to the lungs, ribs,

and spine.

Thomas, dressed in a T-shirt, shorts, and socks, was found

in the front bedroom, lying on his back over a pile of clothing;

his legs were bound at the ankles with black wire. He had

suffered seven gunshot wounds and four stab wounds to his body,

and he was pronounced dead at the scene. Thomas's cause of

death was gunshot wounds to the torso and neck.

The victims' apartment had been ransacked. Broken glass

and blood were on the floor, clothes were strewn about, and the

cabinets and drawers were open in the kitchen and bathroom.

There were no signs of forced entry; the front door was ajar,

with the lock intact, and the back doors were locked from the

5

Fulgiam's height and weight are listed on his State police

fingerprint card as five feet, ten inches tall and 300 pounds.

5

inside. Although the officers observed no "land line" telephone

in the apartment, they did not recover any cellular telephones.

A curling iron with its cord cut and two knives with brownish-

red stains were found near Kee's body. The curling iron cord

matched the wire that was used to bind Thomas's ankles.

In the front bedroom, in a tall bureau, officers found a

packet of photographs, two of which depicted Thomas with Fulgiam

and Corbin, at Thomas's apartment, sitting on the couch in front

of stacks of United States currency. Near Thomas's body

officers found a black backpack with what appeared to be a bag

of marijuana inside.

On July 27, 2011, a subsequent search of the basement

revealed two plastic bags of what appeared to be "crack"

cocaine, and two digital scales. Based on the all of the

evidence that the police officers had found during their

investigation, they surmised that the assailants were likely

known to the victims and that the murders were likely the result

of a drug robbery.

In the front yard, officers recovered a loaded nine

millimeter semiautomatic pistol with a magazine and a loaded .38

caliber silver revolver. A diamond encrusted ring was found on

Hyde Park Avenue.

John Golden, Thomas's best friend, testified that Thomas

sold large amounts of marijuana and cocaine. On the day of the

6

murders, Golden saw approximately $5,000 in the bureau. When

Golden was shown the photograph depicting Thomas, Corbin, and

Fulgiam with the bundles of cash, Golden estimated the amount to

be between $12,000 and $13,000. Police were able to determine

the date of the photograph as May 11, 2011. Golden also

identified the watch and the ring that had been recovered as

belonging to Thomas. Golden described Thomas as being

"paranoid," so much so that he insisted that even trusted

friends call before coming to his apartment.

On July 29, 2011, a latent print from the nine millimeter

semiautomatic pistol recovered from the scene was

"individualized," or matched, to Fulgiam. Thirteen spent nine

millimeter shell casings, eight spent nine millimeter bullets,

and four bullet fragments were recovered from the scene and from

the victims. Analysis of the firearms revealed that the nine

millimeter semiautomatic contained a magazine that held twenty

rounds of ammunition; eight were recovered in the magazine. All

of the bullets, bullet fragments, and shell casings had been

fired from the nine millimeter semiautomatic pistol.

A detective learned that the victims' cellular telephones

had not been recovered, so he requested and obtained traces on

both. Thomas's cellular telephone records showed that a certain

cellular telephone number was listed in Thomas's telephone

records for July 25, 2011. Police learned that this telephone

7

had been stolen that afternoon between 4:30 P.M. and 5:30 P.M.

The owner told police that he did not recognize Thomas's

cellular telephone number or the number later identified as

Fulgiam's cellular telephone number, both of which were listed

in his call detail records for July 25, 2011. The Commonwealth

issued administrative subpoenas for Fulgiam's cellular telephone

call detail records and for a cellular telephone number ending

in 2898, which was later connected to Corbin.6 The police

discovered that Corbin and Thomas had been in contact, via short

message service messages (text messages), or telephone calls,

several times on July 25, 2011. Fulgiam and Corbin also had

been in telephonic contact that day.

On August 8, 2011, two detectives interviewed Fulgiam at

his home. At this time the police had not sought an arrest

warrant for Fulgiam. Fulgiam told the detectives that he and

Thomas had known one another since the early to mid-2000s, and

that he knew Thomas very well. Fulgiam admitted that he and

Thomas were in the drug business together and that he would meet

6

Fulgiam's call detail and subscriber information was

originally obtained through an administrative subpoena,

discussed infra, issued on August 4, 2011. On August 16, 2011,

additional administrative subpoenas issued for both Fulgiam and

Corbin's subscriber and call detail information. Both Fulgiam

and Corbin's cellular telephone records information, including

call detail information records, subscriber information, cell

site location information (CSLI), and, for Corbin, the content

of text messages, were subsequently obtained through a court

order pursuant to 18 U.S.C. § 2703(d) (2006), also discussed

infra.

8

with Thomas one or two times per month, at one of their homes to

conduct business. He estimated that it had been about one month

since he had last met with Thomas, but could not remember

whether it had been at his home or at Thomas's home. He last

communicated with Thomas via text message on July 17. Fulgiam

had Thomas's cellular telephone number, and he stated that he

changed his own cellular telephone number two weeks prior7

because a woman had been stalking him. Fulgiam was not aware of

Thomas having disputes with anyone and noted that Thomas had a

lot more money than he did. Fulgiam opined that whoever killed

Thomas had to have been close to him.

The two detectives interviewed Corbin at his home on August

10, 2011. At that time, he was not under arrest. One of the

detectives had previously been in telephonic contact with

Corbin,8 who agreed to meet with the detectives. Corbin told the

detectives that he had known Thomas since Corbin was thirteen

years old. Corbin was equivocal about when his last

communication with Thomas occurred; he first said it had been a

7

The murders occurred exactly two weeks before the day of

Fulgiam's interview.

8

Corbin's cellular telephone account was not listed in his

name, nor did the address given match where Corbin was living at

the time of his interview with police. Corbin's cellular

telephone service provider, Metro PCS, is an advance pay company

which offers a plan providing thirty days of service for a

monthly fee of forty dollars. The company does not conduct a

credit check or verify customer's identification information.

9

month prior, but later said it could have been weeks or days

before Thomas was killed. He stated that the last time he was

in Thomas's apartment was on May 1, 2011, but that he had been

in the apartment many times. Corbin mentioned that Thomas was

not a showy guy, and that he had a watch and ring, but only wore

them on the weekends. He also noted that Thomas was a smart and

careful person and that one had to inform Thomas before coming

to his home.

On September 14, 2011, police learned that fingerprint

analysts had individualized to Corbin's right thumbprint a

latent print found on the curling iron that had been recovered

from the victim's home. On October 27, 2011, pursuant to a

search warrant, detectives seized Corbin's cellular telephone

ending with the number 2898 (2898 number) and discovered

photographs of Fulgiam, as well as both Fulgiam and Thomas's

numbers programmed into the contact list. That same day, the

police obtained arrest warrants for Corbin and Fulgiam.

