Commonwealth v. Wittey

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-13239

COMMONWEALTH vs. JOHN B. WITTEY.

Plymouth. March 10, 2023. - June 5, 2023.

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

Homicide. Firearms. Constitutional Law, Search and seizure.

Search and Seizure, Curtilage, Motor vehicle, Probable

cause. Probable Cause. Self-Defense. Evidence, Self-

defense, Age. Duress. Practice, Criminal, Capital case.

Indictments found and returned in the Superior Court

Department on May 24, 2016.

A pretrial motion to suppress evidence was heard by Gregg

J. Pasquale, J., and the cases were tried before Cornelius J.

Moriarty, II, J.

Dana Alan Curhan for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the

Commonwealth.

CYPHER, J. The defendant, John B. Wittey, was convicted of

murder in the first degree on theories of both deliberate

premeditation and extreme atrocity or cruelty, after he shot and

stabbed the victim, John Williams, in the victim's home,

2

following his discovery of a romantic affair between the victim

and the defendant's deceased partner. On appeal, the defendant

argues that a State police trooper's examination of his vehicle,

visibly parked in the driveway leading up to his house,

constituted a warrantless search within the curtilage of his

home. He argues that his motion to suppress the evidence

recovered pursuant to a search warrant following these

observations wrongfully was denied. He further asserts that

this court should vacate or reduce his conviction of murder in

the first degree under G. L. c. 278, § 33E (§ 33E), based on the

self-defense theory he presented at trial, and based on his age,

the circumstances surrounding the killing, and his mental state

at the time, which he suggests shows that he was acting under

some degree of duress.

We hold that the defendant's vehicle was not parked within

the curtilage of his home and that, therefore, the trooper's

observations of the vehicle did not constitute a search for

constitutional purposes. Discerning no error in the verdict of

murder in the first degree after plenary review of the entire

record, we decline to exercise our authority under § 33E to

reduce the verdict or order a new trial.

1. Background. a. Facts. We discuss the facts that the

jury could have found, reserving some details for later

discussion.

3

The victim was the president of a ham radio club,1 a golfer,

a pilot, and a father. He had a license to carry a firearm and

occasionally would do so. Judy Harris, the defendant's partner

of over twenty years whom he considered to be his wife, was the

vice-president of the ham radio club. Harris and her grandson

Anthony, whom she and the defendant raised, lived at the

defendant's home.2 While Harris was in a relationship with the

defendant, she had a years-long affair with the victim. The

victim and the defendant knew each other; there was conflicting

testimony surrounding whether they were friends. Harris was

diagnosed with stage four ovarian cancer in 2012, from which she

passed away in January 2016.

On the evening of February 8, 2016, at around 9:30 P.M.,

Roberta Delorie, a friend of the victim, spoke with him by

telephone and planned to meet him for breakfast the next morning

at a restaurant.3 The victim was to pick her up at 10 A.M. the

next morning. That night, there was a snowstorm. When it

1 Ham radio also is known as amateur radio. Britannica,

https://www.britannica.com/technology/amateur-radio [https:

//perma.cc/WK4F-YB88].

2 The defendant also was a ham radio operator. Anthony, who

also was in the ham radio club, could not recall whether the

defendant was a member but recalled the defendant going to

meetings frequently.

3 On her 911 call to the police, she identified the victim

as her boyfriend.

4

snowed, the victim would go out each hour and measure the snow

for his pilots' association.

The next morning, on February 9, 2016, the victim did not

arrive at Delorie's home as promised, which was unusual for him.

When it neared 10:30 A.M. and the victim did not answer her

calls, Delorie decided to drive to the victim's house, located

on Glen Charlie Road in Wareham, using her son's car. When she

arrived, she parked in the victim's driveway and walked to his

front door. She entered the house with a key given to her by

the victim.

When she opened the door, she saw white matter hanging from

the ceiling and a thick purple substance on the floor. She

noticed the victim on the floor, wearing boxer shorts and a T-

shirt, with a bulge underneath his shirt. She also saw three

bullets or casings near each other by the victim's feet. She

called 911 and listened to the dispatcher, who instructed her to

leave the house without touching anything.

Sergeant Walter Correia of the Wareham police department

was the first officer on the scene. He noted blood on the walls

and floor, as well as casings on the floor. Initially, he

believed that the victim's death was the result of a suicide.

He did not see a firearm, but believed that it could be under

the victim's body. The victim's body was a short distance,

approximately six feet, from the doorway. Correia remained

5

outside in order to maintain the scene as it was, and more

officers and emergency medical service paramedics arrived at the

scene.

State police Lieutenant Leonard Coppenrath arrived at the

victim's home as well. There were two vehicles in the driveway,

one belonging to the victim and the other belonging to Delorie,

and there was freshly fallen snow on the ground. When he

arrived, Coppenrath traveled the perimeter of the property to

look for footprints. He only observed footprints traceable to

first responders on the scene. Until he arrived, the officers

present ensured that no one else entered the home.

State police Sergeant William Tarbokas, who is trained in

tire tread examination, responded to the victim's home to

perform analysis with personnel from crime scene services. He

found no fingerprints of value for identification purposes.

Tarbokas saw that there was a third tire track underneath the

middle of Delorie's car, which preserved the track from melting

due to sunlight. He took photographs of the third track to be

used for comparison.

In the kitchen area, behind the victim's body, officers

located a beer bottle for a specific brand, Beck's, which bottle

was on its side leaning against a scratch post for a cat.

Coppenrath noticed three closely grouped gunshot wounds to the

right side of the victim's head, just above his ear, and a

6

gunshot wound and stippling on the top of his head. In addition

to observing those gunshot wounds, Trooper David Collett noticed

two more entrance wounds to the victim's back after pulling back

his shirt, which had two holes in it. Coppenrath observed a

laceration on the victim's arm, and once the victim was turned

over, he noticed a laceration to the victim's stomach area with

"innards . . . protruding." At that point, officers were aware

that this was not a suicide, but a homicide.4

Police recovered two live rounds and three spent shell

casings surrounding the area of the victim's body. They also

recovered two bullet fragments, jacketed spent projectiles,

which had been fired and were lodged in the flooring. The

victim owned several firearms, which were located in his home,

in a closet. Coppenrath testified -- despite the cat food

4 The medical examiner testified that the victim died from

multiple gunshot wounds and sharp force injuries, any of which

potentially may have been fatal if left untreated. She observed

an entrance and exit gunshot wound and sharp force injury to his

left hand, which fractured a bone in his hand; a graze gunshot

wound on his left forearm; intestines protruding from a stab

wound on his torso; an entrance gunshot wound in the middle of

his chest; an entrance gunshot wound on his left hip; two

entrance gunshot wounds on his back, one of which lacerated his

right lung and exited through his chest; an entrance gunshot

wound on the left side of his face, which perforated several

organs; three entrance gunshot wounds to the right side of his

head; and a gunshot wound to the top of his head. Several

projectiles were recovered in different parts of the victim's

body, including his hand, hip, shoulder, spine, torso, and

brain. There was stippling on the victim's body suggesting that

a firearm was fired at close range.

7

scattered on the floor of the victim's home, the bottle opener

on the floor, and the watch that was detached at the hinge and

on the floor -- that he did not believe the victim died in a

struggle because there were a significant number of items in the

kitchen area that were undisturbed.

