Petition for Writ of Certiorari — Andrew Robertson, Petitioner v. Massachusetts

Supreme Court briefJul 11, 2022

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SJC-12677

COMMONWEALTH

Suffolk.

Present:

vs.

ANDREW ROBERTSON.

January 10, 2022. - February 28, 2022.

Budd, C.J., Lowy, Kafker, Wendlandt, & Georges, JJ.

Homicide.

Firearms.

Evidence, Joint venturer, Acts and

declarations of conspirator, Photograph, Videotape,

Opinion, Fingerprints, Relevancy and materiality.

Joint

Enterprise.

Constitutional Law, Confrontation of

witnesses.

Practice, Criminal, Capital case, Confrontation

of witnesses, Argument by prosecutor, Instructions to jury,

Assistance of counsel.

Indictments found and returned in the Superior Court

Department on April 11, 2014.

The cases were tried before Linda E. Giles, J.

David H. Mirsky for the defendant.

Darcy A. Jordan, Assistant District Attorney (Ian

Polumbaum, Assistant District Attorney, also present) for the

Commonwealth.

LOWY, J.

After a mistrial due to a hung jury, the

defendant, Andrew Robertson, was convicted at a second trial of

murder in the first degree on theories of^deliberate

premeditation and extreme atrocity or cruelty. ■l

He appeals from

his convictions, arguing that (1) there was insufficient

evidence to convict him at the first'and second trials,

(2) the

defendant’s motion to sever should have been allowed,

(3)

various pieces of evidence were admitted erroneously,

(4) the

prosecutor improperly expressed his opinion in closing argument,

(5) the judge's instruction on accessory after the fact was

improper,

(6) the defendant was denied the fight to a fair trial

when a codefendant attacked him as the verdicts were being read,

and (7) we should reduce the verdict of murder in the’ first

degree pursuant to G. L. c. 278, '§ 33E.

We affirm.

Background: ‘Viewing the evidence in 'the light most

favorable to the Commonwealth, the jury could have found the

following at both the first'and second trials.-

See Commo'nwe'alth

v. Latimore,' 378 Mass. ‘671,’677-678 (1979).2 '

The victim, Romeo McCubbin, was shot multiple times and

killed while ' sitting in his: sport "utility vehicle (SUV)'.

Surveillance video footage caught: th£ shooting on camera. -' Tn

the footage, a small SUV parks 1 parallel to a sidewalk,

individual wearing a scarf and white-soled shoes' -- the

defendant

- runs onscreen from the left with his arm extended/'

1 The defendant also was convicted of possessing a firearm

without a license.

2 The evidence at both trials was largely the same.

stops facing the SUV's front .driver's side window, and fires

multiple shots into.it..

The vehicle then rolls forward, and the .

victim falls out of.the front passenger’s side door.

The

shooter jumps into the front passenger’s side of a waiting SUV,

which speeds away.

A second person then runs up and shoots the

prone victim multiple times; a third person then kicks the

victim once.

.A detective responding to the shooting.. followed an SUV

being driven quickly away,from the area of the scene of the

shooting.

The vehicle eventually turned into a driveway.

Omar

Bonner and Omar.Denton got out of the SUV and were arrested

after a chase..

While, in custody :.after .his-.arrest,, Denton said

to Bonner .that he ,"told Sophie to ,call SP" and "called SP" from

"the wagon."3. .The defendant Vs nickname, was "Spoilers," and he

received a call from Denton.around-the time that Denton was.

arrested.

The defendant, used his;cell .phone to communicate or attempt

to communicate with Bonner-immediately before and after the

. .

killing, .and ,he,. received .calls from Javaine•Watson,. who was a

friend of the defendant, .the.night of the incident,

In the

month leading up to the shooting,, the defendant engaged in

hundreds of telephone contacts with Watson, Denton, and Bonner.

3 It is unclear from the record who "Sophie" is.

The defendant asked his girlfriend to cancel his cell phone

number the day after the shooting.

Police recovered from the property where they had chased

Denton and Bonner a gun that had fired ballistics found at the

scene of the shooting, including the bullets found in the

victim's jacket and in the victim’s head.

Police also

investigated a red SUV blocking a driveway down the street from

where the chase had occurred.' The SUV was still’on, in'reverse,

and resting against a fence.

They took custody of this vehicle,

as well as thb one' Denton and Bonner had been driving.

Watson's cell phone was in' the red SUV.

He had borrowed

the vehicle from his' girlfriend that day and had told her it was

parked in front of a driveway.

His girlfriend had rented the'

vehicle the day before Watson borrowed it.

Photographs

introduced at trial revealed the ,-SUV, to be nearly. ...identical-to

the first shooter's getaway vehicle, as shown in the,videotape

of the,shooting.

The. defendant's fingerprints were on the SUV,

including on the; front-passenger's ,door's handle.

Bonner's,:

Denton's,, and Watson^s fingerprints also were -on the vehicle

The defendant was at a nightclub down the street from the ,

shooting on the night of the incident, wearing a scarf and

white-soled shoes.4

Denton, Bonner,and Watson also were at the

club that night, as was the victim.

A photograph from that

night at the ..club shows the .defendant, Denton, and Bonner

standing .near each other.

The jury could not reach.a verdict regarding the charges

against the defendant after a trial against the defendant,

Denton, and Bonner.5,

Following a s.econd trial, which was against

the defendant, Denton, Bonner, and Watson, the, jury found the

defendant guilty of murder in the first degree on theories of

deliberate premeditation and extreme', atrocity .or cruelty, as

well .as unlawfully possessing a .firearm.

Discussion.

Sufficiency of the evidence.

The

defendant .argues that there.was,insufficient evidence to.convict

4 The evidence of the defendant's clothing in the club was

clearer in the first trial than in the second trial, but

sufficient in both to-demonstrate what the defendant was

wearing. At the first trial, a witness identified an individual

wearing a scarf and white-soled shoes1 in two photographs from

the club, and an individual whose clothing was not as visible in

a third photograph from the club, 'as the'defendant. At the '•

second trial, that witness identified the defendant only in the

third photograph,; where'his scarf - and1'shoes' were not- visible.

The other two photographs were introduced in evidence, however,

and the jury could infer that the individual' in•the third

photograph was the same individual as in the first two

photographs based on' the clothing•visible in all the images.

5 At this first trial, the jury found Omar Bonner guilty of

unlawfully possessing a firearm and resisting arrest; they also

found Omar Denton guilty of unlawfully possessing a firearm.

Javaine Watson was severed from the first trial due to his

attorney's illness.

him at both his first and second trials because the Commonwealth

failed to prove at both trials that he was the first shooter.'

See Berry v. Commonwealth, 393 Mass. 793, 798 (1985)

(pursuant

to double jeopardy principles, Commonwealth may not retry

defendant after hung jury if: there was insufficient evidence to

convict).

We disagree.

As a preliminary matter, the Commonwealth argues that the

defendant has waived his right to contest the sufficiency of the

evidence at his first trial because) before his second’trial, he

did hot appeal from the denial of his motion to dismiss on

double jeopardy grounds.

This is' incorrect

M[T]he defendant's

contention that the evidence at his' first trial was insufficient ‘

to warrant a conviction can . . . be' raised at least as well'in ■

the appeal following His second'trial'as it could have been

raised under G. L. c. 211, '§- 3."

j ■

Commonwealth v. Preston, 396

Mass. 1006, 1006' (1985)1

Nevertheless,’the defendant's sufficiency argument fails.

Considering all the evidence in' the light most favorable to the•

Commonwealth, the evidehce'at both' trials was"sufficient to show

beyond a reasonable doubt that the;defendant - was the firstshooter.

See Latimore, 378'Mass, at 677-678.

The evidence, along with reasonable inferences' therefrom,

showed that the defendant was associated with Denton and Bonner,

at least one of whom was in possession of one of the guns used

to shoot the victim, and Watson,, whose cell phone was in the

getaway vehicle.

The defendant communicated with Watson,

Denton, and Bonner hundreds,of times in the month leading up.to

the shooting, including immediately before and after the

See Commonwealth v. Barbosa, 477 Mass. 658, 667

incident.

(2017)

(defendant's "telephone calls with his suspected

coventurers immediately before the ,shooting and in the thirty

minutes after ... . allow the reasonable inference of the

defendant's participation .in and shared intent to commit the

The defendant, Denton, Bonner, Watson, and the victim

murder").

were at. a club ..near the shooting.,on. the. night, of the murder.

The defendant was wearing a. scarf and white7Soled shoes that

night, as was .the first shooter.

His fingerprints were on.the

door handle, of the getaway vehicle, .^which had been rented the

day before.

(2003)

See Commonwealth v. Netto, 438 Mass. 686, 701-702

(fingerprint evidence may suggest defendant',s guilt when

coupled with other evidence) ...

Finally, ..the defendant .asked his

girlfriend to cancel his cell phone number the day.after.the

shooting, .demonstrating consciousness of.guilt.

Commonwealth v. Porter, 384 Mass.,647, 653, (1981)

See

(consciousness

of guilt, coupled with other evidence, may suggest defendant's

guilt).

This evidence was more than sufficient for a rational

jury to identify the defendant, as the first shooter beyond a

reasonable doubt.

Evidentiary issues.

a.'

Hearsay.

The defendant argues-

that Denton's statements that he "told Sophie' to call SP" and

"called SP" from "the wagon" should not ’have been admitted

against the defendant, whose nickname was "Spoilers," as they

were inadmissible hearsay.

The Commonwealth argues that the

statements were admissible against the defendant under the joint

venture exemption to the rule against hearsay.

Evid. § 801(d)(2)(E)

(2021).

See Mass. G.

We conclude that the judge did not

abuse her discretion in admitting the statement.

An out-of-court statement presented"for' its truth is

exempted from the rule against hearsay if it "is offered against

an opposing party and

. . was made 'by the party's

coconspirator dr joint venturer during the Cooperative effort

and in furtherance of‘its goal,-' if the existence of the

conspiracy or joint venture is shown'by'evidence independent of

the statement."

Mass. G. ' Evid*. § 801 (d) (2)' (E) .

