Commonwealth v. Wilson

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SJC-11985

COMMONWEALTH vs. QUOIZEL L. WILSON.

Barnstable. March 6, 2020. - November 30, 2020.

Present: Gants, C.J., Lenk, Lowy, Cypher, & Kafker, JJ. 1

Homicide. Cellular Telephone. Practice, Criminal, Motion to

suppress, Affidavit, Warrant, Assistance of counsel,

Capital case. Search and Seizure, Affidavit, Warrant,

Fruits of illegal search. Constitutional Law, Search and

seizure, Assistance of counsel.

Indictments found and returned in the Superior Court

Department on November 12, 2013.

A pretrial motion to suppress evidence was heard by Gary A.

Nickerson, J., a motion for reconsideration was considered by

him, and the cases were tried before him; and a motion for a new

trial, filed on August 2, 2018, was considered by Robert C.

Rufo, J.

Janet Hetherwick Pumphrey for the defendant.

Elizabeth A. Sweeney, Assistant District Attorney, for the

Commonwealth.

1 Chief Justice Gants participated in the deliberation on

this case prior to his death.

2

CYPHER, J. A jury convicted the defendant, Quoizel L.

Wilson, of murder in the first degree on the theories of

deliberate premeditation and extreme atrocity or cruelty, after

he shot the victim, Trudie Hall, multiple times in the torso,

killing her. The defendant also was convicted of assault and

battery by means of a dangerous weapon and improper disposition

of a human body. The defendant raises two primary arguments:

(1) his cell site location information (CSLI) should have been

suppressed because originally it was obtained by police without

a warrant and a subsequent search for the same information

pursuant to a warrant was tainted by the initial warrantless

search; and (2) his trial counsel provided ineffective

assistance by failing to move to suppress the fruits of the

initial warrantless CSLI search. We consolidated the

defendant's direct appeal with the appeal from the denial of his

motion for a new trial, and we now affirm. We also decline to

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

Background. 1. Facts. We summarize the facts the jury

could have found, reserving certain facts for later discussion.

On July 27, 2010, Hall, a Nantucket resident, traveled to

Hyannis, where she and her husband, Ram Rimal, checked into

separate rooms at the Bayside Resort hotel. The two were

scheduled to attend an appointment in Boston the following day.

Rimal had rented a vehicle. He and Hall drove to a mall to see

3

a movie together, and then bought take-out food for dinner.

Afterward, they returned to the hotel; Rimal went to his room,

and Hall took the rental vehicle, saying she had to print some

things. That was the last time Rimal saw her.

The following morning Rimal unsuccessfully tried to reach

Hall by cellular telephone (cell phone). Hall was not in her

hotel room, but the bed appeared to have been slept in, and Hall

had left a shopping bag containing clothes and money in the

room. Rimal contacted Hall's mother, Vivienne Walker, and the

two reported Hall's disappearance to police. Rimal later

obtained call records for Hall's cell phone, and Walker tried

calling the numbers Hall most recently had contacted. One of

the telephone numbers belonged to the defendant. Walker later

gave the list of telephone numbers to police.

Hall was five months pregnant at the time of her

disappearance. She had been having an affair with the

defendant, who also was married. Walker also had received a

telephone call from an unknown woman who made "slander-ish"

remarks about Hall's pregnancy. Walker told police she thought

the caller was the wife of the father of Hall's baby.

On July 29, 2010, police located the rental vehicle in a

commuter parking lot by Route 6. The interior of the vehicle

was stained with a significant amount of human blood, later

shown to belong to Hall, consistent with a fatal amount of blood

4

loss if left untreated. Among other things, police recovered

from the vehicle a copper jacket fragment from a spent

projectile, two lead fragments, and one lead core portion of a

spent projectile, apparent bone fragments, and a piece of human

flesh. The copper jacket fragment was fired from a .38 caliber

class weapon, which could include a nine millimeter handgun.

The defendant was the registered owner of a nine millimeter

Beretta 92FS pistol; records showed that the pistol had not been

reported missing. The defendant also previously had made

statements in front of friends implying that he carried a gun

with sixteen rounds, consistent with a nine millimeter Beretta

92FS pistol.