Trooper Jason Abramoski arrived at the scene and remained

outside. He canvassed the neighborhood, without success, in an

effort to determine whether anyone had heard or seen anything

unusual or maintained surveillance cameras that would have aided

in the investigation. As a result of a conversation between the

victim's children and Collett on scene, Abramoski was dispatched

to speak with the defendant. After reporting to the Wareham

police department, Abramoski went to interview the defendant at

his home on Plain Street East in Berkley. He took with him

Detective William Dasilva from the Wareham police department and

Sergeant David Bernard from the Berkley police department.

When they arrived at the defendant's residence, Abramoski

noticed two Toyota motor vehicles, a Yaris and a Sienna, in the

driveway. After Abramoski knocked, the defendant answered the

door. Abramoski asked the defendant whether the officers could

speak to him about the whereabouts of the victim and the

defendant's relationship with the victim; the defendant agreed

and invited the officers inside.

8

The inside of the defendant's home was cluttered, unkempt,

and dark. Before they spoke to the defendant, the officers

allowed him to go upstairs to let Anthony know that they were

there and to get shoes. The defendant began to tell the

officers that he had met the victim through Harris, who had

passed away about two weeks prior. When Harris was ill, the

victim frequently visited her during her treatments. The

defendant produced a printed e-mail message from a pocket of his

shirt, and he indicated that he had discovered that the victim

and Harris had been "a little bit more than just friends." When

asked to explain the message, the defendant stated that it made

him upset, and he handed the printout to Abramoski. The

message, dated September 9, 2014, was written from Harris to the

victim. It revealed a sexual and romantic relationship between

the victim and Harris, through which the victim got to know

Anthony and Harris got to know the family of the victim. The

message further revealed that the victim had ended the

relationship, which devastated Harris.

After the defendant produced the e-mail message, Abramoski

asked him if he would consent to recording the interview. The

defendant agreed, and they moved to another room so that the

defendant could sit down. During the recorded interview, the

defendant explained that he found the e-mail message one week

9

after Harris passed away.5 The defendant stated that he was

upset about the message and decided to go for a "joyride,"

leaving between 10 P.M. and 11 P.M. for Dover, New Jersey,

returning in the early morning of February 9, 2016.6 He told the

officers that he drove the Toyota Sienna on this trip.

After the interview, the defendant agreed to go with the

officers to the Berkley police department for a formal

interview. When he arrived at the police station and after

being read the Miranda rights for a second time, he indicated

that he would not like to make any statements.7 At the police

station, the defendant gave the officers the clothing that he

was wearing and consented to being photographed. There was a

Beck's bottle cap found in the pocket of the defendant's jeans.

5 At some point in the investigation, officers found a

printout of a second e-mail message from Harris's account, dated

September 20, 2014, further detailing her anguish over the

breakup with the victim and the victim's new girlfriend. In an

upper corner of the printout, there was a date stamp indicating

that it had been printed on the day before the victim was found

dead in his home.

6 Anthony, who still lived in the defendant's home, stated

that the defendant left in the evening of February 8, 2016, and

did not return until the next day.

7 This testimony was admitted at the hearing on the motion

to suppress, but not the trial.

10

The defendant was allowed to leave and was picked up by his

friend, Philip Dann.8

Ruth Ragnaldsen Battaglini, a forensic scientist with the

State police crime laboratory, conducted testing and analyzed

the scene of the murder. A significant number of presumptive

tests conducted at the scene were positive for the presence of

blood. On February 9, 2016, while the defendant was at the

Berkley police station, Battaglini observed his condition and

noted that there was a reddened area on his right knuckles and a

cut and scratch on his left hand. On a screening test, the

defendant's hands tested positive for the presence of blood.

The defendant's vest, which he was wearing at the police

station, tested positive for human blood on both the interior

and exterior. The defendant's sweater and jeans also tested

positive for human blood.9 The deoxyribonucleic acid (DNA)

8 Throughout his interactions with the defendant, Abramoski

did not observe the defendant to be injured or have trouble

walking. Collett testified that at the time of the defendant's

subsequent arrest on February 12, he did not observe any

injuries to the defendant. However, Collett was impeached with

his grand jury testimony where he stated that there was redness

on the defendant's right knuckle area, a cut on his left thumb,

and a scratch on his left wrist.

9 His shoes tested negative for the presence of blood.

11

obtained from a red-brown stain on the front of the defendant's

sweater matched the victim's DNA profile.10

Dann testified that when he picked up the defendant, the

defendant's demeanor was subdued, which was different from

earlier interactions he had had with the defendant. After

attempting to drop off the defendant at a residence in Pembroke

where no one was home, Dann brought the defendant to his office

to stay there for the evening. During the drive, Dann asked the

defendant "what was going on," and the defendant told Dann that

his friend had gone missing and that the police brought him in

to question him. When asked if he "had anything to do with it,"

the defendant replied that Dann "didn't want to know anything

about [it]." At the office, the defendant told Dann that Dann

did not want to be involved and that this was a "bad thing."

Search warrants were issued in connection with the case,

including those for the defendant's residence and the Toyota

Sienna, which officers searched on February 10, 2016. In the

Sienna, officers found a case of Beck's beer containing three

full beers, a Beck's beer bottle cap, a global position system

(GPS) device, two rounds of nine millimeter ammunition, and two

rounds of .44 Magnum ammunition, among other things. Tarbokas

10The expected frequency of occurrence of the profile was

approximately one in 3.418 quintillion related individuals (a

quintillion is a one with eighteen zeros following it).

12

participated in the execution of the search warrants, and he

observed the tires of both the Yaris and the Sienna. The Yaris

tires were much smaller in width and size than the impression

photographed at the victim's home. He took impressions from the

tires on the Sienna, which were all of the same type. Tarbokas

opined that the tread marks from the Sienna were of the same

class as those found at the victim's residence, concluding that

the tread could have been made by a tire on the Sienna or any

other tire with a similar design and size. When screened for

nonvisible or occult blood, the front driver's side exterior and

interior door handles, front driver's side seat back and bottom,

front driver's side seat belt, steering wheel, gear shift, car

key, and remote tested positive for blood.

Trooper Francis Driscoll, who participated in the execution

of the search warrant for the Sienna, examined the files on the

GPS located in the Sienna, attached to the windshield. The

files on the GPS showed that on the night of February 8, 2016,

into the early morning of February 9, the Sienna was driven

multiple times to and from the area surrounding the victim's

residence. The first activation of the GPS on February 8 was at

7:33 P.M. and placed the Sienna on Seymour Street in Berkley.

The Sienna was driven to the area of Glen Charlie Road in

Wareham at 9:08 P.M., and driven back and forth on Glen Charlie

Road until 9:29 P.M. At 9:57 P.M., the Sienna returned to Glen

13

Charlie Road and remained to traverse the street until 10:09

P.M. The Sienna arrived back at the defendant's Plain Street

East address in Berkley at 10:55 P.M. and began moving again at

11:23 P.M. At 12:01 A.M. on February 9, the Sierra arrived at

Glen Charlie Road in Wareham for a third time, and ultimately

came to a stop in an area four to six houses away from the

victim's home at around 12:03 A.M. After several minutes

remaining stationary, the next activation of the GPS was at an

address next to the victim's home at 12:10 A.M., after which the

Sierra then traveled south and was switched off in Fairhaven at

12:53 A.M.

