NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; [email protected]

SJC-12130

COMMONWEALTH vs. REGINALD HOLLEY (and five companion cases1).

Suffolk. September 8, 2017. - December 14, 2017.

Present: Gants, C.J., Lenk, Gaziano, Budd, & Kafker, JJ.

Homicide. Robbery. Firearms. Joint Enterprise. Felony-Murder Rule. Search and Seizure, Warrant, Probable cause. Constitutional Law, Probable cause. Probable Cause. Cellular Telephone. Jury and Jurors. Evidence, Joint enterprise, Prior misconduct. Practice, Criminal, Capital case, Motion to suppress, Warrant, Instructions to jury, Jury and jurors, Deliberation of jury, Substitution of alternate juror, Severance.

Indictments found and returned in the Superior Court Department on December 12, 2012.

Pretrial motions to suppress evidence were heard by Patrick F. Brady, J., and the cases were tried before him.

Elizabeth A. Billowitz for Reginald Holley. Neil L. Fishman for Oasis Pritchett. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

1 Two against Reginald Holley and three against Oasis Pritchett. 2

LENK, J. On the morning of October 17, 2012, Alfonso Rivas

was in his apartment building anticipating a sale of marijuana

to Reginald Holley when Rivas was fatally shot in the head.

Holley and Oasis Pritchett were convicted of felony-murder in

the first degree, armed robbery, and possession of a firearm

without a license, as joint venturers, in connection with the

victim's death. Prior to trial, both defendants had moved

unsuccessfully to suppress text messages obtained from their

cellular service provider. The text messages, which were

introduced at trial, contained incriminating statements

involving the defendants' plan to steal marijuana from the

victim on the morning of the shooting.

In this direct appeal, Holley and Pritchett challenge the

sufficiency of the evidence supporting their felony-murder

convictions and the introduction of their text messages at

trial. They argue also that the judge erred in declining to

instruct the jury on felony-murder in the second degree, and in

dismissing a deliberating juror who was ill. Pritchett argues

separately that the judge erred by denying his motion to sever,

admitting evidence of prior bad acts, and declining to instruct

the jury on the requirements of the hearsay exemption concerning

joint venturer statements. Each defendant also requests relief

under G. L. c. 278, § 33E. We affirm the convictions and, after 3

careful review of the record, decline to set aside the verdicts

or reduce the degree of guilt pursuant to our authority under

G. L. c. 278, § 33E.

1. Facts. We recite the facts the jury could have found,

reserving certain details for later discussion.

a. The shooting. The victim lived with his girl friend

and their children in one of the two units on the third floor of

an apartment building on Lyndhurst Street in the Dorchester

section of Boston. The other apartment on that floor was vacant

and left unlocked. The victim often used the vacant apartment

to do homework and to sell marijuana to friends and close

acquaintances. When selling to people he did not know well,

such as individuals who had been referred to him, the victim

would arrange to meet the buyers somewhere outside the apartment

building. Shortly before his death, the victim had obtained a

handgun to protect himself when he was selling marijuana,

because he had been robbed during a previous sale. The victim

stored his marijuana, and the proceeds from his marijuana sales,

in empty cans of Enfamil brand baby formula.

Sometime between 9 and 10 A.M. on October 17, 2012, the

victim went to the vacant apartment to do homework. His girl

friend remained in their apartment to watch television. At some

point while the victim was in the vacant apartment, his girl

friend placed a video call to the victim and the two spoke 4

briefly. The victim owned a white iPhone cellular telephone

that repeatedly flashed a light that resembled a "strobe light"

when it rang. After the call, at around 11 A.M., the girl

friend heard a "loud pop" and then a "thud." She tried to

video-call the victim, but he did not respond. When she went

into the hallway, she saw that the door to the vacant apartment

was open and the lid of an Enfamil can was on the floor in front

of the door. She entered the vacant apartment and saw the

victim lying on the floor, shaking and bleeding from the head.

She ran back to her apartment and telephoned 911.

Emergency medical technicians and police responded within

minutes. On their way up the stairs, they noticed what they

described as a burgundy Red Sox baseball cap on the second-floor

landing. They entered the vacant apartment and found the victim

lying face down, barely breathing, nonresponsive, and bleeding

from the right side of his head. Next to the victim was a cloth

bag containing a firearm. Police found the plastic lid of an

Enfamil can but did not find the Enfamil container itself, nor

did they find any marijuana or money. The victim's iPhone was

not in the apartment. The victim was transported to the

hospital, where he died a few hours later.

b. The investigation. During the course of the

investigation, police examined the victim's call records and

learned that the last call the victim answered before the 5

shooting came from Holley's telephone number. Police then

obtained information from the defendants' cellular telephone

records through a warrant served on their cellular service

provider, MetroPCS.2 Two days before the shooting, Holley sent

Pritchett a text message stating, "Yo who can we stick . . .

mainly for sum loud[3] . . . git da V an joint bro." Holley then

called Pritchett and spoke to him on his cellular telephone.

The next day, Holley sent a text message to the victim asking,

"Bro U kno wea I can get a nice deal on a ounces of loud??" The

victim and Holley thereafter exchanged text messages in which

they arranged that the victim would sell Holley two ounces of

marijuana for $650; they planned to meet the following day to

make the exchange.

On the morning of the shooting, Holley sent the victim a

text message at 8:21 A.M. stating, "I'll be off at 9 . . . ill

hit u up tho." The victim responded, "Oo forreal . . . wasn't

even hip . . But ya whenever ur ready bruh . . . Koo."

2 At that time, the defendants' cellular service provider, MetroPCS, maintained copies of all text messages in the ordinary course of its business, as part of a customer's telephone records. The victim's cellular service provider, Sprint Corporation, on the other hand, does not appear to have kept copies of its customers' text messages. The victim's text messages that were admitted at trial were obtained through Holley's MetroPCS records. 3 Evidence at trial established that "loud" is a slang term for high-quality marijuana. 6

Approximately forty minutes later, Holley sent a text message to

Pritchett saying, "I got a stick . . . not a big one tho . . .

its for two. Ounces of loud . . . wanna get it." The following

exchange then took place:

Pritchett: "Wen"

Holley: "ASAP. Wanna meet me . . . I live on Esmond st . . ."

Pritchett: "Who u stay there wit"

Holley: "I got a roommate bro"

Pritchett: "Oh so wat u want me to do

"So wea u at now"

Holley: "I can get my Hans on a joint but then shits is too big . . . nigga got a couple rifles. SawedOff . . . no hand joints . . . u got a Hand joint

"I just got off . . . I'm getting dropped off now . . . "

Pritchett: "Off of work"

Holley: "Yea work"

Pritchett: "I got a couple"

After this exchange, Holley called Pritchett at 9:09 A.M.

and spoke to him for a few minutes. Less than ten minutes

later, Holley sent Pritchett a text message saying, "Dnt bro a

revolver . . . cock back . . . so he Cam Hea it." 7

At 9:37 A.M., Pritchett called Holley. Cell site data4

records show that, during that call, Pritchett's cellular

telephone connected to a cellular telephone tower (cell tower)

near his home on Blue Hill Avenue, while Holley's cellular

telephone connected to a cell tower near his home on Esmond

Street. Between 9:44 and 9:49 A.M., Pritchett's cellular

telephone connected with a cell tower further from his house, on

a route leading to Holley's house.

