The defendant was convicted of murder in the first degree on a theory of felony-murder, the predicate felony being attempted armed robbery. He also was convicted of carrying a firearm without a license. On appeal the defendant contends that the judge erred (1) by denying his motion to suppress evidence seized pursuant to a warrant that was based on observations made during an earlier warrantless entry of a college dormitory room where he had been staying; (2) by admitting evidence of his prior bad acts; (3) by denying his motion for a mistrial based on the Commonwealth’s response to his Bowden defense; and (4) by failing to instruct the jury that they could not convict him of felony-murder in the first degree based on the firearms conviction. We affirm the convictions and decline the request to grant relief under G. L. c. 278, § 33E.
1. Background. The jury could have found the following facts. We reserve other details for discussion of the issues.
During the fall of 2008 and spring of 2009, the defendant, who was from New York City, was a frequent overnight guest in the Lowell House dormitory room of his girl friend, Brittany Smith, a senior at Harvard University (Harvard). In May, 2009, he met the victim, a twenty-one year old Cambridge resident who regularly sold marijuana to Harvard students. On or about May 17 he devised a plan to rob the victim. He told the victim that he was a Harvard student and that he lived at Kirkland House. He said he wanted to buy three pounds of mаrijuana. The defendant arranged to have two friends from New York City, Blayn Jiggetts and Jason Aquino, bring a gun and help him with the robbery. Jiggetts and Aquino traveled by bus to South Station in Boston where the defendant met them on the afternoon of May 18. They brought a nine millimeter, semiautomatic pistol and ammunition.
The defendant fired three shots at the victim; one bullet struck him, but he cоntinued to run. The defendant, Jiggetts, and Aquino pursued the victim as far as the entrance to the building, and then went to Lowell House to meet Smith, who was waiting with a bag packed for travel. The defendant briefly explained what happened. He gave Smith the gun and told her to hide it. She wrapped the gun in some clothing and hid it in the nearby dormitory room of a close friend. After the defendant said that they had to leave immediately, Smith, the defendant, Jiggetts, and Aquino tоok a taxicab ride to South Station, where they boarded a bus to New York City.
In the meantime, the victim collapsed on Dunster Street in Cambridge. He called to a pedestrian for help, saying he had been shot. He was taken by ambulance to a local hospital where he died from the gunshot wound. Police later found a bag of marijuana wrapped in a bloody shirt; the victim had dropped it in the course of his flight.
2. Motion to suppress. The defendant filed a mоtion to suppress a black and orange “letterman” or “varsity” style jacket seized from Smith’s dormitory room. Police and Harvard personnel had entered Smith’s room without a warrant to check on her well-being. They saw the jacket and returned later with a warrant for the jacket and seized it. The defendant asserted a reasonable expectation of privacy in the dormitory room, and argued that police did not satisfy the rеquirements of the emergency exception to the warrant requirement of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights when they first entered Smith’s room.
A judge of the Superior Court, not the trial judge, held an
A State police officer tried to contact Smith. He called her cellular telephone on May 18 and 19, but he received no answer and she did not return his call. He also knocked on her dormitory room door but received no response. Her dormitory room window was open and a light was on in her room. Students living in her dormitory had not seen her since the time of the shooting. The officer spoke with the dean of Lowell House, who expressed concern that the officer had been unable to make contact with Smith. The dean called Smith’s cellular telephone himself and left a message. Although the dean told the officer that Smith always returned his telephone calls promptly, she did not return his call.
In consideration of these circumstances, a Harvard police sergeant, consistent with university police practice, entered Smith’s dormitory room on May 19 to check on her well-being. Officers of the State and Cambridge police departments accompanied him. Smith was not present. They saw a black and orange jacket similar to the description given by witnesses. They left the room about forty-five seconds after entering and posted an officer outside Smith’s roоm while they applied for and obtained a search warrant for the jacket.
The defendant and the Commonwealth stipulated to certain facts, summarized as follows. The defendant stayed in Smith’s dormitory room sometimes for weeks at a time. There is no evidence he ever received permission from Harvard to stay there. He left Massachusetts on May 18, went to New York City,
The parties also stipulated to Harvard’s written policies governing enrollment and residency, which are summarized in relevant part as follows. “A person not regularly assigned to a particular dormitory or House may not be lodged [therein] for more than a brief stay without the permission of the Proctor, Resident Dean, or House Master[, and t]he consent of оther occupants of the room . . . .” Students must keep dormitory doors locked at all times, and never prop open doors or allow visitors to “piggy back” with them when entering their residence hall. “The University must have access to all student suites and the rooms within them.” “Unauthorized or inappropriate possession of any key or passkey ... is prohibited.”