In the defendant's residence, officers secured fifteen

empty Beck's beer bottles, as well as a piece of paper on top of

a pile of papers with the name of the victim and a telephone

number written on it. The empty Beck's beer bottles in the

defendant's garage, the full bottles in the Sienna, and the

bottle found in the victim's home all had the same lot number.11

Officers also found another piece of paper with the name "Trish"

Brandon McGrath, a quality manager of a brewery that

11

produces Beck's beer at some of its locations, explained the lot

number on the bottles and stated that, operating at maximum

capacity, 600 beers per minute in fifteen-minute increments

would share the same lot number.

14

and a telephone number,12 as well as the name "Williams" and "121

Charlie R or Rd."

On February 12, 2016, a warrant issued for the defendant's

arrest. Officers executed the warrant at the home of the

defendant's daughter. When the officers confronted the

defendant in the doorway of the home, he stated, "Oh, it looks

like my ride is here."

On March 18, 2016, Robert Costanzo and Andrew Campbell were

assisting their friends John and Chrissy Nelson in cleaning out

the defendant's cluttered home, specifically focusing on the

garage.13 In a silver box in the garage, after unscrewing

approximately twenty screws to the door of the box, John located

two firearms and seven boxes of ammunition.14 They called

police, who collected the firearms and ammunition. The firearms

later were confirmed to have been purchased by the defendant.

One of the firearms was a revolver. When it was recovered,

it was loaded with six live rounds of .22 Magnum caliber

ammunition. The other was a nine millimeter Taurus

12 Trish was a local nurse who cared for Judy in hospice.

13 Chrissy is the defendant's daughter.

14When officers executed the search warrant on February 10,

2016, the silver box was inaccessible because several items

blocked the area.

15

semiautomatic pistol.15 The magazine, which was removed,

contained one round of live ammunition; there was also one round

of live ammunition in the chamber of the pistol. The boxes of

ammunition that were recovered were .22 Magnum and nine

millimeter ammunition. The revolver tested positive for the

presence of blood on the interior of the barrel and the side of

the firearm. The DNA profile found on the side of the revolver

matched the victim's DNA profile.16 Lieutenant John Conroy, the

head of the ballistics unit for the State police in Lakeville,

test fired both firearms, which fired properly. It was Conroy's

opinion, to a reasonable degree of ballistic certainty, that the

discharged shell casings found at the scene were fired from the

nine millimeter Taurus semiautomatic pistol found at the

defendant's residence. He also analyzed a projectile recovered

from the floor of the victim's residence, and his comparison to

the test firing that he conducted was inconclusive. He examined

seven other projectiles recovered during the investigation,

which were consistent in diameter with .22 caliber ammunition.

15In a revolver, unlike in a semiautomatic weapon, the

discharged cartridge casings remain in the cylinder until they

are manually removed; they are not ejected from the weapon on

firing. If there is a malfunction or jam in a semiautomatic

weapon, then moving the slide to the rear to "rack the weapon"

will eject a live round from the weapon without firing it.

16The expected frequency of occurrence of the profile was

approximately one in 1.071 nonillion unrelated individuals (a

one with thirty zeros after it).

16

Although he found several similarities with the test firing from

the revolver recovered at the defendant's residence, he did not

feel that there was "a sufficient agreement of individual

markings" to opine to a reasonable degree of ballistic certainty

whether they were fired from that weapon.

After the Commonwealth rested its case, the defendant

testified. The defendant met Harris in 1992; after six months

of dating, she moved into his home and lived with him until her

death in January 2016. While Harris was sick, the defendant

took her to her doctor appointments and the hospital, and took

care of her at home. The defendant testified that starting in

2011, Harris became very hostile toward him until her death.

During that period, the victim would come over four or five days

per week.

The defendant testified that on February 8, 2016, he found

the printout of the e-mail message written from Harris to the

victim in September 2014 in a laundry bag that he was cleaning

out.17 When he first started reading, he thought the message was

written to him, but he then realized that it was not when it

referenced the recipient sleeping with two women. After the

defendant found the message, he began to try to find any other

evidence of the affair to confirm it. He then found a second e-

17The defendant admitted on cross-examination that he lied

about finding the letter a week before the murder.

17

mail message on Harris's account that confirmed the

relationship. The defendant was "astounded" and "so upset and

angry [that he] wanted to confront [the victim] and ask him

what's been going on the last five years." He felt "doubly bad"

because the victim treated Harris poorly.

The defendant knew that the victim had purchased a house on

Glen Charlie Road in Wareham, so he inputted the address into

his GPS device and drove there, despite the severe snowstorm.

When he got there, he did not recognize anything, so he turned

around and drove home. When he returned home, he found a piece

of paper with the victim's address, which misidentified the

street number by one. According to the defendant, his intent

was not to shoot the victim, but to determine "why he was so

mean to [Harris], why he had destroyed her." When he drove back

to Glen Charlie Road, he could not see the street numbers on the

houses or the mailboxes because they were covered in snow. As

he was driving farther up the road, he saw a sports car in the

victim's driveway, which resembled the car that the defendant

knew belonged to the victim.

The defendant then "pulled in behind it and grabbed a

bottle of Beck's beer and pounded on the door." He testified

that he brought two guns with him because the victim always was

armed. The victim, in his underwear, invited the defendant

inside after the defendant told him that the defendant needed to

18

speak privately with him, and the victim handed the defendant a

bottle opener to open his beer. When the defendant told the

victim that he knew about the affair and how the victim treated

Harris, the victim "laughed in [the defendant's] face" and

"badmouth[ed]" Harris.18 This "incensed" the defendant and made

him "very angry." The defendant then responded with something

that "wouldn't have been very nice," and according to him, the

victim went into the kitchen and then charged at the defendant

with a knife.

The defendant grasped each wrist of the victim, trying to

hold the knife away from him, and they rotated around the

kitchen in a "strange dance." The defendant testified that the

victim fell on top of him, and it seemed that the victim still

had the knife and was trying to stab the defendant. At the time

of his arrest, the defendant was five feet, seven inches tall,

and weighed approximately 170 pounds. At the time of his

autopsy, the victim was five feet, seven inches tall, and

weighed 191 pounds.19

18The defendant testified on cross-examination that the

victim "laughed in [his] face and then . . . made very

disparaging remarks about my dear wife. Remarks that were

absolutely disgusting."

19The victim's son testified that the victim was six feet,

two inches tall and weighed about 220 pounds. The defendant

emphasized that the victim was taller than him.

19

In response to the victim's attempt to stab him, the

defendant took out his .22 caliber revolver and pulled the

trigger six times, until there were no bullets remaining. The

defendant then pulled out the nine millimeter Taurus

semiautomatic pistol and shot the victim twice as he was still

trying to stab the defendant, got up, picked up his revolver and

the knife, and left the home. He drove to Dover, New Jersey,

where he used to live.

On cross-examination, the defendant claimed that the victim

fell down on the knife, explaining his protruding intestines.

