Commonwealth v. Bin

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SJC-12167

COMMONWEALTH vs. PETER BIN.

Middlesex. May 11, 2018. - October 9, 2018.

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

Homicide. Joint Enterprise. Felony-Murder Rule. Robbery.

Armed Home Invasion. Cellular Telephone. Evidence, Joint

venturer, Business record. Practice, Criminal, Question by

jury, Instructions to jury, Verdict.

Indictments found and returned in the Superior Court

Department on December 6, 2012.

The cases were tried before Kathe M. Tuttman, J.

Theodore F. Riordan (Deborah Bates Riordan also present)

for the defendant.

Jamie M. Charles, Assistant District Attorney (David M.

Solet also present) for the Commonwealth.

GAZIANO, J. A Superior Court jury convicted the defendant

of murder in the first degree, as a joint venturer, in the

shooting death of Quintin Koehler on July 7, 2012, at his

grandmother's house in Billerica. The Commonwealth proceeded on

a theory of felony-murder, with armed home invasion and

2

attempted armed robbery as the predicate felonies. At trial,

the Commonwealth argued that the defendant was one of four

intruders who entered the victim's home intending to rob him of

drugs and money, a struggle ensued, one of the other men fatally

shot the victim, and all four intruders fled from the scene

together with two others, who had remained in their vehicles.1

In this direct appeal, the defendant challenges the

sufficiency of the evidence that he was present at the scene,

knew that any of the alleged accomplices were armed, or shared

any intent to commit either the armed home invasion or the

robbery. The defendant argues also that cell site location

information (CSLI) evidence was introduced through an

unqualified witness and should have been excluded. In addition,

the defendant maintains that the judge erred when, in response

to a jury question, she did not instruct the jury, as defense

counsel requested, that they were allowed to reach factually

inconsistent verdicts. Finally, the defendant asks this court

to abolish the felony-murder rule, and also asks us to use our

1 The defendant was tried with a single codefendant, Gabriel

Arias, the only one of the six alleged participants at the scene

who had not then been indicted on a charge of murder in the

first degree. Arias was convicted of the sole offense of which

he was indicted, intentionally misleading a police officer, in

violation of G. L. c. 268, § 13B. In 2017, while he was serving

a prison term of from five to seven years on that offense, Arias

was indicted on charges of murder in the first degree, armed

home invasion, and conspiracy for his alleged role in this case;

his trial on those indictments is pending.

3

extraordinary power under G. L. c. 278, § 33E, to reduce the

verdict of murder or to order a new trial. For the reasons that

follow, we affirm the convictions and decline to exercise our

authority to grant relief under G. L. c. 278, § 33E.2

1. Facts. We recite the facts that the jury could have

found, viewed in the light most favorable to the Commonwealth,

see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979),

reserving some facts for later discussion of particular issues.

The victim, Quintin Koehler, lived in Billerica in his

grandmother's house. He worked in landscaping, and also sold

marijuana and other drugs from the house. He had a roommate who

was his partner in both enterprises.

2 In addition to murder in the first degree, the defendant

was indicted on a charge of armed home invasion against Ryan

Koehler and a charge of attempted armed robbery of Quintin

Koehler. In her final charge, the judge instructed the jury

that the charge of attempted armed robbery applied to Quintin

Koehler, and instructed on armed home invasion without

specifying a victim. The defendant was convicted of both

felonies. He was acquitted of charges of carrying a firearm

without a license and possession of ammunition without a firearm

identification card. At sentencing, the convictions of armed

home invasion and attempted armed robbery were vacated as

duplicative. See Commonwealth v. Carter, 475 Mass. 512, 513-514

(2016), citing Commonwealth v. Alcequiecz, 465 Mass. 557, 558

(2013). Shortly thereafter, on the Commonwealth's motion, both

felony convictions were reinstated. While reinstatement of the

conviction of armed home invasion, as to Ryan Koehler, was

appropriate, the conviction of attempted armed robbery of

Quintin Koehler properly should have been vacated as

duplicative. See Commonwealth v. Rivera, 464 Mass. 56, 81-82,

cert. denied, 570 U.S. 907 (2013), citing Commonwealth v.

Rasmusen, 444 Mass. 657, 666-667 (2005) (where felony-murder

conviction is based on more than one felony, only one of

underlying felonies is duplicative).

