Commonwealth v. Copney

• Decision Date: 17 June 2014
• Docket Number: SJC–11077.
• Citation: 11 N.E.3d 77,468 Mass. 405
• Parties: COMMONWEALTH v. Jabrai Jordan COPNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

468 Mass. 405

11 N.E.3d 77

COMMONWEALTH

v.Jabrai Jordan COPNEY.

SJC–11077.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 7, 2014.

Decided June 17, 2014.

Stephen Paul Maidman, Springfield, for the defendant.

Michael A. Kaneb, Assistant District Attorney (David M. Solet, Assistant District Attorney, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, BOTSFORD, GANTS, & LENK, JJ.

SPINA, J.

The defendant was convicted of murder in the first degree on a theory of felony-murder, the predicate felony being attempted armed robbery. He also was convicted of carrying a firearm without a license. On appeal the defendant contends that the judge erred (1) by denying his motion to suppress evidence seized pursuant to a warrant that was based on observations made during an earlier warrantless entry of a college dormitory room where he had been staying; (2) by admitting evidence of his prior bad acts; (3) by denying his motion for a mistrial based on the Commonwealth's response to his Bowden defense; and (4) by failing to instruct the jury that they could not convict him of felony-murder in the first degree based on the firearms conviction. We affirm the convictions and decline the request to grant relief under G.L. c. 278, § 33E.

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

During the fall of 2008 and spring of 2009, the defendant, who was from New York City, was a frequent overnight guest in the Lowell House dormitory room of his girl friend, Brittany Smith, a senior at Harvard University (Harvard). In May, 2009, he met the victim, a twenty-one year old Cambridge resident who regularly sold marijuana to Harvard students. On or about May 17 he devised a plan to rob the victim. He told the victim that he was a Harvard student and that he lived at Kirkland House. He said he wanted to buy three pounds of marijuana. The defendant arranged to have two friends from New York City, Blayn Jiggetts and Jason Aquino, bring a gun and help him with the robbery. Jiggetts and Aquino traveled by bus to South Station in Boston where the defendant met them on the afternoon of May 18. They brought a nine millimeter, semiautomatic pistol and ammunition.

Using Smith's cellular telephone, the defendant arranged to have the victim bring the marijuana to a secluded art room in the basement of Kirkland House that had one means of ingress and egress. The plan called for Jiggetts to produce the gun at the moment of the exchange; the defendant would then grab the marijuana. When the four men arrived in the art room, Jiggetts pulled out the gun and demanded that the victim turn over the marijuana. The victim refused to surrender it. Jiggetts passed the gun to the defendant, then approached the victim. The victim fled.

The defendant fired three shots at the victim; one bullet struck him, but he continued to run. The defendant, Jiggetts, and Aquino pursued the victim as far as the entrance to the building, and then went to Lowell House to meet Smith, who was waiting with a bag packed for travel. The defendant briefly explained what happened. He gave Smith the gun and told her to hide it. She wrapped the gun in some clothing and hid it in the nearby dormitory room of a close friend. After the defendant said that they had to leave immediately, Smith, the defendant, Jiggetts, and Aquino took a taxicab ride to South Station, where they boarded a bus to New York City.

In the meantime, the victim collapsed on Dunster Street in Cambridge. He called to a pedestrian for help, saying he had been shot. He was taken by ambulance to a local hospital where he died from the gunshot wound. Police later found a bag of marijuana wrapped in a bloody shirt; the victim had dropped it in the course of his flight.

2. Motion to suppress. The defendant filed a motion to suppress a black and orange “letterman” or “varsity” style jacket seized from Smith's dormitory room. Police and Harvard personnel had entered Smith's room without a warrant to check on her well-being. They saw the jacket and returned later with a warrant for the jacket and seized it. The defendant asserted a reasonable expectation of privacy in the dormitory room, and argued that police did not satisfy the requirements of the emergency exception to the warrant requirement of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights when they first entered Smith's room.

