Commonwealth v. Davis

• Decision Date: 17 May 2021
• Docket Number: SJC-13014
• Citation: 487 Mass. 448,168 N.E.3d 294
• Parties: COMMONWEALTH v. Matthew DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

487 Mass. 448

168 N.E.3d 294

COMMONWEALTH

v.Matthew DAVIS.

SJC-13014

Supreme Judicial Court of Massachusetts, Suffolk..

Argued February 1, 2021.

Decided May 17, 2021.

David Rassoul Rangaviz, Committee for Public Counsel Services, for the defendant.

Andrew S. Doherty, Assistant District Attorney, for the Commonwealth.

Maria Gonzalez Calvet, of the District of Columbia, Daniel W. Richards, of California, Michael A. Morales, of New York, Radha Natarajan, Katharine Naples-Mitchell, & Kirsten V. Mayer, for New England Innocence Project & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, & Georges, JJ.

LOWY, J.

On September 15, 2015, a Black man with long hair wearing a red or pink shirt or sweatshirt fired multiple shots at the driver's side window of a moving blue sedan. The driver of the sedan, who was uninjured, fled from the scene and did not testify at trial. The sole civilian witness who testified at trial did not witness the shooting itself but did see a Black man with braids and a red shirt running away from the location of the shooting.

The defendant, Matthew Davis, became a suspect after police made an inquiry whether anyone wearing a global positioning system (GPS) device at the relevant time was in the vicinity of the shooting. Due to his probation on a Federal drug charge, the defendant was wearing a GPS ankle monitor called an "ExactuTrack 1" (ET1), manufactured by BI, Inc. (BI). Data from the defendant's GPS device showed he was at the location where the shooting took place very close in time to the shooting, and his speed matched the shooter's movements, according to surveillance footage and testimony from the civilian witness. After a jury trial, the defendant was convicted of armed assault with intent to murder, G. L. c. 265, § 18 (b ), and related charges.

On appeal, we consider whether the GPS evidence was sufficiently reliable to be admitted. We conclude that the judge abused his discretion in admitting the speed evidence, where the ET1's ability to measure speed had never been formally tested. Because this error was prejudicial, we reverse the defendant's convictions.

We also address the defendant's argument that the evidence was insufficient to support his convictions and hold that it was sufficient. Finally, we address other arguments the defendant raised on appeal that may recur at retrial, including whether maps of the GPS data violated the defendant's confrontation rights, whether a cell phone video recording (video) of surveillance footage was properly authenticated, and whether it was proper for the prosecutor to ask the jury to identify the defendant as the shooter based on footage that did not show the shooter's face.¹

Background. Because the defendant raises a sufficiency challenge, we recite the facts the jury could have found, in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

On the morning of September 15, 2015, at the corner of Baker Avenue and Quincy Street in the Dorchester section of Boston, a man fired multiple gunshots at a blue sedan. Dispatchers received a 911 call reporting the shooting at 10:28 A.M. Responding police officers found an unoccupied blue sedan, with multiple bullet holes in the front window, crashed into a light pole. Several shell casings and bullet fragments were on the ground.

One of the responding officers, Sergeant Thomas Carty, canvased the area for potential witnesses as well as any cameras that may have captured the shooting. He noticed a video camera affixed to a residential property on Baker Avenue. A resident of that address allowed Carty to view the surveillance video, but the resident did not know how to download it or copy it to another device. Carty instead used his cell phone to record a video of the surveillance video as it played on a computer screen.

The resulting video -- which is not very high resolution -- shows a Black man with long braids or dreadlocks in a red or pink shirt or sweatshirt wearing a gray hat or cap. The man runs towards an intersection raising his arm while holding a handgun. As the man holds up the gun, a blue sedan is driven into the frame from the opposite direction and then collides with a light pole at the corner of the intersection. After the crash, the driver gets out of the car and runs down the street. A little over a minute later, a man who appears to be the driver returns to the car and gets into the driver's seat, before getting out of the car and again jogging away, across the street. The video is not high enough resolution and is taken from too far away to discern any features of the shooter's face.