Between 9:54 and 9:58 A.M., Pritchett and Holley exchanged

text messages to coordinate a meeting at Holley's house. At

10:01 A.M., Pritchett called Holley. Pritchett's cellular

telephone connected to a cell tower on Talbot Avenue, closer to

Holley's house, while Holley's cellular telephone connected to a

cell tower on his street. When Pritchett called Holley again

two minutes later, both of their cellular telephones used the

same cell tower on Holley's street.

4 Cellular telephone towers, also known as cell sites, contain antennae and electronic communications equipment that enable cellular telephones to place and receive calls. At the time of the defendants' trial, there were over 1,000 Sprint Corporation cell sites in Boston and "a lot" of MetroPCS sites. Cellular telephones usually connect to the tower nearest to them that has the strongest signal. A cell tower that is physically closer to the location of a particular cellular telephone would not be used for the connection if the signal from that tower is weaker, or if it is too busy. While the precise location of a particular cellular telephone cannot be determined from cellular telephone records, those records do show the tower to which a cellular telephone connected when it placed or received a specific call. 8

At 10:22 A.M., Holley sent the victim a text message saying

"I'm bout to head down their . . ." and the victim responded,

"Koo." At 10:29 A.M., Holley replied, "15 min," and the victim

responded, "Ok." Video surveillance footage from the entryway

of the victim's building showed the victim walk down the

interior stairs, prop open the interior entry door, and then

walk back up the stairs at 10:30 A.M.5

At 10:54 A.M., Holley's cellular telephone connected to a

cell tower at an intersection that was just a few blocks from

the victim's apartment. At 10:56 A.M., Holley's telephone

connected with a cell tower approximately several blocks away

from closer to the victim's apartment. At the same time, the

victim's call records show that he answered a call from Holley;

at that point, the victim's telephone connected to a tower a few

blocks from his apartment. This was the last time a call was

answered from the victim's cellular telephone.

Footage from the video surveillance cameras in the victim's

apartment building showed two young, African-American males

enter the building at 10:57 A.M. that morning. One was wearing

5 To enter the victim's apartment building, a visitor would have to pass through two sets of doors at the entrance. A resident could unlock the first entryway door remotely for a visitor using an intercommunication device (intercom), which would permit the visitor to enter the vestibule. The second entryway door, however, had to be manually opened from inside in order for a visitor to gain access to the apartments and the stairwell. 9

a gray hooded sweatshirt with a dark coat over it and a maroon

baseball cap; he was speaking on a cellular telephone as he

climbed the stairs. The other was wearing a black, white, and

red plaid jacket with the hood up and a dark vest over it. The

surveillance video showed the same two individuals run down the

stairs and out of the building at 11 A.M. As they ran out, the

first individual, with the gray sweatshirt, was no longer

wearing the baseball cap. The police reviewed the footage from

all surveillance cameras in the front and back of the building

from approximately 10:15 A.M. until 11:05 P.M. that day, but saw

no other significant activity. Investigating officers also

reviewed surveillance footage taken from a nearby post office,

which had cameras that showed the entrance to the victim's

building. On this footage, the same two individuals can be seen

entering the victim's building.

At approximately the same time as the events on the video

surveillance footage, two people were involved in an automobile

accident on the street where the victim lived. They were

exchanging insurance information when they heard a loud bang;

one ducked and said, "Someone's shooting." Approximately one

minute later, the man involved in the accident (the witness) saw

two men come out of the victim's apartment building. They

walked past in a rush, scanned up and down the street, and began

running toward Allston Street, in the direction of the 10

Massachusetts Bay Transportation Authority's (MBTA) Shawmut

station. The men were wearing several layers of clothing and

jackets.6 The witness had been on the street approximately

twenty to thirty minutes before he saw the two men leave the

victim's apartment building; in that time, he did not see anyone

else enter that building.

Video surveillance from the MBTA shows the two individuals

who had entered and left the victim's apartment building

arriving at the Shawmut MBTA station at 11:04 A.M.7 They bought

one ticket that they both used to walk through the turnstile.

The men walked down the stairs to the inbound platform and sat

on a bench. The one wearing the grey sweatshirt pulled a light-

colored cylindrical object out of his clothing and placed it

under the bench,8 and then the two stood up and walked away. The

two men then took a different set of stairs to the outbound

platform.

6 The witness described both men as young, tall, and African-American. He observed that one of them had braided "cornrows" in his hair and was wearing a red jacket, and the other was wearing an olive green jacket with a hood. 7 Both of their hoods were down, showing that both had their hair in "cornrows." 8 The man in the video footage appeared to be Holley. 11

At 11:17 A.M.,9 the ticket the two men had used to enter

Shawmut station was used on the 815 MBTA bus from Ashmont

station, one station away from Shawmut on the MBTA's Red Line.

Video surveillance from the 815 bus shows the same two men get

on the bus at Ashmont station and sit down next to each other;

the bus headed back in the direction from which the men had

come, toward the victim's home. Two minutes before the video

footage showed the two men getting onto this bus, Pritchett's

cellular telephone had connected with a cell tower a few blocks

from Ashmont station.

Between 11:15 A.M. and 12:29 P.M., the defendants

collectively received approximately one dozen calls that

connected from cell towers located on MBTA Route 23, the route

of the 815 bus, which ran along Washington Street from Ashmont

station to a bus stop a few blocks away from Pritchett's house

on Blue Hill Avenue. At 11:22 A.M., the surveillance video from

the 815 bus shows that one of the two men10 pulled from his pants

pocket a black cellular telephone and then a white cellular

telephone, which was flashing a light resembling a strobe light;

9 Due to technical difficulties, the bus's time stamp was seventeen hours and fifty minutes earlier than the actual time. 10 The man in the video footage appeared to be Pritchett. 12

he manipulated the device with the flashing light.11 According

to the victim's cellular telephone records, his telephone

received a call at approximately the same time, which connected

to a cell tower near the 815 bus's location along Route 23; the

call went unanswered. A few minutes later, Pritchett's and

Holley's telephones each connected with a nearby cell tower.

At 11:32 A.M., the MBTA surveillance footage shows the

individual again take out the telephone with the flashing light.

