Commonwealth v. Chamberlin (Lawyers Weekly No. 11-157-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   12-P-1292                                       Appeals Court   COMMONWEALTH  vs.  PETER CHAMBERLIN. No. 12-P-1292. Bristol.     September 9, 2014. – December 5, 2014.   Present:  Kantrowitz, Grainger, & Hanlon, JJ.   Cellular Telephone.  Subpoena.  Practice, Criminal, Motion to suppress, Subpoena, Warrant.  Grand Jury.  Search and Seizure, Warrant, Plain view.  Due Process of Law.  Evidence, Voice identification.  Identification.       Indictments found and returned in the Superior Court Department on November 21, 2007.   Pretrial motions to suppress evidence were heard by D. Lloyd Macdonald, J., and the cases were tried before Robert J. Kane, J.     Merritt Schnipper for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth.     GRAINGER, J.  A jury of the Superior Court found the defendant guilty of armed robbery while masked, G. L. 265, § 17, kidnapping for purposes of extortion, G. L. c. 265, § 26, and armed assault with intent to murder, G. L. c. 265, § 18(b).  The convictions were based on the armed invasion of a real estate agency following telephone conversations between the defendant and the agency’s owner during which the defendant made an evening appointment for the ostensible purpose of discussing one or more properties of interest to him.  The defendant appeals, asserting numerous procedural and evidentiary errors that we consider in turn, referring to the undisputed factual background as necessary to inform our discussion. 1.  Production of telephone records.  The victim told the police that although the defendant was masked, his voice was recognizable as belonging to an individual who identified himself as “Marco” during several telephone calls that culminated in an evening appointment at the victim’s office for the time of the robbery.  The victim reported that the defendant spoke repeatedly during the robbery, making threats to the victim and referring to the victim’s wife.  In the course of investigating the robbery, Fall River police Detective Lawrence Ferreira examined the victim’s phone, retrieving a voicemail message from “Marco.”  After obtaining call records from the victim’s cellular telephone carrier, Detective Ferreira linked the defendant to the only number on the call list that the victim did not recognize.  Ferreira then contacted the carrier, T-Mobile, and requested call records associated with that number.  Ferreira informed the T-Mobile law enforcement relations officer, Ronald Witt, that the defendant’s phone was being used to contact the victim’s family and that the “suspect has threatened the victim’s family with bodily harm.”[1] […]

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