The defendant stated that the knife "must have gone into [the

victim's] stomach and come back out because he still had it in

his hand" and continued to try to harm the defendant. The

defendant disposed of the knife in the trash at a gasoline

station in Connecticut. The defendant claimed that he was

underneath the victim when he fired all of the shots.

b. Procedural history. The defendant was indicted on

May 24, 2016, and arraigned on June 28 on charges of murder in

the first degree, G. L. c. 265, § 1; two counts of unlawful

possession of a firearm without a firearm identification (FID)

card, G. L. c. 269, § 10 (h); one count of unlawful possession

of ammunition without an FID card, G. L. c. 269, § 10 (h); three

counts of a firearm violation with one prior violent crime,

G. L. c. 269, § 10G (a); and possession of a large capacity

20

firearm, G. L. c. 269, § 10 (m). The defendant filed a motion

to suppress evidence obtained from an alleged warrantless search

in the curtilage of his home on July 19, 2018.20 An evidentiary

hearing on the motion to suppress was held on November 20. On

January 7, 2019, the motion judge, who was not the trial judge,

denied the defendant's motion to suppress with written findings.

The trial began on September 30, 2019. In closing

arguments, the defense argued that the defendant acted in self-

defense in response to a struggle on the floor, and asked the

jury to return a verdict of manslaughter. The Commonwealth

argued that the defendant acted "in cold blood with vengeance"

when he "executed . . . [and] assassinated" the victim in his

home, shooting the victim ten times without missing.21 The

Commonwealth suggested that the defendant's story was

"incredible." On October 11, the jury convicted the defendant

of murder in the first degree on theories of both deliberate

premeditation and extreme atrocity and cruelty, and also

convicted him on the indictments charging unlawful possession of

firearms and ammunition without an FID card and possession of a

20He also moved to suppress his statements to police, with

which he does not take issue on appeal.

21The medical examiner testified that there was an eleventh

"graze" gunshot wound on the victim's forearm.

21

large capacity firearm.22 The defendant filed a timely notice of

appeal.

2. Discussion. a. Curtilage issue. On February 9, 2016,

State police Trooper Donald Short responded to the defendant's

residence to observe the Sienna in the driveway and to speak

with Anthony.23 The defendant's residence is set back from a

long driveway.24 A visitor approaching the front door of the

home would have to walk up the driveway to get there, traveling

along a walkway toward the front steps leading up to the main

entrance of the home. From the street, there was an

unobstructed view of the Sienna; there was no gate around the

driveway, no fence around the property, and no "no trespassing"

signs posted around the property.

At around 7:30 P.M., while the defendant was at the police

station, Short pulled into the driveway, observed the Sienna in

the driveway, and looked at the tread pattern on the tires. The

Yaris, also in the driveway, was parked farther down and closest

to the garage; the Sienna was parked to the front left of it.

22The Commonwealth dismissed the three indictments charging

a firearm violation with one prior violent crime.

23The relevant facts are taken from the testimony at the

hearing on the motion to suppress and photographs of the

driveway, vehicles, and home admitted at the hearing.

24From a photograph taken from behind the parked Sienna,

one can observe a relatively long driveway marked at the roadway

by an unmarked police cruiser.

22

Both were parked toward the end of the driveway closest to the

house. Earlier that day, when Abramoski went to the defendant's

home to speak with the defendant, he got within five to ten feet

of the vehicles as he was walking up the driveway and to the

front door.

On the tread pattern of the tires on the Sienna, Short

observed unique rain channels that appeared to be similar to the

tread markings in the driveway at the victim's home. Because it

was dark, the tires would have had to be illuminated in order

for Short to see them; he could not recall whether he used a

flashlight or whether the area was illuminated in another

manner. In addition to examining the tire treads, Short looked

inside the window of the Sienna and saw an open case of Beck's

beer, a sleeping bag, and a "sea bag."25 He did not open the

door or move the Sienna in any way.

Short's observations were included in the affidavits

supporting the search warrant applications for the defendant's

residence, the Sienna, specified information on the defendant's

cell phone, and the GPS found within the Sienna.

The motion judge found that in walking to the front door of

the home to speak with the defendant, Abramoski had to traverse

the walkway to the front door leading from the end of the

25A "sea bag" is a type of bag "that the military used to

store gear."

23

driveway. "In so doing, Abramoski had to walk by an automobile

parked on the defendant's property." The motion judge also

found that Short "needed to pass by an automobile in the

driveway" to reach the front door of the house, and that Short

"observed the tire treads as he walked by." He ruled that the

driveway was not part of the home's curtilage and that,

therefore, the defendant had no reasonable expectation of

privacy as to the portions of the Sienna that Short observed.

On appeal, the defendant argues that the Sienna was parked

within the home's curtilage. He asserts that the motion judge

erred in finding that the Sienna would have been visible from

the street, as the driveway was long and the home was private;

the motion judge erred in finding that one would need to walk

past the Sienna to access the front door; and Short's intent to

view the tire treads in the driveway favors the conclusion that

it was an unlawful, warrantless search. Finally, the defendant

argues that the Commonwealth cannot demonstrate that the Sienna

would have been searched in any event pursuant to the inevitable

discovery doctrine.

The Commonwealth argues that the driveway was not within

the curtilage of the home and therefore not entitled to

protections under the Fourth Amendment to the United States

Constitution and art. 14 of the Massachusetts Declaration of

Rights. The Commonwealth further argues that the search

24

warrants would have been issued even excising the information

obtained from Short's observations of the Sienna.

In our review of a ruling on a motion to suppress, "we

accept the judge's subsidiary findings of fact absent clear

error." Commonwealth v. Leslie, 477 Mass. 48, 53 (2017),

quoting Commonwealth v. Fernandez, 458 Mass. 137, 142 (2010).

We "conduct an independent review of [the judge's] ultimate

findings and conclusions of law" (citation omitted).

Commonwealth v. Torres, 102 Mass. App. Ct. 359, 361 (2023),

quoting Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166,

171 (2019). We do not consider the testimony at trial in

reviewing the motion judge's ruling on the motion to suppress.

Commonwealth v. Escalera, 462 Mass. 636, 648 (2012). "Where, as

here, the issue is whether a search occurred within the

curtilage of a home, 'we undertake our independent review

cognizant that there is no "finely tuned formula" that

demarcates the curtilage in a given case.'" Leslie, supra,

quoting Fernandez, supra. There is no "bright line rule," and

we must approach "curtilage questions on a case-by-case basis."

Fernandez, supra at 143.

"[T]he Fourth Amendment's protection of curtilage has long

been black letter law." Collins v. Virginia, 138 S. Ct. 1663,

1670 (2018). The concept of curtilage "originated at common law

to extend to the area immediately surrounding a dwelling house

25

the same protection under the law of burglary as was afforded

the house itself." Commonwealth v. McCarthy, 428 Mass. 871, 873

(1999), quoting United States v. Dunn, 480 U.S. 294, 300 (1987).

