Commonwealth v. Cavitt, SJC–10436.

• Decision Date: 21 September 2011
• Docket Number: SJC–10436.
• Parties: COMMONWEALTHv.Brian Keith CAVITT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 617

953 N.E.2d 216

COMMONWEALTH

v.Brian Keith CAVITT.

SJC–10436.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 6, 2011.Decided Sept. 21, 2011.

Jeffrey L. Baler for the defendant.Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & DUFFLY, JJ.

SPINA, J.

On the morning of May 5, 2006, a Western Union office located inside a Big Y supermarket in Springfield was robbed, and shortly thereafter, fire officials discovered the dead bodies of Milagros Rosario and Edelmira Miranda inside their apartment at a nearby housing complex. A grand jury indicted the defendant on two indictments charging murder, and on one indictment each charging burning of a dwelling house, armed robbery while masked, assault and battery, and carjacking. The defendant filed a motion to suppress evidence seized by the police during a search of the apartment where he had been staying, and a motion to suppress two photographic identifications. Following an evidentiary hearing, a judge in the Superior Court denied both motions. On December 11, 2007, a jury convicted the defendant of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder on both charges, and of burning of a dwelling house, armed robbery while masked, and assault and battery.¹

Approximately two years later, after filing a timely notice of appeal, the defendant filed a motion for a new trial, alleging ineffective assistance of trial counsel based on counsel's failure to pursue the suppression of evidence. The motion judge, who was also the trial judge, denied the motion. The defendant's appeal from the denial of his new trial motion has been consolidated with his direct appeal. The defendant now raises the following claims of error: (1) the judge erred in denying his motion for a new trial where trial counsel failed to pursue suppression of a pair of sneakers, notwithstanding a lack of probable cause for the search and seizure; (2) the judge erred in denying his motion to suppress evidence where the search warrant affidavit was not supported by probable cause because the veracity of an “unknown” citizen informant was not adequately demonstrated; (3) the judge erred in denying his motion to suppress a photographic identification made by a thirteen year old witness that was the result of undue suggestion by the police; and (4) the judge erred in allowing the introduction of inconclusive deoxyribonucleic acid (DNA) evidence without the requisite explanatory statistical support. For the reasons that follow, we affirm the defendant's convictions, and we decline to reduce the degree of guilt or order a new trial pursuant to our power under G.L. c. 278, § 33E.

1. Background. The jury could have found the following facts. We reserve other details for our discussion of specific issues.

In early May, 2006, the defendant spent approximately ten days living in the Springfield apartment of Corinne LaVoice, the on-again, off-again girl friend of the defendant's brother, Charles Latham. Soon after his arrival, the defendant mentioned to LaVoice that he wanted to rob a Western Union office, and that he wanted somebody to help him. LaVoice told the defendant that it would be a stupid thing to do, and that he would end up going to jail.

Nonetheless, on May 5, at around 8 a.m., a man wearing a gray hooded sweatshirt, later identified as the defendant, entered the Big Y supermarket on St. James Avenue in Springfield and approached Jennifer Balicki, the clerk working at the courtesy desk, where the Western Union transactions were handled. The defendant pulled out a knife and demanded “all the money.” Balicki responded by giving him “a whole wad” of $20 bills and then decreasing increments of bills, roughly totaling between $2,000 and $3,000. As the defendant ran out the door with the money, Balicki yelled that she had just been robbed. John Ryan, a customer service manager of the Big Y, began to pursue the defendant on foot and subsequently was joined by Tony Bruno, another Big Y employee. Balicki told police that the bottom portion of the robber's face had been covered by a bandana, that he was a dark-skinned Hispanic or light-skinned African–American, that he was approximately twenty to twenty-five years old, and that he was wearing a gray hooded sweatshirt with what appeared to be a black shirt underneath.

During the ensuing foot chase, Ryan observed the defendant stripping off some of his clothes and throwing them into a dumpster. Once that occurred, the defendant was wearing a red T-shirt and tan pants. He dropped some of the money and stopped to pick it up, which allowed Ryan and Bruno to catch up with him. Ryan and the defendant started to wrestle, the defendant punched Ryan in the mouth, Bruno joined the fray, the defendant was able to break free, and he ran over to a vehicle being driven by Kavin Thompson. The defendant tried forcibly to enter the vehicle, which was stopped at a red light, but he fell off when Thompson accelerated and made a right turn. The defendant's flight with the money, his efforts to get into Thompson's car, and his placement of his red T-shirt underneath a tree were observed by two youths, Xavier Seward and Antonio Vergara, who were on their way to school.