Discussion. 1. Admission of cellular telephone records.

a. Fulgiam's claim. On August 15, 2011, after a review of

Thomas's cellular telephone records, the Commonwealth sought and

received a court order, pursuant to 18 U.S.C. § 2703(d) (2006)

(§ 2703[d] order), for the historical cell site location

10

information (CSLI)9 and other cellular telephone account

information for several cellular telephone numbers that were in

contact with Thomas's cellular telephone on July 25, 2011, the

day of the murder. Under the authority of the § 2703(d) order,

the Commonwealth obtained Fulgiam's CSLI for the period from

July 20, 2011, through July 30, 2011.

A review of the CSLI associated with Fulgiam's cellular

telephone number revealed that on the evening of July 25, 2011,

Fulgiam's cellular telephone activated a cell tower located at

an address which is located directly behind the victim's

apartment, six times between 11:30 P.M. and 11:55 P.M. The last

time Fulgiam's cellular telephone activated the cell tower at

that location was the same time that the neighbors awoke to

gunshots and two minutes before one of them telephoned 911 the

first time.

Fulgiam argues that the Commonwealth improperly obtained

the CSLI for his cellular telephone without probable cause and

that, in any event, the application for the § 2703(d) order was

9

"[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.'" Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2

(2015), quoting Commonwealth v. Augustine, 467 Mass. 230, 231

n.1 (2014) (Augustine I), S.C., 470 Mass. 837 and 472 Mass. 448

(2015). "'Historical' CSLI refers to CSLI relating to and

generated by cellular telephone use that has already occurred at

the time of the order authorizing the disclosure of such data."

Augustine I, supra.

11

insufficient to show that his CSLI would be "relevant and

material to an ongoing criminal investigation."10 18 U.S.C.

§ 2703(d). We disagree.

i. Standard of review. In Commonwealth v. Augustine, 467

Mass. 230, 232 (2014) (Augustine I), S.C., 470 Mass. 837 (2015),

we concluded that government-compelled production of CSLI by

cellular telephone service providers was a search in the

10

Fulgiam also argues that the Commonwealth relied on

information obtained by an invalid administrative subpoena

issued on August 4, 2011, pursuant to G. L. c. 271, § 17B, to

support its August 15, 2011, application for a § 2703(d) order.

We agree that this administrative subpoena was of questionable

validity where it was signed on behalf of the assistant district

attorney by an administrative assistant. Section 17B requires

strict compliance with the provision that such administrative

subpoenas are issued by attorneys general or district attorneys.

See Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 727 (1997)

(common-law exception to § 17B's requirement, which allows

assistant attorneys general and assistant district attorneys to

sign such subpoenas). However, the information that the

Commonwealth obtained pursuant to the August 4 subpoena did not

prejudice Fulgiam. See id. at 728. By August 8, 2011, the

police already had connected Fulgiam to his cellular telephone

account when Fulgiam met with detectives and provided his

cellular telephone number to them. Based on this knowledge, the

police were able to connect Fulgiam's cellular telephone number

to the stolen cellular telephone, as the police already had the

call detail records for that account. The only information that

the police were able to obtain through the August 4 subpoena

that was not already in their possession was the fact that

Fulgiam's cellular telephone had contact with Corbin's cellular

telephone on July 25, 2011. However, even without the

connection to Corbin, the Commonwealth's application for a

§ 2703(d) order contained sufficient facts showing that

Fulgiam's cellular telephone information would be relevant and

material to the ongoing criminal investigation. Consequently,

the information the Commonwealth obtained from Fulgiam's

cellular telephone account from the August 4 subpoena did not

create a substantial likelihood of a miscarriage of justice.

12

constitutional sense, requiring a warrant under art. 14 of the

Massachusetts Declaration of Rights. We determined, however,

that the warrant requirement was a "new" rule applicable only to

those cases where the defendant raised the warrant issue before

or during the trial and the defendant's conviction was not final

at the time that Augustine I was decided. See id. at 257.

Although Fulgiam's case was on direct appeal when Augustine I

was decided, he did not challenge the sufficiency of the

§ 2703(d) order as a basis for access to his CSLI either before

or during the trial. Therefore, we review to determine "whether

the unobjected-to admission of the CSLI evidence that was

obtained without a search warrant created a substantial

likelihood of a miscarriage of justice." Commonwealth v. Broom,

474 Mass. 486, 493 (2016).

ii. Analysis. Because Fulgiam does not have the benefit

of Augustine I, the Commonwealth only had to meet the standard

set forth in § 2703(d) in order to obtain Fulgiam's CSLI. See

Broom, 474 Mass. at 492. Section 2703(d) requires that an order

"shall issue only if the governmental entity offers specific and

articulable facts showing that there are reasonable grounds to

believe that the contents of a wire or electronic communication,

or the records or other information sought, are relevant and

material to an ongoing criminal investigation." The

Commonwealth met that burden.

13

The application recited the following facts that, taken

together, established reasonable grounds to believe that

Fulgiam's CSLI was "relevant and material" to the ongoing

investigation into the Thomas and Kee murders. First, based on

the review of Thomas's cellular telephone records, the police

were aware that Thomas's cellular telephone was involved in an

ongoing text message dialog with the stolen cellular telephone

between 11:05 P.M. and 11:32 P.M. on the night of the murders

and that the stolen cellular telephone was in contact with

Fulgiam's cellular telephone twice that day. Fulgiam's last

communication with the stolen cellular telephone was a text

message sent at 11:37 P.M., at or near the time of the murders.

At 11:57 P.M., shortly after this last contact between Fulgiam's

cellular telephone and the stolen cellular telephone, the police

received the first 911 call for a disturbance at the victims'

apartment. Second, Fulgiam had admitted to police that he knew

Thomas and that they were in the drug business together. Based

on the affiant's training and experience, that business

connection, the lack of forced entry into the apartment

(suggesting that the victims knew the assailants), and the

ransacked condition of the crime scene placed Fulgiam's cellular

telephone records squarely within the realm of information

"relevant and material" to the ongoing investigation into the

murder of the victims. Thus, Fulgiam cannot demonstrate that

14

the § 2703(d) order was invalid and that as a consequence, the

Commonwealth's access to his CSLI created a substantial

likelihood of a miscarriage of justice. See Broom, 474 Mass. at

493.

b. Corbin's claims. Using the § 2703(d) order issued on

August 15, the Commonwealth obtained Corbin's cellular telephone

subscriber and call detail information, CSLI, and text messages

for the period from July 20 through July 30, 2011. Corbin, like

Fulgiam, did not challenge the Commonwealth's access to these

records either before or during the trial. On appeal, however,

Corbin argues that the Commonwealth's access to and use of these

records at trial was unlawful on statutory and constitutional

grounds, and that his trial counsel was constitutionally

ineffective in failing to file a motion to suppress the records.