Presently, the concept of curtilage is "used to define those

areas to which Fourth Amendment protections extend." McCarthy,

supra. If an area "is 'so intimately tied to the home itself'

that 'an individual reasonably may expect that the area in

question [will] be treated as the home itself,'" it will be

considered part of the curtilage. Id. at 874, quoting Dunn,

supra at 300, 301. In Dunn, the United States Supreme Court set

out four factors to consider in determining whether a

particularly described area qualifies as curtilage: (1) "the

proximity of the area claimed to be curtilage to the home," (2)

"whether the area is included within an enclosure surrounding

the home," (3) "the nature of the uses to which the area is

put," and (4) "the steps taken by the resident to protect the

area form observation by people passing by." Dunn, supra at

301.

Generally, "[a] driveway 'may be private according to

common law concepts of property, [but] it need not be for

purposes of the Fourth Amendment.'" Commonwealth v.

Butterfield, 44 Mass. App. Ct. 926, 928 (1998), quoting

Commonwealth v. Simmons, 392 Mass. 45, 49, cert. denied, 469

U.S. 861 (1984). Because a driveway is only a "semiprivate

26

area," the expectation of privacy a possessor of land may

reasonably have in his or her driveway "will generally depend

upon the nature of the activities [carried out there] and the

degree of visibility from the street." Butterfield, supra,

quoting Simmons, supra at 48. Applying the Dunn factors to a

driveway may yield different results based on the circumstances

present in each case.

In Massachusetts, we have considered the surrounding

circumstances in determining whether a driveway is a protected

area under the Fourth Amendment and art. 14. In Simmons, for

example, where an officer and a victim stood in a driveway and

looked for five minutes into a vehicle located between one and

two feet from the driveway, directly across a path leading to

the front door, we held that the defendant had no reasonable

expectation of privacy in the location where the vehicle was

observed. Simmons, 392 Mass. at 46-47, 49. In so holding, the

court relied on the facts that the vehicle was "clearly visible"

from the busy roadway and the adjacent parking area, the

driveway was not enclosed by any obstructions, there was an

absence of "no trespassing" signs, and the driveway was the

normal means of access to the home where visitors would traverse

on the way to the front door. Id. at 47, 49.

Similarly, in Butterfield, 44 Mass. App. Ct. at 928, the

Appeals Court found that the defendant, on a walkway leading to

27

his home, and his vehicle, parked in the driveway, were not

within the curtilage of the home. Both the defendant and the

vehicle were visible from the street; there was no evidence that

the driveway was enclosed by trees, a fence, shrubbery, or other

obstructions; and the walkway leading to the back door was one

that a visitor naturally would use to reach the door. Id. at

928-929. See Commonwealth v. Greineder, 458 Mass. 207, 254-255

(2010), S.C., 464 Mass. 580 (2013) (vehicle outside curtilage

where defendant's vehicle parked in driveway was visible from

street; no trees, fences, gates, or "no trespassing" signs; and

no measures taken to define area as curtilage); McCarthy, 428

Mass. at 875 (visitor parking space not within curtilage of

apartment where area in between apartment and space was open to

tenants, visitors, delivery persons, and maintenance workers as

common area). Cf. Commonwealth v. Thomas, 358 Mass. 771, 774-

775 (1971) (cellar not within curtilage of defendant's apartment

where he did not have exclusive control of any part of it, as

"[i]n a modern urban multifamily apartment house, the area

within the 'curtilage' is necessarily much more limited than in

the case of a rural dwelling subject to one owner's control").

But see Commonwealth v. Hall, 366 Mass. 790, 794-795 (1975)

(defendant had reasonable expectation of privacy in apartment

hallway where he did not share it with tenants or landlord as he

was owner of building, door was locked, and buzzer system was

28

designed to exclude members of public); Commonwealth v. Pierre,

71 Mass. App. Ct. 58, 61-63 (2008) (defendant had reasonable

expectation of privacy in storage locker in basement of

apartment building, and basement was within curtilage of

defendant's apartment, despite unrestricted access to basement

and lack of exclusive control).

Conversely, in Fernandez, 458 Mass. at 144-145, the court

held that the defendant's "narrow driveway, approximately the

width of one vehicle and the length of two," was within the

curtilage of his apartment. The driveway directly was adjacent

to the three-family home, in which the defendant lived on the

first floor. Id. at 144. No one seeking to enter the home

would have reason to walk on the driveway, and the police saw

only vehicles associated with the defendant parked in the

driveway, pointing to his exclusive use. Id. at 144, 146.

There was a fence separating the driveway from the neighboring

building. Id. at 145. Although the vehicle was visible from

the street, an observer of the inside of the car would have to

depart from the path designed to lead to the front door, rather

traveling along the side of the house down the driveway. Id. at

146. In these circumstances, the driveway was within the

curtilage of the defendant's home. Cf. Leslie, 477 Mass. at 55-

57 (side yard was within curtilage where it was attached to

porch, where it was enclosed by fence with house and porch,

29

where porch was used as extension of home, and where steps were

taken to protect area from view); Commonwealth v. Straw, 422

Mass. 756, 759 (1996) (fenced in back yard was within curtilage

of home); Pierre, 71 Mass. App. Ct. at 62-63 (locker in basement

was within curtilage where stairs in defendant's kitchen linked

apartment to basement and storage locker searched was subject to

defendant's exclusive control); Commonwealth v. Hurd, 51 Mass.

App. Ct. 12, 15-16 (2001) (defendant had reasonable expectation

of privacy in cage located in back yard and partially enclosed

by fence, where cage was not visible from public street or front

yard, porch, or shed doors; officer's vantage point from

driveway was not determinative where driveway was not normal

access to front door).

In Collins, 138 S. Ct. at 1670-1671, the Supreme Court held

that a particular section of the driveway where the defendant's

motorcycle was parked constituted curtilage. In so holding, the

Court described this portion of the driveway as sitting a few

yards past the front perimeter of the house, enclosed on two

sides by a brick wall the height of a vehicle and on the third

side by the house. Id. at 1670. A side door provided direct

access between this enclosed section and the house. Id. at

1670-1671. A visitor would have no reason to enter the

enclosure, as he or she would turn off toward a set of steps

leading to the front porch before entering the enclosure. Id.

30

at 1671. The officer pulled off a tarp to expose the

motorcycle. Id. at 1668.

Case law from the Federal circuits discussing driveways and

a reasonable expectation of privacy reinforces the case-specific

inquiry that the curtilage question demands. A prominent factor

in the analysis is whether the driveway freely is exposed to

public view. United States v. Brown, 510 F.3d 57, 65 (1st Cir.

2007) ("If the relevant part of the driveway is freely exposed

to public view, it does not fall within the curtilage"). Where

so exposed, the balance tends to favor the determination that a

defendant is not entitled to a Fourth Amendment protections in

such an area. See United States v. Hatfield, 333 F.3d 1189,

1194 (10th Cir. 2003) ("The openness and accessibility of a

driveway to the public has been an important factor that courts

have used to conclude that an owner does not have a reasonable

expectation of privacy and that police observations made from

the driveway do not constitute a search"). "This holds true

even where the relevant part of the driveway is somewhat removed

from a public road or street, and its viewing by passersby is

only occasional." Brown, supra.