"To admit the

statement of a joint venturer,' the judge must make a•preliminary

determination,’ based on' a preponderance of the evidence, other

than the out-of-court' statement itself," that the ’statement was

made during, and in furtherance of, a joint venture between ’the

declarant and the defendant.

22, 37 (2017).

Commonwealth v. Rakes, 478 Mass.’

See’ Mass! G. Evid. § 104(a). "This determination

permits the statement to be placed in front of the jury . .

but does not suffice for the jury to consider it.as bearing on

the defendant's guilt."

Rakes, supra.

"The jury must first

make their own independent determination, again based on a

preponderance of the evidence other than the statement itself,

that a joint venture existed and that the statement was made

[during ,and] in furtherance thereof."

Id.6

"We review the

judge's decision to place a joint venturer's statement before

the jury for abuse of discretion."

Id.

Here, as discussed supra, there was sufficient evidence for

a rational jury to conclude beyond a .reasonable doubt that the

defendant, Denton, Bonner, and Watson were coconspirators in the

victim’s murder.

Accordingly, there was .sufficient evidence for

the judge and jury to so conclude by the lesser preponderance of

the evidence standard.

There also.was sufficient evidence ,for .

the judge and jury to conclude by a preponderance of the

evidence that Denton's statements .were made in furtherance of (

the conspiracy. ■ Denton's use,, ofthe initials . "SP" .. suggests... his

intent to hide the defendant's identity, from the police, and.his

comments to Bonner suggest that,.Denton was. trying to conceal, the

crime by ,reaching out to a coventurer ..who. was still at large and

by expressing to Bonner a continued camaraderie.

See

Commonwealth v. Leach, 73 Mass. App. Ct. 758, .764 ; (2009),

quoting Commonwealth v. Anderson, .445 Mass. 19.5, 211 (2005)

6 The judge here gave a proper joint venture instruction

when submitting the issue to the jury.

("Although the statements were made while the defendants were in

custody/ the conversations occurred shortly after the shoo'ting,

and clearly, the defendants were sharing information and 'acting

to conceal the crime’that formed the basis of the enterprise 1 IV

Additionally, admitting Denton's out-of-court statements

against the defendant did not offend the confrontation clauses

of the United States and Massachusetts Constitutions.

"Where an

individual does not appear at trial/ that individual’s

testimonial

out-of-court statements are not admissible against

a criminal defendant absent unavailability and a prior

opportunity for cross-examination'. "

Commonwealth v. ’Wardsworth,

482 Mass.'454, 463-464’ (2019), citing Crawford v. Washington,

541 U.S. 36, 68' (2004). ■ "Testimonial * statements are those made

with the primary'purpose of

for trial'testimony. 1 H

creating an out-of-court substitute

Wardsworth, supra at 464, quoting

Michigan v. ‘ Bryant, '562 U.S. 344, '358 ’(2011).

objective one; we examine

"The test is an

the primary purpose that a reasonable'

person would have ascribed to the statement, taking into account

all of the.surrounding.circumstances.'"

Wardsworth, supra,

quoting Commonwealth v. Imbert, . 47 9 Mass. 575., 580 (2018).

general, "statements of joint venturers . . . are the type of

remarks that the [United States Supreme Court has] deemed

nontestimonial."

Commonwealth v. Burton, 450 Mass. 55, 64

(2007), citing Crawford, supra at 56.

Although Denton made his statements to Bonner in the

presence of a police officer,, who testified to the .statements at

trial, a reasonable person would not. have thought that Denton

was making a .formal statement that constituted an out-of-court

substitute for trial testimony.

The officer was sitting between

the cells where Bonner and Denton were being held, and Bonner

and Denton were shouting back and forth to each other without

any questioning by the officer.

In addition to the comments

about "SP," Denton,also told.Bonner .that "when [he] was in [his] .

driveway,

[he] seen police,

[he] started running."

Denton•was

debriefing with his coconspirat.or. in,_coded language,, about what

had occurred, not.trying to create a record of events for the

observing.officer’s benef it... See,. United States v... Norwood,. 982...

F. 3d 1032,..1049. (,7th C-ir. 2020) .("an • of ficer ' s mere presence" is

not dispositive ofconfrontation..clause inquiry .as is "an

officer's questioning").-

Therefore, the ;judge did not abuse her

discretion in admitting .Denton\s statements..7.

• ■ • J i 1 r\

This conclusion disposes of the defendant's argument that

the judge :-shoul-d - ha-ve severed' his ' cash 'from'those'of the other

defendants because Denton's statements referring to "SP"

amounted to an incriminating confession pursuant to Bruton v.

United States, 391 U.S. 123, 126 (1968). See Commonwealth v.

DePiha, 476 Mass. 614, 629 n.13 (2017) (evidence "properly '

admitted under the joint venture, exception to the hearsay rule"

"does not implicate the Bruton rule"). The'defendant also

argues that the judge should have severed his case because his

and Watson's defenses were mutually antagonistic, as Watson's

counsel informed the jury of the defendant's incarceration and

Reenactment evidence.

The defendant contends that the

judge erred in admitting still photographs from 'a reenactment

video recording the police, created/ "He does not, however,

acknowledge that the photographs were admitted for a limited

purpose or'address that the Commonwealth referred to the

photographs in closing argument for a purpose other than the

limited one.

We conclude that regardless of whether the' judge

erred in admitting the photographs for a limited purpose, the

Commonwealth erred in referring to*the photographs substantively

in closing.

That 'error, however, did not create a substantial

likelihood'of a miscarriage of justice.

"A videotaped demonstration’may be admitted in'evidence"

provided i’t sufficiently resembl'es'-the actual event so as'to be

fair and informative" (citation omitted).

Commonwealth -v. :"-' ‘

Javier, 481 Mass. '268,'‘287 ‘(2019) . ''In making this

determination, a' judge should consider -whether the reenactment

is relevant, whether its "conditions' correspond'to those of the

original incident/" and-whether it '"will'confuse or mislead the

«.* f •

suggested to the jury that a witness had lied to protect the

defendant. We already decided in our- review of Watson's

convictions that his and the defendant's defenses were not so

antagonistic as to require separate trials. Commonwealth v. s

Watson, 487 Mass. 156, 167-169 (2021). As we stated in that

case, "[t]here was not 'a danger that the jury [would] feel

compelled to choose between defendants rather than to assess the

proof against each defendant separately. I M :Id. at 169, quoting

Commonwealth v. Moran, 387.Mass. 644, 659 (1982).

j ury. "

Id. , quoting Commonwealth v. Chukwuezi, 475 Mass. 597,

603 (2016). .We review decisions to admit reenactment evidence

for abuse of discretion.

Javier, supra at 28,8.

Here,, four days after the shooting, the police drove by the

scene of the incident in the SUVs they had recovered the night

of the shooting, that is, the SUV Denton and.Bonner had been

driving and the red SUV found near the scene of the chase; they

then retrieved the recording of this reenactment from the video

camera that had recorded the shooting itself.

The judge did nqt

allow ,the Commonwealth to play the,reenactment video recording,

concluding that the reenactment was not "sufficiently similar" •

to the conditions of the shooting, "to make the simulation of any

value to the jury."

She was.concerned that the reenactment

occurred-four days, after the shooting, that there was snow on

the ground during the reenactment.but,not during the shooting,

that the recordings occurred at different.times of day, that the

vehicles in the reenactment, were driven -past the camera in a

different manner from that of ’the vehicles, in the video footage

of the shooting, and that the reenactment video recording was

"much brighter" than the shooting video footage.

The -judge, •

accordingly, told the-Commonwealth that it could reference the

reenactment, without playing the'video recording, only as

evidence of an adequate police investigation1.

v. Bowden, 379 Mass. 472, 486 (1980).

See Commonwealth

The Commonwealth then sought to introduce still photographs

from the reenactment video' recording.'

The judge observed that

some of her concerns applied to both-the video recording•and the

still photographs, but not her.trepidation about how the

vehicles were driven by the camera in the video recording.

deferred ruling on the issue.

She

Later in the trial, she decided

that the Commonwealth could use the still photographs and

observed that any differences between the conditions during the

reenactment and during the shooting went to the weight that the

jury would give to the photographs, not to the photographs

admissibility.

She did not state that the Commonwealth’s use of

the reenactment photographs would be'limited to the adequacy of

the police's investigative process.

When-the'photographs were introduced at trial, however;'the

judge instructed the jury that the still photographs were to be

used "for the limited purpose [’of} -show [ing]

; the steps '

that the police took in 'their investigation, anti for that’

purpose’ ohly. "

Although'the‘judge did not say so expressly, she

apparently had changed her mind regarding the purpose for’which

the jury could use the photographs.

Spencer,

See Commonwealth v.

465 Mass. 32, 40' n.11 (2013), quoting Luce v. United

States, 469 U.S. 38,'-41-42

(1984)

("even if nothing unexpected

happens at trial, the judge is free, in the exercise of sound

judicial discretion, .to alter a previous.in limine ruling"

[alteration omitted] ) .•

No party addressed this change at trial.

Whether the judge abused her discretion in restricting how

the jury could use the photographs is immaterial.

Her ruling

was that the evidence was admitted for a limited purpose, and

that is the only purpose for which the jury could consider the

evidence.

Contrary to the judge's limiting instruction, and relying

perhaps on the judge's earlier decision to admit,the photographs

without limitation, the prosecutor argued.in closing that the

still photographs .from the reenactment video-recording showed

the same vehicles as the still photographs from..the shooting

video footage.

This was error. .See.Commonwealth v. Bregoli,

431. .Mass. 265, 278 (2000), citing ..Commonwealth v. -Johnson, 412

Mass. 318,. 3.21-324 (1992)

("prosecutor . may not ^present to jury,

evidence admitted for limited.purpose .as if it .were substantive

evidence")..

Because there was noi objection, we. review for a

substantial likelihood of a.miscarriage .of justice and conclude

that .there was none.

See .Commonwealth v. -Moffat,, 486 Mass..193,

201 (2020).

The., argument was a small part of the prosecutor’s closing,

and the jury were .-instructed . that . closing arguments are not

evidence.

See id. at 202-203.