4

In March, 2012, the victim and his roommate began

purchasing marijuana from Ashley Marshall, at a music studio in

Lynn.3 They purchased marijuana in one- to four-pound increments

and subsequently resold it in smaller quantities. The roommate

would coordinate purchases with Marshall through text messages,

using coded language to establish the quantity and price of a

purchase. At one meeting at the music studio, the victim and

his roommate saw a tall man with a shaved head who had a number

of tattoos, including one on the back of his head that read,

"LYNN, MASS."4

In June, 2012, one of Marshall's friends, Adam Bradley,

told her that he needed someone to rob, and inquired about the

possibility of robbing the victim and his roommate. At first,

Marshall declined to help Bradley because the victim and his

roommate were friends of her cousin. On July 6, 2012, Bradley

came to the music studio and reiterated that he wanted to rob

the victim and his roommate. After initially refusing, Marshall

agreed to help. Around 5 P.M., Marshall sent the victim's

roommate several text messages asking if he wanted to purchase

marijuana. She was attempting to ascertain whether the roommate

3 Ashley Marshall testified at trial under a grant of

immunity.

4 The Commonwealth introduced a booking photograph of Adam

Bradley that showed a tattoo on the back of his head which

reads, "LYNN, MASS." Marshall also testified that Bradley had

such a tattoo.

5

had cash in the house.5 The roommate, who had had reservations

about dealing with Marshall and had not made any recent

purchases from her, did not respond.

Marshall used an Internet Web site to direct Bradley to the

victim's house. She also drew a layout of the inside of the

house on a piece of notebook paper. Before leaving, Bradley

asked Marshall if he needed to bring weapons; Marshall said that

he did not, because the victim and his roommate were "little

kids" who would not offer any resistance. Bradley returned to

the studio later that evening and made a number of telephone

calls. Shortly thereafter, approximately twenty Asian men

arrived at the studio. Before they left, Bradley showed them

the Web site with directions to the victim's house. After

telephoning Marshall repeatedly throughout the night of July 6

to July 7, 2012, Bradley arrived at the music studio on the

morning of July 7, 2012; Marshall testified that he appeared to

be "frantic."

The Commonwealth's theory at trial was that Bradley was

assisted in the attempted armed robbery by the defendant, Steven

Touch, Jason Estabrook, Gabriel Arias, and Sophan Keo.6 The

5 A search of the victim's house after his death revealed a

large quantity of cash and marijuana.

6 Evidence at trial suggested that the defendant, Bradley,

Touch, Arias, and Keo were associated with the Bloods gang in

Lynn. The judge instructed the jury that they were not to

6

victim's brother, Ryan Koehler,7 who had been present at the

scene and had attempted to force the armed intruders out of the

house in the minutes before his brother was shot, described some

of the assailants in detail, but was able to give only a vague

description of others. Forensic evidence at the scene, medical

records, and statements by Marshall tied some of the men to the

scene. As evidence of the joint enterprise involving all of the

men, the Commonwealth relied heavily on surveillance video

footage of two white automobiles that seemed to be acting in

concert for approximately one hour before, and immediately

after, the shooting, and extensive evidence of cellular

telephone calls among the men, as well as CSLI showing a pattern

of movement of all of their cellular telephones toward and away

from the victim's Billerica home at the time of the shooting.

Keo owned a white Honda Civic with distinctive blue after-

market headlights. Touch regularly used his girl friend's white

Toyota Corolla with her permission.

consider the evidence "to infer anything about [the] defendant's

character or general propensity to commit a crime. The only

purpose for which any evidence concerning alleged gang

affiliation may be considered by . . . the jury is on the

limited issue of what the Commonwealth claims may have been a

particular defendant's state of mind at a particular time either

to form a motive for the offenses charged in this case, or to

participate in a joint venture or criminal enterprise."

7 Because they share a last name, we refer to the victim's

brother, Ryan Koehler, by his first name.

7

At 2:51 A.M. on July 7, 2012, an officer of the Billerica

police department, who was on routine patrol, entered the

license plate of Keo's vehicle in the police computer system.

Surveillance footage taken by a camera at a Billerica

convenience store on Route 3A, near the victim's home, shows

that at 3:19 A.M. and 3:33 A.M., a Honda Civic drove past the

store. At 3:25 A.M. and 3:33 A.M., a Toyota Corolla drove past

the store. At 3:38 A.M., both vehicles entered a parking lot

across the street from the convenience store, in view of the

surveillance camera, and each vehicle extinguished its lights.

At 3:40 A.M., both vehicles' lights were turned on, and they

left the parking lot eleven seconds apart.

During this time, there were repeated calls among cellular

telephones registered to, or used by, the defendant and the

other five men; although none of the alleged accomplices lived

in Billerica, the calls connected to towers in the Billerica

area, heading toward the victim's house. Evidence of the cell

towers that were accessed, the times and duration of the calls,

and the locations of the cell towers on a map relative to the

victim's house was introduced by a State police trooper who was

a member of its technical surveillance unit, as well as a member

of the Federal Bureau of Investigation's cellular analysis

survey team.

