Opinion
18-P-1210
07-06-2020
COMMONWEALTH v. TSUNAMI LASA ORTIZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Just after 4 P.M. on December 18, 2015, seventeen year old D'Andre King-Settles was shot and killed in front of 58 Annunciation Road in the Roxbury section of Boston while walking with friends Juan Carlos Garcia and Jaquan McIver-Bennett. On March 24, 2016, a grand jury indicted the defendant, Tsunami Ortiz, and codefendant Enrique Auch, on charges of murder in the first degree, G. L. c. 265, § 1, armed assault with intent to murder, G. L. c. 265, § 18 (b), assault and battery by means of a dangerous weapon (a firearm), G. L. c. 265, § 15A, and other firearm-related offenses. The defendant and Auch were tried together. The Commonwealth advanced the theory that the defendants carried out the shooting as a joint venture. The jury convicted each of murder in the second degree and two counts of assault by means of a dangerous weapon against Juan Carlos Garcia and Jaquan McIver-Bennett. The defendant now appeals. We affirm.
The defendant and Auch were charged with unlawful possession of a firearm, G. L. c. 269, § 10 (a), and carrying a loaded firearm, G. L. c. 269, § 10 (n). They were acquitted.
While we do not decide this issue in the instant appeal, as the defendant, his codefendant Auch, and the Commonwealth all failed to raise it, we note that in convicting the defendant of two counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B, the jury did so on the basis that the crime was a lesser included offense of armed assault with intent to murder, the crime for which he was actually indicted. Because each of these offenses requires an additional element that the other does not, assault by means of a dangerous weapon is not a lesser included offense of armed assault with intent to murder. See Commonwealth v. Bright, 463 Mass. 421, 445-446 (2012). The defendant was never indicted on assault by means of a dangerous weapon with respect to Garcia. He was indicted for assault and battery by means of a firearm with respect to McIver-Bennet but that charge was dismissed by directed verdict.
This panel affirmed Auch's convictions. Commonwealth v. Auch, 96 Mass. App. Ct. 1106 (2019).
Background. 1. The shooting. We recite the facts of this shooting as the jury could have found them, viewing the facts in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
At trial, the jury were presented with surveillance video footage, without audio, taken from cameras in the front lobby, the rear entrance, and the elevator of the apartment building at 58 Annunciation Road. This video first depicts the defendant and Auch walking side-by-side toward 58 Annunciation Road. At trial, Auch stipulated that he was the male depicted in the video wearing a white, black, and red jacket and khaki pants. The jury could have found, and did find, that other individual accompanying Auch in the video was the defendant. He was wearing a dark jacket and jeans. Neither the defendant nor Auch resided at 58 Annunciation Road or in the Mission Hill neighborhood. The video shows Auch carrying a bulky item in his bulging jacket pocket.
The defendant was the first to enter 58 Annunciation Road, followed by Auch at 3:26 P.M. The defendant proceeded into the lobby, opened a door to the right of the entrance, closed it again, and followed Auch through another door a few feet away. Approximately one minute later, Auch, still inside the building, approached the rear door of the building, walked away, and then returned approximately three minutes later. Both he and the defendant then left the building through this door at 3:30 P.M. The surveillance video shows Auch and Ortiz walking around outside on the streets surrounding 58 Annunciation Road.
Both Auch and the defendant returned to 58 Annunciation Road at 3:51 P.M. The defendant and Auch proceeded to the ground floor stairwell where they could have monitored the comings and goings of others without being seen themselves. Two minutes later, Jacquan McIver-Bennett and Juan Carlos Garcia entered 58 Annunciation Road and rode the elevator to the third floor. Minutes later, D'Andre King-Settles entered the building through the front entrance; he took the elevator to the third floor where he joined Garcia and McIver-Bennett. They remained on the third floor for approximately a minute and one-half, then rode the elevator down to the ground level. At 4 P.M. all three left the building together through the front lobby.
Within seconds, Auch and the defendant re-emerged from the stairwell door. The jury could infer that they had been monitoring the front lobby from their hiding place, waiting for King-Settles, McIver-Bennet, and Garcia to come down. Auch moved quickly out the front door of the building after King-Settles and the others. The defendant followed approximately ten seconds later, but paused momentarily at the front door. At the end of the surveillance video, the defendant can be seen using a cell phone while exiting the building after Auch.
Seconds later, five gunshots were fired outside 58 Annunciation Road. Hearing the shots, Garcia turned to look behind him for a "quick second" and saw someone "shooting at us." This person was a male wearing "a hoodie with a rain jacket and some . . . khakis," who the jury could have concluded was Auch. Approximately fourteen seconds later, three more shots were fired.