Ryan and Bruno did not continue their pursuit when the defendant ran into a nearby housing complex on Carew Street. Instead, Ryan retrieved a gray hooded sweatshirt, a pair of blue pants, and a black shirt from the dumpster, and he turned them over to the police. The day after the robbery, Ryan selected the defendant's photograph from an array of eight photographs as the person he had chased from the Big Y on May 5. Ryan also identified the defendant at trial.

On the morning of May 5, Lieutenant John Friberg, a supervisor of the arson and bomb squad with the Springfield fire department, was working in his office on Carew Street, which was adjacent to the housing complex. Shortly after 8 a.m., he heard a police dispatch regarding an incident at the nearby Big Y supermarket. Then, at approximately 8:49 a.m., Lieutenant Friberg looked out his window and noticed what appeared to be smoke coming from a building in the housing complex. Accompanied by another firefighter, he walked toward the apartment in question, and when it became obvious that there was a fire in progress, they called for assistance.

Milagros Rosario, then age sixty-nine, and Edelmira Miranda, then age sixty-seven, lived in the apartment where smoke had been observed by Lieutenant Friberg. Miranda was confined to her bed as a result of a stroke. When firefighters responded to the apartment, they discovered two bodies, later identified as Rosario and Miranda. Rosario's body was on the floor of the living room near the couch, and Miranda's body was lying across the bed in the bedroom. Dr. Loren Mednick, the medical examiner who performed the autopsies on the victims, concluded that both had died of multiple stab wounds before the fires were started, and both had sustained burn injuries to their bodies, particularly their arms, legs, and hands.

Corinne LaVoice saw the defendant in her apartment at around 10 a.m. on the morning of May 5. She saw him again that afternoon, when she observed that he had a bandage on his elbow and a burn mark on his shoulder. She also noticed that he had gotten a haircut and was wearing gold hoop earrings. The defendant “threw” fifty dollars at her and asked if he could stay longer at her apartment. When LaVoice asked him where he had gotten the money, he told her not to worry about it. LaVoice then overheard the defendant talking with Demetrice Mitchell, the boy friend of her neighbor, as they stood on the back porch of LaVoice's apartment. She heard the defendant tell Mitchell that he had “messed up” and was going to be on the news.

Shortly before the events of May 5, the defendant had informed Mitchell that he needed some money, and he asked for Mitchell's help in robbing a Western Union office. Mitchell refused and told the defendant that he was “crazy.” Then, on the afternoon of May 5, the defendant telephoned Mitchell and told him to “watch the news.” The defendant proceeded to meet up with Mitchell on the back porch of LaVoice's apartment and told him that he had “robbed the bitch” at the Big Y. The defendant said that he had a knife when he demanded the money from Balicki, and he told Mitchell that he had tried to get into a passing car but had fallen. The defendant further told Mitchell that he had run into a house, that the resident had tried to get him to leave, that he had stabbed the man, and that a lady had been looking at him from the bed. Finally, the defendant told Mitchell that he took off his necklace in the bathroom of the victims' apartment while he was cleaning up, and that there would be no evidence because he had burned his clothes. The defendant was arrested on May 6, 2006, at around 6 p.m. At trial, Mitchell identified the defendant as the person who had told him about the Big Y robbery and the subsequent series of events culminating in the stabbing of the victims in their apartment.

Trooper Michael Mazza, an investigator for the State fire marshal's office, determined that two separate fires had been set in the victims' apartment, one on the couch in the living room and the other on top of the bed in the bedroom. Mazza testified that the fires were intentionally set through the application of an open flame to combustible materials.

Springfield police Detective Mark Rolland, the supervisor of crime scene services for robberies and homicides, received the clothing that Ryan had collected, recovered a knife from a dumpster, and ordered the retrieval of a red T-shirt laying next to a tree. During a search of Corinne LaVoice's apartment pursuant to a search warrant, Detective Rolland recovered, among other items, a pair of red...