8

According to the CSLI records, a telephone registered to

the defendant traveled from Revere to Billerica during the

period immediately prior to the shooting. On July 7, 2012, the

defendant's cellular telephone activated a cellular tower in

Revere at 1:41 A.M., a cellular tower in Burlington at 2:43 A.M.

and 2:45 A.M., and a cellular tower in Billerica at 2:46 A.M.,

2:47 A.M., 3:34 A.M., 3:37 A.M., 3:38 A.M., 3:44 A.M., and

3:46 A.M. A cellular telephone associated with Bradley

activated a cellular tower in Lynn at 1:14 A.M, a cellular tower

near Wakefield at 2:31 A.M, and a cellular tower in Bedford at

3:50 A.M.8 Between 1:33 A.M. and 3:37 A.M., the defendant's

telephone connected with Keo's telephone three times. During

the early morning hours of July 7, it also connected with a

telephone associated with Touch five times, and received two

text messages from that number,9 and connected with Arias's

telephone four times.

At approximately 3:50 A.M. on July 7, 2012, the victim and

his brother, Ryan, were watching a movie in the victim's bedroom

when they heard loud noises from the kitchen. The brothers ran

into the kitchen to investigate and discovered three men, each

8 The telephone number was registered to JMB Construction, a

company owned by Jane and Michael Bradley. The address of JMB

Construction address was the same as the address on Adam

Bradley's driver's license.

9 This cellular telephone number was registered to Christina

Danh, who testified that she paid for Touch's telephone service.

9

with a firearm, standing near the door. Ryan described one man

as being blonde with blue eyes, wearing a grey bandana and a

hat, and holding a semiautomatic weapon.10 Ryan testified at

trial that he was focused on this man as he entered the kitchen,

following his brother, because the man was pointing the weapon

at him. Ryan was able to describe the other two men only as

wearing dark clothing; he said that he did not know their

height, age, or race.11 The first man told the victim to "get

down on the ground." The victim responded that the men should

"take the fake ass BB guns and . . . shove them up their candy

ass and get the fuck out of the house." The blonde intruder

then racked the firearm.12 The victim instructed Ryan to get a

sword from the victim's bedroom. Before Ryan could do so, the

victim armed himself with a tea kettle from the top of the

stove, and Ryan grabbed a frying pan.

Ryan then noticed a fourth man, who was larger and heavier,

wearing a red T-shirt, black shorts with a blue stripe, and

10The Commonwealth introduced evidence from a social media

Web site that contained an image of Bradley wearing a grey

bandana.

11On cross-examination, after his memory was refreshed by

reviewing his grand jury testimony, Ryan testified that he had

said at that time that the third man was "white" and had dark

hair, but that he had no present memory of the man's appearance.

12Ryan testified that he understood the differences between

an automatic and a semiautomatic weapon, and that he knew the

weapon was a semiautomatic.

10

black sneakers, near the refrigerator. When the man ran at the

victim, Ryan tackled him to the ground and the victim used the

tea kettle to hit him in the head "with everything he had." As

the brothers were trying to push the man toward the door, three

shots rang out and the victim slumped to the floor. While Ryan

attempted to put pressure on the wound, the intruders fled

through the broken kitchen door.13 The victim was taken to the

hospital, where he died of a gunshot wound to the head.

Neither the cellular telephone of the defendant nor the

cellular telephones of the other alleged accomplices registered

any activity between 3:50 A.M. and 3:53 A.M. At 3:53 A.M., the

cellular telephone associated with Bradley contacted the

telephone associated with Touch and activated a cellular tower

in Burlington. At 3:59 A.M., the telephone associated with

Bradley called the defendant's cellular telephone. During this

call, the defendant's telephone activated a cellular tower in

Burlington, and Bradley's telephone activated a cellular tower

in Woburn. Beginning at 5:15 A.M, the defendant's cellular

telephone activated a tower in Lowell, the city listed on his

13Evidence was presented at trial that Ryan told the first

responding officers that there were three intruders, two of whom

had been armed, and that he repeated that assertion during an

interview with investigators on July 8, 2012. During direct

examination, Ryan testified that there had been four intruders,

three standing together and one he saw later. On re-direct

examination, he was presented, and read portions of, his grand

jury testimony, in which he described four intruders; this

testimony was allowed to rebut a claim of recent fabrication.

11

driver's license, multiple times; one of these calls, at

6:20 A.M, was to Touch's telephone.