Before the grand jury, Garcia testified that he saw "flashes" that were "like a firework" coming from where the person was standing, and that he did not see him actually shooting a gun. The jury could have inferred that these flashes were from the discharge of a gun being shot by Auch.
Bystanders who testified at trial reported hearing the initial gunfire, then the second round of shots. They each then saw two males leaving the scene, heading towards Ruggles Station. One witness described two teenage males leaving the scene: one had a white jacket that extended a little past his waist, khaki pants, and white sneakers, and the other had a black top, blue jeans, black sneakers, and a skinny build, standing at about five feet, ten inches or five feet, eleven inches tall. The jury could have reasonably concluded that these males were Auch and the defendant respectively, and that they fled the scene of the shooting together.
D'Andre King-Settles was struck by multiple bullets and collapsed outside 58 Annunciation Road. King-Settles died at the scene from four gunshot wounds.
2. Police investigation. Detectives from the Boston Police Department took charge of the crime scene. An officer found three discharged cartridge casings on the ground near 58 Annunciation Road. A ballistics expert later determined that these were nine millimeter casings that were all fired from a semiautomatic gun. King-Settles was shot with nine millimeter bullets. During their investigation of the scene, police did not find the firearm used to shoot King-Settles.
The Boston Police Department "ShotSpotter" system detected these shots. ShotSpotter is an acoustic gunshot detection and location system, which uses microphone sensors, preprogrammed to listen for gunfire. On detecting gunfire, sensors report the time of the shots, sending data to a location which calculates where the shots originated.
Detectives obtained the surveillance video from 58 Annunciation Road. After viewing stills taken from the video, they identified the two males that had been surveilling 58 Annunciation Road, identifying the male in the dark jacket as the defendant Tsunami Ortiz.
3. The seizure of the defendant's cell phones. At trial, inculpatory evidence found on the defendant's cell phone was introduced consisting of evidence of web searches and twitter pages accessed on the phone on the day of the shooting and four days later. A pretrial motion to suppress the cell phone was denied. Some background about its seizure and the findings made during the somewhat complex litigation of the propriety of that seizure are relevant to this appeal.
On January 5, 2016, Boston police officers arrested the defendant on various charges unrelated to the King-Settles homicide, including possession with intent to distribute a Class C substance, resisting arrest, and assault and battery on a police officer. When the defendant was arrested, the police seized from his person several bags of marijuana and cash, as well as two cell phones which the police retained. On appeal, the defendant challenges that seizure. These phones were subsequently searched pursuant to a warrant issued on January 29, 2016, but there is no issue about the propriety of the warrant or about the timing of the police obtaining or executing it.
The defendant first brought a motion to suppress all evidence obtained as a result of the warrantless seizure of his cell phones in the case arising from his arrest on January 5, 2016. In that case, a Boston Municipal Court judge found that on January 5, 2016, two Boston police officers encountered the defendant on Parker Street within the Bromley-Health housing development. One officer recognized the defendant from photographs, reproduced from the King-Settles surveillance video, that had been circulated in a December 29 police department e-mail along with "Be on the Lookout" notices regarding the fatal shooting on December 18, 2015. The notices indicated that the depicted individual was not wanted at that time but that police sought to identify him.
Upon recognizing the defendant, the officer and his partner attempted to engage him in conversation. The defendant suddenly began to walk the other way, lowered his head, and bent over at the waist with his back to officers. When the officers ordered the defendant to "hold up" and he failed to stop, they ran up to him, ordered him to stop, and announced "BPD." The defendant stopped, the officers pat frisked him, and they found a small object that they believed to be narcotics.
This object turned out to be a single pill wrapped in plastic in the defendant's pocket. The Boston Municipal Court judge suppressed this single pill as the product of an illegal seizure; the judge found that officers lacked reasonable suspicion that the defendant had committed a crime when they initially seized him.
As officers prepared to arrest the defendant for possession with intent to distribute a controlled substance, the defendant resisted and began to kick out. A bag of marijuana then fell out of his pants. The defendant struggled and kicked and then head-butted an officer in the face when they tried to handcuff him. He was arrested and searched incident to that arrest. That search revealed the two cell phones, in addition to nine small bags of marijuana and cash. The Boston Municipal Court judge determined that the defendant's actions in resisting arrest and attacking officers gave rise to independent probable cause to arrest the defendant, that his subsequent arrest was lawful, and that these items were properly seized incident to this arrest.