More specifically, Corbin claims that (1) the application for

the § 2703(d) order (§ 2703[d] application) failed to make the

required showing that the records were "relevant and material"

to an ongoing criminal investigation; and (2) the access to and

use of the content of his text messages at trial was improper

because the § 2703(d) application failed to establish probable

cause to believe "that a particularly described offense has

been, is being, or is about to be committed, and that [the

content of the text messages being sought] will produce evidence

of such offense or will aid in the apprehension of a person who

15

the applicant has probable cause to believe has committed, is

committing, or is about to commit such offense" as required by

18 U.S.C. § 2703(a) and art 14.11 Augustine I, 467 Mass. at 256,

quoting Commonwealth v. Connolly, 454 Mass. 808, 825 (2009).

These claims fail.

i. Standard of review. Where, as here, the defendant has

been convicted of murder in the first degree, we review his

claim of ineffective assistance of counsel to determine whether

the alleged lapse created a "substantial likelihood of a

miscarriage of justice," a standard more favorable to the

defendant than the constitutional standard otherwise applied

under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), S.C., 469

Mass. 447 (2014). We focus more broadly on whether there was

error and, if so, whether any such error "was likely to have

influenced the jury's conclusion." Id. If the defendant's

claim of ineffective assistance of counsel is based on the

failure to file a motion to suppress, he must "show that the

motion to suppress would have been successful, and that failing

to bring such a motion . . . created a substantial likelihood of

a miscarriage of justice." Commonwealth v. Banville, 457 Mass.

530, 534 (2010).

11

Corbin does not challenge the use of his cellular

telephone CSLI at trial.

16

If the failure to file a motion to suppress resulted from

counsel's tactical decision not to do so, the defendant must

demonstrate that this strategic choice was "manifestly

unreasonable" when made (quotations and citation omitted).

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). Here,

however, the record is unclear as to whether counsel's decision

was tactical, as the defendant did not file a motion for new

trial on this ground, clarifying the record on trial counsel's

reason for his choice.

ii. Likelihood of success on the motion to suppress.

Because the analysis of the likelihood of success on a motion to

suppress the subscriber and call detail information is governed

by a legal standard that is different from that applicable to

text messages, we consider each category of information

separately.

A. Subscriber and call detail information. To secure a

§ 2703(d) order allowing access to subscriber and call detail

information, the application must establish "specific and

articulable facts showing that there are reasonable grounds to

believe that the [information sought is] relevant and material

to an ongoing criminal investigation." 18 U.S.C. § 2703(d).

Corbin argues that the Commonwealth's application was

insufficient to meet this test. We disagree.

17

The § 2703(d) application, reciting a series of calls and

text messages between Thomas and Corbin on the day of the

murders,12 was more than sufficient to establish that Corbin's

subscriber and call detail information was "relevant and

material" to the investigation into the murders of Thomas and

Kee. Id. The application included information that (1) Thomas

and Corbin personally knew one another; (2) there appeared to be

no forced entry at the crime scene, suggesting the victims knew

the assailants; (3) the crime scene had been ransacked and,

based on the affiant's training and experience, the murders

appeared to be a result of a drug robbery; (4) drug dealers tend

to communicate via cellular telephone to coordinate drug

purchases; and (5) on the day of the murders, Corbin's cellular

telephone number had multiple telephonic communications,

including text messages, with both Fulgiam and Thomas. Given

these facts, a motion to suppress on this ground was

demonstrably lacking in merit. Thus, Corbin has failed to meet

his burden to establish that the failure to file a motion to

suppress the use of the subscriber and call detail information

created a substantial likelihood of a miscarriage of justice.

12

After securing Thomas's cellular telephone records, the

police focused their investigation on the calls to and from

Thomas's cellular telephone. The Commonwealth had associated

Corbin with his cellular telephone account prior to its

§ 2703(d) application and used such information in the

application.

18

B. Text messages. Corbin argues that counsel was

ineffective in failing to file a motion to suppress the content

of the text messages where the Commonwealth obtained access

without a warrant under 18 U.S.C. § 2073(a) and art. 14. We

agree that, on both statutory and constitutional grounds, a

warrant was required to obtain access to the content of Corbin's

text messages and that a motion to suppress challenging the

Commonwealth's access on these grounds likely would have been

successful.

I. Warrant requirement for access under § 2703(a). Access

to the "contents of wire or electronic communications in

electronic storage" is governed by 18 U.S.C. § 2703(a), which

provides that "[a] governmental entity may require the

disclosure by a provider of electronic communication service[13]

of the contents of a wire or electronic communication, that is

in electronic storage in an electronic communications system for

one hundred and eighty days or less only pursuant to a warrant

. . . (in the case of a State court, using State warrant

procedures) by a court of competent jurisdiction" (emphases

supplied). Because it is undisputed that Corbin's "electronic

communications" (text messages) met the temporal requirement of

13

The Stored Communications Act, 18 U.S.C. §§ 2701-2712

(2006), defines an electronic communication service as "any

service which provides users thereof the ability to send or

receive wire or electronic communications." 18 U.S.C.

§ 2510(15) (2006). See 18 U.S.C. § 2711.

19

§ 2703(a), the dispositive issue is whether this content was

held in "electronic storage" by "a provider of electronic

communication service." Id.

The Commonwealth argues that the warrant requirement of

§ 2703(a) does not apply to Corbin because text messages are

held by a provider of a "remote computing service"14 rather than

an "electronic communication service" and that, as a

consequence, access may be obtained without a warrant under

§ 2703(b). We reject the Commonwealth's argument because we

agree with the defendant that the text messages at issue here

were held by a provider of an "electronic communication service"

for less than 180 days, which triggered the warrant

requirement.15

14

A "remote computing service" is defined as "the provision

to the public of computer storage or processing services by

means of an electronic communications system." 18 U.S.C.

§ 2711(2) (2006). In practice, this phrase is understood to

refer to the use of "remote computers [to] store extra files or

process large amounts of data" by commercial customers. See

Kerr, A User's Guide to the Stored Communications Act, and a

Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208,

1213-1214 (2004).

15

General Laws c. 271, § 17B, is the analog to 18 U.S.C.

§ 2703(a), which treats the government's access to the content

of electronic communications in a different manner from

noncontent information. Both laws demand a higher standard of

proof, beyond "relevant and material to an ongoing criminal

investigation," 18 U.S.C. § 2703(d), to access the content of

electronic communications. Compare 18 U.S.C. § 2703(a)

(allowing access to content of electronic communications stored

in electronic communications service for 180 days or less only

pursuant to warrant), with G. L. c. 271, § 17B (specifically

20

Although the Supreme Court has not defined "electronic

communication service" as used in § 2703(a), we adopt the

approach in Quon v. Arch Wireless Operating Co., 529 F.3d 892

(9th Cir. 2008), overruled on other grounds sub nom. City of

Ontario, Cal. v. Quon, 560 U.S. 756 (2010), where the court's

analysis focused on the actual services offered to the consumer

to determine whether the entity is a provider of "electronic

communication service" or "remote computing service." See id.

at 900, 901. Relying on the plain language of the statute, the

Quon court concluded that the definition of "electronic

communications service" as "any service which provides users . .

