LOWY, J.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us Bristol. Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ. Homicide. Cellular Telephone. Practice, Criminal, Motion to suppress, Instructions to jury, Capital case. Indictment found and returned in the Superior Court Department on August 18, 2011. A pretrial motion to suppress evidence was heard by Frances A. McIntyre, J., and the case was tried before Robert J. Kane, J. Michael J. Fellows for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.
LOWY, J. The defendant, Matthew Gumkowski, was convicted by a jury of murder in the first degree on a theory of extreme atrocity or cruelty for the killing of Joseph Kilroy. The Commonwealth presented evidence that the defendant robbed the victim, and then beat, strangled, and stabbed him to death. The verdict came in the defendant's second trial, after the first trial ended in a mistrial because the jury were unable to reach a verdict.
The defendant had also been indicted on related charges, but at trial the Commonwealth proceeded only on the murder indictment, under theories of extreme atrocity or cruelty, felony-murder, and deliberate premeditation. The jury did not convict the defendant on the felony-murder or deliberate premeditation theories.
In this direct appeal, the defendant argues first that his cell site location information (CSLI) and any "fruits" derived from it should have been suppressed, and second that seven aspects of the jury instructions were erroneous. Discerning no reversible error, we affirm, and we decline to exercise our authority under G. L. c. 278, § 33E.
"Cell[] site location information (CSLI) refers to a cellular telephone service record or records that contain information identifying the base station towers and sectors that receive transmissions from a [cellular] telephone." (quotations and citation omitted). Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2 (2015).
1. Background. We summarize the evidence at trial, reserving certain details for our analysis of the issues.
The victim was found dead at his Attleboro apartment on July 10, 2011. Sometime between 8:30 P.M. and 9 P.M., the victim's downstairs neighbors heard noises that sounded like furniture being moved about. Shortly after 9 P.M., the smoke alarms sounded. When firefighters arrived minutes later, they found the victim's body lying on the floor at the foot of the bed. The fire that had started on the victim's bed was no longer active, the sprinklers were on, and the contents of the room were soaked. The victim had been beaten, strangled, and stabbed. A medical examiner testified that, based on the bleeding, the victim was likely alive when he suffered the blunt force injuries, but was already dead or near death when he was stabbed.
Police photographed the room to document its state at the time the body was discovered. They tested for fingerprints at the scene, and they recovered various objects from inside the apartment for testing, but no usable fingerprints were found, likely because of the sprinklers.
The defendant knew the victim and had bought drugs from him in the past. In July 2011, the defendant was using approximately a gram of heroin per day. On the morning of July 10, the defendant visited the victim's apartment, hoping to sell him a ring. The victim knocked on the door of his neighbor across the hall -- a former jeweler -- and asked him to look at the ring. When the neighbor looked at the ring, he expressed skepticism about its value. The neighbor saw another man standing in the victim's apartment; the neighbor described the man as white, with a medium build and blonde hair. The neighbor later identified the defendant as the man who had been in the victim's apartment that morning from a photograph shown to him by police.
The defendant's girlfriend testified that in the early evening of July 10, she had been with the defendant in a park in Attleboro, where she had fallen asleep. When she awoke around 8 P.M., the defendant was gone. She called the defendant several times between 8:15 P.M. and 9:09 P.M., including on cell phones borrowed from two strangers. Initially, she did not get an answer, but she eventually spoke to the defendant. She then met up with the defendant shortly after the 9:09 P.M. cell phone call. State police Trooper Daniel Giossi testified that the defendant's cell phone records showed calls taking place from the defendant's cell phone between around 8 P.M. and 9:15 P.M., and the location data showed that the cell phone was in the Attleboro area at the time of the calls.
The parties stipulated that the defendant's cell phone records showed he was within a three-mile radius of the center of downtown Attleboro between 8:13 P.M. and 8:45 P.M. on July 10.
The defendant was arrested on July 12, 2011, at his girlfriend's mother's house. The defendant became a suspect after law enforcement examined both the victim's and the defendant's cell phone records, as discussed infra. Before he was taken into custody, police patted him down and found a hypodermic needle in his pocket; testing later revealed traces of heroin. While the defendant was being booked, an officer noticed spots of blood on the defendant's shoes. Deoxyribonucleic acid (DNA) testing revealed that the blood matched that of the victim. Two additional spots of blood found on a T-shirt and pack of cigarettes from the defendants' backpack also matched that of the victim.