In the instant case, the defendant again brought a motion to suppress. Relying on the Boston Municipal Court judge's decision not to suppress the cell phones as evidence of drug possession, the Superior Court motion judge found that suppression of the defendant's cell phones was not warranted. The motion judge did make additional findings of fact. He found that on December 23, 2015, detectives investigating the shooting at issue here obtained surveillance videos depicting two males repeatedly entering and exiting the apartment building at 58 Annunciation Road around the time of the shooting. An e-mail was sent out to the department on December 29, 2015, asking officers to attempt to identify the two males from stills taken from the video. As a result of the e-mail, an officer identified the defendant as one of the males depicted in the video. The surveillance video showed the defendant holding a cell phone with an illuminated screen just before the shooting. By January 5, 2016, police "knew from surveillance videos that Ortiz . . . is seen in the surveillance video immediately before the shootings, holding a cell phone."
A detective from the homicide investigation, Detective Teixeira, testified at the hearing on the defendant's motion to suppress in this case. He testified that by January 5, 2016, detectives had already contacted the probation department to obtain a current cell phone number for the defendant and sought a preservation order and call-detail record subpoena for his cell phone provider. According to Teixeira's testimony, detectives were aware, prior to January 5, 2016, that the defendant's cell phone specifically might be evidence of his connection to the shooting. The motion judge credited the detective's factual testimony.
Although he does not do so here, the defendant argued in the Superior Court that the warrant to search the cell phone had not been obtained diligently. The Superior Court judge credited Detective Teixeira's factual testimony, and based his conclusion that the police acted diligently in obtaining a search warrant on Detective Teixeira's hearing testimony and the affidavit he submitted in support of the warrant application.
Discussion. 1. Seizure of the phones. Before us, the defendant does not challenge the propriety of his initial stop on January 5, 2016, about which we express no opinion. It is clear that, in the absence of any question about the initial stop, the defendant's subsequent arrest was lawful. The only question before us is whether the cell phones were properly seized at the time of the defendant's drug arrest.
"In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of [the] ultimate findings and conclusions of law. The judge's ultimate findings and legal conclusions are subject to de novo review" (quotations and citations omitted). Commonwealth v. Barillas, 484 Mass. 250, 253 (2020). We conclude the evidence was properly admitted, though we reach that conclusion on grounds different from those articulated by the Boston Municipal Court judge, on the basis of whose ruling the Superior Court judge denied the appealed-from motion to suppress. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) ("An appellate court is free to affirm a ruling on grounds different from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings").
Pursuant to G. L. c. 276, § 1, a search incident to arrest is limited to either a search for "fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made" or "weapons that the arrestee might use to resist arrest or effect his escape."
The Commonwealth argues that these cell phones were properly seized as evidence of the defendant's drug crime; it argues that cell phones, by their very nature should be considered evidence of drug dealing, even without any indication that they were used in a particular drug offense. On appeal, the defendant argues that all cell phone information obtained by police should have been suppressed as the fruit of the unlawful seizure of his cell phones, because there was no "particularized evidence" linking the phones to the drug offenses for which he was arrested on January 5.
The defendant relies primarily on Commonwealth v. White, 475 Mass. 583 (2016), to support this contention. White articulated a rule limiting the warrantless seizure of cell phones to cases in which the police have reason to believe that they will find evidence on the cell phone specifically related to the crime under investigation. "[W]here the location of the search or seizure is a computer-like device, such as a cellular telephone . . . police first must obtain information that establishes the existence of some 'particularized evidence' related to the crime . . . . Only then, if police believe, based on training or experience, that this 'particularized evidence' is likely to be found on the device in question, do they have probable cause to seize or search the device in pursuit of that evidence" (citations omitted and emphasis added). Id. at 589.
White was decided in light of the United States Supreme Court's decision in Riley v. California, 573 U.S. 373 (2014), which held that police may not search digital information on a cell phone that was seized incident to a lawful arrest absent a warrant or probable cause and exigent circumstances. Citing to Riley, the White court explained that it could not be that "a nexus between a suspect's criminal acts and his or her cellular telephone [exists] whenever there is probable cause that the suspect was involved in an offense, accompanied by an officer's averment that, given the type of crime under investigation, the device likely would contain evidence." White, 475 Mass. at 591. If this alone were enough, it would be "a rare case where probable cause to charge someone with a crime would not open the person's cellular telephone to seizure and subsequent search." Id.