At the same time, the victim's cellular telephone received

another call; that call connected to a cell tower on the Sprint

network that is approximately six blocks from the MetroPCS tower

that Holley's telephone connected with at 11:32 A.M.12 On the

video footage, the individual handed the flashing telephone to

an unidentified man then sitting next to him,13 who manipulated

the telephone so that it stopped flashing. The victim's

cellular telephone records showed no further activity after

11 When police seized Pritchett's cellular telephone, it did not have a flashing feature. 12 Because the victim's cellular telephone provider, Sprint, Corp., was different from that of the defendants, who used MetroPCS, the cell towers that the victim's telephone connected to were different from those used by the defendants' telephones. 13 When the unidentified man got onto the bus, he appeared to recognize the man who looked like Pritchett. A short time later, the man who looked like Pritchett left his seat next to the man resembling Holley and sat down next to this unidentified man at the back of the bus. The two men appeared to have been talking when the telephone started flashing. 13

11:32 A.M., and the telephone did not connect to any cell towers

after that time.

At 11:42 A.M., the two individuals got off the bus at the

stop closest to Pritchett's house. At 11:52 A.M., and again at

1:39 P.M., Holley's telephone connected with a cell tower one

block from Pritchett's house. Pritchett's telephone connected

to the same tower at 12:29 P.M.

At 2:35 P.M., Holley sent a text message to Pritchett

saying, "I'm home." A little over one hour later, Holley sent

another message: "He died." Pritchett asked, "How u kno," and

Holley responded, "Word of mouth." Approximately one and one-

half hours later, Holley sent a text message to Pritchett

saying, "U good bro." Beginning at 6:56 P.M., and continuing

into the next day, Holley also sent the following texts to third

parties: "I got loud on deck"; "Babe cum blow this loud"; "Loud

on deck"; Kush on deck"; and "I got Kush for sale."

Between 1:50 A.M. and 2:25 A.M. on the morning after the

shooting, Pritchett engaged in the following text message

exchange with a third party:

Pritchett: "I fucked up"

Third party: "So whos prego"

Pritchett: "No no no real shit pj"

Third party: "So baby wats wrng"

"Jus do it" 14

"Please jus tell me"

"U didnt do kno hot shit rite"

Pritchett: "Yea"

Third party: "Wat u mean o waT u doin out here"

"Tlk nigga"

Pritchett: "I fucked up"

"Dont b saying anything i fucked up"

Third party: "Im not wtf say sumthn o"

"Is that all u keep sayn"

Pritchett: "Sumthin happend today I might go down for it"

Third party: "I need to c u tonite if dats da case ur gonna leave me lonely out here n these streets"

Pritchett: "Im sorry im good tho i hope"

Third party: "I wanna c u"

"Well I hope thngs work out for u luv u it cnt b dat serious cuz u would wanna c me as i would u u wont even tlk to me so Iono ttyl"

Pritchett: "I have go sumwhere i will c u tomorrow"

Third party: "U cnt call me n tell me u love me"

"God forbid u do go dwn jus kno ima rememba dis so dnt expect shit frm me"

Pritchett: "On my life u need to chill"

Investigating officers also reviewed surveillance footage

obtained from Holley's employer, United Parcel Service, for the 15

week of October 16-19, 2012. The footage from the days Holley

appeared at work showed that on October 16 and October 17 (the

morning of the shooting), Holley wore a maroon Boston Red Sox

baseball cap to work. On October 19, however, he wore a

different hat.

c. Forensic evidence. Police searched the victim's

apartment building and several items from the vacant apartment,

including the baseball cap, for fingerprints.14 None of the

viable fingerprints were a match to Pritchett or Holley's

fingerprints. Police also examined footprints found at the

crime scene. None matched the shoes collected from Holley,

Pritchett, or the victim.15 Some "reddish brown stains" from the

entryway to the building, the baseball cap, Holley's jacket, and

Pritchett's shoes were submitted to the police crime laboratory

for deoxyribonucleic acid (DNA) testing. Test results indicated

that Holley was one of two possible contributors to the DNA from

the baseball cap and the jacket; the victim was a contributor to

the stains in the front entryway. The stains on the shoes were

insufficient for DNA testing.

14 Police seized a number of other objects as well, including a Pepsi can, a white plastic bottle, a Brisk lemonade bottle, and an Enfamil container. 15 Bloody footprints near the victim were later determined to have been made by first responders providing medical assistance. 16

d. Firearm evidence. The Commonwealth presented evidence

that, a few days before the shooting, Pritchett was hired to

help a doctor clean out the house of his late uncle. The doctor

had brought a friend, and had hired a contractor and his

assistant, Pritchett, to go through the uncle's house room by

room, sorting items to keep and items to be discarded.

The uncle owned two guns that he kept in a red bag: a

Taurus Model 85 .38 caliber revolver and a Jennings .32 caliber

semiautomatic pistol. The bag also contained bullets, a

cleaning kit, and the receipts for the handguns. The doctor had

placed the uncle's bag in a separate pile of items that he was

planning to keep. After the cleaning was completed and

Pritchett and the mover left, the doctor went to check on the

pile of items he planned to keep. The red bag was still in the

pile, with the bullets, receipts, and cleaning kit inside, but

the two handguns were missing.

The doctor spoke to his friend about the missing guns; the

friend suggested that he call the mover. The mover disclaimed

any knowledge. The mover then called Pritchett, who told the

mover that he had no knowledge of the missing guns. The next

day, however, the doctor's friend sent a text message to

Pritchett, saying, "Hey man dude noticed guns are gone and he's

gona call [the mover] and ask him. I said I don't know anything

so just say you don't either." Pritchett responded, "We might 17

of thought them in the trash." The doctor's friend responded,

"That's what I said but he said the bag they were in is still

there. So just say you don't know anything like I did and well

be cool." Pritchett answered "Ok." The doctor never located

the guns.

A ballistics expert analyzed bullet fragments from the

victim's body and generated a list of many potential firearms

that could have fired the bullet. When asked during cross-

examination whether the Taurus model 85 could have fired the

bullet, even though it had not been included in his initial

report, the expert testified that he could not exclude such a

firearm as the possible weapon. The expert also determined that

the Jennings pistol could not have fired the bullet that killed

the victim.

2. Procedural history. The defendants were indicted on

charges of murder in the first degree in violation of G. L.

c. 265, § 1; armed robbery in violation of G. L. c. 265, § 17;

and possession of a firearm without a license in violation of

G. L. c. 269, § 10 (a). The Commonwealth's motion to join the

defendants' trials was allowed over the defendants' objections.

Prior to trial, both defendants also sought to suppress the text 18

messages obtained from MetroPCS;16 their motions were denied.17

The Commonwealth moved in limine to introduce evidence of the

firearms that were missing from the doctor's uncle's house; that

motion was allowed over Pritchett's objection. The defendants

were convicted of all charges. The Commonwealth proceeded at

trial on theories of deliberate premeditation and felony-murder;

however, the defendants were convicted only on the theory of

felony-murder.