At around 5:20 A.M., Estabrook drove to the North Shore

Medical Center seeking treatment for a head injury, shoulder

pain, and back pain.14 He reported that he had been in a fight

and that "they hit me with a tea kettle to the head." He was

wearing a red shirt, black shorts, and black high-top sneakers.15

Investigating officers recovered two hats at the victim's

house that had not been present during the evening before the

shooting, when family members and friends had stopped by to see

Ryan, who had been away for six months at a residential

treatment facility. One hat, a navy blue Boston Red Sox

baseball cap, was found on the porch just outside the kitchen

door. The other, a black and red Chicago Bulls baseball cap,

was found in the area between the kitchen and the laundry room.

The major deoxyribonucleic acid (DNA) profile on the headband of

the Red Sox cap was consistent with the defendant's DNA; the

contributors to the minor profile could not be identified. The

frequency of the major profile was approximately 1 in 59.07

billion in the Caucasian population, 1 in 81.9 billion in the

14A still image from surveillance footage from the hospital

parking lot shows a motor vehicle, consistent with the vehicle

operated by Touch, at 5:12 A.M.

15This clothing is consistent with Ryan's description of

the clothing worn by the fourth man in the victim's kitchen.

12

African-American population, 1 in 92.94 billion in the Hispanic

population, and 1 in 211.2 billion in the Asian population.16

The band of the Bulls cap contained a primary DNA profile

consistent with the DNA profile of an individual police

concluded had not been present at the scene, because he had a

curfew that required him to be in his house at night, and was

being monitored by a GPS bracelet, which did not register a

violation on July 7, 2012. A secondary profile found on the

headband was not associated with any of the suspects.

Later on the morning of July 7, 2012, one of the victim's

neighbors found a pair of rubber gloves on a side street

adjacent to his house that he had not noticed the previous day.

He telephoned the police; officers responded and retrieved the

gloves. Forensic testing of the gloves was undertaken at the

State police crime laboratory. The major DNA profile on the

gloves matched the DNA profile of Adam Bradley. Analysts at the

crime laboratory also found gunshot primer particles on the

gloves, which allowed a forensic scientist to conclude that the

person who wore the gloves either had handled a firearm or had

been in close proximity to a firearm.

2. Defendant's theory of the case. The defendant argued

that the Commonwealth presented insufficient evidence that he

had been present at the scene. His strategy for doing this was

16 The defendant is Asian.

13

to question the credibility and reliability of much of the

Commonwealth's evidence. The defendant extensively cross-

examined Ryan and impeached him with evidence of his prior

convictions of, inter alia, armed home invasion (with a shotgun)

and causing serious bodily injury. To further the suggestion

that Ryan's testimony was unreliable, defense counsel called a

State police trooper who testified that, when he arrived at the

scene at approximately 4:30 A.M., he was given the descriptions

of three suspects that Ryan had provided when officers first

arrived. Additionally, during an extended interview on July 8,

2012, Ryan told officers that he had seen the blonde-haired

intruder holding a gun and two other men. The State police

trooper also testified that, during the interview on July 8,

2012, Ryan described the noise from the kitchen as the sound of

a door being knocked down. In his closing argument, the

defendant highlighted that this statement was inconsistent with

Ryan's grand jury testimony that he thought the sound was the

family dog knocking something over. The defendant suggested

that Ryan's testimony was unreliable and that his feelings of

guilt at heading toward the sound rather than telephoning police

or hiding, thus resulting in his brother's death, had caused his

story to change.

The defendant also challenged the forensic evidence found

at the scene. He argued that the Red Sox baseball cap with the

14

defendant's DNA could have been borrowed or stolen, and did

nothing to establish the defendant's presence at the scene, just

as the Bulls cap found in the laundry room near the back door

contained the DNA of an individual who the Commonwealth

acknowledged had not been present at the time of the incident.

Additionally, in cross-examining the Commonwealth's expert

witness on CSLI and during his closing argument, the defendant

advanced a theory that three or four vehicles must have been

used, and argued that the Commonwealth's theory that only two

vehicles had been used was not consistent with the most likely

interpretation of the telephone calls as having been made

between people who were in different vehicles, rather than

between those who were in the same vehicle.17 Based on the calls

placed between various cellular telephones, defense counsel thus

argued that only certain individuals would have been in vehicles

together, and, accordingly, at least a third vehicle must have

been used, with likely a fourth as well.

3. Discussion. In this appeal, the defendant argues, as

he did in the Superior Court, that there was insufficient

evidence to establish that he was present at the scene, that he

possessed a firearm or knew that any of the intruders had a

17Adam Bradley and Jason Estabrook have been convicted of

murder in the first degree and related offenses. Steven Touch

and Sophan Keo are currently awaiting trial on indictments of

murder in the first degree and other related offenses.