The majority of Federal circuit cases discussing a driveway

curtilage question have found that the area at issue was not

part of the curtilage of the home or that, even if it was

curtilage, it was not afforded the same protections. See United

31

States v. Stephen, 823 Fed. Appx. 751, 755 (11th Cir. 2020)

(driveway was not within curtilage of home where, although in

close proximity to home, driveway was not gated, covered,

enclosed, or partly enclosed; it did not serve as extension of

defendant's home; occupants made no effort to conceal driveway

from passersby; and it formed part of path visitors would take

to walk to front door); United States v. Coleman, 923 F.3d 450,

456-457 (6th Cir.), cert. denied, 140 S. Ct. 580 (2019)

(driveway adjacent to home was not within curtilage where it was

not enclosed, no steps were taken to obstruct view of passersby

or vehicles on way to entrance of home, and other residents

shared driveway); United States v. Beene, 818 F.3d 157, 162 (5th

Cir.), cert. denied, 580 U.S. 850 (2016) (driveway not curtilage

despite proximity to residence because open to observation from

street, and although fences encircled part of driveway, none

blocked access or view from street, and no "no trespassing"

signs or other attempts to protect privacy); Brown, 510 F.3d at

65-66 (top of defendant's driveway adjacent to garage was not

curtilage where, although close to home and not visible from

public street, there were no barriers or signs discouraging

public entry, and defendant allowed patrons of his business on

property); Hatfield, 333 F.3d at 1194, quoting 1 W.R. LaFave,

Search and Seizure § 2.3(f), at 506-508 (3d ed. 1996) ("[W]hen

the police come on to private property to conduct an

32

investigation . . . and restrict their movements to places

visitors could be expected to go [e.g., walkways, driveways,

porches], observations made from such vantage points are not

covered by the Fourth Amendment"); United States v. French, 291

F.3d 945, 953 (7th Cir. 2002) ("In the past we have held that

public drives, sidewalks, or walkways [even those which lead to

a rear side door] are not within the curtilage of the home when

they are not enclosed by a gate or fence"); United States v.

Ventling, 678 F.2d 63, 64, 66 (8th Cir. 1982) (no reasonable

expectation of privacy where officer drove into driveway and

went to front door, noticed tire tracks in yard along driveway,

and stopped to photograph them, as "a driveway and portion of

the yard immediately adjacent to the front door of the residence

can hardly be considered out of public view"); United States v.

Humphries, 636 F.2d 1172, 1179 (9th Cir. 1980), cert. denied,

451 U.S. 988 (1981) (no violation of defendant's reasonable

expectation of privacy where officer went onto driveway to

examine license plate on vehicle, where vehicle was visible from

street and driveway was not enclosed by fence, shrubbery, or

barrier).

Nonetheless, in certain circumstances, some cases have come

to the opposite conclusion. See United States v. Alexander, 888

F.3d 628, 630-634 (2d Cir. 2018) (end of long driveway in front

of shed was curtilage where it extended past back of house,

33

enclosed by fencing on three sides, and was used for hosting

barbeques, despite visibility to public); United States v.

Wells, 648 F.3d 671, 677 (8th Cir. 2011) (portion of unpaved

driveway extending past rear of defendant's home was within

curtilage of home where officers' observations were made just

behind home, visitors would need to pass paved walkway leading

to front door and door to carport to get there, driveway was

enclosed on three sides by fence, and it contained items

suggesting use for intimate activity associated with home);

United States v. Diehl, 276 F.3d 32, 39-41 (1st Cir.), cert.

denied, 537 U.S. 834 (2002) (portion of property was within

curtilage where significant portion of driveway was far from

public view, there was bend in long driveway, portion was

enclosed by forest, and inhabitants made efforts to discourage

mail delivery and visits).

With this framework in mind, we apply the Dunn factors to

this case.

i. Proximity. The photographs indicate that the portion

of the driveway where the Sienna was parked was close to the

home. Abramoski testified that both the Sienna and the Yaris

were parked toward the end of the driveway, which was the

portion closer to the home. Although this Dunn factor leans in

favor of the defendant, the remainder of the factors suggest

that the Sienna was outside the curtilage of his home.

34

ii. Enclosure. The defendant's house is set back from a

long driveway. There was no testimony describing the precise

length of the driveway, but the photographs admitted at the

hearing allow a viewer to see an individual standing at the

front of the driveway clearly from behind the Sienna, parked

toward the end of the driveway. The house and the driveway are

flanked with trees on the left, right, and rear, as the

defendant lived in a wooded area. Despite the relative privacy

surrounding the defendant's home, the Sienna was visible to

passersby in the street, contrary to the defendant's assertion

otherwise, and to visitors to the home who had to traverse the

driveway to arrive at the front door. There was no gate or

fence around the driveway. Despite the two-bay garage attached

to the home, the Sienna was exposed on the driveway within from

five to ten feet of the walkway. See Simmons, 392 Mass. at 47,

49; Stephen, 823 Fed. Appx. at 755. Contrast Collins, 138 S.

Ct. at 1670-1671 (motorcycle sitting on portion of driveway few

yards past front perimeter of house, covered in tarp, and

enclosed on two sides by wall and third side by house).

The fact that the driveway to the home was located in a

rural area does not command a finding that the driveway where

the Sienna was parked was within the curtilage of the home. See

Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 162 n.5

(1991) ("[A]n individual who lives on a relatively small public

35

road has no greater expectation of privacy than one who lives on

a large public road. Absent some effort to conceal the driveway

from public view, the relative seclusion of the neighborhood

does not heighten an individual's expectation of privacy in a

driveway").

iii. Use. There was no testimony that the defendant used

the driveway for anything other than parking cars. As far as

one can tell from the photographs, there are no items suggesting

that the driveway "harbor[ed] those intimate activities

associated with domestic life and the privacies of the home."

McCarthy, 428 Mass. at 874, quoting Dunn, 480 U.S. at 301 n.4.

See Commonwealth v. Pietrass, 392 Mass. 892, 902 (1984) (in

determining whether porch part of curtilage, factor to consider

is "whether the porch was furnished like a room in the interior

of the house").

iv. Steps taken to protect from observation. Finally, the

defendant took no steps to conceal the Sienna in the driveway,

or any portion of the driveway, from observation. As discussed

supra, there was an unobstructed view of the Sienna from the

street, there was no gate or fence around the driveway, and

there was an absence of "no trespassing" signs posted around the

property. The fact that Short may have used a flashlight or

another method to illuminate the tread marks on the tires of the

Sienna does not transform his actions into a search for

36

constitutional purposes. Commonwealth v. Blevines, 54 Mass.

App. Ct. 89, 92 n.5 (2002), S.C., 438 Mass. 604 (2003) ("The

trooper's action in shining a flashlight into the vehicle did

not constitute a search").

The defendant argues that the motion judge clearly erred in

finding that the officers needed to pass by the Sienna in order

to reach the front door of the house. It is difficult to

conclude that this finding was clear error, because it depends

on an interpretation of what the motion judge meant by "pass

by." "A judge's finding is clearly erroneous only where there

is no evidence to support it or where the reviewing court is

left with the definite and firm conviction that a mistake has

been committed" (quotation and citation omitted). Commonwealth

v. Colon, 449 Mass. 207, 215, cert. denied, 552 U.S. 1079

(2007). Abramoski testified at the hearing on the motion to

suppress that he got within from five to ten feet of the Sienna

as he was walking to the front door of the home. Although the

photographs are not conclusive on the matter because of the snow

and the angles at which they were taken, in the clearest

photograph one can observe wooden steps leading to the walkway

on the far right of the Sienna, which appears to be closely

aligned with the front perimeter of the house. Based on that

photograph, it seems that an average visitor walking to the

front door would get close to the Sienna on his or her journey,

37

even supposing that the visitor would not be near enough to see

inside. It is irrelevant that Short went to the defendant's

residence, in part, for the purpose of observing the Sienna in

the driveway. "The subjective intentions of police are

irrelevant so long as their actions were objectively

reasonable." Commonwealth v. Cruz, 459 Mass. 459, 462 n.7

(2011). This does not alter our conclusion that the driveway

was not within the curtilage of the home.

