CYPHER, J.
In these appeals from convictions of malicious burning of property, G. L. c. 266, § 5, and malicious destruction of property over $250, G. L. c. 266, § 127, the defendants, Samuel Doxsey and Scott Balboni, argue that (1) their motions to suppress documentary evidence obtained from third parties should have been allowed; (2) their motions to strike certain witness testimony were erroneously denied; and (3) the evidence of wilful and malicious burning was insufficient.
1. Background. We recite the evidence in the light most favorable to the Commonwealth. Additional details will be set forth in later sections as necessary.
On the evening of April 4, 2009, Daniel Feehan threw a party at his apartment; Doxsey's younger sister was in attendance. At the party, Feehan sexually assaulted Doxsey's sister. As she attempted to leave the party, Feehan pulled down her shirt, exposing her chest to the other partygoers.
After Doxsey's sister left Feehan's apartment, she telephoned Doxsey and told him that she had been assaulted at a party. Doxsey was a student at the University of New Hampshire, living at a fraternity house in Durham, New Hampshire.
At around 4:00 A.M., after the party, the Lexington fire department responded to an alarm at an apartment complex where they found a pickup truck engulfed in flames.
During his investigation, Captain Wilson learned that the truck was last driven approximately four hours before it caught fire and was parked in the location where firefighters found it. He reasoned, therefore, that the engine had been cold at the time the fire started. He was unable to identify any source of ignition for the fire; there were no keys in the truck's ignition to engage the electrical system and no electrical accessories that might have sparked the fire.
Cellular site location information (CSLI)
As discussed more fully, infra, investigation revealed that the defendants had purchased a gasoline can and gasoline at a station close to the scene of the fire on the date in question.
2. Discussion. a. Motions to suppress. The defendants appeal from the denial of their motions to suppress documentary evidence obtained from third parties on the grounds that the Commonwealth failed to follow proper procedures to obtain the records. The challenged evidence includes historical CSLI and telephone (phone) records associated with Doxsey's cell phone number and credit card records from accounts belonging to Doxsey and Balboni.
A grand jury investigating the truck fire issued three subpoenas duces tecum: to Verizon Wireless, seeking cell phone records associated with the cell phone numbers of Doxsey and his sister; to American Express (AmEx), seeking credit card records pertaining to Balboni's account; and to USAA Federal Savings Bank (USAA), seeking credit card records pertaining to Doxsey's account. Record keepers at Verizon Wireless, AmEx, and USAA produced the summonsed documents, affixed with certificates of authenticity, to the grand jury.
i. CSLI records. In furtherance of the grand jury investigation, the Commonwealth sought production of Doxsey's CSLI from Verizon Wireless, pursuant to a Superior Court order issued under 18 U.S.C. § 2703(d) (2006) of the Federal Stored Communications Act (§ 2703[d] order). Doxsey claims that the Commonwealth did not follow proper, constitutionally mandated protocols to obtain his personal cell phone records, because a search warrant was required for the CSLI. In April, 2010, the motion judge
In June, 2009, the Commonwealth sought and obtained Doxsey's CSLI, consisting of "call detail records with cellsite information (geographical location, including street address and town/city of each cell tower) for the time period from April 4, 2009 through April 5, 2009,"
In February, 2014, while this case was pending on direct review, the Supreme Judicial Court announced a new rule for acquiring historical CSLI in Commonwealth v. Augustine, 467 Mass. 230 (2014) (Augustine I), and held that art. 14 of the Massachusetts Declaration of Rights requires the Commonwealth to obtain a search warrant supported by probable cause, in addition to a § 2703 order, before seeking to obtain a person's CSLI. Id. at 257. As a new rule, the warrant requirement was held to apply "to cases in which a defendant's conviction is not final, that is, to cases pending on direct review in which the issue concerning the warrant requirement was raised." Ibid. The court also
There is no dispute that the warrant requirement announced in Augustine I applies to the Commonwealth's efforts to obtain Doxsey's CSLI in this case.
Our inquiry as to whether an affidavit supports a finding of probable cause "always begins and ends with the `four corners of the affidavit.'" Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass.App.Ct. 426, 428 (1995). We consider the affidavit as a whole and interpret it "in a commonsense and realistic fashion." Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), quoting from United States v. Ventresca, 380 U.S. 102, 108 (1965). "[I]nferences drawn from the affidavit need only be reasonable and possible, not necessary or inescapable." Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011).
To justify the production of a person's CSLI, a supporting affidavit must demonstrate probable cause to believe "that a particularly described offense has been, is being, or is about to be committed, and that [the CSLI being sought] will produce evidence of such offense or will aid in the apprehension of a person who the applicant has probable cause to believe has committed,
We summarize the facts recited in Detective Garabedian's affidavit. On April 5, 2009, at about 4:00 A.M., Lexington police and firefighters responding to an alarm at an apartment complex encountered a gray pickup truck fully engulfed in flames. On the ground beside the burning truck, they found a red one-gallon plastic gasoline container and a black baseball cap. Captain Wilson, a former arson investigator who responded to the truck fire, opined that the fire had been intentionally set.