In cases decided prior to Riley and White, it was often presumed that evidence specifically related to drug crimes was reasonably likely be found on cell phones, merely because cell phones were considered to be tools of the drug trade. See, e.g., Commonwealth v. Berry, 463 Mass. 800, 807 (2012) (cell phones seized incident to defendant's arrest for drug crimes presumed to be tools of drug distribution); Commonwealth v. DePina, 75 Mass. App. Ct. 842, 848 (2009) (cell phone was found to be implement of defendant's distribution of cocaine because cell phones are known "implements of the drug trade"). The defendant's argument is that these cases are no longer good law, and that his cell phones could not have been lawfully seized in the absence of particularized evidence giving officers a reason to believe that the cell phones contained evidence related specifically to the drug offenses. See White, 475 Mass. at 588.
We need not decide in this case whether and to what extent White altered preexisting law with regard to the need for particularized evidence of a nexus between a drug crime and a suspect's cell phone before it may lawfully be seized incident to an arrest for that crime, because the seizure may be upheld on the alternative ground that the officers had probable cause to seize the cell phones as evidence of the King-Settles homicide. To begin with, the police were authorized incident to the defendant's drug arrest to search his person for weapons. As the Supreme Judicial Court has recently made clear, because it is a hard object that might be used as a weapon, police may seize and secure a cell phone during such a search, as the officer did in this case. Barillas, 484 Mass. at 255. Upon removal of the phones from the person of the defendant, they could be seen by the officers. If the officers saw them from a lawful vantage point, if their seizable character was immediately apparent, and if the officers had a lawful right of access to them, they were subject to seizure under the "plain view" doctrine. See, e.g., Commonwealth v. Santana, 420 Mass. 205, 211 (1995).
The officers must also come across the evidence inadvertently. Commonwealth v. Balicki, 436 Mass. 1, 8-9 (2002). Nothing in the evidence suggests that the discovery of the phones was anything but inadvertent, and the defendant does not argue otherwise. "[T]he inadvertence requirement means only that the police lacked probable cause to believe, prior to the search, that specific items would be discovered during the search." Id. at 10. The judge did not find that the cell phone depicted in the surveillance video from the King-Settles homicide was the target of the officers' search of the defendant; they found the phones only after the defendant attacked the officers trying to arrest him.
Because the removal of the phones from the person of the defendant was lawful, the police saw them from a lawful vantage point. The judge's findings make clear that there was probable cause to believe the phones contained evidence of the homicide such that their seizable nature as evidence of a crime was immediately apparent. Before the January 5, 2016 arrest, officers identified the defendant as the individual holding an illuminated cell phone as he exited the building in pursuit of the victim and his companions moments before the shooting began. Indeed, some officers in the department knew that the defendant's cell phones specifically would be evidence in the King-Settles homicide. The arresting officers also knew who the defendant was before stopping him on the day of the seizure. Upon seeing the phones, then, the police had probable cause to believe that one of them contained evidence of the homicide. Commonwealth v. Perez, 80 Mass. App. Ct. 271, 274 (2011), citing Commonwealth v. Gullick, 386 Mass. 278, 283 (1982) ("The knowledge of one officer is part of 'the collective information' of other officers engaged in the same cooperative effort"). See Commonwealth v. Perkins, 478 Mass. 97, 106 (2017) (allowing seizure of nine cell phones in apartment), citing Commonwealth v. Molina, 476 Mass. 388, 396 (2017) (officers had probable cause to seize all computers at defendant's apartment where all computers in defendant's house shared single IP address). Finally, the police had lawful access to the phones, having already taken them into possession. The seizure thus was lawful and the defendant's motion to suppress was properly denied.
The Boston Municipal Court judge found that officers lacked probable cause to arrest the defendant for the King-Settles homicide or even reasonable suspicion that the defendant had committed a crime when the officers initially seized him. However, the judge noted that "[n]one of the homicide detectives involved in the shooting investigation testified. There was, therefore, no evidence before the court of what was known by the police regarding the homicide at the time of the encounter with the defendant." Before deciding on the defendant's motion to suppress the cell phones in this case, however, the Superior Court judge did hear testimony from Detective Teixeira about the King-Settles homicide investigation from December 18, 2015, to January 5, 2016. He then found the facts about the King-Settles homicide investigation that lead us to conclude that there was probable cause to seize the defendant's cell phones during his arrest.
2. Sufficiency of the evidence. The defendant contends that there was insufficient evidence to convict him of murder in the second degree and that his motions for a required finding of not guilty ought to have been allowed. Since he was convicted on a joint venture theory, we must determine whether the Commonwealth's evidence at trial proved, beyond a reasonable doubt, that the defendant knowingly participated in shooting King-Settles with Auch, with the intent required for murder in the second degree. See Commonwealth v. Britt, 465 Mass. 87, 100-101 (2013), citing Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009). We apply the familiar Latimore standard, viewing the evidence in the light most favorable to the Commonwealth. Latimore, 378 Mass. at 677.