A judge of the Superior Court, not the trial judge, held an evidentiary hearing on the defendant's motion to suppress. She denied the motion. We summarize her findings of fact, which are not disputed. Witnesses told police they heard three loud bangs in the area, and then saw three black males running from Kirkland House. One of the males was wearing a black and orange “letterman” or “varsity” style jacket. Smith's Harvard identification card had been “swiped” through electronic card reading devices at three locked doors at Kirkland House around the time of the shooting. No woman was among those seen fleeing Kirkland House at that time. Smith's identification card was later swiped at Lowell House, where she resided. In addition, the victim's cellular telephone showed that he had telephoned Smith's cellular telephone shortly before the shooting.

A State police officer tried to contact Smith. He called her cellular telephone on May 18 and 19, but he received no answer and she did not return his call. He also knocked on her dormitory room door but received no response. Her dormitory room window was open and a light was on in her room. Students living in her dormitory had not seen her since the time of the shooting. The officer spoke with the dean of Lowell House, who expressed concern that the officer was unable to make contact with Smith. The dean called Smith's cellular telephone himself and left a message. Although the dean told the officer that Smith always returned his telephone calls promptly, she did not return his call.

In consideration of these circumstances, a Harvard police sergeant, consistent with university police practice, entered Smith's dormitory room on May 19 to check on her well-being. Officers of the State and Cambridge police departments accompanied him. Smith was not present. They saw a black and orange jacket similar to the description given by witnesses. They left the room about forty-five seconds after entering and posted an officer outside Smith's room while they applied for and obtained a search warrant for the jacket.

The defendant and the Commonwealth stipulated to certain facts, summarized as follows. The defendant stayed in Smith's dormitory room sometimes for weeks at a time. There is no evidence he ever received permission from Harvard to stay there. He left Massachusetts on May 18, went to New York City, and did not return. On May 21, he was arrested for the murder in this case. The judge concluded that the defendant abandoned the dormitory room on May 18.

The parties also stipulated to Harvard's written policies governing enrollment and residency, which are summarized in relevant part as follows. “A person not regularly assigned to a particular dormitory or House may not be lodged [therein] for more than a brief stay without the permission of the Proctor, Resident Dean, or House Master[, and t]he consent of other occupants of the room....” Students must keep dormitory doors locked at all times, and never prop open doors or allow visitors to “piggy back” with them when entering their residence hall. “The University must have access to all student suites and the rooms within them.” “Unauthorized or inappropriate possession of any key or passkey ... is prohibited.”

The defendant argues that he had a reasonable expectation of privacy in Smith's dormitory room because he was a long-term invited overnight guest of Smith, and that his “subjective expectation of privacy [is one that] society is willing to recognize ... as reasonable.” Commonwealth v. Williams, 453 Mass. 203, 208, 900 N.E.2d 871 (2009), quoting Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991). The defendant relies on Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), in which the United States Supreme Court held that a houseguest who is present with the permission of his host enjoys a reasonable expectation of privacy in the host's home. Unlike the host in the Olsen case, Smith did not stand in the position of a host who has “ultimate control” of her dormitory room. Id. She did not have the authority to “admit or exclude from the [dormitory room] as [s]he prefer[red].” Id. Harvard's dormitory policy prohibited Smith from allowing the defendant to live in her room for more than a “brief stay” without the permission of certain university officials. She had not obtained such permission for the defendant's long-term occupancy. Moreover, the defendant's use of Smith's pass key (her university identification card) was both “unauthorized” and “prohibited” under Harvard's written policies governing enrollment and residency.

The defendant's assertion that society would be willing to recognize his expectation of privacy in Smith's room as reasonable because he lived in the room lacks support in both fact and law. His rights in the dormitory room were less than Smith's rights in the room. Smith's right to allow the defendant to live in her room for more than a brief stay depended on her securing permission from university officials, which she did not obtain. In addition, she had no right to allow the defendant to use her pass key to gain access to university property that was not accessible by the general public. Indeed, his use of the pass key was expressly prohibited by Harvard's written policies. Where the owner of the premises, Harvard, specifically forbade the type of use and occupancy involved, the defendant may not claim that his subjective...