3. Discussion. a. Sufficiency of the evidence. The

defendants argue that there was insufficient evidence of felony-

murder because the predicate offense of armed robbery and the

death of the victim were both based on a single gunshot, rather

than arising from two separate assaults. A conviction of

felony-murder requires that the predicate felony be based on

conduct that is independent of the act necessary for the

killing. Commonwealth v. Bell,

(2011), S.C.,

(2015), cert. denied,

(2016).

16 At trial, and on appeal, the defendants did not object to the admission of cell site data or call logs but, rather, challenged the admissibility of "stored content," meaning, in this context, the content of their text messages. 17 The investigating officers had obtained two independent sets of warrants to search both of the defendants' cellular telephones and their MetroPCS records. The language of the two sets of search warrants is substantially the same. In our discussion, we address the language in the warrants to search MetroPCS records, as only those records were introduced at trial. 19

"This requirement ensures that not every assault that results in

a death will serve as a basis for murder in the first degree on

the theory of felony-murder." Commonwealth v. Scott,

(2015). "If an assault that is an element of an

underlying felony is not separate and distinct from the assault

that results in the death, then the assault is said to merge

with the killing, in which case the underlying felony cannot

serve as a predicate felony for purposes of the felony-murder

doctrine."

Generally, a determination whether a killing merges with

the underlying felony must be assessed on a case-by-case basis.

Commonwealth v. Kilburn,

(2003). Here,

however, the judge noted that his decision was constrained by

Commonwealth v. Christian,

(2000), overruled

on other grounds by Commonwealth v. Paulding,

(2002), in which this court explained that it could "envision no

situation in which an armed robbery would not support a

conviction of felony-murder."

Notwithstanding Holley's arguments to the contrary, the

court's holding in

on the issue of felony-

murder has not been abrogated. The merger doctrine is

inapplicable in cases where the purpose of the predicate felony

is distinct from an intent to cause physical injury or death.

Commonwealth v. Morin,

, 430 (2017). For armed 20

robbery, the elements of the crime are that "a defendant, while

armed with a dangerous weapon, assaulted another person, and

took money or property from the person with the intent to steal

it." Commonwealth v. Anderson,

, cert.

denied,

(2012), citing G. L. c. 265, § 17.

Christian,

, explained that it is "the stealing

or taking of property[] that qualifies them for application of

the felony-murder rule." Otherwise put, it is the intent to

steal, rather than the intent to assault, which is substituted

for malice. Since intent to steal does not cause a homicide,

the armed robbery does not merge with the killing. Morin, supra

at 431. Accordingly, the merger doctrine is inapplicable in

this case, and there was sufficient evidence to support the

defendants' convictions of felony-murder in the first degree.

Pritchett also argues that his felony-murder conviction

must be reversed because it is undisputed that the victim did

not die during the armed robbery but, rather, died several hours

later at the hospital. He points to cases such as Commonwealth

v. Ortiz,

(1990), and Commonwealth v.

Hanright,

(2015), abrogated on other grounds

by Commonwealth v. Brown,

(2017), which explain

that felony-murder imposes liability where a death occurred "in

the course of" a felony or criminal enterprise. Pritchett's

reading of these cases is too narrow. In

the 21

court explained that the homicide must follow "naturally and

probably from the carrying out of the joint enterprise"

(citation omitted), such that the intent to commit the

underlying felony is substituted for the malice aforethought

required for the murder. Similarly, in

, we

explained that "the killings and the felonious carrying [of a

firearm in a motor vehicle] need only to have occurred as part

of one continuous transaction. It was not necessary for the

Commonwealth to show that the homicides occurred while the

[felony] was still in progress, as long as the homicides were

connected with and incident to the [felony] and as long as the

[felony] and the homicides took place at substantially the same

time and place." Here, it was sufficient that the fatal shot

was delivered during the course of the armed robbery; that the

victim died a few hours later does not negate the fact that the

victim was killed in the course of the armed robbery.

b. Motions to suppress text messages. Both defendants

argue that the motion judge, who was also the trial judge, erred

in denying their motions to suppress the content of their text

messages obtained from MetroPCS.18 Specifically, they contend

18 As stated, the defendants do not challenge that there was probable cause to obtain the cell site data and subscriber information. In light of the video surveillance footage and the victim's telephone records, we discern no error in the admission of this evidence. 22

that the warrants to obtain those records were not supported by

probable cause and also were lacking particularity. After

reviewing the search warrant applications and supporting

affidavits, we conclude that both were supported by probable

cause. In addition, to the extent that the warrants were

lacking particularity, there was no prejudice to the defendants

by the introduction of their text messages at trial.

i. Holley's text messages. A. Probable cause. Both the

Fourth Amendment to the United States Constitution and art. 14

of the Massachusetts Declaration of Rights "require a magistrate

to determine that probable cause exists before issuing a search

warrant" (citation omitted). Commonwealth v. Cavitt,

(2011). Probable cause means 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" (citations omitted). Commonwealth v.

Kaupp,

(2009). There must be probable cause

to conclude not only that an individual committed a crime, but

also that the particular source of evidence has a "nexus" to the

offense (citation omitted). Commonwealth v. White,

(2016). While "definitive proof" is not necessary to

meet this standard, the warrant application may not be based on

mere speculation. Commonwealth v. Augustine,

, 455 23

(2015); Commonwealth v. Cinelli,

, cert.

denied,

(1983) (even "strong reason to suspect is

not adequate").

"When considering the sufficiency of a search warrant

application, our review 'begins and ends with the four corners

of the affidavit.'" Commonwealth v. Dorelas,

(2016), quoting Cavitt,

. The affidavit

is "considered as a whole and in a commonsense and realistic

fashion"; it is not "parsed, severed, and subjected to

hypercritical analysis" (citations omitted).

"All reasonable inferences which may be drawn from the

information in the affidavit may also be considered as to

whether probable cause has been established." Commonwealth v.

Donahue,

(2000). A magistrate's

determination of probable cause is accorded "considerable

deference." Commonwealth v. McDermott,

,

cert. denied,

(2007).19 Probable cause is a "fact-

19 The Commonwealth points out that, here, the content of the text messages admitted at trial was not obtained through forensic searches of the defendants' cellular telephones, as it was in Commonwealth v. White,

(2016), Commonwealth v. Dorelas,

(2016), and other cases the defendants rely upon, but rather through the records of the cellular telephone service provider. This distinction is immaterial. Regardless of whether the text messages were stored only on the defendants' cellular telephones or also on their service providers' servers, police could not seek a warrant to recover the contents of those text messages without establishing 24

intensive inquiry, and must be resolved based on the particular

facts of each case." Morin, 478 Mass. at 426.

There was a substantial basis to conclude that Holley's

text messages were related to the crime under investigation.