. the ability to send or receive wire or electronic

communications[,]" 18 U.S.C. § 2510(15) (2006), applied "[o]n

its face" to the text messaging service at issue in that case.

Id. at 901. That same logic applies here to the text message

service provided by Corbin's cellular telephone carrier.

This interpretation is consistent with the heightened

protection for the content of electronic communications. In

Riley v. California, 134 S. Ct. 2473 (2014), the United States

Supreme Court held that police officers must secure a search

warrant prior to searching a cellular telephone, as modern

cellular telephones contain "vast quantities of [digital]

excluding access to content of electronic communications from

statute).

21

personal information." Id. at 2485. See United States v.

Warshak, 631 F.3d 266, 286 (6th Cir. 2010) (electronic mail

messages "require[] strong protection under the Fourth

Amendment; otherwise, the Fourth Amendment would prove an

ineffective guardian of private communication, an essential

purpose it has long been recognized to serve"). A search of the

content of text messages implicates similar privacy interests.

Just as the government may not intercept private telephone calls

or written communications without a warrant, we conclude that

the Commonwealth may not obtain the content of text messages

without a warrant. See United States v. Jacobsen, 466 U.S. 109,

114 (1984) (warrantless searches of letters and other sealed

packages is presumptively unreasonable); Katz v. United States,

389 U.S. 347, 361 (1967) (Harlan, J., concurring).

II. Warrant requirement under art. 14. Because the United

States Supreme Court has yet to decide whether access to the

content of text messages requires compliance with the warrant

requirement of § 2703(a), we consider the issue under art. 14,

as articulated in Augustine I. We conclude that a warrant was

required to obtain access to the content of Corbin's text

messages. Access to the content of a text message constitutes a

search requiring a showing of probable cause which in this

context means "probable cause to believe 'that the particularly

described offense has been, is being, or is about to be

22

committed, and that [the text message content being sought] will

produce evidence of such offense or will aid in the apprehension

of a person who the applicant has probable cause to believe has

committed, is committing, or is about to commit such offense.'"

Augustine I, 467 Mass. at 256, quoting Connolly, 454 Mass. at

825.

A warrant with probable cause was required because Corbin

had a reasonable expectation of privacy in the content of his

text messages. "The measure of the defendant's [reasonable]

expectation of privacy is (1) whether the defendant has

manifested a subjective expectation of privacy in the object of

the search, and (2) whether society is willing to recognize that

expectation as reasonable." Commonwealth v. Montanez, 410 Mass.

290, 301 (1991). See Katz, 389 U.S. at 361 (Harlan, J.,

concurring). As the Commonwealth notes, the defendant did not

file a motion for a new trial or a motion to suppress, and for

that reason, the judge did not hold an evidentiary hearing to

determine whether Corbin had a subjective expectation of privacy

in the contents of the text messages from the 2898 number. The

record, however, establishes that Corbin had a subjective

expectation of privacy in the content of his text messages. See

Montanez, supra at 301.

As mentioned above, Corbin provided the police with his

cellular telephone number prior to his arrest. At trial he

23

offered the CSLI associated with the cellular telephone account

as evidence that he was not in Hyde Park on July 25, 2011,

implicitly claiming ownership of the cellular telephone account;

and the cellular telephone associated with the 2898 number was

seized from Corbin pursuant to a search warrant prior to his

arrest. Moreover, the Commonwealth consistently attributed the

cellular telephone account to Corbin. See Commonwealth v.

Augustine, 472 Mass. 448, 452 n.6 (2015) (Augustine II)

(cellular telephone owned by another treated as belonging to

defendant where he paid bills and used it exclusively). To be

sure, the fact that a defendant's name is not listed as the

subscriber of the account could diminish his subjective

expectation of privacy. However, on the facts of this case,

Corbin's implicit acknowledgment of ownership satisfied his

burden. See Commonwealth v. Genest, 371 Mass. 834, 836 (1977)

(defendant has burden to show reasonable expectation of

privacy).

Similarly, Corbin had an objectively reasonable expectation

of privacy in his text messages. In Augustine I, 467 Mass. at

255, we recognized an objectively reasonable expectation of

privacy in a defendant's CSLI records. We further stated "that

the nature of cellular telephone technology and CSLI and the

character of cellular telephone use in our current society

render the third-party doctrine of [United States v.] Miller[,

24

425 U.S. 435 (1976),] and Smith [v. Maryland, 442 U.S. 735

(1979),] inapposite." Augustine I, supra at 245. The same

result applies here with respect to the content of text messages

stored on a cellular telephone service provider's servers.

Because we conclude that probable cause was required to

obtain the content of Corbin's text messages, we next consider

whether the application established the requisite probable cause

for access to Corbin's text messages. See id at 256.

The application established a personal relationship between

Thomas and Corbin, that Corbin was in telephonic contact with

both Thomas and Fulgiam on the day of the murders, and that the

circumstances of the murders suggested a connection to drugs.

Although the fact that Thomas and Corbin may have used their

cellular telephones to communicate with each other on the day of

the murders elevated their relationship to a matter of

importance in the investigation, it did not, without more,

justify intrusion into the content of that communication.16 In

16

On July 25, 2011, between 2:15 P.M. and 7:27 P.M., Corbin

and Thomas exchanged the following text messages:

Thomas: "What hapnd bro i need that"

"I need 2 c u like yesterday i have 2 get a whip manana n i

def need that bread i would appreciate if u didnt hold me

up"

"This is what i didnt want 2 happen we discussed this b4

bro straightn me first remember dnt make it bad bro"

25

contrast to Fulgiam, nothing in the application indicated a drug

connection between Corbin and Thomas, such that Corbin might

have a motive for murder. Other than the cellular telephone

communication between Thomas and Corbin, the application failed

to recite any facts that might have implicated Corbin in the

crimes or suggested that the content of his text messages would

aid in the apprehension of a suspect in the murders. See

Augustine I, 467 Mass. at 256. Given these shortcomings in the

application, we conclude that the Commonwealth failed to

establish the requisite probable cause and, therefore,

improperly obtained the content of Corbin's text messages.

The Commonwealth argues that, in any event, Corbin lacked

standing to challenge the access to the content of the text

messages because the cellular telephone account was held under a

Corbin: "Bro u know i do what i can 2 get u first but i

called u. I cant hold these niggers up."