482 Mass. 275, 286-290 (2019). There, although we did not explicitly address the unbalanced nature of the charge, we held that, taken as a whole, the instructions were not error; however, we "underscore[d] that, moving forward, . . . it is better practice to avoid examples in which hypothetical individuals commit crimes." Id. at 290. We hold the same here. See United States v. Hensley, 982 F.3d 1147, 1161 (8th Cir. 2020) (unbalanced hypothetical was not error but "discourag[ing] the use of such one-sided jury instructions"); United States v. Salameh, 152 F.3d 88, 142-143 (2d Cir. 1998), cert. denied, 526 U.S. 1028 (1999) (noting unbalanced hypotheticals are "disfavored" but did not constitute prejudicial error in circumstances, because most circumstantial evidence in case pointed towards guilt).
Next, the defendant argues that the hypothetical describes a situation similar to the facts at trial and thus acted as a roadmap showing how to find the defendant guilty. This argument was not raised in Silva because the facts from the hypothetical used there did not mirror those of the case. Here, we are troubled that the hypothetical too closely tracks the facts of the defendant's case.
To illustrate this, we compare the two. The neighbor who witnessed a Ford Taurus leaving the scene is akin to the neighbor who saw Gumkowski in Kilroy's apartment the day of the murder. Investigators visiting the home and finding the defendant is akin to investigators arresting Gumkowski at Rose's home. The paint chip on the Taurus consistent with paint from the victim's car is akin to the blood on Gumkowski's shoe that was consistent with Kilroy's DNA. The defendant admitting to driving the Taurus on the night of the accident but denying striking the car is akin to Gumkowski admitting to going to Kilrow's apartment on the night of the murder but denying committing it.
Here we refer to Gumkowski by name to distinguish him from the defendant in the judge's hypothetical.
The hypothetical used in this case is far more similar to the facts of the defendant's case than instructions that have been objected to on similar grounds. Compare Commonwealth v. Shea, 398 Mass. 264, 270 & n.3 (1986) (rejecting defendant's argument that hypothetical about missing piece of chocolate cake too closely paralleled facts of his case); Commonwealth v. Gil, 393 Mass. 204, 222 (1984) ("We do not think that the coincidental similarity between the well-known 'footprints in the snow' example and the evidence of footprints on the floor at the scene of the crime would make the jury reasonably believe that the judge was expressing his belief in the Commonwealth's theory of the case or was favoring a particular inference propounded by the prosecutor"); Commonwealth v. Vaughn, 32 Mass. App. Ct. 435, 443 (1992) ("Although we do not think the judge committed reversible error, the similarity of the analogy to the Commonwealth's evidence makes use of that particular analogy ill-advised in the instant circumstances of this case" [citation omitted]); Hensley, 982 F.3d at 1161 (very short hypothetical illustrating concept of substantial step "track[ed] closely with the facts of [the] defendant's case"); Dove, 916 F.2d at 46 (hypothetical about "whether Jack shot Mary" was "not analogous to the facts of this case").
In those cases, the illustrations were less in depth than the hypothetical used here. Here, the hypothetical closely mirrored the circumstances of the defendant's case and arguably served to emphasize the prosecution's theory of the case, illustrating to the jurors how they could find the defendant guilty. Thus, the instruction was erroneous. Consequently, trial counsel was ineffective for failing to object.