The warrant affidavit discussed information contained in the

victim's call records and the apartment surveillance footage in

order to establish that Holley used his cellular telephone to

call the victim immediately prior to the shooting, just as

Holley was entering the victim's apartment building, where the

victim was ultimately shot. The affiant also stated that the

victim's girl friend had told him that the victim sold marijuana

from the vacant apartment and kept his marijuana in Enfamil

cans. The girl friend had observed an Enfamil can top, but not

a nexus between the homicide and the defendants' cellular telephone communications. See Commonwealth v. Fulgiam,

, cert. denied,

(2017) (individual has objectively reasonable expectation of privacy in text messages, regardless of whether they are stored in that person's cellular telephone or on service provider's server);

("the government must demonstrate a nexus between the crime alleged and the article to be searched or seized" [quotations and citation omitted]).

The Commonwealth argues also that the defendants did not have a reasonable expectation of privacy in the content of the third-party business records from which the content of the text messages was obtained. We rejected this argument in

issued after the Commonwealth filed its brief in this case, wherein we held that the third party doctrine is "inapposite . . . with respect to the content of text messages stored on a cellular telephone service provider's servers" (quotations and citation omitted). 25

the container, near the victim's body. The shooting was

therefore likely connected to a drug deal, which the affiant

explained commonly is arranged by a telephone call "to verify

contact and to arrange for the transaction." Contrast White,

("the opinions of the investigating officers do

not, alone, furnish the requisite nexus between the criminal

activity and the [device] to be searched or seized" [emphasis

added, quotations and citation omitted]).

The victim's girl friend also told the affiant that "it was

unusual for the victim not to have his phone with him."

Moreover, she had tried to video-call the victim while he was in

the vacant apartment that morning, from which it reasonably may

be inferred that the victim had had his cellular telephone in

his possession, and yet his telephone was not found at the scene

of the crime. From this information, the affidavit reasonably

inferred that "people involved in the victim's homicide may have

taken the victim's phone to hide any information such as recent

contact information and caller history."

The motion judge properly concluded that there was a nexus

between Holley's text messages and the shooting, even though the

warrant affidavit did not state specifically that Holley was

sending text messages. A nexus also may be "found in the type

of crime, the nature of the items sought, and the normal

inferences as to where such items might be kept by the suspect." 26

Commonwealth v. Matias,

(2004). See, e.g.,

Dorelas,

(defendant's receipt of threatening

calls and text messages on his cellular telephone supported

reasonable inference that his photograph files, and not just his

calls and text messages, would contain evidence of contentious

communications in days leading up to shooting). Here, it was

reasonable to infer that Holley's cellular communications were

instrumental in committing the crime because Holley called the

victim as he was entering the victim's apartment building only a

few minutes before the shooting. Thus, there was probable cause

to search for contemporaneous communications that were related

to the criminal activity under investigation, which includes

real-time text messages.20 Contrast White,

(only connection between fatal armed robbery and defendant's

cellular telephone was speculation in warrant affidavit that

20 Holley argues that the Commonwealth's contention in its brief that the content of Holley's text messages would help police identify the shooter is "disingenuous at best," because all that was necessary to determine the identity of the person the victim communicated with on the morning of the shooting was to request the subscriber information associated with the telephone number. In addition, Holley argues, police already knew his identity before seeking the search warrant for his cellular telephone. Holley's argument is unavailing. Holley does not point to, and we are not aware of, any support for the proposition that the police are required to limit themselves to one source for each piece of information obtained during the course of an investigation. That police found other incriminating information in Holley's text messages, beyond the fact of his identity, is immaterial. 27

cellular telephone was related to crime because cellular

telephones are "necessary to social interactions"); Commonwealth

v. Broom,

(2016) (only connection between

fatal aggravated rape and defendant's cellular phone was

conclusory statement in search warrant affidavit that "cellular

telephones contain multiple modes used to store vast amounts of

electronic data" and that there was "probable cause to believe

that the [defendant's] cell phone and its associated

accounts . . . will likely contain information pertinent to this

investigation.").

B. Particularity. "The Fourth Amendment, art. 14, and

G. L. c. 276, § 2, require that a search warrant describe with

particularity the places to be searched and the items to be

seized." Perkins,

, 106 (2017). The dual purposes

of the particularity requirement are "(1) to protect individuals

from general searches and (2) to provide the Commonwealth the

opportunity to demonstrate, to a reviewing court, that the scope

of the officers' authority to search was properly limited."

Commonwealth v. Valerio,

, 566–567 (2007). We have

cautioned that "given the properties that render [a modern

cellular telephone] distinct from the closed containers

regularly seen in the physical world, a search of its many files

must be done with special care and satisfy a more narrow and

demanding standard." Dorelas,

. 28

The warrant to search Holley's cellular telephone records

sought the following information from October 1 through October

18, 2012:21

"[S]ubscriber information; billing records and detailed airtime; outbound call detail; call origination and termination location; stored GPS location information, and/or stored cellular tower records, cell tower sector information, range from cell tower information (RTT) and physical address of cell sites; and all stored contents of electronic or wire communications including stored or deleted voicemail, read, unread, deleted, or sent electronic mail or text messages, and stored files; and listing of all associated phone numbers, of a subscriber to or customer of such service."

That the warrant sought "all stored contents of electronic or

wire communications" and "stored files" in Holley's cellular

telephone records for seventeen days raises significant concerns

as to whether the warrant was "sufficiently limited in scope to

allow a search of only that content that is related to the

probable cause that justifies the search" (citation omitted).

Dorelas, 473 Mass at 511 n.8 (Lenk, J., dissenting). See

21 Although the warrants for Pritchett and Holley's MetroPCS records did not contain any time limitation, the supporting affidavits did; the affidavits asked only for records for the period from October 1 through October 18, 2012, and MetroPCS only produced the text messages for that time period. See Commonwealth v. Valerio,

(2007) ("despite a warrant's technical violation for lack of particularity, when the items intended to be seized are listed in an attached affidavit, and the affidavit is incorporated into the warrant and present at the scene of the search, exclusion of evidence does not necessarily follow"). 29

Perkins, 478 Mass. at 106 ("By defining and limiting the scope

of the search, these constitutional and statutory particularity

requirements prohibit general warrants amounting to exploratory

rummaging in a person's belongings" [quotations and citation

omitted]).

The warrant here was hardly a model of particularity, and

did not sufficiently limit the scope of the search so as to

prevent "exploratory rummaging." See id. The record is silent,

however, as to how MetroPCS conducted its search in order to

comply with the warrant, and does not indicate what information,

if any, MetroPCS provided to the Commonwealth beyond Holley's

text messages. Indeed, it is unclear from the record whether

MetroPCS even kept any stored content apart from text messages

as part of its business records. See Commonwealth v. Sheppard,

(1985) (exclusion not warranted where record

demonstrated that officers did not exploit defect in warrant and

properly limited scope of their search such that defendant was

not prejudiced by lack of particularity). The only stored

communications used at trial consisted of Holley's text

messages, which the Commonwealth had redacted so that only the

content relevant to the crime under investigation was presented

to the jury. The redacted text messages were all sent or

received in the two days before the shooting, when the drug

transaction was arranged; on the day of the shooting, when the 30

crime was carried out; or on the day after the shooting, when

Holley discussed the disposition of the proceeds of the armed

robbery. On this record, Holley suffered no prejudice because

the text messages were sufficiently limited in content and scope

such that the Commonwealth did not capitalize on the lack of

particularity in the warrant. We cannot say that the judge

erred in denying the motion to suppress on this basis.

ii. Pritchett's text messages. A. Probable cause. The

search warrant affidavit to obtain Pritchett's cellular

telephone records contained all of the relevant facts included

in the warrant for Holley's records, as well as additional

information developed during the course of the investigation.