Thomas: "n my bread u feel me wit out me it neva would

have been there 2 flip anything"

"U cant hold anyone up when its not there bread thats free

money i should have mine off the top than play with urs not

mine bro we talkd about this ur flip"

Corbin: "I see u going through some thing cause we never

kicked it like this. im going 2 put as much 2gether 4 u

not in 2 long"

Thomas: "Good look lol naw cause someone did somethng

simular just cause i say im somewhre u cant assumd my

schedule or do ur own thng thats all im tryna say talk"

"2 you when u come bro"

26

fictitious name or held by someone other than Corbin. "A

defendant has standing either if [he] has a possessory interest

in the place searched or in the property seized or if [he] was

present when the search occurred." Commonwealth v. Williams,

453 Mass. 203, 208 (2009). The Commonwealth argues that the

defendant has not made the requisite showing that he had a

possessory interest in the cellular telephone account for the

2898 number because Corbin did not move for a new trial and file

an affidavit averring such a possessory interest in the account,

or present any affirmative evidence showing such an interest.

However, the Commonwealth consistently has asserted that the

listed account holder for the 2898 number was Corbin. In its

§ 2703(d) application, the Commonwealth associated the 2898

number with Corbin. Throughout the trial the Commonwealth

asserted that Corbin sent the text messages it offered in

evidence, and it offered Corbin's CSLI to show that there was no

activity on his cellular telephone during the murders.

Moreover, a detective testified that another detective was in

telephonic contact with Corbin using the 2898 number. Finally,

the cellular telephone associated with the 2898 number was

seized from Corbin and searched pursuant to search warrant.17

17

The Commonwealth obtained Corbin's cellular telephone

pursuant to a search warrant on October 27, 2011; however, it

previously had obtained the content of his text messages

pursuant to its August 15 § 2703(d) application.

27

Given these facts, Corbin has standing to challenge the

warrantless search of the content of the text messages sent from

the 2898 number.18 See Williams, supra at 208.

Last, we reject the Commonwealth's argument that customers

of cellular service providers such as Metro PCS, which are

advance-pay services, assume the risk that the content of

information stored on its servers will be disclosed to third

parties. To support its argument, the Commonwealth notes that

companies such as Metro PCS do not conduct credit checks or

verify the identity of its customers, and that as a consequence,

customers who engage the services of such companies have a less

objectively reasonable expectation of privacy. In determining a

subscriber's reasonable expectation of privacy, we decline to

distinguish between those who choose not to submit to a credit

check, or do not have credit, or are not the named account

18

Corbin established standing here, in part, through his

implicit acknowledgment of ownership of the cellular telephone

account associated with the 2898 number, prior to and during

trial. We note that a defendant, connected to a cellular

telephone account with a cellular telephone service provider

under an assumed name, will not automatically have standing to

challenge the search of the information relating to the cellular

telephone account. Such a defendant, as here, must establish

both standing and a reasonable expectation of privacy in order

to challenge such a search. See Commonwealth v. Williams, 453

Mass. 203, 207-208 (2009). Additionally, we acknowledge that

the posture of this case made the determination of standing and

reasonable expectation of privacy more difficult. The better

practice is to assert this claim through a motion for a new

trial and present affirmative evidence to support a defendant's

entitlement to challenge such a search.

28

holder on a cellular telephone account and those customers who

identify themselves or have established credit.

iii. Substantial likelihood of a miscarriage of justice.

We now ask whether the admission of the text messages, which

could have been suppressed, created a substantial likelihood of

a miscarriage of justice and "likely . . . influenced the jury's

conclusion." Williams, 453 Mass. at 205, quoting Wright, 411

Mass. at 682. We conclude that it did not.

Corbin's defense was that he was innocent and that Thomas,

as a high level drug dealer, was in a dangerous business.

Corbin claimed that many people knew Thomas was a drug dealer

and, for that reason, he was a target for drug robbery.

Corbin's argument that the content of his text messages was the

only evidence from which the jury could find a motive and

opportunity for Corbin to commit the murders is belied by the

record. Much of the information about Thomas's status as a high

level drug dealer came in through other evidence.19

In addition, based on evidence wholly independent of the

text messages, Corbin's involvement in the murders was not a

19

Thomas's best friend testified that Thomas was selling "a

few thousand dollars" worth of marijuana per week and

approximately $4,000 or $5,000 worth of cocaine per week.

Additionally, that friend testified that it was common in the

drug business for a higher level dealer to supply drugs to

"street-level" dealers for sale, and the jury heard evidence

that Fulgiam admitted to being in the drug business with Thomas

and that Thomas had a lot more money than Fulgiam.

29

close question. The discovery of Corbin's fingerprint on the

barrel of the curling iron found near Kee's body was highly

inculpatory, as was the evidence of Corbin's telephonic contact

with Fulgiam, Thomas, and the stolen cellular telephone on the

day of the murders. The inference that Corbin was in possession

of the cellular telephone stolen a few hours before the murders,

and that he used this telephone to contact Thomas on multiple

occasions, including within two hours of the murders, also was

highly inculpatory. The jury also heard evidence that Thomas,

Corbin, and Fulgiam were involved in the drug business together

and that the murders were likely connected to a drug robbery.

Moreover, although we recognize that trial counsel was faced

with the task of downplaying the impact of the text messages

once they were admitted in evidence, he affirmatively used this

content in his closing argument to establish that (1) Thomas had

a significant amount of drugs and money in his apartment most of

the time; (2) Thomas was a "tempting" target for robbery; and

(3) the nature of Thomas's business was such that persons other

than Corbin could have a motive to kill Thomas. Against the

backdrop of this highly incriminating evidence, we cannot say

that the jury's exposure to Corbin's text messages likely

influenced the jury's verdict. Therefore, Corbin cannot meet

his burden to establish that trial counsel's failure to file a

30

motion to suppress the content of his text messages created a

substantial likelihood of a miscarriage of justice.

2. Fingerprint analysis. The Commonwealth presented the

following evidence to prove its contention that the fingerprint

analysis placed both defendants at the scene of the crime during

the murders. Although police criminalists were able to obtain

several latent fingerprints20 from items at the scene,

ultimately, only five latent prints were individualized21 to

defendants. Four latent prints were recovered from the magazine

of the nine millimeter semiautomatic pistol, and one thumbprint

was recovered from the barrel of the curling iron found near

Kee's body.

During her testimony, a fingerprint analyst explained that

latent print analysts compare the latent prints recovered from

crime scenes to known prints, i.e., fingerprint impressions

taken in a controlled setting, either in ink or on a scanner.

Insofar as relevant here, police produced a card, known as a

"ten-print" card, which includes the ten fingerprint

20

A latent print is "a fingerprint that generally can't be

seen right away, and [one] would need further processing in

order for it to be seen."

21

Individualization is "when a latent print examiner comes

to a conclusion that there is a sufficient amount of detail of

quality and quantity of those details between the latent print

and the known fingerprint to arrive at that conclusion, to

establish that the latent print originated from the known print

or that donor."

31

impressions, the name of the person who is being fingerprinted,

typically a signature of that person, and other identifying

information, such as date of birth and address. Police latent

print analysts access the known prints through certain

databases. The latent print analysts use a method known as

analysis, comparison, evaluation, and verification, or ACE-V, to

compare the latent prints recovered to known prints.

