Commonwealth v. Balboni (and three companion cases) (Lawyers Weekly No. 11-078-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-697 Appeals Court 14-P-698 COMMONWEALTH vs. SCOTT BALBONI (and three companion cases[1]). Nos. 14-P-697 & 14-P-698. Middlesex. December 4, 2015. – July 1, 2016. Present: Cypher, Wolohojian, & Carhart, JJ. Burning of Property. Destruction of Property. Practice, Criminal, Motion to suppress, Affidavit. Search and Seizure, Probable cause, Affidavit. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Cellular Telephone. Witness, Cross-examination. Indictments found and returned in the Superior Court Department on July 14, 2009. Pretrial motions to suppress evidence were heard by Christine M. Roach, J., and the cases were tried before Elizabeth M. Fahey, J. Mark G. Miliotis for Samuel Doxsey. Patrick J. Noonan for Scott Balboni. Eric A. Haskell, Assistant District Attorney, for the Commonwealth. CYPHER, J. In these appeals from convictions of malicious burning of property, G. L. c. 266, § 5, and malicious destruction of property over $ 250, G. L. c. 266, § 127, the defendants, Samuel Doxsey and Scott Balboni, argue that (1) their motions to suppress documentary evidence obtained from third parties should have been allowed; (2) their motions to strike certain witness testimony were erroneously denied; and (3) the evidence of wilful and malicious burning was insufficient.[2] We affirm. 1. Background. We recite the evidence in the light most favorable to the Commonwealth. Additional details will be set forth in later sections as necessary. On the evening of April 4, 2009, Daniel Feehan threw a party at his apartment; Doxsey’s younger sister was in attendance. At the party, Feehan sexually assaulted Doxsey’s sister. As she attempted to leave the party, Feehan pulled down her shirt, exposing her chest to the other partygoers. After Doxsey’s sister left Feehan’s apartment, she telephoned Doxsey and told him that she had been assaulted at a party. Doxsey was a student at the University of New Hampshire, living at a fraternity house in Durham, New Hampshire. At around 4:00 A.M., after the party, the Lexington fire department responded to an alarm at an apartment complex where they found a pickup truck engulfed in flames.[3] Fire Captain John Wilson observed fire coming from the rear passenger compartment of the vehicle and flames rising from the exterior doors. On the side of the truck, Captain Wilson discerned “pour patterns” — uneven liquid patterns running down the vehicle’s surface — […]