Viewing the warrant affidavit as a whole, and drawing reasonable

inferences from the information contained in it, there was a

sufficient nexus between the criminal activity under

investigation and Pritchett's text messages.

The affidavit described the video footage of two men

resembling Pritchett and Holley entering the victim's apartment

building minutes before the shooting, while the one resembling

Holley was talking to the victim on his cellular telephone, and

both men then running out together approximately three minutes

later. It noted that, in the MBTA surveillance footage,

Pritchett "appear[ed] to be texting on a cell phone" as he was

fleeing the scene with Holley. The affidavit also stated that 31

during "a post Miranda audio and video recorded statement

Pritchett puts himself at [the victim's apartment building] with

Holley, when the marijuana was taken from the victim after the

victim was shot."

The affidavit further stated that the victim's cellular

telephone, which the girl friend had tried to video-call before

the shooting, was missing, inferably because it contained

content implicating the perpetrator. And again, it noted that

an Enfamil top, but not the container in which the victim stored

his marijuana, was near the victim's body, so the crime likely

involved a drug deal, which was commonly arranged by a telephone

call. The warrant affidavit also contained information that

Holley and Pritchett had different home addresses but arrived at

the victim's house together. Given that both Pritchett and

Holley had used their cellular telephones during the time span

of the crime, it was reasonable to infer that Pritchett's

cellular communications contained evidence of his having

arranged to meet with Holley before they entered the victim's

building together.

While none of these facts in isolation would be sufficient

for probable cause, the relevant inquiry is whether the

inferences drawn are reasonable in light of the affidavit as a

whole. See Dorelas,

; Donahue,

. As with Holley, the fact that police did not know to a 32

certainty that Pritchett was using his cellular telephone to

communicate regarding the crime under investigation is not

dispositive as to the question of nexus. See Matias,

. Although it is a closer case, the affidavit's detailed

information connecting Pritchett and his cellular telephone

communications to the scene of the crime at the time of the

shooting supports the reasonable inference that his text

messages were related to the crime under investigation. Compare

Commonwealth v. Keown,

, 239 (2017) (probable cause

to search defendant's computer because warrant affidavit

established that he was sophisticated with computers and had

forged documents related to proffered motive for poisoning his

wife, and supported reasonable inferences that he used his

computer to forge those documents and to research poison), with

Morin, 478 Mass. at 427 (warrant affidavit lacked probable cause

to search defendant's cellular telephone because it merely

stated that codefendant, who had brought victim of shooting to

hospital, telephoned defendant at unspecified times before and

after homicide).

This case is unlike Commonwealth v. Fulgiam,

, cert. denied,

(2017), in which we concluded

that the fact that a defendant communicated with his codefendant

on the day of the victims' deaths "elevated their relationship

to a matter of importance in the investigation, [but] did not, 33

without more, justify intrusion into the content of that

communication." In that case, the police had information that

the defendant had been in contact with his codefendant and a

victim by telephone on the day the victims were killed, and knew

that his codefendant and one of the victims conducted drug sales

together. Id. We determined that probable cause for the

requisite search warrant was lacking because there were no facts

that "implicated [the defendant] in the crimes or suggested that

the content of his text message would aid in the apprehension of

a suspect in the murders." Id. at 35. Here, by contrast, the

warrant affidavit was not based merely on Pritchett's

association with Holley. Instead, it showed both that Pritchett

was directly implicated in the crime and that his

contemporaneous cellular communications, including text

messages, were inferably related to the criminal activity under

investigation.

B. Particularity. As with the warrant seeking Holley's

telephone records, the warrant for Pritchett's MetroPCS records

lacked particularity because it, too, sought "all stored

contents of electronic or wire communications" and "stored

files," and authorized a search of seventeen days of records.22

22 The content sought in the warrant for Pritchett's cellular telephone records was identical to that sought in the warrant for Holley's MetroPCS records. 34

Again, the record is silent as to the scope of the search

conducted or the information produced as a result of this

warrant. The only stored content presented to the jury

consisted of text messages related to the crime that were

exchanged in the period beginning from four days before the

shooting, when Pritchett exchanged text messages with the

doctor's friend about the missing handguns, until the early

morning hours after the shooting, when Pritchett told the third

party that he "may go down for" something that had happened on

the day of the shooting. Pritchett was not prejudiced by the

scope of the warrant, as the Commonwealth did not exploit the

lack of particularity. Again, we cannot say on the record

before us that the judge erred in denying Pritchett's motion to

suppress on this basis.

c. Instruction on felony-murder in the second degree.

Pritchett and Holley both argue that the judge erred in

declining to instruct the jury on felony-murder in the second

degree, premised on the underlying charge of possession of a

firearm without a license. "As a general matter, there is no

black-letter catalogue of predefined felonies deemed on a per se

basis to be predicates for invocation of felony-murder in the

second degree." Commonwealth v. Garner,

(2003). Rather, an instruction on felony-murder in the

second degree is necessary "when there is a rational basis in 35

the evidence to warrant the instruction. " Bell,

, quoting Christian,

. Specifically,

there must be evidence from which the jury could find that the

felony was "inherently dangerous or the defendant acted with

conscious disregard for the risk to human life. " Bell, supra

at 308, quoting

As a matter of law, possession of an unlicensed firearm is

not inherently dangerous. "Decisional law has identified

certain felonies that are inherently dangerous as a matter of

law, such as arson, rape, burglary, armed robbery, and armed

home invasion, . . . because the risk to human life is implicit

in the intent required for any such felony" (citations omitted).

Commonwealth v. Fantauzzi,

, 199 n.6

(2017). Unlawful possession of a firearm does not fall within

this category.

Nor was there evidence in this case to suggest that the

manner or circumstances of the possession of the firearm without

a license showed conscious disregard for human life. The

situation here is different from that in Ortiz,

, where the defendant was convicted of felony-murder in the

second degree in connection with his brother's shooting of two

police officers. There, the jury could have found, on the

evidence before them, that the defendant possessed a firearm

"with conscious disregard for the risk to human life because of 36

the obvious risk presented by the defendant and his brother's

driving around with a loaded .357 Magnum revolver between them

looking for an individual with whom their family had a

longstanding feud." This case is also unlike Garner,

, where the Appeals Court held that there was

sufficient evidence of felony-murder in the second degree

because the defendant had smuggled a loaded revolver into a

nightclub "crowded with dancers moving about and people drinking

alcoholic beverages." That nightclub had been the scene of

prior shootings, resulting in the implementation of search

protocols, which the defendant deliberately subverted by

smuggling firearms into the venue on several occasions.