With respect to Corbin's fingerprint, the analyst explained

that she began by using the ACE-V methodology to determine that

the latent print had sufficient quality and quantity of detail

for comparison purposes. Next, she obtained possible matches

through a fingerprint database, including the ten-print card of

Corbin that was maintained by the State police and created on

July 7, 2005.22 Finally, after performing the ACE-V methodology

again, the analyst "individualized the right thumb" of Corbin to

the latent print recovered from the curling iron.

With respect to Fulgiam's fingerprints, four of seven

latent fingerprints that were recovered from the magazine of the

nine millimeter semiautomatic pistol were individualized to him.

The analyst explained, over objection, that she generated the

Fulgiam's known ten-print card, maintained by the State police

and created on July 18, 2011, for comparison with the recovered

22

Corbin's ten-print card was admitted in evidence over

objection.

32

latent prints.23 Next, applying the ACE-V methodology, she

individualized the four latent prints to Fulgiam.

a. Ten-print cards. The defendants argue that the judge

erred in admitting the ten-print cards under the business

records exception to the hearsay rule. See G. L. c. 233, § 78;

Mass. G. Evid. § 803(6)(A) & note (2017). More specifically,

the defendants argue that because the statements underlying the

ten-print card were made by persons having no business duty to

report the information accurately, the statements fall outside

the scope of the business records exception to the hearsay rule.

We disagree.

The business records exception to the hearsay rule

provides, in relevant part: "a writing or record, . . . made as

a memorandum or record of any act, transaction, occurrence or

event, shall not be inadmissible in any civil or criminal

proceeding as evidence of the facts therein stated because it is

transcribed or because it is hearsay or self-serving." G. L.

c. 233, § 78. A record falls within the scope of the business

records exception to the hearsay rule, set forth in § 78, "if

the judge finds that it was (1) made in good faith; (2) made in

the regular course of business; (3) made before the action

23

As discussed infra, both Corbin and Fulgiam vigorously

contested the assertion that the ten-print cards associated with

them actually contained their fingerprints because the ten-print

cards lacked certain identifying information, including both

Corbin and Fulgiam's signatures.

33

began; and (4) the regular course of business to make the record

at or about the time of the transaction or occurrences

recorded." Beal Bank, SSB v. Eurich, 444 Mass. 813, 815 (2005),

citing DiMarzi v. American Mut. Ins. Co., 389 Mass. 85, 105

(1983). If such findings are made, the record "is presumed to

be reliable and therefore admissible." Wingate v. Emery Air

Freight Corp., 385 Mass. 402, 406 (1982).

This presumption, however, does not automatically extend to

the out-of-court statements made by a secondary source that the

record preparer relies on when creating the record. The

essential element underlying the presumption of reliability is

the theory that "entries in these records are routinely made by

those charged with the responsibility of making accurate entries

and are relied on in the course of doing business." Id. Where

the person providing information to the preparer is unconnected

to the business, and thus is under no business duty to provide

accurate information, this essential element is lost. Although

§ 78 provides that preparer's personal knowledge (or lack

thereof) goes to the record's weight, not its admissibility,

this provision does not negate the requirement that, where the

information contained within the record is offered for its

truth, the source from which the preparer obtained the

information "must carry the same indicia of reliability, arising

34

from regularity and business motives, that bring his own act of

recording the information within the statutory exception." Id.

To demonstrate that the preparer's hearsay source bears the

same indicia of reliability as the preparer, the proponent need

not produce each speaker. Beal Bank, SSB, 444 Mass. at 816.

Rather, the proponent need only present evidence demonstrating

that the hearsay source "reported the information as a matter of

business duty or business routine." Wingate, 385 Mass. at 406.

Such was the case in Beal Bank, SSB, where the proponent bank

introduced, as its own business record, a printout of a report

produced and provided to it by the bank's loan servicing agent

(agent). Beal Bank SSB, supra at 816. In determining that the

judge did not abuse his discretion in admitting the document as

a business record, we noted that because the agent serviced the

bank's loans pursuant to a contract, the bank manager's

testimony regarding the records was sufficient to support the

admission of the documents. Id. at 817. Key to this

determination was the existence of a business relationship

between the bank and it agent. We noted, "this is not a case

where the bank is simply receiving information from another

business. Rather, [the agent] is the bank's servicing agent; it

has a business duty [to accurately report] the information to

the bank; and the bank routinely accesses and relies on that

information." Id.

35

In this case, the Commonwealth introduced two ten-print

cards created by the State police, each of which bore ten

fingerprints and identifying information associated with the

defendants.24 As a threshold matter, we determine that the ten-

print cards meet the statutory requirements under the business

records exception.25 The admissibility of the identifying

information provided by the persons being fingerprinted and

reflected on the ten-print card, however, is not so easily

established. Unlike in Beal Bank, SSB, here, the persons being

fingerprinted had neither a contractual obligation nor a

business duty to provide accurate and reliable identifying

information. Thus, the protections that "arise[] from

regularity and business motives," Wingate, 385 Mass. at 406,

are inapplicable here.

24

Specifically, one of the ten-print cards reflected

Corbin's name, aliases, date of birth, sex, race, place of

birth, height, weight, eye and hair color, and Social Security

number. The other reflected Fulgiam's name, date of birth, sex,

race, place of birth, height, weight, and eye and hair color.

Neither ten-print card reflected the signature of the person

fingerprinted, although the ten-print card provides space for

such information.

25

The Commonwealth's witness, a State police trooper,

testified that the ten-print records were maintained in the

State police's identification unit, located in Sudbury, and

confirmed that such records were typically produced, entered,

and maintained for administrative purposes in good faith, in the

ordinary course of business of the State police. The trooper

also confirmed that the ten-print cards were created prior to

the commencement of the case.

36

Here, the officer who creates the ten-print card has a duty

to ensure that the person who is being fingerprinted is

accurately identified. Otherwise, such cards would have little

value to law enforcement. Moreover, G. L. c. 268, § 34A,

states: "[w]hoever knowingly and willfully furnishes a false

name or Social Security number to a law enforcement officer or

law enforcement official following an arrest shall be punished

by a fine or not more than $1,000 or by imprisonment in a house

of correction for not more than one year or by both such fine

and imprisonment." Therefore, based on the officers' duty to

ensure the ten-print cards are created with accurate

information, and the arrestees' legal obligation to provide

accurate information, we conclude that the identifying

information on the cards is reliable and brings the identifying

evidence reflected on the ten-print card within the scope of the

business records exception to the hearsay rule. See Wingate,

385 Mass. at 406.

The defendants argue that the ten-print cards do not fall

within the scope of the business records exception to the

hearsay rule because the Commonwealth failed to present evidence

that the person taking the fingerprints verified the identities

of the persons fingerprinted. See United States v. Vigneau, 187

F.3d 70, 77 (1st Cir. 1999), cert. denied, 528 U.S. 1172 (2000)

(admission of sender's name, address, and telephone number

37

reflected on Western Union "To Send Money" form for truth was

error where Western Union did not have practice of verifying

such information). Although we agree that verification may be a

best practice, we conclude that the presence or absence of

independent verification bears on the weight of the record

rather than its admissibility under the business records

exception. In addition, the defendants point out that important

information, including signatures of the person taking the

fingerprints, and signatures of the persons being fingerprinted

are missing. These issues also go to the weight, which may be

subject to intense scrutiny on cross-examination, rather than

the admissibility of the evidence.