At approximately 10:30 A.M. on the day of the shooting, a woman named Ilene Rock was standing on Bodwell Street near the corner of Columbia Road -- a couple of blocks away from the location of the shooting -- when she heard a noise that sounded like gunshots or a car backfiring. Shortly after hearing the noise, she saw a Black man with thin braids wearing a red shirt run past her with his hand in his pocket.² The man came within five or six feet of her, but she did not get a good look at his face because she was focused on his hands in his pocket. The man ran down Bodwell Street and turned right onto Columbia Road toward Quincy Street. Shortly thereafter, Rock heard sirens and saw police.

At a later date, police showed Rock a photographic array that contained an image of the defendant. Rock later testified that she "saw a few people that [she] thought looked similar [to the man she saw running], but [she] couldn't make a positive identification of him" because she "wasn't sure of the facial features enough to make a selection." On three of the eight photographs, she made the notations "maybe the person I saw," "This might be him 80%," and "This is possibly the man I saw running." None of those three photographs depicted the defendant.

As part of their investigation, police made an inquiry into whether anyone wearing a GPS device was in the area at the time of the shooting.³ The defendant, who was wearing a GPS ankle monitor as part of his probation on a Federal drug case, had been. The defendant's GPS device purported to show that at 10:25 A.M. on the day of the shooting, he had been on Columbia Road near Brunswick Street travelling northeast at twenty-two miles per hour. At 10:26 A.M. , he was still travelling northeast on Columbia Road, now at thirty-two miles per hour. At 10:27 A.M. , he was at the corner of Quincy Street and Baker Avenue -- the location of the shooting -- travelling at ten miles per hour. At 10:28, he was on the corner of Baker Avenue and Bodwell Street travelling at eight miles per hour. At 10:29, he was on Columbia Road between Quincy and Bodwell travelling at eleven miles per hour. At 10:30, he was on Quincy Street travelling at twenty-two miles per hour. At 10:31, he was on Church Street travelling at fifteen miles per hour. At 10:32, he had stopped at his home.

Approximately a week after the shooting, officers executed a search warrant at the defendant's home. They found a red long-sleeved crew neck sweatshirt under a pile of clothes in the defendant's bedroom. The sweatshirt tested negative for gunshot primer residue.

After a jury trial in October 2017, the defendant was found guilty of armed assault with intent to murder, G. L. c. 265, § 18 (b ), and multiple lesser charges.⁴ The defendant then filed a timely notice of appeal, and the Appeals Court affirmed his convictions. See Commonwealth v. Davis, 97 Mass. App. Ct. 633, 150 N.E.3d 770 (2020). We granted further appellate review.

Discussion. 1. Admission of expert testimony. Before the GPS evidence was introduced at trial, the judge conducted a voir dire of the Commonwealth's expert, James Buck, manager of product development at BI. Buck provided an overview of how GPS technology works in general, as well as described the ET1 model in particular. He stated that at any given time, there are twenty-four active satellites circling the globe. Signals from the satellites transmit to a receiver -- as in a GPS device -- and that data can be used to determine the device's speed and location. The more satellites from which a device is receiving signals at any given time, the more accurate the speed and location data will be.

GPS technology works slightly differently for speed from how it does for location. To triangulate a device's location, it must receive signals from a minimum of three satellites. To determine a device's speed and direction, on the other hand, it must receive signals from at least four satellites.⁵ With respect to the ET1 specifically, Buck testified that it records the wearer's location and speed once per minute and sends the data over a cellular network to BI's headquarters in Colorado.⁶ Buck stated that BI had conducted formal testing of the ET1's ability to measure location, but its ability to measure speed had never been formally tested.

a. Gatekeeper reliability. Before offering expert testimony such as Buck's, the proponent must establish a sufficient foundation for a judge to determine whether the expert's opinion satisfies gatekeeper reliability. See Commonwealth v. Patterson, 445 Mass. 626, 639, 840 N.E.2d 12 (2005), overruled on other grounds by Commonwealth v. Britt, 465 Mass. 87, 987 N.E.2d 558 (2013) ("Trial judges serve a gatekeeper function with respect to expert opinion testimony based on specialized knowledge"). See also Mass. G. Evid. §§ 104(a), 702 (2021). "If the process or theory underlying [an] ... expert's opinion lacks reliability, that opinion should not reach the trier of fact." Patterson, supra, quoting Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342 (1994).

Until 1994, we used the Frye test -- also called the general acceptance test -- to determine if proposed expert testimony was sufficiently reliable to reach the jury....