Looking at the instructions as a whole, however, the error did not create a substantial likelihood of a miscarriage of justice. First, as in Silva, 482 Mass. at 289, the judge made clear that the jury could not premise a verdict on speculative inferences. Second, the judge stated that jurors should not take anything he had said to demonstrate his view on the case, and that if he had done so unintentionally, they should disregard it. See Hensley, 982 F.3d at 1160-1161 (judge's use of hypothetical similar to facts case not reversible error because judge also instructed that jury "should not take anything I have said or done during the trial as indicating what I think of the evidence or what I think your verdict should be"). Third, the hypothetical did not infringe on the instructions on reasonable doubt. Compare Silva, supra (judge's hypothetical to explain circumstantial evidence entirely separate from "unambiguous and adequate instruction on reasonable doubt"), with Commonwealth v. Pomerleau, 10 Mass. App. Ct. 208, 214 (1980) (use of examples to explain reasonable doubt was reversible error). Fourth, it is clear from a review of the entire record that the judge was scrupulously focused on the defendant receiving a fair trial. And finally, the Commonwealth's case against the defendant was strong, and thus any error was likely not to have influenced the jury's verdict. Cf. Commonwealth v. Garcia, 379 Mass. 422, 442 (1980) (error in jury instructions was harmless where "case involve[d] overwhelming evidence of guilt"). In sum, although the instruction -- and counsel's subsequent failure to object -- were error, those errors did not create a substantial likelihood of a miscarriage of justice.
Specifically, the judge stated: "One, you can only draw a reasonable inference from evidence that you believe. Two, that inference has to be reasonable. In other words, it can't be a guess."
The judge instructed: "Jurors, I am neutral in this case. I have no role in the facts. And if I ever suggested to you that I have a view of this case, that's arrogant on my part. That is not something I want to convey. I respect you; and if I did that unconsciously, you disregard it."
In Silva, 482 Mass. at 288, an additional mitigating factor was that the jury did not convict on a theory of deliberate premeditation, which showed "they understood the high degree of certainty required to find the defendant guilty." While here, similarly, the jury did not convict on either deliberate premeditation or felony murder, we do not believe this fact mitigates the error in the jury instructions. The erroneous hypothetical did not speak to the hypothetical defendant's intent or any underlying felony, so there is no reason it would have affected the jury's fact finding concerning the elements of deliberate premeditation or felony-murder. --------
vi. Reasonable inferences. Sixth, the defendant argues that at the close of the hypothetical illustrating circumstantial evidence, the judge insinuated an inference of guilt would be reasonable. At the close of the hypothetical, the judge stated: "And in this instance, you could be asked do you draw a reasonable inference that the defendant [in the hypothetical] did this. And in looking at that question, you certainly can apply your common sense, your powers of logic."
The defendant argues that a juror would likely understand this instruction as implying that any inference they might draw of the defendant's guilt would be a reasonable one. Although we have made our concerns with the hypothetical clear, we do not think this closing element created a substantial likelihood of a miscarriage of justice. While the words may have subtly implied that such an inference would be reasonable, a reasonable jury would not have interpreted them as "a conclusive direction by [the judge] to find murder in the first degree once the jury were convinced of the [underlying] facts." Commonwealth v. Skinner, 408 Mass. 88, 95 (1990). Compare id. at 94-95 (reversible error where judge instructed "not only that [the jury] could infer premeditation from certain subsidiary facts and malice, but that the finding of those facts and malice 'would constitute first-degree murder'").
vii. Drawing of inferences. Seventh, the defendant argues that the judge's instructions on inferences implied that intent had to be proved beyond a reasonable doubt, but the other elements of the crime did not. The judge instructed:
"And here are the rules that apply to drawing a reasonable inference. One, you can only draw a reasonable inference from evidence that you believe. Two, that inference has to be reasonable. In other words, it can't be a guess. Three, that where the inference constitutes an element of the crime -- intent. Intent, which I told you can well be the subject of circumstantial evidence -- it has to be proven beyond a reasonable doubt."
Looking at the jury instructions as a whole, it is clear that the judge properly instructed the fact that proof beyond a reasonable doubt is necessary for every element of the offense. As the judge outlined the elements of each charged crime, he repeatedly emphasized that the Commonwealth had the burden to prove each element beyond a reasonable doubt. Thus, a reasonable juror would have understood the challenged instruction to show that intent is one example of an element that must be proved beyond a reasonable doubt, not that it was the only one. There was no error. c. Relief pursuant to G. L. c. 278, § 33E . We have reviewed the record in accordance with our statutory duty under G. L. c. 278, § 33E, and we identify no basis upon which to order a new trial or to reduce the degree of guilt.
Judgment affirmed.