Commonwealth v. Fulgiam, SJC-11674

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: HINES, J.
• Citation: 73 N.E.3d 798,477 Mass. 20
• Docket Number: SJC-11674
• Decision Date: 05 May 2017
• Parties: COMMONWEALTH v. Earl T. FULGIAM (and thirteen companion cases ).

477 Mass. 20
73 N.E.3d 798

COMMONWEALTH
v.
Earl T. FULGIAM (and thirteen companion cases ¹ ).

SJC-11674

Supreme Judicial Court of Massachusetts, Suffolk..

Argued October 11, 2016.
Decided May 5, 2017.
As Amended June 23, 2017

73 N.E.3d 804

Elizabeth Caddick for Earl T. Fulgiam.

Esther J. Horwich for Michael T. Corbin.

Zachary Hillman , Assistant District Attorney ( John P. Pappas , Assistant District Attorney, also present) for the Commonwealth.

Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, & Budd, JJ.²

HINES, J.

477 Mass. 21

On July 25, 2011, armed intruders entered the apartment occupied by the victims, Kevin Thomas, Jr., and Billie Marie Kee, who were robbed and killed. In May, 2013, a Superior Court jury found the defendants, Earl T. Fulgiam and Michael T. Corbin, guilty as joint venturers of murder in the first degree of both victims based on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder with armed robbery as the predicate felony. The defendants also were convicted of unlawful possession of a firearm and unlawful possession of a large capacity feeding device.³ On appeal, the defendants assert error in the admission of (1) certain cellular telephone records in

477 Mass. 22

violation of their rights under art. 14 of the Massachusetts Declaration of Rights and the Fourth and Sixth Amendments to the United States Constitution; (2) fingerprint cards attributed to the defendants without proper authentication or reliability; and (3) expert testimony related to the fingerprint analysis. Corbin independently claims that repeated references to gang affiliation created a substantial likelihood of a miscarriage of justice. We affirm the convictions and decline to grant relief pursuant to G. L. c. 278, § 33E.

Background . We summarize the evidence as the jury could have found it, reserving additional facts for later discussion. On July 25, 2011, a couple who lived on the second floor of an apartment building on Hyde Park Avenue, in the Hyde Park section of Boston, awoke to the sound of gunshots at around 11:55 P.M. They heard between six and eight gunshots that the woman believed came from an apartment below. The couple looked out of their bedroom window, and saw six or seven men running out of the entrance to their building. The woman telephoned 911 at 11:57 P.M. ⁴

The men split up. Some of them ran straight across Hyde Park Avenue. At that moment, a passenger in a vehicle approaching the victim's apartment building saw three men run in front of her vehicle; one of the men carried what looked like a white pillow case. The men got into a grey or silver sedan so quickly that a man's foot was hanging outside the vehicle as it sped away. None of the witnesses was able to give more than a general description of the men, except that one man was heavyset;⁵

73 N.E.3d 805

the witnesses could only guess at the race or ethnicity of the men they observed.

At 12:41 A.M. on July 26, 2011, Boston police responded to the scene and were directed to the victim's apartment. They found a large watch on the floor near the front entrance to the building. Kee, dressed in a bloody shirt and underwear, was found lying face down on the floor just inside the apartment. She had suffered four gunshot wounds and multiple stab wounds, and she was pronounced dead at the scene. Kee's cause of death was gunshot wounds to the torso and injuries to the lungs, ribs, and spine.

477 Mass. 23

Thomas, dressed in a T-shirt, shorts, and socks, was found in the front bedroom, lying on his back over a pile of clothing; his legs were bound at the ankles with black wire. He had suffered seven gunshot wounds and four stab wounds to his body, and he was pronounced dead at the scene. Thomas's cause of death was gunshot wounds to the torso and neck.

The victims' apartment had been ransacked. Broken glass and blood were on the floor, clothes were strewn about, and the cabinets and drawers were open in the kitchen and bathroom. There were no signs of forced entry; the front door was ajar, with the lock intact, and the back doors were locked from the inside. Although the officers observed no "land line" telephone in the apartment, they did not recover any cellular telephones. A curling iron with its cord cut and two knives with brownish-red stains were found near Kee's body. The curling iron cord matched the wire that was used to bind Thomas's ankles.