Hall had told a friend that she thought the defendant was

the father of her unborn child and that he wanted her to get an

abortion.2 On July 29, 2010, someone sent a message from the

victim's social media account, claiming she was in the hospital

after an abortion. Police determined that Hall was not a

patient at any area hospital.

At about 1 A.M. on July 30, 2010, police spoke with the

defendant on the front steps of his house. His wife was in the

house at the time. The defendant told police that he was a

2 An analysis of the fetal skeletal remains later confirmed

that the defendant was the father.

5

friend of Hall and admitted that he had seen her at the hotel on

July 27, but he denied having any sexual relationship with her.

On August 2, 2010, police obtained cell phone subscriber

information and call logs for Hall, the defendant, and another

number belonging to the defendant's wife. The records showed

numerous calls and text messages between Hall and the defendant

on July 27, until about 10 P.M. Between 10:09 and 10:18 P.M.,

Hall made eleven calls, each lasting only seconds, to a

telephone number belonging to Mawande Senene. The activity on

Hall's telephone ceased at 10:49 P.M. Police interviewed Senene

on August 2, and he stated he had noticed the calls, but did not

pick up because he did not recognize the number. He said he had

a voicemail from a "Rudy," "Trudie," or "Judy," asking him to

call her back, but he did not. Instead, he called the defendant

because he recognized the number as a Nantucket exchange, and he

knew the defendant used to live there.

On August 3, 2010, police obtained additional cell phone

records that included CSLI 3 for the same three numbers belonging

3 The term "CSLI" (cell site location information) 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" (citation

omitted). Commonwealth v. Fredericq, 482 Mass. 70, 71 n.2

(2019). "It may be used to identify the approximate location of

the cellular telephone based on the telephone's communication

with a particular cell site." Id.

6

to Hall, the defendant, and the defendant's wife. 4 The

defendant's CSLI placed him at the victim's hotel, at the

commuter lot where the rental vehicle was found, and in the

location where the victim's body would later be discovered, at

relevant times on the night of the murder. The CSLI also showed

that Hall's cell phone and the defendant's cell phone traveled

together throughout the evening of July 27.

The defendant was interviewed by police for the second time

on August 3, 2010, at his own request. During the interview,

which was recorded, the defendant admitted that he had been

having an affair with Hall, but insisted he had been at home the

night of the murder. After being confronted with the fact that

police had information (based on the CSLI) showing that he was

not at home, the defendant stated that he had been driving on

the Service Road that night to sell cocaine to a friend named

J.D. Lang.

Police interviewed Lang on August 4, 2010. Lang at first

stated that he had met up with the defendant the night of the

murder, but later admitted that he had been lying and that the

defendant had called him and asked him to give that false story

4 In order to access the CSLI, police obtained an order

pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d).

The § 2703(d) order was obtained by orally presenting

information to a judge in chambers. No written affidavit was

submitted in support of the application.

7

if someone called asking about him. Police also interviewed

Senene again on August 4, 2010. Senene then told police that on

July 29, the defendant had requested that Senene meet him at his

house, and when Senene arrived, the defendant had asked him to

lie and say he was with the defendant the night of July 27.

Senene refused.

Police interviewed the defendant again on August 5, 2010,

the same day that they executed a search warrant for the

defendant's home. During the interview, the defendant repeated

his claims that he had met with Hall at the hotel the afternoon

of July 27, and denied meeting with her later in the evening.

He repeated his assertion that he had met with Lang later that

evening to sell him drugs. Even after being confronted with

information (derived from the CSLI) that contradicted his

claims, the defendant insisted on his version of events.

Hall's remains were discovered nearly two years after the

murder by a man walking his dog in a wooded area near a water

tower off Hayway Road in Falmouth.5 Hall's skeleton showed

damage consistent with gunshot trauma. The trauma indicated

that the bullets traveled from the back or side of Hall's body

toward the front.

5 Employment records showed that Hayway Road was on the

defendant's recycling collections truck route.

8

Seven jacketed spent projectiles and one jacket from a

spent projectile were recovered from the scene at Hayway Road,

all of which were .38 caliber ammunition bearing markings

consistent with having been shot from a Beretta model 92. The

medical examiner determined that the cause of death was gunshot

wounds to the torso.

In 2014, police acquired a search warrant to obtain the

same CSLI information that they previously had obtained in 2010

pursuant to a § 2703 order.