We presume, moreover, that the

jury followed the earlier instruction to consider the evidence

for a limited purpose.

See id. at 203.

The prosecutor's

improper argument also was cumulative, as there‘was other

evidence that the red SUV the police recovered was the getaway

vehicle:

a witness testified at the second trial that he saw a

red SUV with the same make as the recovered SUV leaving the

street where the shooting occurred after gunshots were fired.

See Commonwealth v. Hobbs, 482 Mass. 538, 555 n.16 (2019)’

Accordingly, the error does not require a new trial.

Enhanced photographs. 'The defendant challenges the

admission at trial of'certain enhanced'photographs and related

lay witness testimony.

We conclude that the photographs were

admitted properly and that any,lerror in the testimony about the

photographs was not prejudicial'.'

Whether the enhanced photographs properly were admitted is

an issue of authentication and the balancing’of probative value

and prejudicial effect.’

See Mass1. G.' Ev'id. § 901'(a)

("To

satisfy the requirement' of ’authenticating or identifying an item

of evidence, the proponent must' produce evidence sufficient' to

support a finding that the: item is 'what 'the'propbnent claims it

is") .

See also Mass. G. Evid. § 40'3 ("The court may exclude

relevant evidence if its probative value is substantially

outweighed by a danger o'f, " among other things, "unfair

prejudice" or "misleading the jury").

Although we do not appear

to have so stated previously, where, as here, a party seeks to

introduce an enhanced image,

"there must be testimony by a

person with some degree of computer expertise, who has

sufficient knowledge to be examined and cross-examined about the

functioning of the computer"

State v. Swinton,

(quotation and citation omitted).

268 Conn. 781, 813

(2004).

The judge has

"broad discretion" in deciding whether to admit an enhanced

photograph... Renzi v. Paredes,

452 Mass. 38, 51-52

(2008) .

Here, the Commonwealth introduced enhanced versions^ of

photographs,, purportedly of the defendant, taken the night of

the shooting at the club near where the shooting occurred.

witness explained that he ^enlarged each photograph and used

computer software to lighten and sharpen.shadowed areas.

testified that these modifications did not alter the

photograph'..s pixels other than .to .change their colors.

Through cross-examination, . defense . counsel brought out the

differences between the enhanced.photographs and the original

photographs taken at the.club, including with regard to the

defendant's skin color, and. introduced in evidence., a comparison

of the original and enhanced.photographs.

He.also.suggested

that the enhancements resulted from subconscious bias because

the witness attempted to match the ..club. photographs to a known

image of the defendant when performing the enhancements.

The judge did not abuse her discretion in admitting the

enhanced photographs.

The original photographs had been

authenticated earlier in the trial 'by the individual who took

them, and the direct and cross-examination of the individual who

enhanced the photographs revealed that the images were not so

altered as to make them unduly prejudicial or misleading.

Moreover, the witness who enhanced the photographs was

sufficiently familiar with the enhancement program to'answer

intelligently the prosecutor’s and defense attorney’s questions

about how the program functioned.

See Swinton, 268 Conn, at

813.

The defendant also argues that the witness who enhanced the

images asserted his opinion improperly about similarities

between an individual in the enhanced photographs and a known

photograph of the defendant.

A witness may identify a defendant

in a photograph only "if there is some basis for concluding that

the’witness is more likely to correctly identify the defendant

from the photograph thah is' the ' jury."

469 Mass. 425, '441’' (2014) .

Commonwealth v. Vacher,

Because the individual who enhanced

the photographs was in no better position than'the jury to

identify the defendant; the prosecutor'was careful to avoid ''

asking the witness to opine about what was in the photographs.

Despite these efforts, on one occasion the witness testified in

a manner that arguably came too close to the line of improper

lay opinion.

The following exchange occurred during direct •

examination concerning, a photograph purportedly of the defendant

in the club and a known photograph of the defendant.

"And is it true now, we can't get into

The prosecutor:

whatever your opinions might be, that's ultimately for the

jury, but were you looking to juxtapose certain points of

comparison in this picture?"

The witness:

picture."

"I was looking for similar features in each

"Okay, and again, without getting into any

The prosecutor:

opinion about whether they’re the same or not, were you

trying to focus on a certain location on the body of each

person, the known person on the right and the person in the

club?"

The witness:

"I was."

The prosecutor:

"And what was that?"

"I was looking .at that particular arm, the

The witness:

left arm, the left-hand area, ’and the tattoo that's located'

by the wrist."

The witness’s use of the phrase "similar features" might have

suggested to the jury that the witness believed the individuals

in the two photographs were comparable, especially regarding the

left arm,, left hand, and wrist tattoo.

This exchange,

therefore, demonstrates the ..danger, of . lay, testimony about

photographic or,video, evidence, that a party .wants the jury tocompare.

However, we need not decide whether the testimony was

erroneous because, even if it was,, it does not require reversal.

We review for prejudicial error because a codefendant

objected at trial to the relevant testimony.

v. Cruz,

445 Mass. 589, 591

(2005).

See Commonwealth

See also Commonwealth v.

Huan Lieu/ 50 Mass. App. Ct. 162,

165 n.3 (2000), quoting

Commonwealth v. Seminara, 20 Mass. App. Ct. 789, 795 n.4

(1-985)

(codefendant's objection preserves error on appeal if issue was

"fairly presented to the trial' judge in time for him to take

what action he saw as necessary").

There was no prejudice, as

the judge instructed the jury during the relevant testimony that

they were to decide for themselves what the'photographs showed.

This instruction "correct[ed] any error" and "remed[ied] any

prejudice"

(citation omitted)-.

Mass. 657,

668

Commonwealth v. Durand, 475

(2016), cert, denied,

138 S. Ct. 259 (2017). 8

Additionally, the prosecutor cautioned the witness repeatedly

not' to express an opinion about similarities -between the

photographs, the witness potentially expressed an impermissible

opinion only briefly, and' the jury could have concluded' •

independently that the defendant was'the individual-in'the

photographs of the club.

See Vacher, 469 Mass. at:442

(reversal

not required where ,![t]he [impermissible•opinion] 'testimbny,

brief and fleeting as it was, did not overwhelm the other

compelling, properly admitted evidence against the defendant,"'

" [I]t's for you and only

The judge instructed as follows:

This

you to determine what any exhibit purports to show,

witness is just indicating what points of comparison he used in

Again, though, ultimately, it is

enhancing these•photographs.

for you and only you, members of the jury, to determine what is

depicted in any exhibit, including, but not limited to these

photographs."

and jury "were•capable of drawing the same conclusion" as lay

witness).

Fingerprint evidence.,

The defendant argues that the

Commonwealth's fingerprint expert improperly asserted her

conclusions in absolute terms rather than as opinions.

Our case

law regarding how a fingerprint expert should present his or.her

testimony is less than clear, and we take this opportunity to

clarify it.

This clarification will affect only trials that

occur after the date that .the., rescript in this opinion is

issued.

,We recognized the potential limitations of fingerprint

testimony in Commonwealth v. Gambora, 457 Mass. 715, 724

(2010),.

where we=addressed the defendant's argument that such testimony,

was unreliable>in light^of a ,2009 .report published by the

National Research; Council for, the National Academy of Sciences;.

Based on that.report, we cautioned that "[tlestimony to the

effect that a .latent print matches,,, or. is, 'individualized' to, .a

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

opinion,, not a fact,, and opinions,.expressing absolute certainty.

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

print should be avoided."

Id* at 729 n.22.

This directive means that'an expert,testifying to a

fingerprint match must state expressly that the match

constitutes the expert's opinion based on the expert's

education, training, and experience.

It'is not enough, as.at

least one of our opinions has suggested, for the expert to avoid

testifying that the match is one hundred percent certain.

See

Commonwealth ’ v. Drayton, 473 Mass. 23, -3 O' (2015), S.C., 479

Mass. 479 (2018).

If an expert witness does not clarify that

his or her fingerprint testimony is anJopinion, then the

prosecutor must elicit this clarification even -if the defendant

does not Object.* For instance, the prosecutor may clarify that

a subjective opinion is being sought and then ask whether the

witness has an opinion "to a reasonable degree of fingerprint’

analysis certainty."

827, 848 (2011)

Cf.' Commonwealth' v. Pytou Heang, 458 Mass.

("The admission of an opinion to a

degree of ballistic certainty

reasonable

is-similar to the manner in which

our appellate-courts permit’other empirically based but

subj ective ■ opinions ’ t'o be' presented :;

'*) .

‘The ■ prosecutor

should not'wait for the defendant'to address thie issue on crossexamination’. 9

Here,' we do not decide whether the expert's testimony ‘was

erroneous, because any erfor does not;require reversal.

The

defendant asserts, incorrectly, that1'this issue was preserved

9 Here, in the first trial there was vigorous crossexamination of the fingerprint expert about the reliability of

fingerprint analysis. The cross-examination of the fingerprint

expert at the second trial was more limited and did not address

reliability.

through a pretrial motion in limine.to preclude all fingerprint

evidence as unreliable..

The judge properly denied that motion,

as we repeatedly have reaffirmed the reliability of fingerprint

evidence.

See, e.g., Commonwealth v. Wadlington, 467 Mass. 192,

205 (2014).

However, because the motion did not give the judge

an opportunity to rule on the propriety of how the fingerprint

See

expert would testify, it did not preserve that issue.

Hobbs, 482 Mass... at 554-555;, ..Abraham v. Woburn, 383 Mass. 724,

726 n.l

(1981)

("The purpose of requiring an objection is to

afford the trial .judge an opportunity.. to act promptly to remove .,

from the jury's consideration evidence which has no place in the

trial"). .

Because there was no objection to the form of the

fingerprint expert':s testimony,, through .motion or otherwise, we

review for a substantial likelihood of a miscarriage of justice

and conclude that there.was none., . Defense counsel made the

reasonable decision to concede in closing argument that the

defendant's fingerprints were on the SUV, and ..to focus instead

on arguing that, the Commonwealth ..had not..proved when the

fingerprints were, placed. ..;Thus,.the error affected only

undisputed evidence.

Police radio transmissions.