In the front bedroom, in a tall bureau, officers found a packet of photographs, two of which depicted Thomas with Fulgiam and Corbin, at Thomas's apartment, sitting on the couch in front of stacks of United States currency. Near Thomas's body officers found a black backpack with what appeared to be a bag of marijuana inside.

On July 27, 2011, a subsequent search of the basement revealed two plastic bags of what appeared to be "crack" cocaine, and two digital scales. Based on all of the evidence that the police officers had found during their investigation, they surmised that the assailants were likely known to the victims and that the murders were likely the result of a drug robbery.

In the front yard, officers recovered a loaded nine millimeter semiautomatic pistol with a magazine and a loaded .38 caliber silver revolver. A diamond encrusted ring was found on Hyde Park Avenue.

John Golden, Thomas's best friend, testified that Thomas sold large amounts of marijuana and cocaine. On the day of the murders, Golden saw approximately $5,000 in the bureau. When Golden was shown the photograph depicting Thomas, Corbin, and Fulgiam with the bundles of cash, Golden estimated the amount to be between $12,000 and $13,000. Police were able to determine the date of the photograph as May 11, 2011. Golden also identified the watch and the ring that had been recovered as belonging to Thomas. Golden described Thomas as being "paranoid," so much so that he insisted that even trusted friends call before coming to his apartment.

477 Mass. 24

On July 29, 2011, a latent print from the nine millimeter semiautomatic pistol recovered from the scene was "individualized," or matched, to Fulgiam. Thirteen spent nine millimeter shell casings, eight spent nine millimeter bullets, and four bullet fragments were recovered from the scene and from the victims. Analysis of the firearms revealed that the nine millimeter semiautomatic contained a magazine that held twenty rounds of ammunition; eight were recovered in the magazine. All of the

73 N.E.3d 806

bullets, bullet fragments, and shell casings had been fired from the nine millimeter semiautomatic pistol.

A detective learned that the victims' cellular telephones had not been recovered, so he requested and obtained traces on both. Thomas's cellular telephone records showed that a certain cellular telephone number was listed in Thomas's telephone records for July 25, 2011. Police learned that this telephone had been stolen that afternoon between 4:30 P.M. and 5:30 P.M. The owner told police that he did not recognize Thomas's cellular telephone number or the number later identified as Fulgiam's cellular telephone number, both of which were listed in his call detail records for July 25, 2011. The Commonwealth issued administrative subpoenas for Fulgiam's cellular telephone call detail records and for a cellular telephone number ending in 2898, which was later connected to Corbin.⁶ The police discovered that Corbin and Thomas had been in contact, via short message service messages (text messages), or telephone calls, several times on July 25, 2011. Fulgiam and Corbin also had been in telephonic contact that day.

On August 8, 2011, two detectives interviewed Fulgiam at his home. At this time the police had not sought an arrest warrant for Fulgiam. Fulgiam told the detectives that he and Thomas had known one another since the early to mid-2000s, and that he knew Thomas very well. Fulgiam admitted that he and Thomas were in the drug business together and that he would meet with Thomas one or two times per month, at one of their homes to

477 Mass. 25

conduct business. He estimated that it had been about one month since he had last met with Thomas, but could not remember whether it had been at his home or at Thomas's home. He last communicated with Thomas via text message on July 17. Fulgiam had Thomas's cellular telephone number, and he stated that he changed his own cellular telephone number two weeks prior⁷ because a woman had been stalking him. Fulgiam was not aware of Thomas having disputes with anyone and noted that Thomas had a lot more money than he did. Fulgiam opined that whoever killed Thomas had to have been close to him.

The two detectives interviewed Corbin at his home on August 10, 2011. At that time, he was not under arrest. One of the detectives had previously been in telephonic contact with Corbin,⁸ who agreed to meet with the detectives. Corbin told the detectives that he had known...