On April 10, 2009, Detective Garabedian interviewed Feehan, whose father was the owner of the burned truck. Feehan told Detective Garabedian that, on the night of April 4, 2009, he had been extremely intoxicated and, at a party at his home, he grabbed the blouse of Doxsey's sister, pulled it down, and exposed her breast.
On April 14, 2009, police detectives visited a gasoline station in Lexington, where they learned that a red one-gallon plastic container matching the one found at the scene of the fire was purchased from that location at 3:07 A.M. on April 5, 2009. Surveillance footage recorded inside the gasoline station in the early morning hours of April 5 showed two young males entering at 3:06 A.M. and purchasing a red one-gallon container with a credit card. Sales records revealed that the purchaser used an AmEx credit card issued to Balboni. Surveillance footage recorded by a camera overlooking the gasoline pumps during the same period of time showed three males getting out of a vehicle, one of whom was wearing a hat matching the one found at the scene of the truck fire. In the surveillance footage, one of the males who purchased the red container is shown purchasing gasoline with a credit card. Sales records revealed that he used a USAA credit card, issued to Doxsey, to purchase .931 gallons of gasoline at 3:09 A.M.
On April 24, 2009, Detective Garabedian interviewed Doxsey's sister, who reported that she had telephoned Doxsey, a student at the University of New Hampshire, on April 5, 2009, at around 12:15 A.M. and told him that Feehan had assaulted her. Her brother returned her call at around 12:45 A.M., and the two spoke by telephone again around 9:00 A.M.
Cell phone records associated with Doxsey's number revealed incoming and outgoing calls made during the late night hours of
The affidavit concludes with a statement that the CSLI records are sought to determine whether Doxsey traveled from New Hampshire to Lexington on April 5, 2009, and whether he was in the vicinity at the time the fire was set.
Drawing reasonable inferences from Detective Garabedian's recitation, we conclude that the affidavit established probable cause to believe that a particularly described offense had been committed. See Augustine I, supra at 256. The late hour of night (a time when the truck would not have likely been in operation); the burning of a parked vehicle (suggesting that a malfunction was an unlikely source of the fire); and the gasoline can and baseball cap beside the burning truck (suggesting a hasty departure from the scene) permit inferences reinforced by the opinion of Captain Wilson. These circumstances support the inference that the truck was deliberately set on fire, in violation of G. L. c. 266, § 5 (malicious burning of property). We also conclude that Detective Garabedian's affidavit demonstrated probable cause to believe that the CSLI sought here would produce evidence of the offense under investigation. Ibid.
Feehan's assault on Doxsey's sister, and her communication with her brother immediately after the assault and hours before the truck was burned, suggest that Doxsey had a motive for setting the fire. Doxsey used his credit card to purchase a small amount of gasoline, which he pumped into a container similar to the one found at the scene of the fire. He was living in New Hampshire at that time, and yet he purchased the gasoline in Lexington, where the fire occurred. He was recorded at the gasoline station around 3:00 A.M., one hour before firefighters and police discovered the truck ablaze. These circumstances provide a nexus in agency, place, and time between Doxsey and the fire.
The CSLI sought by the Commonwealth had the potential to reveal whether Doxsey traveled from New Hampshire to Lexington on the night of the fire, and whether he was near the scene where Feehan's truck was set ablaze around the time that the fire was discovered.
ii. Cell phone records. Doxsey challenges the denial of his motion to suppress his cell phone records, which, he claims, the Commonwealth unlawfully obtained from Verizon Wireless without prior judicial approval. Doxsey maintains that, under Commonwealth v. Odgren, 455 Mass. 171 (2009) (Odgren), the Commonwealth was required to follow the formal process established by Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), as construed by Commonwealth v. Lampron, 441 Mass. 265, 268-271 (2004) (Lampron), when it sought to obtain third-party records in advance of trial.
The Commonwealth obtained call logs for the cell phone numbers of Doxsey and his sister pursuant to a grand jury subpoena served on Verizon Wireless. The subpoena ordered Verizon Wireless to produce records of all incoming and outgoing phone calls, and subscribers' listing and billing information for April 4 and 5, 2009. The information, affixed with an affidavit from the custodian of records at Verizon Wireless, was later produced to the grand jury. Over Doxsey's objection, the records were admitted in evidence at trial.
