Opinion
15-P-851
04-29-2016
COMMONWEALTH v. KENNETH WILSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On appeal from his conviction of unarmed robbery, the defendant claims error in the admission of testimony concerning the use of the "Find My iPhone" application (app) on a "smart" cellular telephone (smartphone) in the investigation of the robbery, and in various aspects of the prosecutor's closing argument. We discern no error of law or abuse of discretion in the admission of the challenged testimony, and no error in the prosecutor's closing, and therefore affirm.
1. Find My iPhone testimony. Over the defendant's objection, Boston police Sergeant Michael Harrington testified that he had used the Find My iPhone app successfully on previous occasions to locate and recover Apple iPhones, and that, using the app on this occasion, it indicated that the victim's stolen smartphone was located in a residence on the corner of Fox Street and Mount Ida Road in the Dorchester section of Boston. Police then traveled to that location, where they discovered a three-family residence, with a vehicle parked nearby matching the description of one used in the robbery (a white Nissan Altima). After they determined that the first-floor apartment was unoccupied and the occupant of the second-floor apartment professed no knowledge of the robbery, they proceeded to the third floor. When they knocked on the door to the third-floor apartment, they heard a lot of noise, doors closing, and things being moved around. Eventually, a woman (Anika Staples-Martin) came to the door, denied that anyone else was inside the apartment, and refused to allow the officers to enter. About twenty-five minutes after the robbery, the police observed two men (one of whom was the defendant) leave the apartment building and enter the white Nissan Altima. A search of the Altima yielded the victim's bank card. Police secured the third-floor apartment while they sought a search warrant; Staples-Martin was visibly upset when they asked her to leave, and asked to pack some clothing for her baby before she left. As she was leaving, police searched the packed bag she was carrying and found a broken iPhone in a container of baby wipes.
Prior to trial, the defendant moved in limine to exclude testimony regarding use of the Find My iPhone app in the investigation. The trial judge denied the motion, based on her assessment that the app, and its use, were sufficiently within jurors' common knowledge to allow the testimony without requiring expert explanation. We discern no error or abuse of discretion.
Our cases have recognized the ubiquity of smartphones, and their related apps, in modern life. See, e.g., Riley v. California, 134 S. Ct. 2473, 2484 (2014); Commonwealth v. Augustine, 467 Mass. 230, 245 (2014). Moreover, Sergeant Harrington's testimony regarding his own prior experience using the Find My iPhone app offered a foundation to explain to the jury how it was used. The defendant's suggestion on appeal that a Daubert - Lanigan hearing was required to validate the scientific efficacy of the app is misplaced; the testimony was not offered to identify the broken iPhone recovered from Staples-Martin as the one stolen from the victim, or even to pinpoint its precise location, so much as to describe the investigative steps that led police to the apartment building at which they encountered the defendant and eventually recovered the iPhone. See Commonwealth v. Perez, 27 Mass. App. Ct. 550, 554-555 (1989). In any event, the defendant's protest on appeal that he was deprived of an opportunity to challenge the reliability of the app in locating the stolen iPhone rings hollow, inasmuch as he made no attempt by cross-examination or otherwise to develop any such challenge at trial.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
We are aware that the testimony furnished circumstantial evidence that likely contributed to some extent to the jury's conclusion that the recovered smartphone was the one stolen from the victim. However, in that regard it was only a part of other quite substantial direct and circumstantial evidence to the same effect, including the victim's identification of the defendant, the defendant's use of the vehicle seen at the scene of the crime, and recovery of the victim's bank card in that vehicle.
2. Closing argument. There is likewise no merit in the defendant's claims regarding the prosecutor's closing argument. The portions that form the basis of the defendant's claims all find basis in the evidence, and the inferences fairly drawn therefrom, for the reasons explained in the Commonwealth's brief at pages fourteen through seventeen. There was no error and, therefore, no substantial risk of a miscarriage of justice. See Commonwealth v. Purrier, 54 Mass. App. Ct. 397, 403 (2002).
Judgment affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 29, 2016.