Even if we were to determine that the driveway where the

Sienna was parked was within the curtilage of the home, excising

that information from the search warrant affidavits, probable

cause would remain to search the defendant's residence and the

Sienna.

"[R]egardless of the illegality of the initial entry and

search, the evidence is admissible as long as the affidavit

in support of the application for a search warrant contains

information sufficient to establish probable cause to

search the defendant's [residence and Sienna], apart from

the observation of the [tire tread marks, the Beck's beer,

and the sleeping bag]."

Commonwealth v. DeJesus, 439 Mass. 616, 625 (2003).26 "It is a

simple matter to exclude from the supporting affidavit all

26As indicated by the court's explanation in DeJesus, 439

Mass. at 625, this is the more appropriate inquiry, rather than

the application of the inevitable discovery doctrine. If we

were to apply the inevitable discovery doctrine to this matter,

the Commonwealth would meet both parts of the test. Because of

the other information contained in the affidavit, discussed

infra, the search of the defendant's residence and vehicle was

"certain as a practical matter." Commonwealth v. McAfee, 63

38

information gained" by Short in relation to the Sienna on

February 9 by excluding the following paragraph from the

affidavits:

"On Tuesday, February 9, 2016[,] Trooper Donald Short

arrived at [the defendant's address] in Berkley. Trooper

Short observed a grey Toyota Sienna parked in the driveway.

The driveway led you to the stairs, which led you to the

front door of the residence. The grey Toyota Sienna . . .

has four tires with four rain channels and square treads on

the outside of each tire. This tire pattern is similar to

the tire pattern found in the driveway at [the victim's

address] in Wareham by Sgt. William Tarbokas . . . (Crime

Scene Services Section). Trooper Short observed from the

driveway through the clear exterior windows of the Sienna

an open case of Becks beer in the rear of the Sienna.

There also was a sleeping bag and a green sea bag in the

back of the Sienna. The left rear passenger seat was

pulled all the way forward against the driver's seat."

Id. The information remaining in the affidavits, which appear

to contain largely identical facts, provided ample support for

probable cause for the searches.27

We summarize the information in the affidavits connecting

the defendant to the murder of the victim. When officers

responded to the victim's residence, they noted identifiable

tire tracks preserved in the snow from recent traffic. The

Mass. App. Ct. 467, 479 (2005), quoting Commonwealth v. Perrot,

407 Mass. 539, 547 (1990). Additionally, as Short's observation

of the Sienna in the driveway was not a "search" in the

constitutional sense, he did not act in bad faith by "conducting

an unlawful search in order to accelerate discovery of the

evidence." McAfee, supra at 480, quoting Commonwealth v.

O'Connor, 406 Mass. 112, 118 (1989).

The affidavit for the GPS had additional facts, as it was

27

discovered after the search of the Sienna.

39

victim's children, after being asked whether their father had

any conflicts, told officers about the victim's relationship

with Harris while she was living with the defendant. The

victim's daughter stated that the victim found it odd when the

defendant invited him to the defendant's house for drinks after

Harris's wake. The officers checked the defendant's criminal

record and saw that Harris had a restraining order against him

in 2003 and that he had been convicted of assault and battery on

an elderly disabled person in 2013, a case in which the victim

was a witness.

In the victim's home, there was one partially consumed

Beck's beer bottle on its side under the kitchen table; the

remainder of the beer in the victim's home was "Miller High

Life" brand. Nine millimeter ammunition and shell casings were

found near the victim's body.

When Abramoski arrived at the defendant's residence to

speak with him, he noted two vehicles cleared of snow, the Yaris

and the Sienna, both registered to the defendant. The defendant

stated that he knew the victim and met him through Harris. He

told the officers that he believed the victim and Harris to be a

"little more than just friends," and produced the e-mail message

that he discovered, readily available in his left shirt pocket,

which, as detailed supra, revealed a years-long affair between

the victim and the defendant's longtime girlfriend. The

40

defendant stated that he discovered this message one week

earlier.

The defendant told officers that he spoke to the victim on

the telephone on February 8, 2016, the day before the victim's

body was discovered. Despite allegedly finding the e-mail

message one week earlier, the defendant claimed that he never

brought this to the victim's attention on their telephone call.

The affair made him very upset.

On February 8, 2016, the defendant said that he left his

house approximately between 10 P.M. and 11 P.M., in the severe

weather, to go for a "joy ride" in his Sienna to Dover, New

Jersey, because he was upset about discovering the relationship

between the victim and Harris. He stated that he stopped twice

for gasoline and paid for everything in cash. When he arrived

at approximately 4 A.M., he took a nap in a store's parking lot,

the location of which he could not recall, and slept for several

hours. He then visited his old neighborhood in New Jersey, of

which he could not remember the exact location, and returned

home. He arrived home that day at 12 P.M. Anthony confirmed

that the defendant was not home from late on February 8 until

February 9 at around 11 A.M.

The defendant stated that he knew the victim's home was in

Wareham, but did not know where exactly. He initially told

officers he never owned a handgun, but then claimed he may have

41

owned a nine millimeter handgun that he sold to an unknown party

when his license expired. The defendant was not concerned about

the victim's whereabouts because "it was difficult to [still]

consider the victim a friend" after finding the e-mail message.

He told the officers that he drinks Beck's beer.

"Probable cause requires a '"substantial basis" to conclude

that "the items sought are related to the criminal activity

under investigation, and that they reasonably may be expected to

be located in the place to be searched at the time the search

warrant issues."'" Commonwealth v. Snow, 486 Mass. 582, 586

(2021), quoting Commonwealth v. Holley, 478 Mass. 508, 521

(2017). From the information summarized above, the magistrate

reasonably could have inferred that the defendant had recently

unearthed a motive to murder the victim, lied about owning a

nine millimeter gun at some point (where nine millimeter live

rounds and casings were found by the victim's body), drank the

same type of beer found in the victim's home near his body, and

acted in a suspicious manner on the night of the victim's

murder, with no record of his activities. This information,

without reference to Short's observations, provided ample

support for probable cause to search the defendant's home and

Sienna, where the GPS was subsequently discovered, for evidence

relating to the defendant's murder of the victim. See

Commonwealth v. Donahue, 430 Mass. 710, 712-715 (2000)

42

(affidavit provided substantial basis to search defendant's home

and car for evidence of murder of his wife).

b. Review under G. L. c. 278, § 33E. The defendant argues

that he is entitled to a new trial or a reduction of the verdict

of guilty of murder in the first degree under our powers

pursuant to § 33E. As reason therefore, he asserts that an

acquittal based on self-defense or a reduction to manslaughter

would be more consonant with justice. He also argues that his

age, mental state, and the circumstances surrounding the killing

support a reduction in the verdict. We disagree and see nothing

else in the record warranting the exercise of our extraordinary

authority under § 33E.