The Commonwealth moved to

admit portions of a turret tape,•which is -a recording of policeradio' transmissions, from the time of the shooting.

The

defendants opposed the motion by arguing, among other things,

that the recording included false information harmful to1 the

defendants.

The judge observed'that the defendants could

highlight any discrepancies on cross-examination and allowed the

Commonwealth’s motion.

The defendant argues on appeal that the

turret tape should have been excluded as irrelevant because it

included information that was untrue.10

The false information on the tape was relayed by the

detective who followed the SUV driven by Bonner and Denton.

direct' examination at a pretrial suppression hearing and attrial, 'the detective testified that although he said over the

radio that he was following a vehicle leaving the "scene" of the'shooting, he did not see the' vehicle leave the scene and,

therefore, should have said over the radio that he vas following

a vehicle leaving th4 "area" of the shooting.

Because it'was

undisputed that the detective did'not see the vehicle leave the

scene of the shooting, any error did-not' prejudice the

defendant.

■ i

Opinion in closing argument.:

The defendant' argues that

the prosecutor improperly 'asserted his opinion, and argued facts

not in evidence, when he stated in closing that the first

shooter’s sc'arf and white-soled sneakers suggested that the

10 The' defendant does not argue on appeal that the turret

tape was inadmissible hearsay.

defendant was the first shooter. .[P] rosecutors are entitled to

marshal the evidence,and suggest inferences that the jury may

draw from it."

Commonwealth v. Drayton, , 386 Mass. 3.9, 52

(1982), S.C., 450 Mass. 1028 (2008).

T.hat is what the

prosecutor did here.when he pointed to various, in his words,

"reasonable inferences" connecting the defendant and the first

shooter, including that they both were wearing a scarf and

white-soled sneakers on the night of the shooting.

This

argument was based on the video footage of the shooting and the

photographs of the defendant at the club on the night of the

murder, all of which were in evidence.. There was, accordingly,

no error,

Because there was nothing improper in the Commonwealth's

closing argument, defense counsel was not, as the defendantcontends, ineffective for failing to object to it.

See

Commonwealth v. Dykens, 438 Mass. : 827, 837. (2003).

Jury instruction on accessory after the, fact. . The

defendant asserts that the jury instruction about accessory

after the. fact,, which, applied to., Watson, improperly referred to

the. defendant as... the only individual. whom Watson,..could have

assisted. . According., to the defendant, this purported error .

lessened the Commonwealth’s burden of proof regarding the

defendant's guilt.

The argument fails, however, because Watson

was indicted for being an accessory after the fact to the

defendant's crime in particular. li

See Commonwealth v.

Iacoviello, 90 Mass. App. Ct. 231, 247-249 (2016)

(relevant

principal for accessory after fact analysis is individual named

in indictment).

The judge also minimized any prejudicial effect

when she clarified in her instructions to the jury that "[t]he

Commonwealth has the burden of proving, beyond a reasonable

doubt, the guilt of each defendant separately and

independently. . .

Each defendant is entitled to have his

case determine[d] solely from the evidence about his own acts

and statements, if any."

The defendant also asserts that his counsel was ineffective

for failing to object to the instruction.

Because there was no

error in the instruction, defense counsel was not ineffective

for failing to object.

See Dykens, 438 Mass, at 837.

Physical attack.

The defendant argues that he was

unable to "establish [the jury's] unanimity" because Watson

attacked him as the verdicts were being announced.

Immediately

after the foreperson announced the jury’s verdict on the final

charge, Watson, in the judge's words, "lunged" at the defendant

"and created incredible pandemonium."

The clerk then polled the

Although Watson’s indictment is not in the record before

us, we may take judicial notice of the indictment because Watson

filed it as part of his appeal in this court. See Watson, 487

Mass. 156. See also Jarosz v. Palmer, 436 Mass. 526, 530 (2002)

("a judge may take judicial notice of the court's records in a

related action").

jurors, and each juror affirmed the verdicts.

There is nothing

to indicate that the jury were not unanimous.

Review under G. L. c. 278, § 33E.

Having reviewed the

entire record, we decline to reduce the verdict of murder in the

first degree to a lesser degree of guilt or order a new trial.

Judgments affirmed.

>[(;

• ■?

•?

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT FOR THE COMMONWEALTH

At Boston, February 28, 2022

No. SJC-12677

COMMONWEALTH

vs.

ANDREW ROBERTSON.

pending in the Superior Court Department of the Trial Court,

Suffolk Superior Court Docket No. 1484CR10318

ORDERED, that the following entry be made in the docket; viz.,

Judgments affirmed.

By the Court,

Clerk

Dated:

See opinion on file.

489 Mass. 226 (2022)

226

Commonwealth v. Robertson.

Commonwealth vs. Andrew Robertson.

Suffolk. January 10, 2022. - February 28, 2022.

Present: Budd, C.J., Lowy, Kafker, Wendlandt, & Georges, JJ.

Homicide. Firearms. Evidence, Joint venturer, Acts and declarations of con

spirator, Photograph, Videotape, Opinion, Fingerprints, Relevancy and ma

teriality. Joint Enterprise. Constitutional Law, Confrontation of witnesses.

Practice, Criminal, Capital case, Confrontation of witnesses, Argument by

prosecutor, Instructions to jury, Assistance of counsel.

At both a murder trial and at the retrial, the evidence was sufficient to show

beyond a reasonable doubt that the defendant was the first shooter of the

victim. [229-230]

At a murder trial tried on a theory of joint venture, the judge did not abuse her

discretion in admitting out-of-court statements made by one codefendant to

another while in custody and in the presence of a police officer, where there

was sufficient evidence to establish by a preponderance of the evidence that

the joint venture existed and that the statements were made in furtherance of

the conspiracy, and where the statements were not testimonial. [230-232]

At a murder trial, any error in the admission for a limited purpose of still

photographs derived from a video recording that police officers had created

to reenact the killing did not create a substantial likelihood of a miscarriage

of justice, nor did the prosecutor’s erroneous closing argument regarding the

photographs, in which the prosecutor treated the photographs as substantive

evidence. [233-235]

No error arose from the admission in evidence at a criminal trial of enhanced

photographs, where the original photographs had been authenticated earlier

in the trial by the individual who took them, the images were not so altered

as to make them unduly prejudicial or misleading, and the witness who

enhanced the photographs was sufficiently familiar with the enhancement

program to answer questions about how the program functioned; further, any

brief, erroneous lay opinion testimony given by that witness did not require

reversal, where the judge instructed the jury that they were to decide for

themselves what the photographs showed. [235-238].

At a criminal trial, any error in the manner in which a fingerprint expert testified

to her conclusions (i.e., in absolute terms rather than as opinion) did not give

rise to a substantial likelihood of a miscarriage of justice, where such error

affected only undisputed evidence. [238-239]

In the circumstances of a murder trial, the introduction of a recording of police

radio transmissions from the time of the shooting did not prejudice the

defendant despite including information that was untrue. [239-240].

At a murder trial, the prosecutor did not improperly assert his opinion in closing

argument or argue facts not in evidence, and defense counsel was not

227

489 Mass. 226 (2022)

Commonwealth v. Robertson.

ineffective for failing to object to the prosecutor’s argument. [240]

At a murder trial, the judge did not err in instructing the jury regarding accessory

after the fact, and defense counsel was not ineffective for failing to object to

the instruction given. [240-241]

At a murder trial, there was no indication that the jury were not unanimous in

their verdicts regarding the defendant. [241]

Indictments found and returned in the Superior Court Depart

ment on April 11, 2014.

The cases were tried before Linda E. Giles, J.

David H. Mirsky for the defendant.

Darcy A. Jordan, Assistant District Attorney (Ian Polumbaum,

Assistant District Attorney, also present) for the Commonwealth.

Lowy, J. After a mistrial due to a hung jury, the defendant,

Andrew Robertson, was convicted at a second trial of murder in

the first degree on theories of deliberate premeditation and ex

treme atrocity or cruelty.1 He appeals from his convictions, ar

guing that (1) there was insufficient evidence to convict him at the

first and second trials, (2) the defendant’s motion to sever should

have been allowed, (3) various pieces of evidence were admitted

erroneously, (4) the prosecutor improperly expressed his opinion

in closing argument, (5) the judge’s instruction on accessory after

the fact was improper, (6) the defendant was denied the right to

a fair trial when a codefendant attacked him as the verdicts were

being read, and (7) we should reduce the verdict of murder in the

first degree pursuant to G. L. c. 278, § 33E. We affirm.

Background. Viewing the evidence in the light most favorable

to the Commonwealth, the jury could have found the following at

both the first and second trials. See Commonwealth v. Latimore,

378 Mass. 671, 677-678 (1979).2

The victim, Romeo McCubbin, was shot multiple times and

killed while sitting in his sport utility vehicle (SUV). Surveillance

video footage caught the shooting on camera. In the footage, a

small SUV parks parallel to a sidewalk. An individual wearing a

scarf and white-soled shoes — the defendant — runs onscreen

from the left with his arm extended, stops facing the SUV’s front

driver’s side window, and fires multiple shots into it. The vehicle

then rolls forward, and the victim falls out of the front passen

ger’s side door. The shooter jumps into the front passenger’s side

of a waiting SUV, which speeds away. A second person then runs

’The defendant also was convicted of possessing a firearm without a license.

2The evidence at both trials was largely the same.

489 Mass. 226 (2022)

228

Commonwealth v. Robertson.

up and shoots the prone victim multiple times; a third person then

kicks the victim once.

A detective responding to the shooting followed an SUV being

driven quickly away from the area of the scene of the shooting.

The vehicle eventually turned into a driveway. Omar Bonner and

Omar Denton got out of the SUV and were arrested after a chase.

While in custody after his arrest, Denton said to Bonner that he

“told Sophie to call SP” and “called SP” from “the wagon.”3 The

defendant’s nickname was “Spoilers,” and he received a call from

Denton around the time that Denton was arrested.

The defendant used his cell phone to communicate or attempt

to communicate with Bonner immediately before and after the

killing, and he received calls from Javaine Watson, who was a

friend of the defendant, the night of the incident. In the month

leading up to the shooting, the defendant engaged in hundreds of

telephone contacts with Watson, Denton, and Bonner. The de

fendant asked his girlfriend to cancel his cell phone number the

day after the shooting.