2. Procedural background. Prior to trial, the defendant

moved to suppress all of the cell phone records obtained by the

Commonwealth. The trial judge denied the motion, determining

that the defendant lacked standing to challenge the

Commonwealth's access to records other than his own; that the

defendant had no reasonable expectation of privacy in his

subscriber and call records; and that although the defendant did

have a reasonable expectation of privacy in his own CSLI, there

was no constitutional violation because "[t]he facts known to

[police] as of August 3rd, and conveyed [orally] to [the judge

who authorized the order], established probable cause for the

issuance of an order compelling the disclosure of CSLI data."

The defendant moved for reconsideration, which was denied.

A single justice of this court denied the defendant's

application for leave to prosecute an interlocutory appeal. The

9

defendant renewed his objection to the admission of the cell

phone records during trial. In May of 2015, after a jury trial,

the defendant was convicted on all counts. He timely appealed.

On August 2, 2018, the defendant filed a motion for a new

trial and for an evidentiary hearing, arguing that under the

United States Supreme Court's opinion in Carpenter v. United

States, 138 S. Ct. 2206 (2018), and this court's prior decision

in Commonwealth v. Augustine, 467 Mass. 230 (2014) (Augustine

I), S.C., 470 Mass. 837 and 472 Mass. 448 (2015), it was error

not to suppress his CSLI. The defendant further argued that his

trial counsel provided ineffective assistance by failing to move

to suppress a variety of evidence as "fruits" of the illegal

search. The motion judge, who was not the trial judge, denied

the motion. The defendant's appeal from the denial of his

motion for a new trial was consolidated with his direct appeal.

Discussion. 1. Standard of review. When considering a

defendant's direct appeal from a conviction of murder in the

first degree along with an appeal from the denial of a motion

for a new trial, we review the entire case pursuant to G. L.

c. 278, § 33E. See, e.g., Commonwealth v. Upton, 484 Mass. 155,

159–160 (2020); Commonwealth v. Goitia, 480 Mass. 763, 768

(2018). In so doing, we review "raised or preserved issues

according to their constitutional or common-law standard and

analyze any unraised, unpreserved, or unargued errors, and other

10

errors we discover after a comprehensive review of the entire

record, for a substantial likelihood of a miscarriage of

justice." Upton, supra at 160, citing Commonwealth v. Brown,

477 Mass. 805, 821 (2017), cert. denied, 139 S. Ct. 54 (2018).

"For an error to have created a substantial likelihood of a

miscarriage of justice, it must have been likely to have

influenced the jury's conclusion" (quotation and citation

omitted). Upton, supra.

2. Suppression of the defendant's CSLI. The defendant

first contends that the trial judge erred in failing to suppress

his CSLI, and that the motion judge erred in denying the

defendant's motion for a new trial and for an evidentiary

hearing on this same basis, particularly in light of the United

States Supreme Court's opinion in Carpenter, supra, and this

court's prior opinion in Augustine I, supra. 6

When reviewing a decision on a motion to suppress, we

accept the judge's findings of fact absent clear error, but we

conduct "an independent determination as to the correctness of

the judge's application of constitutional principles to the

facts as found." Commonwealth v. Estabrook, 472 Mass. 852, 857

6 The parties do not dispute that the holdings in Carpenter

v. United States, 138 S. Ct. 2206 (2018), and Commonwealth v.

Augustine, 467 Mass. 230 (2014) (Augustine I), S.C., 470 Mass.

837 and 472 Mass. 448 (2015), apply retroactively to the CSLI

search at issue here.

11

(2015), quoting Commonwealth v. Watson, 455 Mass. 246, 250

(2009). With respect to a motion for a new trial, we "examine

the motion judge's conclusion only to determine whether there

has been a significant error of law or other abuse of

discretion." Commonwealth v. Wright, 469 Mass. 447, 461 (2014),

quoting Commonwealth v. Weichell, 446 Mass. 785, 799 (2006).

"If the motion judge did not preside at the trial, we defer only

to the judge's credibility determinations and 'regard ourselves

in as good a position as the motion judge to assess the trial

record.'" Wright, supra, quoting Weichell, supra.

