Commonwealth v. Wilkerson

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation486 Mass. 159,156 N.E.3d 754
Docket NumberSJC-12124
Decision Date04 November 2020

Elizabeth Caddick for the defendant.

Stephanie Martin Glennon, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.1


The defendant was convicted of murder in the first degree in the shooting death of twenty-three year old Kristopher Rosa, a long-time rival of one of the defendant's high school friends.2 The defendant's participation in the shooting came to light almost two years after the event, when his then girlfriend contacted police. On appeal, the defendant argues that the evidence was insufficient to support his conviction. He also claims error in the denial of a motion to suppress cell site location data (CSLI) and the admission of that data at trial,3 error in the introduction of hearsay statements by his alleged coventurer and in the exclusion of other evidence concerning that coventurer, misjoinder of charges, abuse of discretion in the judge's decision not to provide certain jury instructions, and improprieties in the prosecutor's closing argument. In addition, the defendant asks us to use our authority under G. L. c. 278, § 33E, to order a new trial. We affirm the convictions and decline to exercise our authority to reduce the verdict or order a new trial pursuant to G. L. c. 278, § 33E.

Background. We recite the facts the jury could have found, viewing them in the light most favorable to the Commonwealth.

1. Coconspirator's dispute with victim. The victim's death arose from a long-running antagonism between him and Rhandisyn Lawrence, a high school friend of the defendant and his brother, Keith. This conflict began in high school and appears to have centered on Lawrence's and the victim's relationships with Davina Mendes. At different times while they were high school students, Mendes dated both Lawrence and the victim; she later settled into a relationship with the victim and they had a child together.

Conflict between the victim and Lawrence devolved into physical violence on at least three occasions during and after their high school years. The last of these incidents took place in April of 2011, five months before the shooting, when the victim was twenty-three years old. Mendes recounted how she, the victim, and a friend drove to Lawrence's home. The victim and the friend went into the house while she waited in the vehicle. Approximately thirty minutes later, Lawrence came outside with a bloody face and a broken jaw

. He apologized to her through the window of the vehicle; Mendes did not know the reason for the apology.

Later that summer, Mendes had unpleasant exchanges with Lawrence through an Internet messaging application and in an inperson encounter at the store where he worked. The first time she told the victim about the encounter, he did not appear to react; the second time she told the victim about the encounter, he threw a rock through the rear window of Lawrence's gray Volvo. The police were called, but Lawrence refused to speak with them when they arrived to see the smashed window and other damage to the body of the vehicle. This incident took place approximately six days before the shooting.

2. The shooting. On September 19, 2011, at approximately 9:15 P.M., two Avon firefighters saw a gray Volvo parked on the side of the road with its lights off, not far from the victim's home. In the driver's seat, they saw a man speaking on his cellular telephone; they could see the side of his face from the light of the telephone on his cheek.

At around the same time, the victim and Mendes left the victim's house. They were on their way to the victim's mother's house for dinner. They left their infant son with the victim's father. In the driveway, the victim saw something that made him demand the keys to the vehicle from Mendes; he told her to hurry into the vehicle and he went to the driver's side.

Mendes then noticed Lawrence's gray Volvo, which she recognized from the time when she had dated him, drive by and then make a U-turn. The victim made a U-turn in order to follow the Volvo. The victim and Mendes came upon the Volvo backed into a driveway with its lights off. Having just passed it, they made another U-turn and parked diagonally, facing Lawrence's vehicle. Mendes saw Lawrence smirk as he pulled into the road in front of them.

As the victim again began to follow the Volvo, shots from behind shattered the back window. Mendes ducked her head, as the victim urged her to do, but saw the victim look in the rearview mirror and curse. She heard a second volley of shots, this time from the driver's side of the vehicle, and saw the victim bleeding from his mouth. Because his foot was still on the accelerator, she had to seize the wheel to maneuver the vehicle around the gray Volvo, which appeared to be braking. Climbing onto the victim's lap, she drove to the local hospital. That night, the victim was pronounced dead from a gunshot wound to his chest.