We are also not persuaded by Corbin's argument that the

ten-print cards were inadmissible because the Commonwealth

presented testimony from a witness who did not actually take or

maintain the ten-print cards. Section 78 makes clear, as has

this court, that the admissibility of a document under the

business records exception does not turn on the personal

knowledge of the record's preparer. See Wingate, 385 Mass. at

406, quoting G. L. c. 233, § 78 ("'personal knowledge by the

entrant or maker' is a matter affecting the weight [rather than

the admissibility] of the record"). Accordingly, we conclude

38

that the ten-print were properly admitted under the business

records exception to the hearsay rule.26

Last, the defendants argue that the admission of the ten-

print cards violated the right of confrontation as guaranteed by

the Sixth Amendment to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights. We disagree.

The Supreme Court of the United States has made clear that the

confrontation clause "guarantees a defendant the opportunity to

confront any person, in the 'crucible of cross examination,'

whose 'testimonial' statements are introduced against him."

Commonwealth v. Siny Van Tran, 460 Mass. 535, 552 (2011),

quoting Crawford v. Washington, 541 U.S. 36, 51-52, 61 (2004).

Similarly, art. 12 "commands that 'every subject shall have a

right . . . to meet the witnesses against him face to face.'"

Commonwealth v. Amirault, 424 Mass. 618, 628 (1997), quoting

art. 12. "It is the testimonial character of any item of

evidence that triggers the confrontation right, notwithstanding

its admissibility under statute, State rule, or a common-law

hearsay exception." Siny Van Tran, 460 Mass. at 552, citing

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 323 (2009).

However, "[m]ost of the hearsay exceptions covered statements

26

Because of our conclusion, we need not address Corbin's

argument that trial counsel's failure to object to the validity

of the ten-print card constituted ineffective assistance of

counsel.

39

that by their nature were not testimonial -- for example,

business records or statements in furtherance of a conspiracy."

Melendez-Diaz, 557 U.S. at 324, citing Crawford, 541 U.S. at 56.

The Court clarified, "[b]usiness and public records are

generally admissible absent confrontation not because they

qualify under an exception to the hearsay rules, but because --

having been created for the administration of an entity's

affairs and not for the purpose of establishing or proving some

fact at trial -- they are not testimonial." Melendez-Diaz,

supra.

Fingerprint records are nontestimonial because they are

created for the "administration of an entity's affairs" rather

than to establish or prove some fact at trial. Commonwealth v.

Weeks, 77 Mass. App. Ct. 1, 5 (2010). See Melendez-Diaz, 557

U.S. at 324. Here, the trooper testified that ten-print cards

are created in the ordinary course of business in good faith,

and Corbin and Fulgiam's ten-print cards were created prior to

the commencement of the trial. The ten-print cards were

business records under G. L. c. 233, § 78. Because the ten-

print cards are business records, we conclude that the admission

of the ten-print cards did not violate the defendants' right to

confront witnesses against them protected by the Sixth Amendment

and art. 12.

40

b. Testimony of fingerprint analyst. The defendants

challenge the admission of the Commonwealth's fingerprint expert

witness testimony on several grounds. The defendants first

argue that the Commonwealth's expert witness improperly

testified to the result of her fingerprint analysis in absolute

terms, stating that she had individualized the defendants'

fingerprints to prints found at the scene of the crime.

According to the defendants, the introduction of expert

fingerprint testimony stating the results of fingerprint

analysis in absolute terms is inconsistent with recent science

questioning the accuracy and reliability of fingerprint analysis

and the ACE-V methodology. Because the defendants did not

object to this aspect of the testimony at trial, our inquiry is

whether any error created a substantial likelihood of a

miscarriage of justice. Wright, 411 Mass. at 682.

We have on several occasions addressed the issue of the

ACE-V methodology and expert testimony based on it. See, e.g.,

Commonwealth v. Gambora, 457 Mass. 715, 724-728 (2010), and

Commonwealth v. Patterson, 445 Mass. 626, 641-655 (2005). In

Gambora, supra at 724, we discussed in great depth a 2009 report

published by the National Research Council for the National

Academy of Sciences (NAS Report), which raised several issues

regarding the reliability of certain aspects of the ACE-V

41

methodology and the expert testimony that relies upon it.27 The

central issue raised in the NAS Report was "the need to prevent

overstatement of the accuracy of fingerprint comparisons, and

for additional research." Commonwealth v. Joyner, 467 Mass.

176, 181 (2014), quoting Gambora, supra at 726. Although we

stated that "courts historically have found fingerprint evidence

to be admissible," Joyner, supra at 180, quoting Patterson, 445

Mass. at 644, we also noted that "[t]estimony to the effect that

a latent print matches, or is 'individualized' to, a known

27

In Gambora we stated:

"The [NAS] report does not appear to question the

underlying theory which grounds fingerprint identification

evidence; as the report states, there is scientific

evidence supporting the theory that fingerprints are unique

to each person and do not change over a person's

life. . . . However, the NAS report adds, '[u]niqueness and

persistence are necessary conditions for friction ridge

identification [i.e., fingerprint identification] to be

feasible, but those conditions do not . . . guarantee that

prints from two different people are always sufficiently

different that they cannot be confused, or that two

impressions made by the same finger will also be

sufficiently similar to be discerned as coming from the

same source'" (citations omitted).

Commonwealth v. Gambora, 457 Mass. 715, 724-725 (2010), citing

National Research Council, Strengthening Forensic Science in the

United States, A Path Forward 143-144 & n.34 (2009) (NAS

Report). Moreover, we stated that although the NAS Report does

not draw the conclusion that fingerprint evidence lacks such

reliability that courts should no longer deem it admissible, the

report does "stress the subjective nature of the judgments that

must be made by the fingerprint examiner at every step of the

ACE-V process, including an examiner's ultimate conclusion that

a latent print is 'individualized' to a specific, identified,

known print." Gambora, supra at 725, citing NAS Report at 139,

141.

42

print, if it is to be offered, should be presented as an

opinion, not a fact, and opinions expressing absolute certainty

about, or the infallibility of, an 'individualization' of a

print should be avoided." Gambora, supra at 729 n.22.

The defendants contend that the fingerprint expert witness

failed to heed this court's cautionary advice and presented her

findings based on her application of the ACE-V methodology to

latent prints found on the scene as fact rather than opinion.