In Carpenter, the Supreme Court held that "[g]iven the

unique nature of cell phone location records, . . . an

individual maintains a legitimate expectation of privacy in the

record of his physical movements as captured through CSLI," and

therefore, where the government seeks access to at least seven

days' worth of such information, as it did in that case, that

access constitutes a search for purposes of the Fourth Amendment

to the United States Constitution. Carpenter, 138 S. Ct. at

2217 & n.3. In such circumstances, the Court held that "the

Government's obligation is a familiar one -- get a

warrant." Id. at 2221. The Court also concluded that a court

order to obtain such information under the Stored Communications

Act, 18 U.S.C. § 2703, which required the government to show

"reasonable grounds" that the information was "relevant and

12

material to an ongoing investigation," "falls well short of the

probable cause required for a warrant." Id.

Significantly, although the Court held that government

requests for CSLI were generally subject to the warrant

requirement under the Fourth Amendment, the Court explicitly

recognized that "case-specific exceptions may support a

warrantless search of an individual's [CSLI] records under

certain circumstances." Id. at 2222. The Court discussed one

such "well-recognized exception" for exigent circumstances,

suggesting that other well-recognized exceptions also might

apply. Id.

In Augustine I, we held that the warrant requirement of

art. 14 of the Massachusetts Declaration of Rights applied to a

situation where the Commonwealth sought a two-week period of

historical CSLI. 7 Augustine I, 467 Mass. at 232. 8 There, we

7 The term "historical CSLI" refers to "information that has

already been generated when the data are requested," as opposed

to "prospective CSLI," which refers to "location data that will

be generated sometime after the order authorizing its

disclosure." Fredericq, 482 Mass. at 77 n.6, citing Augustine

I, 467 Mass. at 240 n.24.

8 We also have held that, "assuming compliance with the

requirements of 18 U.S.C. § 2703, the Commonwealth may obtain

historical CSLI for a period of six hours or less relating to an

identified person's cellular telephone from the cellular service

provider without obtaining a search warrant, because such a

request does not violate the person's constitutionally protected

expectation of privacy." Commonwealth v. Estabrook, 472 Mass.

852, 858 (2015).

13

remanded the case for a determination whether the written

affidavit submitted in support of the Commonwealth's application

for an order under 18 U.S.C. § 2703(d) demonstrated probable

cause with respect to the records at issue. Id.

We also have had occasion to apply exceptions to the

exclusionary rule under art. 14 in the context of CSLI.

See Commonwealth v. Fredericq, 482 Mass. 70, 85 (2019)

(Commonwealth failed to show that attenuation doctrine applied

to fruits of search of defendant's residence, where defendant's

consent to search was "intimately intertwined" with information

gleaned from prior warrantless CSLI search); Estabrook, 472

Mass. at 865, 870 (Commonwealth met its burden under

"independent source" doctrine to show that CSLI search pursuant

to warrant was untainted by prior warrantless search for same

information).

The "independent source" doctrine is a well-recognized

exception to the exclusionary rule under both the Fourth

Amendment and art. 14. See Murray v. United States, 487 U.S.

533, 537 (1988); Commonwealth v. DeJesus, 439 Mass. 616, 624-625

(2003), and cases cited. Pursuant to that doctrine, "evidence

initially discovered as a consequence of an unlawful search may

be admissible if later acquired independently by lawful means

untainted by the initial illegality." DeJesus, supra at 624.

14

In DeJesus and other recent cases applying the independent

source doctrine, we have focused our analysis on whether "the

affidavit in support of the application for a search warrant

contains information sufficient to establish probable cause

. . . apart from [information obtained from the prior illegal

search]." DeJesus, 439 Mass. at 625. See Estabrook, 472 Mass.

at 866 (same); Commonwealth v. Tyree, 455 Mass. 676, 692 (2010)

(same). 9 The defendant urges us to conduct a similar analysis in

9 A case currently pending before this court on further

appellate review raises the issue whether, in cases such as

Estabrook and Commonwealth v. Tyree, 455 Mass. 676 (2010), we

have inappropriately omitted an additional, subjective prong of

the independent source analysis discussed in Murray v. United

States, 487 U.S. 533, 542-543 (1988), namely, whether the

officers would have sought the warrant absent information

obtained in the initial illegal search. See Commonwealth vs.