15

firearm, or that he intended to commit any crime. The defendant

also argues that the admission of the CSLI evidence requires a

new trial, because the records were not self-explanatory and the

State police trooper who testified about them was not a

representative of the cellular telephone provider and was not

otherwise qualified to explain them. In addition, the defendant

challenges the judge's decision not to instruct the jury, in

response to their question, "if we find the defendant guilty of

one or more of the underl[ying] felonies, can we still find him

not guilty of felony murder?" that they could reach factually

inconsistent verdicts. He also asks this court to exercise our

extraordinary authority under G. L. c. 278, § 33E, to grant him

relief.

a. Sufficiency of the evidence. In determining whether

the Commonwealth met its burden of proof to establish each

element of the offense charged, we apply the familiar Latimore

standard. See Latimore, 378 Mass. at 677-678. "[The] question

is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt." Id. at 677, quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979). Although a conviction may be based

entirely on circumstantial evidence, and inferences drawn need

only be reasonable, not inescapable, see Commonwealth v. Rakes,

16

478 Mass. 22, 32, 45 (2017), a "conviction may not rest on the

piling of inference upon inference or on conjecture and

speculation." Commonwealth v. Lao, 443 Mass. 770, 779 (2005),

citing Commonwealth v. Swafford, 441 Mass. 329, 339–343 (2004).

As the defendant was convicted as a joint venturer, "we

must determine whether the evidence showed that he knowingly

participated in the commission of the crime charged, alone or

with others, with the intent required for the offense." Rakes,

478 Mass. at 32. See Commonwealth v. Zanetti, 454 Mass. 449,

467-468 (2009). Under the theory of felony-murder, "[o]nce a

defendant participates in the underlying felony, with the intent

or shared intent to commit that felony, he or she becomes liable

for a death that 'followed naturally and probably from the

carrying out of the joint enterprise.'" Commonwealth v. Morin,

478 Mass. 415, 421 (2017), quoting Commonwealth v. Hanright, 466

Mass. 303, 307 (2013). "[I]t is no defen[s]e for the associates

engaged with others in the commission of a robbery, that they

did not intend to take life in its perpetration, or that they

forbade their companions to kill." Morin, supra, quoting

Commonwealth v. Devereaux, 256 Mass. 387, 392 (1926).

Evidence before the jury could have allowed them to

conclude that Bradley, with the assistance of Marshall, formed a

plan to rob the victim and his roommate, and enlisted others in

the enterprise. Bradley requested Marshall's help in setting up

17

a robbery of the victim and his roommate, and Marshall then sent

text messages to the roommate purportedly offering to sell

marijuana. Bradley made telephone calls from Marshall's studio

in Lynn, after which Marshall testified that she saw a number of

Asian men arrive and that Bradley showed them the location of

the victim's house using an Internet Web site. Two white

automobiles -- one that looked to be a vehicle registered to

Keo, and one that appeared to be a vehicle registered to Touch's

girl friend, but routinely used by Touch -- headed to Billerica

in a close procession, stopped briefly at a parking lot, then

drove together towards the victim's house; their movements were

captured on surveillance footage from a security camera at a

convenience store near the crime scene. CSLI records

established that telephones associated with the defendant,

Bradley, Touch, Keo, and Arias repeatedly activated cellular

towers near Billerica in the minutes before and after the

shooting; the telephones all traveled toward Billerica prior to

the shooting, and traveled away from Billerica in the minutes

after the shooting. Four men, three of whom were armed, broke

down the door and entered the victim's home, where the victim

was shot and killed.

While the defendant challenged Ryan's testimony as to

whether there were three or four men present in the victim's

kitchen, the primary focus of the trial, and particularly this

18

appeal, was whether the defendant knowingly participated in the

armed home invasion that resulted in the victim's death.

With respect to the defendant's knowing participation in a

plan to rob the victim and his roommate, the Commonwealth

presented evidence that a baseball cap with the defendant's DNA

on the inner band was found immediately outside the door through

which the intruders gained access to the kitchen, as well as

evidence that the defendant's telephone traveled from Revere to

Burlington and then to Billerica in the hours before the

shooting, that the telephone activated cellular towers in

Billerica minutes before the incident, and that it then traveled

away from Billerica in the minutes after the victim was shot.

Additionally, evidence of the defendant's possible state of mind

at the time of the armed home invasion and shooting was

introduced through evidence of his lengthy affiliation with most

of the other alleged accomplices, some of whom he had known

since childhood, and all but one of whom were described in trial

testimony as being members of the Bloods gang.