It is our duty, under § 33E, to "consider broadly the whole

case on the law and the facts to determine whether the verdict

is consonant with justice." Commonwealth v. Vargas, 475 Mass.

338, 363-364 (2016), quoting Commonwealth v. Howard, 469 Mass.

721, 747 (2014), S.C., 479 Mass. 52 (2018). "This court's

authority to reduce a conviction of murder in the first degree

in the interest of justice 'should be used sparingly and with

restraint.'" Commonwealth v. Billingslea, 484 Mass. 606, 619-

620 (2020), quoting Commonwealth v. Brown, 477 Mass. 805, 824

(2017), cert. denied, 139 S. Ct. 54 (2018). We reduce

convictions "only in the most compelling circumstances."

Billingslea, supra at 620. Factors we have considered in

43

mitigating a verdict of murder in the first degree include, but

are not limited to, whether the intent to kill was formed "in

the heat of sudden affray or combat" or during a "senseless

brawl"; whether the sequence of the killing reflects spontaneity

rather than premeditation; whether the defendant brought a

weapon to the scene; "whether the victim was the first

aggressor"; whether the defendant and victim knew each other or

were strangers, and the relationship between them; whether

alcohol or drugs were involved; and personal characteristics of

the defendant, such as age, family, disability, and lack of

prior record (citations omitted). Vargas, supra at 364-365.

This case does not present a set of circumstances in which

the defendant likely acted in self-defense to save himself from

the victim's attack. The defendant's testimony supporting such

a theory was incredible, and justifiably, the jury rejected it.

The evidence presented at trial strongly supported the

Commonwealth's theory that the defendant, driven by anguish over

the victim's affair with Harris, went to the victim's home in

the early hours of the morning in the middle of a snowstorm with

the intent to brutally kill him. By the time of the trial, the

defendant admitted that he lied to police and found the e-mail

messages the day before the victim was found dead. He drove to

the area of the victim's house three times on the night of the

murder, unassuaged when he could not locate the victim's home

44

the first two times. He arrived at the victim's house with two

firearms on his person. The victim's attitude toward Harris

made the defendant "very angry." He was at the victim's home

for only seven minutes.

The victim's injuries reflected the product of rage. The

victim had ten gunshot wounds that penetrated his hand, torso,

chest, hip, back, lungs, organs, and brain. In addition, he had

a graze gunshot wound on his left forearm and was stabbed in his

abdomen to the point that his intestines protruded. Even

recognizing that the victim owned a large number of guns, the

defendant's theory was that the victim came at him with a knife,

falling on the knife and then pulling it out of the victim's own

stomach and continuing to stab the defendant, all the while on

top of the defendant as the defendant fired off the above-

mentioned shots. There were only minor injuries located on the

defendant's hands at the police station. These facts do not

comport with those that we have found justified a reduction in a

verdict of murder in the first degree in the past. Compare

Commonwealth v. Salazar, 481 Mass. 105, 120 (2018) (where

evidence "far from compelling," no ill will between defendant

and victim, and no motive for killing, reduction warranted), and

Vargas, 475 Mass. at 365-366 (jury rejected theory of deliberate

premeditation, victim was initial aggressor, defendant

reasonably could have feared victim, defendant swung knife in

45

wild manner and told third party to call 911, and killing was

product of sudden combat and heat of passion), with Commonwealth

v. Rodriquez, 461 Mass. 100, 111-112 (2011) (although

"senseless," defendant initiated, continued, and escalated

brawl, which was fueled by animus, and defendant stabbed victim

viciously and repeatedly).

Similarly, there are no mitigating factors suggesting a

reduction in the defendant's conviction. Although it is

regrettable that Harris was unfaithful to the defendant with the

victim, this did not warrant the defendant's actions in

response. Cf. Commonwealth v. Ronchi, 491 Mass. 284, 295 (2023)

(sudden oral revelation of infidelity does not satisfy objective

element of something that would provoke reasonable person to

kill his spouse).

The defendant's older age does not warrant a reduction in

his conviction under these facts. See, e.g., Commonwealth v.

Denson, 489 Mass. 138, 154 (2022) (declining to grant relief due

to defendant's youth and immaturity where defendant was "twenty

years old at the time of the stabbing and there [was] nothing in

the record that indicate[d] that a reduction in the verdict on

this basis [was] warranted"); Commonwealth v. Tate, 486 Mass.

663, 677 (2021) ("The fact that the defendant was nineteen at

the time of the shooting is not alone enough for relief under

§ 33E"). We decline to reverse the verdict on this basis,

46

especially in light of the fact that the defendant has a prior

conviction for harming an elderly person -- this is not the

first time the defendant acted in a violent matter.

We reject the defendant's assertion that he was acting

"under some degree of duress" at the time of the murder. In

Commonwealth v. Vasquez, 462 Mass. 827, 835 (2012), the court

"reject[ed] duress as a defense to deliberately premeditated

murder, murder committed with extreme atrocity or cruelty, and

murder in the second degree," but left open the possibility that

"in exceptional and rare circumstances of duress," the court may

reduce a defendant's conviction of murder in the first degree on

§ 33E review. The defendant did not act under duress in this

case. Duress "is not available to a person who recklessly puts

himself in a position where coercion probably will be applied."

Id. at 833. It is

"a present, immediate, and pending threat of such a nature

as to induce a well-founded and reasonable fear of death or

serious bodily injury if the criminal act is not done, with

no reasonable and available chance of escape, and where no

person of reasonable firmness could have acted otherwise in

the circumstances."

Id. at 832-833. Here, the defendant, on his own accord, walked

into the victim's home armed with two guns in the middle of the

night, angry about the victim's relationship with Harris. He

was under no threat to do so.

47

Having carefully examined the entire record, including, but

not limited to, the photographs admitted at the trial, the

defendant's statements to police, the expert testimony, and the

issue with a juror in the middle of the trial, we have discerned

no basis to set aside or reduce the verdict of murder in the

first degree or to order a new trial. We decline to exercise

our authority to do so.

3. Conclusion. Although it does not have any impact on

the defendant's murder conviction, we vacate his convictions on

the two counts of unlawful possession of a firearm without an

FID card and one count of unlawful possession of ammunition

without an FID card, consistent with our holding in Commonwealth

v. Guardado, 491 Mass. 666, 693-694 (2023) ("our holding applies

prospectively and to those cases that were active or pending on

direct review as of the date of the issuance of [New York State

Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022)]").

"[T]he defendant's rights under the Second Amendment [to the

United States Constitution] and his rights to due process were

violated when he was convicted of unlawfully possessing

ammunition [and firearms] although the jury were not instructed

that licensure is an essential element of the crime." Guardado,

supra at 693. We need not vacate his conviction of possession

of a large capacity firearm. See id. ("we decline the

defendant's suggestion that we extend this holding to the crime

48

of unlawful possession of a large capacity feeding device"). We

affirm the defendant's convictions of possession of a large

capacity firearm and murder in the first degree.

So ordered.