We agree, but we are persuaded that the testimony did not create

a substantial likelihood of a miscarriage of justice. Wright,

411 Mass. at 682.

Fingerprint analysts testifying as expert witnesses must

clearly frame their findings in the form of an opinion to avoid

improper testimony. See Mass. G. Evid. § 702 & note (2017).

See also Joyner, 467 Mass. at 183 n.9 ("Gambora permits a

fingerprint expert to opine on whether two fingerprints match,"

thus it is "helpful" to ask expert to testify as to his or her

opinion). Here, the analyst testified that individualization

signifies that the print examiner has "come[] to the conclusion

that there is a sufficient amount of quality and quantity of

those details between the latent print and the known fingerprint

. . . to establish that the latent [print] originated from the

known print or that donor." She testified on several occasions

43

that she individualized fingerprints of the defendants to latent

prints found at the scene of the crime.

However, portions of the analyst's testimony implicitly

suggested the fallibility of fingerprint analysis. Contrast

Commonwealth v. Wadlington, 467 Mass. 192, 205 (2014)

(fingerprint analyst improperly testified as to her belief of

"no error rate in [her] area of science"). For example, she

agreed that latent prints are obtained from an "uncontrolled

setting," and that various factors, including pressure, can

affect the way the fingerprint is recorded. Moreover, as in

Gambora, we note that the vigorous cross-examination of the

analyst countered any possible misconception that

individualization is infallible. Specifically, defense counsel

for Fulgiam questioned her on her inability to determine when

the latent prints were deposited, and counsel highlighted the

fact that fingerprints are "somewhat delicate." Defense counsel

for Corbin also questioned her on issues regarding the surface

from which the latent print on the curling iron was taken and

regarding the fact that the latent print recovered is not

"exactly similar" to the known prints.

Finally, the Commonwealth's evidence linking the defendants

to the crime, separate and apart from the fingerprint evidence,

was strong. Thus, even though we conclude that the analyst's

testimony regarding individualization was erroneously presented

44

as fact, we determine that the error did not create a

substantial likelihood of a miscarriage of justice.

The defendants also argue that the judge erred in allowing

the analyst to testify that another fingerprint analyst had

reviewed her work.28 According to the defendants, this testimony

amounted to "improper vouching" and hearsay expert testimony.

We are not persuaded that this testimony was error. Expert

testimony as to the opinions or conclusions of a second,

nontestifying expert constitutes inadmissible hearsay. See

Commonwealth v. Whitaker, 460 Mass. 409, 421-422 (2011). Here,

the judge allowed the analyst's testimony that the other analyst

"reviewed" her work, but did not allow testimony that the second

analyst verified her work.29 The analyst testified as to the

ACE-V process, wherein verification or review by another

fingerprint analyst is a step in the process, and did not

testify as to the second analyst's independent conclusions. The

28

During the analyst's testimony, counsel for Fulgiam

preemptively objected to any questioning by the Commonwealth

regarding whether the analyst's findings were verified by

another fingerprint examiner. While the judge sustained the

objection, the judge indicated that the witness would be allowed

to testify that another fingerprint analyst reviewed her work.

29

Despite the judge's ruling prohibiting the Commonwealth

from questioning the analyst regarding whether another analyst

verified her work, following the colloquy, the Commonwealth

questioned whether her work was "verified." After the analyst

testified in the affirmative, Fulgiam objected. The judge

sustained the objection as to the use of the word "verified,"

but reiterated that he would allow the testimony regarding what

the second analyst did when he examined the analyst's findings.

45

analyst's testimony stands in stark contrast to the expert

testimony at issue in Whitaker, where the fingerprint analyst

expert witness testified that two secondary analysts "concurred"

with his conclusions regarding individualization. Id. at 421.

Accordingly, we conclude that the judge did not err in admitting

the fingerprint analyst's testimony confirming that another

fingerprint analyst reviewed her findings.

Nonetheless, judges must use caution in allowing testimony

regarding the verification step in ACE-V analysis, as

"verifying" suggests that a nontestifying expert concurs with

the testifying expert's conclusion. Such testimony would be

improper hearsay testimony. See Commonwealth v. Chappell, 473

Mass. 191, 202 (2015).

3. Gang references. Corbin argues that the Commonwealth

improperly and repeatedly referenced gang affiliation during the

trial, despite the fact that the judge granted Fulgiam's motion

in limine to exclude such references. This argument has no

merit. Corbin merely speculates that the jury would conclude

that the defendants were affiliated with gangs based on the

neighborhoods in which the men grew up.30 Additionally, the

prosecutor's closing argument was proper; there was testimony

30

During their interviews with detectives, Fulgiam and

Corbin told the detectives that Fulgiam was originally from the

Academy Homes Development in the Roxbury section of Boston,

Corbin was from Humboldt Avenue in Roxbury, and Thomas was from

Heath Street in the Jamaica Plain section of Boston.

46

that six or seven men were seen fleeing the victim's apartment

building immediately after the witnesses heard gun shots. It is

within permissible bounds for the prosecutor to infer that a

"team" of men committed the murders. There was no error. See

Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).

4. Review pursuant to G. L. c. 278, § 33E. After a full

review of the trial record, we affirm the convictions and

decline to grant extraordinary relief pursuant to G. L. c. 278,

§ 33E.

So ordered.

LOWY, J. (concurring). I agree that the ten-print card

qualifies for the business record exception to the rule against

hearsay. However, I write separately because the card in this

case involves two levels of hearsay: the ten-print card itself

and the information provided by the individual to fill out the

card. I believe the court does not precisely address each

level.

The business records exception to the rule against hearsay

allows information recorded for a business purpose and contained

in a business record in evidence for its truth. See Mass. G.

Evid. § 803(6)(A) (2017). This rule includes out-of-court

statements: if the statement is recorded for a business purpose

and the individual making the statement does so for a business

purpose, the statement is admissible for its truth. See id. If

an out-of-court statement contained in a business record is not

made pursuant to a business purpose, it still may be admissible

if the out-of-court statement is recorded for a business purpose

and the statement falls within another hearsay exception or

exclusion. As the majority points out, an arrestee's legal

obligation does not equate with a business purpose.

However, I believe that the information provided to fill

out the ten-print card fell within the hearsay exclusion for an

opposing party's statement. Mass. G. Evid. § 801(d)(2)(a)

(2017). For the reasons stated by the court, including the

2

defendant's legal obligation to provide identifying information,

the totality of the circumstances established a more than

adequate basis for the judge to conclude -- as a preliminary

question of fact on which admissibility depends and as a matter

of conditional relevance -- that Corbin was the individual who

provided the information. See Mass. G. Evid. § 104(a), (b)

(2017). The ten-print card was properly admitted because the

information in the ten-print card was admissible under an

exclusion from the rule against hearsay, and the ten-print card

was admissible as a business record. Mass. G. Evid.

§ 801(d)(2)(A); § 803(6)(A).