"Murder in the second degree is the unlawful killing of a human being with malice aforethought." Commonwealth v. McGuirk, 376 Mass. 338, 344 (1978). See Commonwealth v. Earle, 458 Mass. 341, 346 (2010). The defendant argues that the Commonwealth's evidence proved that he was merely at the scene; that he and Auch did not share a motive; and that he "passively accompanied Auch," even after the fatal shots were fired.
We disagree: there was sufficient evidence for the jury to have convicted the defendant as a joint venturer with Auch. Even evidence that the defendant stood by, prepared to aid in his coventurer's actions, then fled with the coventurer after the shooting, and worked with him to avoid apprehension supports the inference that the defendant knowingly participated in the crime, sharing his coventurer's intent. See Commonwealth v. Akara, 465 Mass. 245, 255 (2013).
The jury could have found beyond a reasonable doubt that the defendant knowingly provided help and aid to Auch. Among other things, the jury could have found that the defendant was actively scouting out the layout of 58 Annunciation Road and familiarizing himself with its entries and exits. Soon after, he returned to that building with Auch and the two of them lay in wait, hidden in a stairwell, for King-Settles, Garcia, and McIver-Bennett to arrive. Once they left 58 Annunciation Road, the defendant and Auch emerged from their hiding place and quickly pursued them out that same door. The jury could have found that Auch then shot King-Settles, killing him, and then the defendant fled the scene with Auch.
This is enough. Evidence that the defendant and his coventurer fled together can also support a finding that each of them knowingly participated in the shooting incident and had or shared an intent to shoot King-Settles. See Commonwealth v. Gomes, 475 Mass. 775, 782 (2016), citing Commonwealth v. Williams, 422 Mass. 111, 121 (1996) ("Joint venture may be proved by circumstantial evidence, including evidence of flight together").
Here, not only did the defendant arrive and flee with the shooter, he can be seen actually assisting in what the jury could conclude was scoping out the hiding place for an ambush. See Commonwealth v. Souza, 428 Mass. 478, 489 (1998). The jury could easily have concluded the defendant was no mere bystander at the scene, but a knowledgeable participant in this joint venture to ambush and shoot King-Settles.
The defendant also contends that the evidence could not support a finding beyond a reasonable doubt that he shared Auch's intent to shoot King-Settles because the evidence supports an equally plausible conclusion that he lacked any intent to do so. We do not agree.
The defendant argues that it was plausible that the defendant went to 58 Annunciation Road prepared to meet King-Settles, Garcia, and McIver-Bennet for a sale of contraband, not to shoot them. The defendant points to the lack of evidence of the reason that Auch and Ortiz went to 58 Annunciation Road and of where they went while they were off camera as support for the conclusion that "something was up but a less nefarious purpose may have turned into a shooting only at the last minute and only in the shooter's mind."
Reviewing for sufficiency of the evidence to support a conviction, however, we resolve all reasonable inferences in favor of the Commonwealth. Latimore, 378 Mass. at 677. Here, the evidence was sufficient to allow the jury to conclude that the defendant surveilled 58 Annunciation Road with Auch because he shared Auch's intent to shoot King-Settles. The surveillance video did not show any attempted meeting or sale of contraband between Auch and the defendant and King-Settles and his group; it in fact shows that Auch and the defendant seemed to keep themselves out of sight of this group and then followed them onto the street where shots were fired seconds later. Further, on the surveillance video, it is apparent that Auch is carrying a bulky item that the jury could reasonably infer was a handgun. The jury could conclude the defendant knew that Auch had a gun the entire time, based on their entire course of conduct. The defendant stood closely by Auch, scouted out the layout of 58 Annunciation Road with him, and left the building following his lead. Indeed, the jury could have found that defendant's hesitation before leaving the building, as shown on the videotape, supports an inference he knew what was going to happen next.
The defendant purports by a "notice" to adopt the argument that Auch raised in his own appeal (A.C. No. 18-P-1216) that the court's admission of this grand jury testimony, over his objection, constitutionally undermined his subsequent cross-examination of Garcia, thus, violating his rights under the confrontation clause of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We reject that argument for the reasons contained in our unpublished memorandum and order affirming Auch's conviction. See Commonwealth v. Auch, 96 Mass. App. Ct. 1106 (2019) (memorandum and order pursuant to Rule 1:28).
Conclusion. For these reasons, there was no error in the denial of the defendant's motion to suppress, and we affirm the judgments.
So ordered.
By the Court (Rubin, Massing & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 6, 2020.