Pearson, No. SJC-12930. The defendant has not raised such an

argument here. Nonetheless, having considered the issue as part

of our plenary review under G. L. c. 278, § 33E, we conclude

that this case does not require us to resolve the open questions

regarding the applicability and contours of such a subjective

prong. Rather, even assuming that such questions would be

resolved in the manner most favorable to the defendant, we

conclude that there is no substantial likelihood of a

miscarriage of justice in this case, where the record provides

ample support for the conclusion that the officers would have

sought the warrant even in the absence of the CSLI obtained in

the initial illegal search. Among other things, call logs

obtained before the illegally obtained CSLI established that the

defendant's cell phone had communicated with the victim's cell

phone multiple times on the day of her disappearance, and police

had information that the defendant, who was married to another

woman, was the father of the victim's unborn child. In the

circumstances, "[t]here can be no doubt that the police were

committed to an investigation" of the defendant's whereabouts on

the night of the murder, and they "would have sought the search

warrant with or without [the illegally obtained CSLI]."

Commonwealth v. DeJesus, 439 Mass. 616, 627 n.11 (2003).

15

this case and to conclude that without the tainted CSLI, the

warrant obtained in 2014 lacked probable cause.

Here, we proceed from the premise that the 2010 CSLI search

violated the requirements of G. L. c. 276 and art. 14 because

police did not obtain a search warrant, and the application for

the § 2703(d) order was not accompanied by a written affidavit

demonstrating probable cause. See Augustine I, 467 Mass. at

232. The absence of a written affidavit was not a mere

technical violation. See Commonwealth v. Sheppard, 394 Mass.

381, 388-389 (1985).

Nonetheless, the CSLI need not be suppressed if the 2014

search pursuant to a warrant satisfied the "independent source"

doctrine. As noted, the defendant's sole argument in this

regard is that, when stripped of information gleaned from the

prior illegal search, the 2014 warrant affidavit lacked probable

cause. We disagree, concluding instead, as the motion judge

did, that "[t]he affidavit in support of the 2014 warrant sets

out ample probable cause derived from wholly untainted facts

known to police before the August 3, 2010 acquisition of the

defendant's CSLI." See Estabrook, 472 Mass. at 870.

As summarized by the motion judge in his decision denying

the defendant's motion for a new trial, the untainted facts in

the affidavit accompanying the application for the search

warrant showed that

16

"the victim was likely murdered using a class of firearms

which included [nine millimeter] handguns; the defendant

made public statements implying that he carried a gun with

[sixteen] rounds, consistent with a [nine millimeter]

Beretta 92FS pistol; firearms records showed that the

defendant registered a [nine millimeter] Beretta 92FS

pistol which had not been reported missing; the defendant

was the likely father of the victim's unborn child, causing

financial obligations to the victim and the ire of the

defendant's wife; the victim told her friend that the

defendant asked her to get an abortion; the defendant and

the victim communicated extensively by cellphone throughout

July 27, until shortly before the victim's cellphone

activity ceased at 10:49 P.M.; and someone, probably not

the victim, sent a Facebook message from the victim's

account on July 29, after she was reported missing,

claiming she was in the hospital after an abortion,

although police determined that she was not a patient at

any area hospitals."

For all of these reasons, the trial judge did not err in

denying the defendant's motion to suppress the defendant's CSLI,

and the motion judge did not abuse his discretion in denying the

defendant's motion for a new trial and for an evidentiary

hearing on this issue. 10

3. Ineffective assistance of counsel. The defendant next

contends that his trial counsel provided constitutionally

ineffective assistance by failing to move to suppress the fruits

10In his decision on the defendant's motion for a new

trial, the motion judge also concluded that the disputed CSLI

was admissible under the "good faith" exception to the Fourth

Amendment. The Commonwealth urges this court to reach a similar

conclusion and to adopt, for the first time, a good faith

exception under art. 14. Because we conclude that the

independent source doctrine supports the admissibility of the

CSLI, we decline at this time to address the issue of the good

faith exception.

17

of the initial warrantless search of the defendant's CSLI.