The defendant argues that he had a reasonable expectation of рrivacy in Smith’s dormitory room because he was a long-term invited overnight guest of Smith, and that his “subjective expectation of privacy [is one that] society is willing to recognize . . . as reasonable.” Commonwealth v. Williams,
The defendant’s assertion that society would be willing to recognize his expectation of privacy in Smith’s room as reason
The judge also did not err in determining that even if the defendant had a reasonable expectation of privacy in Smith’s dormitory room, he abandoned the premises when he left for New York City on May 18. Abandonment is a question of intent. See Commonwealth v. Paszko,
The judge further determined that even if the defendant had a reasonable expectation of privacy in Smith’s room, the warrant-less entry by police was justified under the emergency aid exception to the warrant requirement. The emergency aid doctrine “permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.” Commonwealth v. Peters,
The police knew that calls were exchanged between the victim’s cellular telephone and Smith’s cellular teleрhone shortly before the victim died. They also knew that Smith’s identification card had been used to open three locked doors at Kirkland House at about the time of the shooting, and that it was used shortly thereafter at Lowell House, where Smith resided. No one had seen Smith for nearly twenty-four hours since the time of the shooting. She did not respond to telephone calls or knocks on her door by police. The light was on in her room, and the window was open. She did not respond to the voice message from the dean of Lowell House, whose calls she customarily returned promptly. The dean was concerned about her well-being. The police had reason to believe there was some connection between Smith and the homicide, and they could not rule out that Smith also may have been a victim.
Although there was no way of knowing precisely whether Smith was in her dormitory room or whether she had been injured and was in need of aid, there was a reasonable basis to believe she was in her room, and “there was a reasonable basis to believe that something unfortunate might have happened that rendered [her] unable to communicate” with persons, including police, who were attempting to ascertain if she was injured or in danger. Commonwealth v. Entwistle,
3. Prior bad act evidence. The defendant argues that the judge erred by admitting evidence that, six months before the shooting in this case, the defendant negotiated the purchase of a large quantity of marijuana from a drug dealer who sold drugs to students at Yale University. With help from Jiggetts, the defendant robbed the dealer at gunpoint in the hallway of an apartment building in New York City pursuant to a plan similar to the plan they devised to rob the victim in this case. The defendant contends that the prejudicial impact of this evidence
“It is well settled that the prosecution may not introduce evidence that a defendant previously has misbehaved, indictably or not, for the purpose of showing his bad character or propensity to commit the crime charged, but such evidence may be admissible if relevant for some other purpose. . . . Such evidence can be highly prejudicial to the defendant, and therefore must be excluded unlеss it comes within one of the permitted uses, such as to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive. . . . [The evidence] must be relevant to the offense charged; where the relevance is not substantial but borderline, the evidence must be excluded unless its probative value on the issue in contention outweighs the undue prejudice that may flow from it.” (Citations omitted.) Commonwealth v. Helfant,
The defendant relies primarily on two cases for his argument that the judge must consider whether the prior act evidence was necessary for the Commonwealth to prove its case. The first is Commonwealth v. Jackson,
The second case on which the defendant relies in support of his argument as to necessity is Old Chief v. United States,
Significant to our analysis is the Court’s statemеnt limiting its holding. The Court said, “[wjhile our discussion has been general because of the general wording of Rule 403, our holding is limited to cases involving proof of felon status. On appellate review of a Rule 403 decision, a defendant must establish abuse of discretion, a standard that is not satisfied by a mere showing of some alternate means of proof that the prosecution in its broad discretion chose not to rely upon.” Id. at 183 n.7. The Court limited its “necеssity” requirement to cases where proof of a prior bad act, specifically a prior felony conviction, is an element of the prosecution’s case. Id. Our jurisprudence has no requirement that the Commonwealth show “need” for evidence of prior bad act evidence. The only requirements are relevance and a showing that the probative value of the evidence outweighs its prejudicial impaсt. See Commonwealth v. Helfant,
We are satisfied that the prior bad act evidence was highly probative of the defendant’s intent, his modus operandi, and the absence of mistake, and that the judge carefully and properly exercised his discretion through the use of limiting instructions and limitations on the Commonwealth’s proof to ensure that such evidence was used by the jury only for permissible purposes, and to ensure that the evidence did not create unfаir prejudice. There was no abuse of discretion.
4. Motion for mistrial. Trial counsel had cross-examined Detective John Crowley of the Cambridge police department about the thoroughness of the investigation, thus laying the basis for a Bowden defense. See Commonwealth v. Bowden,
We review a decision denying a motion for a mistrial under the abuse of discretion standard. Commonwealth v. Lao,
5. Jury instruction. The defendant contends that because thе judge never instructed the jury that they could not return a guilty verdict of felony-murder based on unlawful possession of a firearm, where the jury returned guilty verdicts of felony-murder and unlawful possession of a firearm, and where the jury acquitted the defendant of armed robbery, these circumstances imply that the defendant was impermissibly convicted of felony-murder based on a predicate nonlife felony of unlawful possession of a firearm. We disagree.
The judge instructed the jury that in order to return a guilty verdict of felony-murder, the jury had to be convinced beyond a reasonable doubt that the defendant killed the victim during the commission or attempted commission of an armed robbery. A reasonable jury would understand that their options to find the defendant guilty of felony-murder were limited to a killing committed during the commission of an armed robbery or an attempted armed robbery, and no other felony. Viewing the charge as a whole, no reasonable juror would think he or she could find the defendant guilty of felony-murder committed in the course of the crime of unlawful possession of a firearm. There was no error.
6. Review under G. L. c. 278, § 33E. We have reviewed the
Judgments affirmed.
Notes
he defense in this case was that the defendant had planned a simple drug purchase, but a dispute arose in the course of the transaction and Jiggetts, not the defendant, shot the victim.