In

sum, given the evidence presented at trial, the judge did not

err in determining that an instruction on felony-murder in the

second degree based on the felony of the unlicensed possession

of a firearm was unwarranted.

d. Dismissal of ill juror. The defendants contend that a

new trial is required because the judge did not follow necessary

procedures in dismissing a juror who fell ill during

deliberations. This argument was not preserved, so we consider

whether there was a substantial likelihood of a miscarriage of

justice. Commonwealth v. Tolan,

(2009).

A judge may replace a juror in the midst of deliberations

if that juror "dies, or becomes ill, or is unable to perform his 37

duty for any other good cause shown to the court" (citation

omitted). Commonwealth v. Connor,

(1984).

"[O]nly reasons personal to a juror, having nothing whatever to

do with the issues of the case or with the juror's relationship

with his fellow jurors," may constitute good cause.

at 844-

845. A "judge must hold a hearing adequate to determine whether

there is good cause to discharge a juror."

.

On the second day of deliberations, the juror requested an

ambulance because she felt ill and unable to move. The next

day, in the presence of the parties, the judge telephoned her.

She said that she had a fever of 104 degrees and had been

diagnosed with the flu. The doctor told her she should not

return to the jury for seven days because her illness was

communicable. The judge found that the juror's illness

constituted good cause, and that excusing her "ha[d] nothing to

do with her stance on the issues or anything having to do with

the merits of the case or of her personal relations with the

other jurors."

The defendants contend that the judge committed reversible

error because he did not (1) hold a formal hearing, swear her

in, and permit the attorneys to question her; (2) inform the

juror that she could not be discharged unless she had a personal

problem unrelated to her relationship with the other jurors or 38

her views about the case; or (3) tell the jury to disregard

their previous deliberations.

These arguments elevate form over substance. As Connor,

, explains, whether the juror needs to be

present at the hearing where the juror's dismissal in being

considered depends on the circumstances of a particular case.

See

at 844 n.2 ("Depending on the nature of the reason why

replacement of the juror is being considered, the juror's

presence may or may not be required"). Unlike in

, where a juror refused to deliberate or keep his

oath, the juror's illness in this case was clearly a personal

problem. Additionally, whereas in

, the

judge spoke to the juror outside the presence of counsel and did

not hold a hearing or make any findings, here the judge

telephoned the juror in the presence of counsel, questioned her,

invited counsel to suggest further questions,23 and made specific

findings of good cause. Additional procedures would not have

altered his findings, and at trial all of the parties agreed

that the juror should be dismissed.

23 The judge properly rejected defense counsel's request that he ask the juror about her ability to deliberate, as that question came close to touching upon the content of the deliberations. See Commonwealth v. Connor,

(1984) ("In dealing with all aspects of the problem of discharging a deliberating juror, the utmost caution is required to avoid invading the province of the jury"). 39

Additionally, after an alternate juror was sworn in, the

judge instructed the jury to begin their deliberations "anew

with a new jury of twelve people" and told them "not to simply

pick up where [they] left off." These instructions are

sufficient to meet the requirement set forth in Connor,

n.2, that the judge "instruct the jury to disregard

all prior deliberations and begin its deliberations again." See

Commonwealth v. Zimmerman,

(2004) ("A judge

is not required in every case to adhere to the precise language

we used in [Connor]"). Accordingly, the judge did not err in

dismissing the ill juror during the jury's deliberations.

e. Motion for severance. Pritchett separately argues that

that the judge erred in denying Pritchett's motions to sever the

defendants' trials, an issue he raised at the outset of trial

and renewed shortly before the Commonwealth rested. Pritchett

maintains that severance was necessary because his and Holley's

defenses were mutually antagonistic, and because the evidence

against Holley was substantially greater than that against

Pritchett.

"Absent a constitutional requirement for severance, joinder

and severance are matters committed to the sound discretion of

the trial judge." Commonwealth v. McAfee,

(1999). A judge abuses his or her discretion in declining to

sever a trial where the defenses are mutually antagonistic and 40

irreconcilable, meaning the "sole defense of each [is] the guilt

of the other" (citation omitted), Commonwealth v. Vasquez,

(2012), or when "the prejudice resulting from a

joint trial is so compelling that it prevents a defendant from

obtaining a fair trial" (citation omitted). Commonwealth v.

Hernandez,

(2015).

Neither of the defenses in this case rested solely upon the

guilt of the other defendant. The primary focus of both

defenses was the sufficiency of the evidence, as there were no

witnesses to the shooting and no forensic evidence linking the

defendants to the apartment where the victim was shot. See,

e.g., Commonwealth v. Siny Van Tran,

(2011)

(denial of motion to sever proper where defendants presented

several defenses during trial, including inadequate police

investigation). Both defendants also posited that a third party

was responsible for the shooting, which they suggested was gang-

related. See, e.g., Hernandez, 473 Mass. at 391–392 (2015)

(defenses not mutually antagonistic where "the three

codefendants all named other third parties as the actual

perpetrators"). Pritchett argues that "each defendant could

avail himself of the argument that the other committed the crime

without his intentional participation," but that falls short of

demonstrating that the sole defense of each defendant was the

guilt of the other. See Hernandez, 473 at 391; Vasquez, 462 41

Mass. at 836 ("Severance is not mandated simply because defenses

are hostile").

Nor has Pritchett demonstrated that joinder prevented him

from obtaining a fair trial. Although the evidence showed that

Holley had a stronger connection to the victim, there was

sufficient evidence of Pritchett's participation in the crime,

including his text messages with Holley in which he helped plan

the armed robbery, as well as cell site data and video

surveillance showing that he entered and fled the scene with

Holley at the time of the shooting, and later manipulated the

victim's iPhone. See Commonwealth v. Akara,

(2013) ("even mutually antagonistic and irreconcilable defenses

do not require severance if there is sufficient other evidence

of guilt" [citation omitted]); McAfee,

("it is

not enough that the defendants are hostile to one another or

that one defendant would have a better chance of acquittal if

tried alone"). The judge did not abuse his discretion in

denying Pritchett's motion to sever.

f. Evidence of prior bad acts. Pritchett argues that a

new trial is required because the judge allowed the admission in

evidence of the uncharged gun theft from the house of the

doctor's uncle. Pritchett contends that the probative value of

this evidence was outweighed by the risk of unfair prejudice

because his culpability in that theft was "tenuous at best and 42

speculative at worst," and because there was no evidence that

either of the stolen firearms actually was used to shoot the

victim.