3. The investigation. At the scene, police recovered six shell casings from the road, spread over a distance of approximately seventy yards. The next morning, police interviewed Lawrence, seized the Volvo, and obtained his permission to view information from his cellular telephone. That evening, they interviewed the defendant at the home he shared with his girlfriend, Amanda Burgess. He told them that he had been at his apartment the previous evening taking care of her two year old son. He said that he had been using a telephone registered to Burgess, and that Lawrence had been to his apartment for approximately fifteen minutes that evening at around 8:30 P.M. He agreed that he also spoke by telephone with Lawrence at least twice that evening, once at approximately 8 P.M. and again shortly after 9 P.M.

4. Burgess's statements and testimony. Initially, Burgess told police she and the defendant had been together the entire evening of the shooting. In the weeks after the shooting, she received a subpoena to testify before the grand jury. The defendant told her to repeat what she had told the police. Prior to her testimony, police confronted Burgess with records from her cellular telephone service provider tending to show the defendant had left their apartment on the evening of the shooting, and Burgess conceded to the police, and to the grand jury, that she and the defendant had not been together throughout the evening.

In early 2013, Burgess was charged with misleading the police. She was incarcerated prior to trial for approximately seventy days, while she was pregnant with her second child, because she was unable to pay the bail. Her bail was posted one week before she gave birth. At that point, she had ended her romantic relationship with the defendant because she believed he had cheated on her with another woman. After entering into an immunity agreement, she testified at the defendant's trial to the following.

Lawrence began visiting the defendant's and her apartment more frequently shortly before the shooting. On September 19, 2011, the night of the shooting, the defendant told her that he could not pick her up from work as planned, because but had to go with Lawrence "to take care of something." Her coworker, Heather Farris, drove her to the defendant's mother's house, where the defendant had left her son. She was driving home with Farris, while talking on the telephone with the defendant, when Burgess saw him drive by in the front passenger seat of a gray Volvo going the opposite direction. Lawrence was driving. She believed that they "beeped" at them as the Volvo continued in the opposite direction, towards Avon.

After she picked up her son, Burgess repeatedly tried to call the defendant; sometimes she spoke with him, and some of her calls went unanswered. When she reached the defendant at some point after 9:30 P.M., he told her that "he took care of what he had to take care of" and "did what he had to do." The defendant's sister drove Burgess home; as Burgess arrived at her apartment, she saw the defendant sitting on the front stairs and Lawrence's Volvo driving away. After the defendant's sister left, she saw the defendant take a black gun from his waistband and put it under the mattress. He said again that he "did what [he] had to do." Sometime later, he told her that he "wasn't sure if he killed [the victim] or not because the car was still rolling" after he approached it and shot through the rear and side windows.

The next morning, Burgess noticed the defendant searching the Internet for news about a shooting in Avon. Forensic analysis of the laptop computer later revealed searches for "Avon shooting," and "Avon man dead." Burgess called her aunt, who brought a vehicle and dropped off the defendant at his father's home in the Dorchester section of Boston. Before the defendant left, Burgess saw him retrieve the gun from under the mattress and place it in a backpack, which he took with him. Burgess never saw the gun again. When the defendant returned from his father's home later that night, he had changed clothes. He explained that he had changed because he got gasoline on his shirt, which "gets rid of the gunpowder." He told Burgess to tell anyone who asked that they had been together all evening on the evening the victim was killed.

5. CSLI evidence. Pursuant to 18 U.S.C. § 2703(d), the Commonwealth requested forty-eight hours of CSLI for the cellular telephone that the defendant was using; the prosecutor received data for a thirty-four hour period. Before trial, the defendant moved to suppress the CSLI evidence; the trial judge ordered suppressed all of the CSLI evidence from the defendant's telephone except for a three-hour period between 8 P.M. and 11 P.M on September 19, 2011, covering the period approximately ninety minutes before and ninety minutes after the shooting. The Commonwealth also introduced...

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