Taken together, the evidence at trial would have allowed a

jury to conclude that the defendant was one of the four men in

the kitchen at the time of the shooting, and that he was armed

with a firearm. See Commonwealth v. Netto, 438 Mass. 686, 701-

702 (2003) (defendant's fingerprint in home, in conjunction with

testimony that print was "fairly fresh" and evidence that

19

defendant had been excluded from residence for one week prior to

killing, was sufficient evidence of her presence). Contrast

Commonwealth v. Morris, 422 Mass. 254, 256-258 (1996) (evidence

that defendant's fingerprint was on mask found at scene of armed

home invasion did not, alone, establish defendant's presence).

To prove the underlying felony of armed home invasion, the

Commonwealth was required to prove that the defendant or other

joint venturers "'knowingly enter[ed] the dwelling place of

another'; 'knowing or having reason to know that one or more

persons are present within'; 'while armed with a dangerous

weapon'; and 'use[d] force or threaten[ed] the imminent use of

force upon any person within such dwelling place whether or not

injury occur[red], or intentionally cause[d] any injury to any

person within such dwelling place.'" See Commonwealth v.

Stokes, 440 Mass. 741, 747 (2004), quoting G. L. c. 265, § 18C.

For both armed home invasion and attempted armed robbery, the

Commonwealth must prove either that the defendant was armed or

that he knew that his joint venturers were armed. See

Commonwealth v. Brown, 477 Mass. 805, 812 (2017).

The defendant argues that there was insufficient evidence

that he was armed or knew that any of the intruders were armed,

or that he shared their intent to commit an armed offense. We

do not agree. Viewing the evidence in the light most favorable

to the Commonwealth, the jury reasonably could have determined

20

that the defendant was one of the men in possession of a firearm

in the kitchen of the victim's home. Ryan testified that three

of the intruders were armed.18 The unarmed intruder was the

fourth man, who was hit with a tea kettle. Based on Estabrook's

medical records at the emergency room, including a statement

that he had been struck by a tea kettle during a fight, and

images from the hospital surveillance camera that showed him

wearing clothing consistent with Ryan's description, the jury

reasonably could have concluded that this unarmed man was

Estabrook, who reported to medical personnel the unusual

instrument that had been used during the fight. Given the

permissible inference that Keo and Touch, the fifth and sixth

men, had remained with their vehicles, the jury reasonably could

have inferred that the defendant was in the kitchen and was

armed with a firearm.19

18The defendant called a police witness who testified that

Ryan informed him that he saw two firearms in the kitchen,

rather than three. Ryan testified that there were three armed

men, and that the fourth man, who was hit by the tea kettle, was

unarmed. We resolve this inconsistency in favor of the

Commonwealth.

19While Marshall testified that she told Bradley that he

did not need to bring firearms, the defendant was not present

when Marshall made this remark. In any event, Bradley

disregarded that suggestion and brought a firearm with him to

the victim's house. His decision to carry a weapon suggests

that Bradley did not tell the other intruders that they were

robbing "little kids" who were unlikely to offer resistance.

Regardless, the testimony was clear that three of the four

intruders in the victim's kitchen were carrying firearms.

21

b. CSLI records. The defendant contends that the CSLI

records were not properly admitted because they were not self-

explanatory and the Commonwealth did not offer a qualified

witness to explain them. He argues that a "[company]

representative or other qualified individual needed to explain

those records to the jury. The person used by the Commonwealth

. . . was not so qualified. Whereas the verdicts relied on that

improperly admitted evidence, the defendant's convictions must

be reversed."

It is well established that CSLI records are business

records. See Commonwealth v. Williams, 475 Mass. 705, 722 n.22

(2016), citing Commonwealth v. Augustine, 467 Mass. 230, 232

(2014); United States v. Burgos-Montes, 786 F.3d 92, 119 (1st

Cir.), cert. denied, 136 S. Ct. 599 (2015). A "record [that]

was made in good faith in the regular course of business" may be

admissible, in the judge's discretion, notwithstanding that it

is hearsay. G. L. c. 233, § 78. See Mass. G. Evid. § 803(6)(A)

(2018).

Pursuant to G. L. c. 233, § 78, a trial judge has

discretion to require a party offering a business record to call

as a witness a "person who made the entry, writing or record

offered or the original or any other entry, writing, document or

account from which the entry, writing or record offered or the

facts therein stated were transcribed or taken, or who has

22

personal knowledge of the facts stated in the entry, writing or

record offered." Here, the judge consulted with counsel at

sidebar before the telephone records were introduced, and asked

the defendant if he had any objection. The defendant renewed

the objection he had made in his motion to suppress, which had

been denied prior to trial, that the records should not be

admitted due to the administrative subpoena that had been used

to obtain them. The judge then inquired whether the defendant

"ha[d] any objection with regard to the authenticity of these

records." The defendant did not. Because the defendant did not

object to the admission of the CSLI as an unauthenticated

business record when prompted by the judge at sidebar, we review

the judge's determination for a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Fulgiam, 477 Mass.