At the outset, the Commonwealth properly used its investigative powers to bring the cell phone records before the grand jury. G. L. c. 277, § 68. See Odgren, supra at 185 n.25 (Lampron standard does not apply to grand jury subpoenas). Although the Commonwealth did not follow the rule 17(a) (2) protocol mandated in Odgren by moving to resummons the cell phone record evidence in advance of trial, Odgren was decided after the Commonwealth was already in possession of the cell phone records procured by grand jury subpoena, and more than a month after
There was no prejudice shown here. The relevant question is whether the defendant received the material sufficiently before trial in order to prepare a defense. Commonwealth v. Kastner, 76 Mass.App.Ct. 131, 137 n.10 (2010). Doxsey and his counsel were provided a copy of the records on September 10, 2009; trial began on February 17, 2011, allowing Doxsey and his counsel approximately one and one-half years to prepare. See Odgren, supra at 188 (no prejudice where defendant received recordings early in proceedings and Commonwealth narrowed its use of evidence to forty-six day period); Commonwealth v. Burgos, supra at 148 (no prejudice where defendant was given recorded phone calls one month ahead of trial).
To the extent that Doxsey claims that suppression of his cell phone records was required because the Commonwealth's procurement of the records violated his constitutional rights, the claim fails. Massachusetts does not recognize a reasonable privacy interest in cell phone records such as those at issue here. See Commonwealth v. Feodoroff, 43 Mass.App.Ct. 725, 729 (1997) ("No statute or regulation drapes a particular cloak of confidentiality around the billing records of a telephone company"). Doxsey's motion to suppress cell phone records was properly denied.
iii. Credit and bank card records. Balboni and Doxsey challenge the denial of their motions to suppress credit card records that were obtained for trial by means other than those set forth in rule 17(a)(2) and Commonwealth v. Lampron, supra. The Commonwealth initially obtained the defendants' credit card records using grand jury subpoenas directing AmEx and USAA to produce to the grand jury records of all transactions between April 1, 2009, and April 27, 2009, related to the defendants' accounts. Before trial, the Commonwealth issued a second subpoena, pursuant to G. L. c. 277, § 68, and G. L. c. 233, § 79J, ordering AmEx and USAA to produce the same records to the court on the day that trial was scheduled to begin. The Commonwealth used an entirely appropriate means of summoning records to trial. See Commonwealth v. Hart, supra at 243 (subpoena issued under
b. Challenged witness testimony. Balboni and Doxsey challenge the judge's denial of their motions to strike certain witness testimony. We find no merit in these claims.
i. Captain Wilson's testimony. Doxsey contends that the judge committed error in failing to strike "untrustworthy" testimony of Captain Wilson. Doxsey's claim lacks articulated reasoning and citation to authority; we decline to reach an argument that does not satisfy the requirements of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996) (claims of error unsupported by reasoned argument or citations do not rise to level of appellate advocacy required under Mass.R.A.P. 16[a][4]).
ii. Thomas Shamshak's cross-examination testimony. Balboni claims that the judge erred in denying the defendants' motion to strike the cross-examination testimony of defense witness Thomas Shamshak. At trial, the defendants called private investigator Thomas Shamshak, who photographed a black 2004 Ford Explorer registered to Cristina Balboni at the law office of defense counsel.
The scope of cross-examination is within the sound discretion of the trial judge, and Balboni has not shown that the judge abused her discretion in allowing the prosecutor to use extrinsic evidence for impeachment purposes in this case. "When the extrinsic evidence relates exclusively to a collateral matter, the discretion of the trial judge has been described as `nearly unreversible.'" Mass. G. Evid. § 613(a)(4) & note (2016), quoting from Commonwealth v. Roberts, 433 Mass. 45, 51 (2000).
c. Sufficiency of the evidence. The defendants contend that the evidence did not suffice to prove beyond a reasonable doubt their wilful and malicious burning of the Feehan truck. In particular, they contend that the Commonwealth failed to eliminate accident as the cause of the fire.
To convict the defendants of malicious burning of property under G. L. c. 266, § 5, the Commonwealth was required to prove beyond a reasonable doubt that (1) the defendants, either individually or by knowingly participating in a joint venture, set fire to or burned the property, or caused property to be burned, or aided, counselled, or procured the property to be burned; (2) the burned property was personal property of another with a value exceeding twenty-five dollars and/or a motor vehicle; (3) the defendants acted wilfully; and (4) the defendants acted maliciously. "`[W]ilful' means intentional and by design in contrast to that which is thoughtless or accidental." Commonwealth v. Smith, 17 Mass.App.Ct. 918, 920 (1983), quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 443 (1983).
The jury were warranted in crediting Captain Wilson's opinion testimony, as well as other evidence (set out above) to the effect that gasoline poured onto the truck accelerated the fire; that the vehicle's gasoline tank remained intact; that the conflagration originated, and burned most intensely, in a part of the truck where electrical malfunction was unlikely to occur; and that a gasoline can and a baseball cap were abandoned next to the burning truck, strongly supporting the inference of a hasty flight from the scene.
Doxsey argues also that the Commonwealth presented no evidence that he was present and participated in setting the fire. His assertion is belied by the facts in the record. Specifically, CSLI
Judgments affirmed.