Commonwealth v. Fulgiam
73 N.E.3d 798
Mass.2017Background
- On July 25–26, 2011, Kevin Thomas, Jr., and Billie Kee were robbed and murdered in Thomas’s apartment; scene suggested a drug-related robbery and no forced entry. Two suspects, Earl T. Fulgiam and Michael T. Corbin, were tried and convicted as joint venturers of first‑degree murder and related firearm offenses. Both received life without parole plus additional terms.
- Investigators recovered a nine millimeter semiautomatic, a .38 revolver, a curling iron (with a cut cord used to bind a victim), a watch and ring belonging to Thomas, drugs and scales, and photographs of the defendants with cash.
- Latent prints: a latent print on the pistol magazine matched Fulgiam; a latent print on the curling iron matched Corbin. Photographs and other circumstantial evidence connected the defendants to Thomas and to each other.
- The Commonwealth obtained subscriber/call‑detail records and historical cell‑site location information (CSLI) for the defendants under 18 U.S.C. § 2703(d); it also obtained the content of Corbin’s text messages without a warrant. Neither defendant suppressed these records at trial.
- On appeal defendants challenged (1) admission of CSLI and other cellular records (statutory/constitutional), (2) admission/authentication of ten‑print fingerprint cards and related testimony, and (3) expert fingerprint testimony; Corbin separately argued prejudicial gang references. The court affirmed convictions and denied relief under G. L. c. 278, § 33E.
Issues
| Issue | Commonwealth's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of § 2703(d) orders / admission of CSLI (Fulgiam) | §2703(d) showing of relevance and materiality satisfied by calls/texts linking suspects and investigatory facts; admissible because defendant did not raise warrant issue at trial | Access required a warrant under Augustine I; CSLI admission violated art. 14/4th Amendment | Admission did not create substantial likelihood of miscarriage of justice; §2703(d) standard met and no timely objection—affirmed |
| Validity of § 2703(d) orders, CSLI, and text‑message content (Corbin) | Subscriber/call details and CSLI were relevant/material under §2703(d); text content was obtained lawfully | Application lacked probable cause for text content; counsel ineffective for not moving to suppress; access violated §2703(a) and art. 14 | Subscriber/call detail and CSLI lawful under §2703(d); but text content required a warrant — motion to suppress likely would have succeeded. Nonetheless, admission of texts did not create substantial likelihood of miscarriage of justice given other strong evidence |
| Ownership/authentication/admissibility of ten‑print cards (hearsay/confrontation) | Ten‑print cards are business records of the State police and admissible; identifying information reliable given officer duty and statutory penalty for false info; non‑testimonial | Ten‑print cards rely on out‑of‑court statements by arrestees and preparers without verification; confrontation violation | Ten‑print cards admissible under business‑records exception; identifying info reliable; cards non‑testimonial so confrontation clause not violated (concurrence notes party‑opponent exclusion also supports admission) |
| Fingerprint expert testimony (ACE‑V, individualization, verification) | Expert properly explained ACE‑V and individualization; review by another analyst was described (not vouching) | Analyst overstated individualization as absolute certainty; testimony about review/verifcation constituted improper vouching/hearsay | Court agreed testimony sometimes presented as absolute but found no substantial likelihood of miscarriage of justice due to cross‑examination and strong independent evidence; testimony about review was limited and not improper hearsay, but courts should guard against invoking verification as nontestifying concurrence |
| Repeated references to gang affiliation (Corbin) | Prosecutor’s inferences about a team fleeing after shots were within permissible argument | Repeated gang references prejudiced jury despite in limine ruling | No reversible error; references did not show improper gang‑linking and prosecutor’s team inference was permissible |
Key Cases Cited
- Commonwealth v. Augustine, 467 Mass. 230 (discussing CSLI, warrant requirement under art. 14)
- Commonwealth v. Broom, 474 Mass. 486 (standard for unobjected‑to CSLI obtained without warrant; substantial‑likelihood‑of‑miscarriage test)
- Commonwealth v. Gambora, 457 Mass. 715 (treatment of ACE‑V, caution about overstatement of fingerprint individualization)
- Commonwealth v. Patterson, 445 Mass. 626 (historical treatment of fingerprint evidence admissibility)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (testimonial evidence and confrontation analysis for lab reports/business records)
- Crawford v. Washington, 541 U.S. 36 (confrontation clause framework)
- Riley v. California, 134 S. Ct. 2473 (privacy interests in cell phones; warrant requirement for searches of modern cell phones)
- Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir.) (service‑based test whether provider is an electronic communication service vs remote computing service)
- United States v. Warshak, 631 F.3d 266 (6th Cir.) (strong privacy protection for stored electronic communications)
- Commonwealth v. Williams, 453 Mass. 203 (standing to challenge searches of cellular account records)