20, 27, cert. denied, 138 S. Ct. 330 (2017).

The cellular telephone records contain an affidavit of the

keeper of the records certifying that they are true and

complete, and there is no evidence or allegation to the

contrary. The records are clearly relevant and central to the

Commonwealth's case, and were described in depth by the State

police trooper after he was accepted as an expert witness

following an extensive voir dire. We conclude that the judge

did not abuse her discretion in allowing the introduction of the

CSLI as business records.

23

Even where evidence may be relevant and otherwise

admissible, a trial judge has discretion to exclude it if its

probative value is substantially outweighed by the risk of

confusion. Mass. G. Evid. § 403 (2018). See Commonwealth v.

Rosa, 422 Mass. 18, 25 (1996) ("When prejudice, including

confusion of the jury, is possible, the judge must weigh the

probative value of the evidence against such danger"). "The

trial judge [is] best situated to assess the extent to which

[business records] might have been confusing to the jury."

Commonwealth v. Dabney, 478 Mass. 839, 860 (2018).

The judge conducted a voir dire hearing at which she

herself posed certain questions to the State police trooper who

later testified about the CSLI. The trooper also was questioned

extensively by the defendant's and his codefendant's counsel.

He testified to having received training from State and Federal

agencies, including a Department of Defense contractor, on the

uses of CSLI and how to obtain it. The trooper also said that

he served as a member of the Federal Bureau of Investigation's

cellular analysis survey team. The judge concluded that the

trooper was qualified as an expert in the area of CSLI. The

trooper then testified as an expert and explained to the jury

how cellular telephones interact with cellular towers, the

manner in which cellular telephone service providers produce

24

records, and how the defendant's service provider created

"basically [an] Excel spreadsheet[]" with relevant information.

The defendant argues that the Commonwealth never elicited

that the trooper was trained by the defendant's service provider

on how to interpret that company's records. In addition to his

years of professional experience and training, however, and

consistent with his testimony that he previously had worked with

similar records, the trooper discussed and explained differences

between the records of multiple different service providers,

including the defendant's. This testimony supported the judge's

conclusion that the trooper was a qualified expert, and was

familiar with the defendant's service provider's particular

format.20

Furthermore, the defendant relies on Dabney, 478 Mass. at

859, in support of his argument that the judge should have

excluded the CSLI as more prejudicial than probative, given the

absence of testimony from an employee of the cellular service

20To support his contention that a qualified individual is

needed to "decipher" the CSLI, the defendant cites two cases

from other jurisdictions. In Blue Coast, Inc. v. Suarez Corp.

Indus., 870 A.2d 995, 1007 (R.I. 2005), there was no witness to

introduce the records, and in Horner v. Commonwealth, 105 Pa.

Commw. 59, 65-66 (1987), the witness who offered to introduce

graphical records had received only a one-day training session

on the records, "ten to fifteen years" before the case, and had

not worked with the records in ten years. These cases are

factually distinct from the instant case, however, given that

the Commonwealth in this case called a witness with relevant

training and ongoing experience to explain the records.

25

provider. In that case, the court determined that there was no

error in a Superior Court judge's discretionary ruling limiting

cross-examination of a witness concerning an invoice from a

particular Web site on the ground that the business record would

confuse the jury, absent an explanation from an employee of that

company, because the witness had no ability to explain the

meaning of certain information listed on the invoices. Id. at

859-860. Here, the State police trooper was able to do what the

witness in Dabney was not: he coherently explained the service

provider's records and differentiated the terms that provider

used to designate specific items from the terms used by other

cellular telephone service providers. In these circumstances,

we discern no error in the judge's discretionary determination

that the records were not unduly prejudicial.

The defendant also challenges the admission of charts

created by the trooper from the CSLI records, on the ground that

the jury might have been confused and believed that the charts

were the actual CSLI data proffered by the service provider.

The witness made clear, however, that he had created some of the

reports that were presented to the jury, and that he had placed

certain information pertaining to certain calls on a map using a

specific computer program to do so. Additionally, the entire

set of CSLI records, which contained the data that was the basis

of the trooper's testimony and his summary, was introduced by

26

the Commonwealth through the deputy police chief who had

obtained the records from the service provider. The judge did

not abuse her discretion in allowing introduction of the

witness's reports and charts summarizing the CSLI reports. See

Commonwealth v. Carnes, 457 Mass. 812, 825 (2010) ("Summaries of

testimony are admissible, provided that the underlying records

have been admitted in evidence and that the summaries accurately

reflect the records"); Mass. G. Evid. § 1006 (2018).

c. Jury instruction on inconsistent verdicts. The

defendant argues that the judge improperly failed to inform the

jury, in response to their question, that they could return

factually inconsistent verdicts. We review the judge's response

for an abuse of discretion. See Commonwealth v. Monteagudo, 427

Mass. 484, 488 (1998), quoting Commonwealth v. Waite, 422 Mass.