Police recovered from the property where they had chased

Denton and Bonner a gun that had fired bullets found at the scene

of the shooting, including the bullets found in the victim’s jacket

and in the victim’s head. Police also investigated a red SUV

blocking a driveway down the street from where the chase had

occurred. The SUV was still on, in reverse, and resting against a

fence. They took custody of this vehicle, as well as die one

Denton and Bonner had been driving.

Watson’s cell phone was in the red SUV. He had borrowed the

vehicle from his girlfriend that day and had told her it was parked

in front of a driveway. His girlfriend had rented the vehicle the

day before Watson borrowed it. Photographs introduced at trial

revealed the SUV to be nearly identical to the first shooter’s

getaway vehicle, as shown in the videotape of the shooting. The

defendant’s fingerprints were on the SUV, including on the front

passenger’s side door handle. Bonner’s, Denton’s, and Watson’s

fingerprints also were on the vehicle.

The defendant was at a nightclub down the street from the

shooting on the night of the incident, wearing a scarf and whitesoled shoes.4 Denton, Bonner, and Watson also were at the club

that night, as was the victim. A photograph from that night at the

8It is unclear from the record who “Sophie” is.

4The evidence of the defendant’s clothing in the club was clearer in the first

trial than in the second trial, but sufficient in both to demonstrate what the

229

489 Mass. 226 (2022)

Commonwealth v. Robertson.

club shows the defendant, Denton, and Bonner standing near each

other.

The jury could not reach a verdict regarding the charges against

the defendant after a trial against the defendant, Denton, and

Bonner.5 Following a second trial, which was against the defend

ant, Denton, Bonner, and Watson, the jury found the defendant

guilty of murder in the first degree on theories of deliberate

premeditation and extreme atrocity or cruelty, as well as unlaw

fully possessing a firearm.

Discussion. 1. Sufficiency of the evidence. The defendant ar

gues that there was insufficient evidence to convict him at both

his first and second trials because the Commonwealth failed to

prove at both trials that he was the first shooter. See Berry v.

Commonwealth, 393 Mass. 793, 798 (1985) (pursuant to double

jeopardy principles, Commonwealth may not retry defendant

after hung jury if there was insufficient evidence to convict). We

disagree.

As a preliminary matter, the Commonwealth argues that the

defendant has waived his right to contest the sufficiency of the

evidence at his first trial because, before his second trial, he did

not appeal from the denial of his motion to dismiss on double

jeopardy grounds. This is incorrect. “[T]he defendant’s conten

tion that the evidence at his first trial was insufficient to warrant

a conviction can ... be raised at least as well in the appeal

following his second trial as it could have been raised under G. L.

c. 211, § 3.” Commonwealth v. Preston, 396 Mass. 1006, 1006

(1985).

Nevertheless, the defendant’s sufficiency argument fails. Con

sidering all the evidence in the light most favorable to the

Commonwealth, the evidence at both trials was sufficient to show

beyond a reasonable doubt that the defendant was the first

shooter. See Latimore, 378 Mass, at 677-678.

defendant was wearing. At the first trial, a witness identified an individual

wearing a scarf and white-soled shoes in two photographs from the club, and an

individual whose clothing was not as visible in a third photograph from the club,

as the defendant. At the second trial, that witness identified the defendant only

in the third photograph, where his scarf and shoes were not visible. The other

two photographs were introduced in evidence, however, and the jury could infer

that the individual in the third photograph was the same individual as in the first

two photographs based on the clothing visible in all the images.

6At this first trial, the jury found Omar Bonner guilty of unlawfully possess

ing a firearm and resisting arrest; they also found Omar Denton guilty of

unlawfully possessing a firearm. Javaine Watson was severed from the first trial

due to his attorney’s illness.

230

489 Mass. 226 (2022)

Commonwealth v. Robertson.

The evidence, along with reasonable inferences therefrom,

showed that the defendant was associated with Denton and

Bonner, at least one of whom was in possession of one of the guns

used to shoot the victim, and Watson, whose cell phone was in the

getaway vehicle. The defendant communicated with Watson,

Denton, and Bonner hundreds of times in the month leading up to

the shooting, including immediately before and after the incident.

See Commonwealth v. Barbosa, 477 Mass. 658, 667 (2017)

(defendant’s “telephone calls with his suspected coventurers im

mediately before the shooting and in the thirty minutes after . . .

allow the reasonable inference of the defendant’s participation in

and shared intent to commit the murder”). The defendant,

Denton, Bonner, Watson, and the victim were at a club near the

shooting on the night of the murder. The defendant was wearing

a scarf and white-soled shoes that night, as was the first shooter.

His fingerprints were on the door handle of the getaway vehicle,

which had been rented the day before. See Commonwealth v.

Netto, 438 Mass. 686, 701-702 (2003) (fingerprint evidence may

suggest defendant’s guilt when coupled with other evidence).

Finally, the defendant asked his girlfriend to cancel his cell phone

number the day after the shooting, demonstrating consciousness

of guilt. See Commonwealth v. Porter, 384 Mass. 647, 653 (1981)

(consciousness of guilt, coupled with other evidence, may sug

gest defendant’s guilt). This evidence was more than sufficient for

a rational jury to identify the defendant as the first shooter beyond

a reasonable doubt.

2. Evidentiary issues, a. Hearsay. The defendant argues that

Denton’s statements that he “told Sophie to call SP” and “called

SP” from “the wagon” should not have been admitted against the

defendant, whose nickname was “Spoilers,” as they were inad

missible hearsay. The Commonwealth argues that the statements

were admissible against the defendant under the joint venture

exemption to the rule against hearsay. See Mass. G. Evid.

§ 801(d)(2)(E) (2021). We conclude that the judge did not abuse

her discretion in admitting the statements.

An out-of-court statement presented for its truth is exempted

from the rule against hearsay if it “is offered against an opposing

party and . . . was made by the party’s coconspirator or joint

venturer during the cooperative effort and in furtherance of its

goal, if the existence of the conspiracy or joint venture is shown

by evidence independent of the statement.” Mass. G. Evid.

§ 801(d)(2)(E). “To admit the statement of a joint venturer, the

231

489 Mass. 226 (2022)

Commonwealth v. Robertson.

judge must make a preliminary determination, based on a pre

ponderance of the evidence, other than the out-of-court statement

itself,” that the statement was made during, and in furtherance of,

a joint venture between the declarant and the defendant. Com

monwealth v. Rakes, 478 Mass. 22, 37 (2017). See Mass. G. Evid.

§ 104(a). “This determination permits the statement to be placed

in front of the jury ... but does not suffice for the jury to consider

it as bearing on the defendant’s guilt.” Rakes, supra. “The jury

must first make their own independent determination, again based

on a preponderance of the evidence other than the statement

itself, that a joint venture existed and that the statement was made

[during and] in furtherance thereof.” Id* “We review the judge’s

decision to place a joint venturer’s statement before the jury for

abuse of discretion.” Id.

Here, as discussed supra, there was sufficient evidence for a

rational jury to conclude beyond a reasonable doubt that the

defendant, Denton, Bonner, and Watson were coconspirators in

the victim’s murder. Accordingly, there was sufficient evidence

for the judge and jury to so conclude by the lesser preponderance

of the evidence standard. There also was sufficient evidence for

the judge and jury to conclude by a preponderance of the evi

dence that Denton’s statements were made in furtherance of the

conspiracy. Denton’s use of the initials “SP” suggests his intent to

hide the defendant’s identity from the police, and his comments

to Bonner suggest that Denton was trying to conceal the crime by

reaching out to a coventurer who was still at large and by

expressing to Bonner a continued camaraderie. See Common

wealth v. Leach, 73 Mass. App. Ct. 758, 764 (2009), quoting

Commonwealth v. Anderson, 445 Mass. 195, 211 (2005) (“Al

though the statements were made while the defendants were in

custody, the conversations occurred shortly after the shooting,

and clearly, the defendants were sharing information and ‘acting

to conceal the crime that formed the basis of the enterprise’ ”).

Additionally, admitting Denton’s out-of-court statements

against the defendant did not offend the confrontation clauses of

the United States and Massachusetts Constitutions. “Where an

individual does not appear at trial, that individual’s ‘testimonial’

out-of-court statements are not admissible against a criminal

defendant absent unavailability and a prior opportunity for cross6The judge here gave a proper joint venture instruction when submitting the

issue to the jury.

232

489 Mass. 226 (2022)

Commonwealth v. Robertson.

examination.” Commonwealth v. Wardsworth, 482 Mass. 454,

463-464 (2019), citing Crawford v. Washington, 541 U.S. 36, 68

(2004). “Testimonial statements are those made with the primary

purpose of ‘creating an out-of-court substitute for trial testi

mony.’ ” Wardsworth, supra at 464, quoting Michigan v. Bryant,

562 U.S. 344, 358 (2011). “The test is an objective one; we

examine ‘the primary purpose that a reasonable person would

have ascribed to the statement, taking into account all of the

surrounding circumstances.’ ” Wardsworth, supra, quoting Com

monwealth v. Imbert, 479 Mass. 575, 580 (2018). In general,

“statements of joint venturers ... are the type of remarks that the

[United States Supreme Court has] deemed nontestimonial.”

Commonwealth v. Burton, 450 Mass. 55, 64 (2007), citing

Crawford, supra at 56.

Although Denton made his statements to Bonner in the pres

ence of a police officer, who testified to the statements at trial, a

reasonable person would not have thought that Denton was

making a formal statement that constituted an out-of-court sub

stitute for trial testimony. The officer was sitting between the cells

where Bonner and Denton were being held, and Bonner and

Denton were shouting back and forth to each other without any

questioning by the officer. In addition to the comments about

“SP,” Denton also told Bonner that “when [he] was in [his]

driveway, [he] seen police, [he] started running.” Denton was

debriefing with his coconspirator in coded language about what

had occurred, not trying to create a record of events for the

observing officer’s benefit. See United States v. Norwood, 982

F.3d 1032, 1049 (7th Cir. 2020) (“an officer’s mere presence” is

not dispositive of confrontation clause inquiry as is “an officer’s

questioning”). Therefore, the judge did not abuse her discretion in

admitting Denton’s statements.7

7This conclusion disposes of the defendant’s argument that the judge should

have severed his case from those of the other defendants because Denton’s

statements referring to “SP” amounted to an incriminating confession pursuant

to Bruton v. United States, 391 U.S. 123, 126 (1968). See Commonwealth v.