"[E]vidence of a defendant's involvement in uncharged

criminal activity 'may be admissible if relevant for some other

purpose' than to show the defendant's bad character or

propensity to commit the charged offense." Commonwealth v.

Snyder,

(2016), quoting Commonwealth v.

Corliss,

(2015). "One such purpose is 'to

show that the defendant has the means to commit the crime.'"

quoting Commonwealth v. Ridge,

(2009). "Even if the evidence is relevant to one of these

other purposes, the evidence will not be admitted if its

probative value is outweighed by the risk of unfair prejudice to

the defendant." Commonwealth v. Crayton,

(2014). A judge's decision to allow the admission of such

evidence is "not disturbed absent palpable error." Commonwealth

v. McGee,

(2014), quoting Commonwealth v.

Spencer,

(2013).

Here, the evidence of the prior gun theft was relevant to

show that Pritchett had the "means of committing the crime"

(citation omitted). McGee,

. Pritchett's text

messages with the doctor's friend suggest that the two of them

were trying to hide their involvement in the disappearance of 43

the handguns, as the friend told Pritchett, "just say you don't

know anything like I did and well be cool." Additionally, on

the morning of the shooting, just days after the theft of the

handguns, Holley asked whether Pritchett had a "hand joint" and

Pritchett responded that he had "a couple." These statements

were made as part of a discussion of sawed-off rifles and

revolvers, so the jury reasonably could have construed them as

discussing handguns and could have concluded that the "couple"

of handguns Pritchett mentioned came from the doctor's uncle.

That the Taurus was just one possible model of gun that

"could have been used in the course of a crime is admissible, in

the judge's discretion, even without direct proof that the

particular weapon was in fact used in the commission of the

crime" (citation omitted). McGee,

. It was for

the jury to decide whether the Taurus was the weapon used in the

shooting.24

. As for the Jennings handgun, which was

excluded as a possible murder weapon, it was admissible to show

24 The ballistics expert's conclusion that the Taurus was a possible weapon only after he broadened his search parameters goes to the weight of the evidence and not, as Pritchett argues, to its admissibility. In his initial report, the expert did not list the Taurus as one of the weapons that could have fired the fatal bullet. During his testimony, the expert explained that his report was not exhaustive and that he had used a conservative set of measurements to analyze the bullet fragments. If those measurements were expanded by five one- thousandths of an inch, which was an acceptable variation, the Taurus could have been the weapon used in the shooting. 44

"that the defendant had access to or knowledge of firearms."25

The judge did not abuse his discretion in finding that the

probative value of this evidence was not outweighed by the risk

of unfair prejudice to Pritchett. Notwithstanding his

contentions, the evidence did not portray Pritchett as a "thug."

The evidence left it to the jury to determine whether in fact

Pritchett had taken the missing handguns, and whether the Taurus

was used to shoot the victim. See McGee,

(judge did not abuse discretion in determining that probative

value of evidence of defendant's friend holding possible murder

weapon "outweighed the risk that jury might use it as improper

character or propensity evidence"). Additionally, the evidence

of the prior theft did not involve the same type of underlying

crime -- armed robbery to obtain marijuana -- that resulted in

the victim's death. Thus, the risk that the jury would conclude

that Pritchett had a propensity to commit this particular crime

25 A limiting instruction is not required with regard to evidence of a gun that could have been used in the charged crime. See Commonwealth v. McGee,

(2014). With respect to the gun that was excluded as a possible murder weapon, on the other hand, "[o]ften a limiting instruction is required as to the proper use of such evidence to ensure that its probative value outweighs the danger of unfair prejudice."

. Pritchett does not raise this issue, however, and we conclude that the lack of an instruction did not create a substantial likelihood of a miscarriage of justice because this evidence received "scant attention" at trial.

45

was low. Contrast Crayton, 470 Mass. at 251 (judge abused his

discretion in admitting evidence of prior bad acts because "the

danger [was] great that a jury would make the powerful natural

[and forbidden] inference that the defendant's possession of

pornographic drawings of children shows that he has an interest

in child pornography, so he must have been the person viewing

child pornography in the library").

g. Instruction regarding statements of joint venturers.

Pritchett argues that the judge erred in declining to instruct

the jury that hearsay statements of joint venturers may be

considered for their truth only if the jury first determine, on

the basis of independent, nonhearsay evidence, that a joint

venture existed. Pritchett maintains that, without such an

instruction, the jury should not have considered any hearsay

statements contained in the text messages admitted at trial.26

"We recognize, as an exception to the hearsay rule, that a

statement made by a coconspirator or joint venturer may be

admitted for its truth against the other coconspirators or joint

venturers." Commonwealth v. Mattier,

(2016), citing Mass. G. Evid. § 801(d)(2)(E) (2016). To admit

such evidence, a court must find, by a preponderance of the

evidence, the existence of a joint venture independent of the

26 Pritchett does not specify which text messages required such an instruction. 46

statement being offered. Commonwealth v. Rakes,

,

37 (2017). See Mass. G. Evid., supra. Where the judge makes

this preliminary determination, the statement of the joint

venturer may be presented to the jury. Rakes, supra. Before

considering the statement as bearing on the defendant's guilt,

however, the jury must 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 in furtherance thereof." Id.

Insofar as the hearsay statements of the defendants were

admitted against both of them, the judge should have made a

preliminary finding regarding their admissibility and then,

where warranted, instructed the jury that they could consider

those statements only if they first found independent,

nonhearsay evidence of a joint venture. Nevertheless, the

judge's failure to do so does not constitute reversible error

because it did not prejudice the defendants. See Commonwealth

v. Szlachta,

(2012) (where defendant objects to

judge's refusal to give requested instruction, "we review the

judge's action to determine whether there was error and, if so,

whether the error prejudiced the defendant").

The Commonwealth introduced overwhelming independent,

nonhearsay evidence establishing the existence of a joint

venture by, at the very least, a preponderance of the evidence. 47

This evidence included surveillance videos showing Holley and

Pritchett entering and leaving the victim's apartment building

together within a few minutes; entering the MBTA station using a

single ticket and sitting next to each other on a bench, and

then walking out of the station together; getting onto the bus

and sitting next to each other; and interacting with each other

during the ride. The cell site location data further

corroborated their locations, and was consistent with the images

seen in the various surveillance videos. See, e.g.,

Commonwealth v. Odware,

(1999) (judge's

failure to give requested instruction "on the possibility that

the witnesses made a good faith error in identifying

[defendant]" was not prejudicial error due to "overwhelming

evidence against the defendant"). Pritchett is not entitled to

a new trial on this basis.

4. Relief pursuant to G. L. c. 278, § 33E. Having

carefully reviewed the entire record, pursuant to our duty under

G. L. c. 278, § 33E, we discern no reason to set aside the

verdicts or to reduce the degree of guilt.

Judgments affirmed.