792, 807 n.11 (1996) ("The proper response to a jury question

must remain within the discretion of the trial judge, who has

observed the evidence and the jury firsthand and can tailor

supplemental instructions accordingly").

During deliberations, the jury asked the following: "if we

find the defendant guilty of one or more of the underl[ying]

felonies, can we still find him not guilty of felony murder?"

The prosecutor argued that the answer to the question was "no,"

and asked the judge to reinstruct the jury not to consider the

consequences of their verdict. At first, the defendant agreed

27

that "the correct legal answer" is "no." The judge declined to

answer the question "no." She reasoned that this answer would

have foreclosed the possibility of an acquittal based on the

Commonwealth's failure to prove that the killing did not occur

during the commission of the predicate felonies.

The judge responded to the question by reinstructing the

jury on felony-murder, explaining:

"If the Commonwealth has proved beyond a

reasonable doubt that the defendant knowingly

participated in and shared the intent required for

either or both of the charged felonies, armed home

invasion of Ryan Koehler or attempted armed robbery of

Quintin Koehler as I have defined those offenses for

you, and the Commonwealth has proved beyond a

reasonable doubt that the death occurred during the

commission of the felony or felonies, then the

Commonwealth has proved the offense of felony murder."

The defendant, after the jury resumed deliberations, asked

the judge to reinstruct the jury, "[I]f the question deals with

can you find the defendant guilty, not guilty of the murder and

still find him guilty of indictments two [armed home invasion]

and three [attempted armed robbery], the answer is yes." The

judge declined to give this instruction.

On appeal, the defendant argues that the jury were

inquiring about their ability to render a factually inconsistent

verdict, and that the judge's answer on felony-murder was

nonresponsive. It is undisputed that juries do have the

authority to render factually inconsistent verdicts, which

28

allows juries to "compromise and to act out of leniency." See

Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 33 (1984), citing

United States v. Martorano, 557 F.2d 1, 9 (1st Cir. 1977), cert.

denied, 435 U.S. 922 (1978). That the jury has the power to

return inconsistent verdicts, however, does not give the

defendant the right to a jury instruction informing the jury of

their authority to do so. See Commonwealth v. Dickerson, 372

Mass. 783, 812 (1977) (Quirico, J., concurring), abrogated on

other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002).

We decline the defendant's invitation to require a judge to

inform the jury that they may disregard the law as it has been

explained to them. The judge properly instructed the jury

during her final charge that "[i]t is your duty as jurors to

accept the law as I state it to you." Their power to disregard

her instruction does not mean "that the trial judge must inform

them of the existence of that power and instruct them on what

factors they may or must consider when they are contemplating

the return of a verdict other than one required on the facts

found by them and the law applicable thereto." Dickerson, supra

(Quirico, J., concurring). See United States v. Moran-Toala,

726 F.3d 334, 343 (2d Cir. 2013) (trial judge erred in

instructing jury that it was permissible to render inconsistent

verdicts).

29

d. Felony-murder. The defendant urges this court to

abolish the common-law doctrine of felony-murder because, inter

alia, it is inconsistent with jurisprudence on mens rea

generally in criminal cases. In Brown, 477 Mass. at 823, we

declined to abolish entirely the felony-murder rule.21 Instead,

we prospectively narrowed the application of that rule to

eliminate felony-murder as an independent theory of liability.

See id. at 825, 832-833 (Gants, C.J., concurring). As a result,

a defendant no longer may be convicted of murder absent proof of

one of the three prongs of malice. Id. The defendant does not

argue that Brown was wrongly decided, nor does he provide any

reason for the court to revisit its decision in that case, and

we decline to do so.

e. Relief pursuant to G. L. c. 278, § 33E. We have

carefully reviewed the entire record, pursuant to our duty under

G. L. c. 278, § 33E, and discern no reason to order a new trial

or to reduce the degree of guilt.

4. Conclusion. The judgments of murder in the first

degree and armed home invasion are affirmed. The judgment of

attempted armed robbery is vacated and set aside, and the matter

21The defendant's initial brief was filed before this

court's decision in Commonwealth v. Brown, 477 Mass. 805, 823

(2017). While his reply brief was filed after that decision,

the reply brief does not address the court's holding in Brown.

30

is remanded to the Superior Court, where that conviction shall

be dismissed as duplicative.

So ordered.