Ordinarily, to establish ineffective assistance of counsel, a

defendant must show that there has been a "serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling below that which might be expected from an ordinary

fallible lawyer," and that such behavior "likely deprived the

defendant of an otherwise available, substantial ground of

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

However, where a defendant has been convicted of murder in the

first degree, we apply a standard more favorable to the

defendant, determining whether counsel's errors, if any, created

a substantial likelihood of a miscarriage of justice. See,

e.g., Commonwealth v. Simon, 481 Mass. 861, 866-867 (2019), and

cases cited. See also Commonwealth v. Wright, 411 Mass. 678,

682 (1992) ("the statutory standard of § 33E is more favorable

to a defendant than is the constitutional standard for

determining the ineffectiveness of counsel").

Here, the motion judge issued a detailed written decision

on the defendant's motion for a new trial, in which he analyzed

each category of challenged evidence individually to determine

whether it was purged of the taint of the illegal CSLI search. 11

11As summarized by the motion judge, the challenged

evidence included

18

This approach was consistent with our observation in Estabrook,

472 Mass. at 860, that the "crucial question" regarding "whether

a particular statement must be suppressed as the fruit of [an]

initial illegal search of [the defendant's] CSLI is whether that

statement has been come at by exploitation of . . . [the illegal

search] or instead by means sufficiently distinguishable to be

purged of the primary taint" (quotation and citation omitted).

As a result of this analysis, the motion judge concluded that

only two categories of evidence were tainted by the initial,

warrantless CSLI search and thus subject to suppression under

the exclusionary rule: (1) the defendant's statements to police

during the August 3, 2010, interview after he was confronted

with the illegally obtained CSLI; and (2) the defendant's

"the trial testimony of Mawande Senene and any references

thereto; the trial testimony of Joseph 'J.D.' Lang, and any

references thereto; Detective [Marc] Powell's trial

testimony referencing Senene and Lang; the defendant's

statement to police on August 5, 2010 that he only called

his wife one time on July 27, 2010; the entirety of the

defendant's statements to police on August 3, 2010; any

references to the defendant's [sport utility vehicle], car

or motorcycle or items seized therefrom, including

cellphones; any references to anything seized from the

defendant's home, including cellphones, a towel with red-

brown stains, and handgun-related accessories; the

testimony of [a] firearm dealer; the testimony of [a]

Barnstable town employee who issued the defendant's firing

range permit; the defendant's range permit and firearms

records; and all evidence that the defendant formerly owned

firearms and practiced at a firing range."

19

statements during the August 5, 2010, interview in response to

questions based on the illegally obtained CSLI.

The motion judge then assessed the effect of the tainted

evidence on the jury to determine whether trial counsel's

failure to move to suppress the evidence deprived the defendant

of a substantial ground of defense. See Saferian, 366 Mass. at

96. After determining that the statements at issue were

"relevant only to consciousness of guilt" and that they were

"merely cumulative of other substantial evidence," the motion

judge concluded that the statements "had minimal, if any,

effects on the jury such that the error was non-prejudicial."

We find no fault with the motion judge's analysis or

conclusions in this regard. And for the same reasons the motion

judge concluded that admission of the tainted evidence was

nonprejudicial, we conclude that any error in admitting the

tainted evidence was unlikely to have influenced the jury's

decision for purposes of our § 33E analysis. See Commonwealth

v. Hobbs, 482 Mass. 538, 556 (2019) (no substantial likelihood

of miscarriage of justice where testimony at issue was

cumulative of other evidence and did not likely influence jury's

conclusion); Commonwealth v. Brown, 474 Mass. 576, 586 (2016)

(no substantial likelihood of miscarriage of justice where

erroneously admitted evidence did not likely influence jury's

conclusion). Here, in light of the substantial evidence against

20

the defendant -- including the defendant's CSLI, which was

admitted properly for the reasons discussed supra, placing the

defendant at the victim's hotel, at the commuter lot where the

rental vehicle was found, and in the location where the victim's

body was discovered, all at relevant times on the night of the

murder -- trial counsel's failure to move to suppress the fruits

of the initial illegal search did not result in a substantial

likelihood of a miscarriage of justice.

4. Review pursuant to G. L. c. 278, § 33E. Finally, after

conducting a thorough review of the record pursuant to G. L.

c. 278, § 33E, we decline to exercise our authority to grant a

new trial or to reduce or set aside the jury's verdict of murder

in the first degree.

Conclusion. For the foregoing reasons, we affirm the

defendant's convictions and the denial of the defendant's motion

for a new trial and for an evidentiary hearing.

So ordered.