DePina, 476 Mass. 614,629 n.13 (2017) (evidence “properly admitted under the

joint venture exception to the hearsay rule” “does not implicate the Bruton

rule”). The defendant also argues that the judge should have severed his case

because his and Watson’s defenses were mutually antagonistic, as Watson’s

counsel informed the jury of the defendant’s incarceration and suggested to the

jury that a witness had lied to protect the defendant. We already decided in our

review of Watson’s convictions that his and the defendant’s defenses were not

so antagonistic as to require separate trials. Commonwealth v. Watson, 487

233

489 Mass. 226 (2022)

Commonwealth v. Robertson.

b. Reenactment evidence. The defendant contends that the

judge erred in admitting still photographs from a reenactment

video recording the police created. He does not, however, ac

knowledge that the photographs were admitted for a limited

purpose or address that the Commonwealth referred to the pho

tographs in closing argument for a purpose other than the limited

one. We conclude that regardless of whether the judge erred in

admitting the photographs for a limited purpose, the Common

wealth erred in referring to the photographs substantively in

closing. That error, however, did not create a substantial likeli

hood of a miscarriage of justice.

“A videotaped demonstration may be admitted in evidence

provided it sufficiently resembles the actual event so as to be fair

and informative” (citation omitted). Commonwealth v. Javier,

481 Mass. 268, 287 (2019). In making this determination, a judge

should consider whether the reenactment is relevant, whether its

“conditions correspond to those of the original incident,” and

whether it “will confuse or mislead the jury.” Id., quoting Com

monwealth v. ChukwuezU 475 Mass. 597, 603 (2016). We review

decisions to admit reenactment evidence for abuse of discretion.

Javier, supra at 288.

Here, four days after the shooting, the police drove by the scene

of the incident in the SUVs they had recovered the night of the

shooting, that is, the SUV Denton and Bonner had been driving

and the red SUV found near the scene of the chase; they then

retrieved the recording of this reenactment from the video camera

that had recorded the shooting itself. The judge did not allow the

Commonwealth to play the reenactment video recording, con

cluding that the reenactment was not “sufficiently similar” to the

conditions of the shooting “to make the simulation of any value

to the jury.” She was concerned that the reenactment occurred

four days after the shooting, that there was snow on the ground

during the reenactment but not during the shooting, that the

recordings occurred at different times of day, that the vehicles in

the reenactment were driven past the camera in a different manner

from that of the vehicles in the video footage of the shooting, and

that the reenactment video recording was “much brighter” than

the shooting video footage. The judge, accordingly, told the

Mass. 156,167-169 (2021). As we stated in that case, “[t]here was not ‘a danger

that the jury [would] feel compelled to choose between defendants rather than

to assess the proof against each defendant separately.’ ” Id. at 169, quoting

Commonwealth v. Moran, 387 Mass. 644, 659 (1982).

234

489 Mass. 226 (2022)

Commonwealth v. Robertson.

Commonwealth that it could reference the reenactment, without

playing the video recording, only as evidence of an adequate

police investigation. See Commonwealth v. Bowden, 379 Mass.

472, 486 (1980).

The Commonwealth then sought to introduce still photographs

from the reenactment video recording. The judge observed that

some of her concerns applied to both the video recording and the

still photographs, but not her trepidation about how the vehicles

were driven by the camera in the video recording. She deferred

ruling on the issue. Later in the trial, she decided that the

Commonwealth could use the still photographs and observed that

any differences between the conditions during the reenactment

and during the shooting went to the weight that the jury would

give to the photographs, not to the photographs’ admissibility.

She did not state that the Commonwealth’s use of the reenact

ment photographs would be limited to the adequacy of the po

lice’s investigative process.

When the photographs were introduced at trial, however, the

judge instructed the jury that the still photographs were to be used

“for the limited purpose [of] showing] ... the steps that the

police took in their investigation, and for that purpose only.”

Although the judge did not say so expressly, she apparently had

changed her mind regarding the purpose for which the jury could

use the photographs. See Commonwealth v. Spencer, 465 Mass.

32, 40 n.ll (2013), quoting Luce v. United States, 469 U.S. 38,

41-42 (1984) (“even if nothing unexpected happens at trial, the

judge is free, in the exercise of sound judicial discretion, to alter

a previous in limine ruling” [alteration omitted]). No party ad

dressed this change at trial.

Whether the judge abused her discretion in restricting how the

jury could use the photographs is immaterial. Her ruling was that

the evidence was admitted for a limited purpose, and that is the

only purpose for which the jury could consider the evidence.

Contrary to the judge’s limiting instruction, and relying per

haps on the judge’s earlier decision to admit the photographs

without limitation, the prosecutor argued in closing that the still

photographs from the reenactment video recording showed the

same vehicles as the still photographs from the shooting video

footage. This was error. See Commonwealth v. Bregoli, 431

Mass. 265, 278 (2000), citing Commonwealth v. Johnson, 412

Mass. 318, 321-324 (1992) (“prosecutor may not present to jury

evidence admitted for limited purpose as if it were substantive

235

489 Mass. 226 (2022)

Commonwealth v. Robertson.

evidence”). Because there was no objection, we review for a

substantial likelihood of a miscarriage of justice and conclude

that there was none. See Commonwealth v. Moffat, 486 Mass.

193, 201 (2020).

The argument was a small part of the prosecutor’s closing, and

the jury were instructed that closing arguments are not evidence.

See id. at 202-203. We presume, moreover, that the jury followed

the earlier instruction to consider the evidence for a limited

purpose. See id. at 203. The prosecutor’s improper argument also

was cumulative, as there was other evidence that the red SUV the

police recovered was the getaway vehicle: a witness testified at

the second trial that he saw a red SUV with the same make as the

recovered SUV leaving the street where the shooting occurred

after gunshots were fired. See Commonwealth v. Hobbs, 482

Mass. 538, 555 n.16 (2019). Accordingly, the error does not

require a new trial.

c. Enhanced photographs. The defendant challenges the admis

sion at trial of certain enhanced photographs and related lay

witness testimony. We conclude that the photographs were ad

mitted properly and that any error in the testimony about the

photographs was not prejudicial.

Whether the enhanced photographs properly were admitted is

an issue of authentication and the balancing of probative value

and prejudicial effect. See Mass. G. Evid. § 901(a) (“To satisfy

the requirement of authenticating or identifying an item of evi

dence, the proponent must produce evidence sufficient to support

a finding that the item is what the proponent claims it is”). See

also Mass. G. Evid. § 403 (“The court may exclude relevant

evidence if its probative value is substantially outweighed by a

danger of,” among other things, “unfair prejudice” or “misleading

the jury”). Although we do not appear to have so stated previ

ously, where, as here, a party seeks to introduce an enhanced

image, “there must be testimony by a person with some degree of

computer expertise, who has sufficient knowledge to be examined

and cross-examined about the functioning of the computer” (quo

tation and citation omitted). State v. Swinton, 268 Conn. 781, 813

(2004). The judge has “broad discretion” in deciding whether to

admit an enhanced photograph. Renzi v. Paredes, 452 Mass. 38,

51-52 (2008).

Here, the Commonwealth introduced enhanced versions of

photographs, purportedly of the defendant, taken the night of the

shooting at the club near where the shooting occurred. A witness

489 Mass. 226 (2022)

236

Commonwealth v. Robertson.

explained that he enlarged each photograph and used computer

software to lighten and sharpen shadowed areas. He testified that

these modifications did not alter the photograph’s pixels other

than to change their colors.

Through cross-examination, defense counsel brought out the

differences between the enhanced photographs and the original

photographs taken at the club, including with regard to the

defendant’s skin color, and introduced in evidence a comparison

of the original and enhanced photographs. He also suggested that

the enhancements resulted from subconscious bias because the

witness attempted to match the club photographs to a known

image of the defendant when performing the enhancements.

The judge did not abuse her discretion in admitting the en

hanced photographs. The original photographs had been authen

ticated earlier in the trial by the individual who took them, and the

direct and cross-examination of the individual who enhanced the

photographs revealed that the images were not so altered as to

make them unduly prejudicial or misleading. Moreover, the wit

ness who enhanced the photographs was sufficiently familiar with

the enhancement program to answer intelligently the prosecutor’s

and defense attorney’s questions about how the program func

tioned. See Swinton, 268 Conn, at 813.

The defendant also argues that the witness who enhanced the

images asserted his opinion improperly about similarities be

tween an individual in the enhanced photographs and a known

photograph of the defendant. A witness may identify a defendant

in a photograph only “if there is some basis for concluding that

the witness is more likely to correctly identify the defendant from

the photograph than is the jury.” Commonwealth v. Vacher, 469

Mass. 425, 441 (2014). Because the individual who enhanced the

photographs was in no better position than the jury to identify the

defendant, the prosecutor was careful to avoid asking the witness

to opine about what was in the photographs. Despite these efforts,

on one occasion the witness testified in a manner that arguably

came too close to the line of improper lay opinion. The following

exchange occurred during direct examination concerning a pho

tograph purportedly of the defendant in the club and a known

photograph of the defendant.

The prosecutor: “And is it true now, we can’t get into

whatever your opinions might be, that’s ultimately for the

jury, but were you looking to juxtapose certain points of

comparison in this picture?”

237

489 Mass. 226 (2022)

Commonwealth v. Robertson.

The witness: “I was looking for similar features in each

picture.”

The prosecutor: “Okay, and again, without getting into any

opinion about whether they’re the same or not, were you

trying to focus on a certain location on the body of each

person, the known person on the right and the person in the

club?”

The witness: “I was.”

The prosecutor: “And what was that?”

The witness: “I was looking at that particular arm, the left

arm, the left-hand area, and the tattoo that’s located by the

wrist”

The witness’s use of the phrase “similar features” might have

suggested to the jury that the witness believed the individuals in

the two photographs were comparable, especially regarding the

left arm, left hand, and wrist tattoo. This exchange, therefore,

demonstrates the danger of lay testimony about photographic or

video evidence that a party wants the jury to compare. However,

we need not decide whether the testimony was erroneous be

cause, even if it was, it does not require reversal.

We review for prejudicial error because a codefendant objected

at trial to the relevant testimony. See Commonwealth v. Cruz, 445

Mass. 589, 591 (2005). See also Commonwealth v. Huan Lieu, 50

Mass. App. Ct. 162, 165 n.3 (2000), quoting Commonwealth v.

Seminara, 20 Mass. App. Ct. 789, 795 n.4 (1985) (codefendant’s

objection preserves error on appeal if issue was “fairly presented

to the trial judge in time for him to take what action he saw as

necessary”). There was no prejudice, as the judge instructed the

jury during the relevant testimony that they were to decide for

themselves what the photographs showed. This instruction “cor

rected] any error” and “remedied] any prejudice” (citation omit

ted). Commonwealth v. Durand, 475 Mass. 657, 668 (2016), cert,

denied, 138 S. Ct. 259 (2017).8 Additionally, the prosecutor

cautioned the witness repeatedly not to express an opinion about

8The judge instructed as follows: “[Tjt’s for you and only you to determine

what any exhibit purports to show. This witness is just indicating what points of

comparison he used in enhancing these photographs. Again, though, ultimately,

it is for you and only you, members of the jury, to determine what is depicted

in any exhibit, including, but not limited to these photographs.”

489 Mass. 226 (2022)

238

Commonwealth v. Robertson.

similarities between the photographs, the witness potentially ex

pressed an impermissible opinion only briefly, and the jury could

have concluded independently that the defendant was the indi

vidual in the photographs of the club. See Vacher, 469 Mass, at

442 (reversal not required where “[t]he [impermissible opinion]

testimony, brief and fleeting as it was, did not overwhelm the

other compelling, properly admitted evidence against the defend

ant,” and jury “were capable of drawing the same conclusion” as

lay witness).

d. Fingerprint evidence. The defendant argues that the Com

monwealth’s fingerprint expert improperly asserted her conclu

sions in absolute terms rather than as opinions. Our case law

regarding how a fingerprint expert should present his or her

testimony is less than clear, and we take this opportunity to clarify

it. This clarification will affect only trials that occur after the date

that the rescript in this opinion is issued.

We recognized the potential limitations of fingerprint testimony

in Commonwealth v. Gambora, 457 Mass. 715, 724 (2010),

where we addressed the defendant’s argument that such testi

mony was unreliable in light of a 2009 report published by the

National Research Council for the National Academy of Sci

ences. Based on that report, we cautioned that “[t]estimony to the

effect that a latent print matches, or is ‘individualized’ to, a

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

opinion, not a fact, and opinions expressing absolute certainty

about, or the infallibility of, an ‘individualization’ of a print

should be avoided.” Id. at 729 n.22.

This directive means that an expert testifying to a fingerprint

match must state expressly that the match constitutes the expert’s

opinion based on the expert’s education, training, and experience.

It is not enough, as at least one of our opinions has suggested, for

the expert to avoid testifying that the match is one hundred

percent certain. See Commonwealth v. Drayton, 473 Mass. 23, 30

(2015), S.C., 479 Mass. 479 (2018). If an expert witness does not

clarify that his or her fingerprint testimony is an opinion, then the

prosecutor must elicit this clarification even if the defendant does

not object. For instance, the prosecutor may clarify that a sub

jective opinion is being sought and then ask whether the witness

has an opinion “to a reasonable degree of fingerprint analysis

certainty.” Cf. Commonwealth v. Pytou Heang, 458 Mass. 827,

848 (2011) (“The admission of an opinion to a ‘reasonable degree

of ballistic certainty’ is similar to the manner in which our

239

489 Mass. 226 (2022)

Commonwealth v. Robertson.

appellate courts permit other empirically based but subjective

opinions to be presented .. .”). The prosecutor should not wait for

the defendant to address the issue on cross-examination.9

Here, we do not decide whether the expert’s testimony was

erroneous, because any error does not require reversal. The

defendant asserts, incorrectly, that this issue was preserved

through a pretrial motion in limine to preclude all fingerprint

evidence as unreliable. The judge properly denied that motion, as

we repeatedly have reaffirmed the reliability of fingerprint evi

dence. See, e.g., Commonwealth v. Wadlington, 467 Mass. 192,

205 (2014). However, because the motion did not give the judge

an opportunity to rule on the propriety of how the fingerprint

expert would testify, it did not preserve that issue. See Hobbs, 482

Mass, at 554-555; Abraham v. Woburn, 383 Mass. 724, 726 n.l

(1981) (“The purpose of requiring an objection is to afford the

trial judge an opportunity to act promptly to remove from the

jury’s consideration evidence which has no place in the trial”).

Because there was no objection to the form of the fingerprint

expert’s testimony, through motion or otherwise, we review for a

substantial likelihood of a miscarriage of justice and conclude

that there was none. Defense counsel made the reasonable deci

sion to concede in closing argument that the defendant’s finger

prints were on the SUV, and to focus instead on arguing that the

Commonwealth had not proved when the fingerprints were

placed. Thus, the error affected only undisputed evidence.

e. Police radio transmissions. The Commonwealth moved to

admit portions of a “turret” tape, which is a recording of police

radio transmissions, from the time of the shooting. The defend

ants opposed the motion by arguing, among other things, that the

recording included false information harmful to the defendants.

The judge observed that the defendants could highlight any

discrepancies on cross-examination and allowed the Common

wealth’s motion. The defendant argues on appeal that the turret

tape should have been excluded as irrelevant because it included

information that was untrue.10

The false information on the tape was relayed by the detective

who followed the SUV driven by Bonner and Denton. On direct

9Here, in the first trial there was vigorous cross-examination of the fingerprint

expert about the reliability of fingerprint analysis. The cross-examination of the

fingerprint expert at the second trial was more limited and did not address

reliability.

10The defendant does not argue on appeal that the turret tape was inadmis

sible hearsay.

489 Mass. 226 (2022)

240

Commonwealth v. Robertson.

examination at a pretrial suppression hearing and at trial, the

detective testified that although he said over the radio that he was

following a vehicle leaving the “scene” of the shooting, he did not

see the vehicle leave the scene and, therefore, should have said

over the radio that he was following a vehicle leaving the “area”

of the shooting. Because it was undisputed that the detective did

not see the vehicle leave the scene of the shooting, any error did

not prejudice the defendant.

3. Opinion in closing argument. The defendant argues that the

prosecutor improperly asserted his opinion, and argued facts not

in evidence, when he stated in closing that the first shooter’s scarf

and white-soled sneakers suggested that the defendant was. the

first shooter. “[Pjrosecutors are entitled to marshal the evidence

and suggest inferences that the jury may draw from it.” Com

monwealth v. Drayton, 386 Mass. 39, 52 (1982), S.C., 450 Mass.

1028 (2008). That is what the prosecutor did here when he

pointed to various, in his words, “reasonable inferences” connect

ing the defendant and the first shooter, including that they both

were wearing a scarf and white-soled sneakers on the night of the

shooting. This argument was based on the video footage of the

shooting and the photographs of the defendant at the club on the

night of the murder, all of which were in evidence. There was,

accordingly, no error.

Because there was nothing improper in the Commonwealth’s

closing argument, defense counsel was not, as the defendant

contends, ineffective for failing to object to it. See Common

wealth v. Dykens, 438 Mass. 827, 837 (2003).

4. Jury instruction on accessory after the fact. The defendant

asserts that the jury instruction about accessory after the fact,

which applied to Watson, improperly referred to the defendant as

the only individual whom Watson could have assisted. According

to the defendant, this purported error lessened the Common

wealth’s burden of proof regarding the defendant’s guilt. The

argument fails, however, because Watson was indicted for being

an accessory after the fact to the defendant’s crime in particular.11

See Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 247249 (2016) (relevant principal for accessory after fact analysis is

11 Although Watson’s indictment is not in the record before us, we may take

judicial notice of the indictment because Watson filed it as part of his appeal in

this court. See Watson, 487 Mass. 156. See also Jarosz v. Palmer, 436 Mass.

526, 530 (2002) (“a judge may take judicial notice of the court’s records in a

related action”).

241

489 Mass. 226 (2022)

Commonwealth v. Robertson.

individual named in indictment). The judge also minimized any

prejudicial effect when she clarified in her instructions to the jury

that “[t]he Commonwealth has the burden of proving, beyond a

reasonable doubt, the guilt of each defendant separately and

independently. . . . Each defendant is entitled to have his case

determined] solely from the evidence about his own acts and

statements, if any.”

The defendant also asserts that his counsel was ineffective for

failing to object to the instruction. Because there was no error in

the instruction, defense counsel was not ineffective for failing to

object. See Dykens, 438 Mass, at 837.

5. Physical attack. The defendant argues that he was unable to

“establish [the jury’s] unanimity” because Watson attacked him

as the verdicts were being announced. Immediately after the

foreperson announced the jury’s verdict on the final charge,

Watson, in the judge’s words, “lunged” at the defendant “and

created incredible pandemonium.” The clerk then polled the

jurors, and each juror affirmed the verdicts. There is nothing to

indicate that the jury were not unanimous.

6. 'Review under G. L. c. 278, § 33E. Having reviewed the

entire record, we decline to reduce the verdict of murder in the

first degree to a lesser degree of guilt or order a new trial.

Judgments affirmed.

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SUPREME JUDICIAL COURT

for the Commonwealth

Case Docket

COMMONWEALTH vs. ANDREW ROBERTSON

SJC-12677

CASE HEADER

Decided, Rescript issued

Case Status

Status Date

Nature

04/15/2022

Murderl appeal

Entry Date

Appellant

01/17/2019

Case Type

Brief Status

Criminal

Defendant

Brief Due

Quorum

Budd, C.J., Lowy, Kafker, Wendlandt, Georges, Jr., JJ.

01/10/2022

Argued Date

Decision Date

02/28/2022

AC/SJ Number

489 Mass. 226

Citation

DAR/FAR Number

Lower Ct Number

Lower Court

Suffolk Superior Court

Linda E. Giles, J.

Direct Entry: Murder 1

Lower Ct Judge

Route to SJC

/—

ADDITIONAL INFORMATION

Transcripts received: 57 volumes. 1 set (on CD). Transcripts dates: 4/15/14, 5/29/14, 7/1/14, 4/9/15, 4/28/15, 11/12/15, 12/17/15,

3/1/16, 3/24/16, 3/31/16, 4/14/16, 4/28/16, 5/3/16, 5/13/16, 5/20/16, 5/25/16, 5/26/16, 5/31/16, 6/1/16, 6/2/16, 6/3/16, 6/6/16,

6/7/16, 6/8/16, 6/13/16, 6/14/16, 6/15/16, 6/16/16, 6/17/16, 6/20/16, 6/21/16, 6/22/16, 6/23/16, 6/24/16, 9/29/16, 4/12/17, 4/19/17,

4/25/17, 5/2/17, 5/3/17, 5/4/17, 5/5/17, 5/8/17, 5/9/17, 5/10/17, 5/11/17, 5/12/17, 5/15/17, 5/16/17, 517/17, 5/18/17, 5/19/17,

5/22/17, 5/23/17, 5/24/17, 5/30/17 and 6/28/17. (Scanned)

Transcripts received: 1 volume. 1 set (on CD). Transcripts date: 6/22/16. (Corrected Copy) (Scanned)

Transcripts received: 1 volume, 1 set (on CD). Transcripts date: 5/22/17. (Corrected Copy) (Scanned)

INVOLVED PARTY

ATTORNEY APPEARANCE

Commonwealth

Plaintiff/Appellee

Red brief & appendix filed

1 Enl, 10 Days

Darcv A. Jordan. A.D.A.

John P. Zanini. A.D.A. - Withdrawn

Donna Jalbert Patalano. A.D.A. - Withdrawn

Cailin M. Campbell. A.D.A, - Withdrawn

Andrew Robertson

Defendant/Appellant

Blue br, app & reply br filed

1 Ext, 154 Days

8 Enls, 619 Days

David H, Mirskv. Esouire

DOCUMENTS

Appellant Robertson Brief B

Appellee Commonwealth Brief B

Appellant Robertson Reply Brief B

DOCKET ENTRIES

Entry Date

1 of 3

Paper

Entry Text

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01/17/2019 #1

Entered. Notice to counsel.

01/18/2019

NOTICE OF AVAILABILITY OF ELECTRONIC FILING: The clerk's office will accept briefs, appendices, motions,

status reports, and correspondence through eFileMA effective immediately. Please note that after review and

docketing of e-filed briefs and appendices, the clerk will require a limited number of paper copies to be filed.

Parties are free to file their briefs and record appendices under the revised rules of appellate procedure prior to

their effective date, March 1,2019.'

05/13/2019 #2

Motion to extend to date for filing of appellant's brief filed for Andrew Robertson by Attorney David Mirsky.

{ALLOWED to October 18, 2019.)

06/03/2019 #3

NOTICE OF STATUS CONFERENCE: A STATUS CONFERENCE has been scheduled in this matter for

WEDNESDAY, SEPTEMBER 18, 2019, at 11:00 A.M., in Courtroom 1, John Adams Courthouse, One

Pemberton Square, Boston, Massachusetts. (Botsford, J., presiding as Special Master).

08/16/2019 #4

Appearance filed for Commonwealth by Donna Patalano, A.D.A..

09/04/2019 #5

NOTICE OF STATUS CONFERENCE POSTPONEMENT: A STATUS CONFERENCE will be rescheduled in this

matter at a later date.

10/09/2019 #6

MOTION FOR STAY OF APPEAL filed for Andrew Robertson by Attorney David Mirsky. (Status noted. The

defendant shall file a proposed briefing schedule for the brief or motion for new trial on or before December

18,2019.)

10/17/2019 #7

Appearance filed for Commonwealth by Cailin Campbell, A.D.A..

12/18/2019 #8

STATUS LETTER and proposed briefing schedule filed for Andrew Robertson by Attorney David Mirsky. {The

proposed briefing scheduled is ALLOWED. The appellant's brief is due on or before April 17, 2020.)

05/20/2020 #9

NOTICE: Notwithstanding the tolling provisions in any current or subsequent standing order related to the

COVID-19 pandemic, the appellant's brief is due on or before July 1, 2020.

07/20/2020 #10

Motion to extend to 2/19/21 for filing of appellant's brief or motion for new trial, filed for Andrew Robertson by

Attorney David Mirsky. {ALLOWED, in part, to September 17, 2020)

09/09/2020 #11

Motion to extend to 2/19/21 for filing of appellant’s brief or motion for new trial, filed for Andrew Robertson by

Attorney David Mirsky. (ALLOWED, in part, to November 13, 2020)

11/09/2020 #12

Motion to extend to date for filing of appellant's brief or motion for new trial, filed for Andrew Robertson by.

Attorney David Mirsky. (ALLOWED to January 15, 2021)

01/04/2021 #13

Motion to extend to date for filing of appellant's brief or motion for new trial, filed for Andrew Robertson by

Attorney David Mirsky. (ALLOWED. The defendant's brief is due on or before March 19, 2021.)

03/12/2021 #14

Motion to extend to date for filing of appellant's brief or motion for new trial filed for Andrew Robertson by

Attorney David Mirsky. (ALLOWED to June 18, 2021).

05/06/2021 #15

NOTICE OF STATUS CONFERENCE: A status conference has been scheduled in this matter for Tuesday, May

18, 2021, at 10:00 A.M. (Botsford, J„ presiding as Special Master).

05/19/2021 #16

NOTICE: The parties having appeared for a status conference before Special Master Margot Botsford on May

18, 2021, it is reported and recommended that the defendant's brief shall be filed on or before June 30, 2021,

and the Commonwealth’s brief shall be filed on or before September 28, 2021.

06/01/2021 #17

ORDER: Upon consideration of the report of the Special Master, it is ORDERED that the defendant's brief shall

be filed on or before June 30, 2021, and the Commonwealth's brief shall be filed on or before September 28,

2021. By the Court

06/30/2021 #18

Appellant brief filed for Andrew Robertson by Attorney David Mirsky.

06/30/2021 #19

Appendix filed for Andrew Robertson by Attorney David Mirsky.

07/01/2021

The clerk's office has received the appellant’s brief and appendix through e-fileMA. The brief has been

accepted for filing and entered on the docket. The appellant shall file with the clerk 4 copies of the brief and 3

copies of the appendix within 5 days. The clerk’s office may require additional copies if necessary. (Note: Cover

of appellant's brief shall be blue and appendix shall be white. See M.R.AP. Rule 20{a)6)(A).)

07/08/2021 #20

Additional 4 copies of appellant’s brief and 3 copies of appendix filed by Andrew Robertson.

07/29/2021 #21

Appearance filed for Commonwealth by Attorney Darcy A. Jordan.

08/16/2021 #22

NOTICE of December argument sent.

08/26/2021 #23

ORDERED for argument on December 10.

09/24/2021 #24

Motion to extend to date for filing of appellee’s brief filed for Commonwealth by Darcy A. Jordan, A.D.A.

(ALLOWED to October 8, 2021.)

10/12/2021 #25

Appellee brief filed for Commonwealth by Darcy A. Jordan, A.D.A..

10/12/2021 #26

Appendix filed for Commonwealth by Darcy A. Jordan, A.D.A..

8/1/2022, 4:14 PM

https://www.ma-appellatecourts.org/docket

Mass Appellate Courts - Public Case Search

10/12/2021 #27

Motion to extend to date for filing of appellee's brief filed for Commonwealth by Darcy A. Jordan, A.D.A..

(ALLOWED to October 12, 2021.)

10/12/2021

The clerk's office has received the appellee's brief and appendix through e-fileMA. The brief and appendix have

been accepted for filing and entered on the docket. The appellee shall file with the clerk 4 copies of the brief

and 3 copies of the appendix within 5 days. The clerk's office may require additional copies if necessary. (Note:

Cover of appellee's brief shall be red and appendix shall be white.)

10/12/2021 #28

Additional 4 copies of appellee's brief and 3 copies of appendix filed by Commonwealth.

10/20/2021 #29

Motion to extend to date for filing of appellant's reply brief filed for Andrew Robertson by Attorney David

Mirsky. (ALLOWED to December 3, 2021)

12/03/2021 #30

Reply brief filed for Andrew Robertson by Attorney David Mirsky.

12/06/2021

The clerk’s office has received the appellant's reply brief through e-fileMA. The brief has been accepted for

filing and entered on the docket. The appellant shall file with the clerk 4 copies of the brief within 5 days. The

clerk's office may require additional copies if necessary. (Note: Cover of reply brief shall be gray.)

12/08/2021 #31

Motion to reschedule oral argument filed for Andrew Robertson by Attorney David Mirsky. (The motion to

reschedule oral argument is ALLOWED. This matter will be continued to the January sitting of the court.)

12/09/2021 #32

ORDERED for argument on January 10.

01/10/2022

Oral argument held. (Budd, CJ., Lowy, J., Kafker, J.( Wendlandt, J., Georges, Jr., J.). View Webcast ra

02/28/2022 #33

RESCRIPT (Full Opinion): Judgments affirmed. (By the Court)

03/04/2022 #34

Motion to extend time to file a motion for reconsideration filed for Andrew Robertson by Attorney David

Mirsky. (3/10/22 Allowed, in part, Motion due on or before March 29, 2022).

03/21/2022 #35

Motion for Reconsideration or Modification filed for Andrew Robertson by Attorney David Mirsky.

04/15/2022 #36

DENIAL of Motion for Reconsideration. (By the Court).

04/15/2022

RESCRIPT ISSUED to trial court.

As of 04/15/2022 3:20pm

3 of 3

(

8/1/2022,4:14 PM

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.