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SJC-12167

COMMONWEALTH vs. PETER BIN.

Middlesex. May 11, 2018. - October 9, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

Homicide. Joint Enterprise. Felony-Murder Rule. Robbery.

Armed Home Invasion. Cellular Telephone. Evidence, Joint 

venturer, Business record. Practice, Criminal, Question by 

jury, Instructions to jury, Verdict.

Indictments found and returned in the Superior Court 

Department on December 6, 2012.

The cases were tried before Kathe M. Tuttman, J.

Theodore F. Riordan (Deborah Bates Riordan also present) 

for the defendant.

Jamie M. Charles, Assistant District Attorney (David M. 

Solet also present) for the Commonwealth.

GAZIANO, J. A Superior Court jury convicted the defendant 

of murder in the first degree, as a joint venturer, in the 

shooting death of Quintin Koehler on July 7, 2012, at his 

grandmother's house in Billerica. The Commonwealth proceeded on

a theory of felony-murder, with armed home invasion and 
2

attempted armed robbery as the predicate felonies. At trial, 

the Commonwealth argued that the defendant was one of four 

intruders who entered the victim's home intending to rob him of 

drugs and money, a struggle ensued, one of the other men fatally

shot the victim, and all four intruders fled from the scene 

together with two others, who had remained in their vehicles.1

In this direct appeal, the defendant challenges the 

sufficiency of the evidence that he was present at the scene, 

knew that any of the alleged accomplices were armed, or shared 

any intent to commit either the armed home invasion or the 

robbery. The defendant argues also that cell site location 

information (CSLI) evidence was introduced through an 

unqualified witness and should have been excluded. In addition, 

the defendant maintains that the judge erred when, in response 

to a jury question, she did not instruct the jury, as defense 

counsel requested, that they were allowed to reach factually 

inconsistent verdicts. Finally, the defendant asks this court 

to abolish the felony-murder rule, and also asks us to use our 

 

1 The defendant was tried with a single codefendant, Gabriel 

Arias, the only one of the six alleged participants at the scene 

who had not then been indicted on a charge of murder in the 

first degree. Arias was convicted of the sole offense of which 

he was indicted, intentionally misleading a police officer, in 

violation of G. L. c. 268, § 13B. In 2017, while he was serving 

a prison term of from five to seven years on that offense, Arias 

was indicted on charges of murder in the first degree, armed 

home invasion, and conspiracy for his alleged role in this case; 

his trial on those indictments is pending.
3

extraordinary power under G. L. c. 278, § 33E, to reduce the 

verdict of murder or to order a new trial. For the reasons that 

follow, we affirm the convictions and decline to exercise our 

authority to grant relief under G. L. c. 278, § 33E.2

1. Facts. We recite the facts that the jury could have 

found, viewed in the light most favorable to the Commonwealth,

see Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979),

reserving some facts for later discussion of particular issues.

The victim, Quintin Koehler, lived in Billerica in his 

grandmother's house. He worked in landscaping, and also sold 

marijuana and other drugs from the house. He had a roommate who 

was his partner in both enterprises.

 

2 In addition to murder in the first degree, the defendant 

was indicted on a charge of armed home invasion against Ryan 

Koehler and a charge of attempted armed robbery of Quintin 

Koehler. In her final charge, the judge instructed the jury 

that the charge of attempted armed robbery applied to Quintin 

Koehler, and instructed on armed home invasion without 

specifying a victim. The defendant was convicted of both 

felonies. He was acquitted of charges of carrying a firearm 

without a license and possession of ammunition without a firearm 

identification card. At sentencing, the convictions of armed 

home invasion and attempted armed robbery were vacated as 

duplicative. See Commonwealth v. Carter, 475 Mass. 512, 513-514 

(2016), citing Commonwealth v. Alcequiecz, 465 Mass. 557, 558 

(2013). Shortly thereafter, on the Commonwealth's motion, both 

felony convictions were reinstated. While reinstatement of the 

conviction of armed home invasion, as to Ryan Koehler, was 

appropriate, the conviction of attempted armed robbery of 

Quintin Koehler properly should have been vacated as 

duplicative. See Commonwealth v. Rivera, 464 Mass. 56, 81-82, 

cert. denied, 570 U.S. 907 (2013), citing Commonwealth v. 

Rasmusen, 444 Mass. 657, 666-667 (2005) (where felony-murder 

conviction is based on more than one felony, only one of 

underlying felonies is duplicative).
4

In March, 2012, the victim and his roommate began 

purchasing marijuana from Ashley Marshall, at a music studio in 

Lynn.3 They purchased marijuana in one- to four-pound increments

and subsequently resold it in smaller quantities. The roommate 

would coordinate purchases with Marshall through text messages, 

using coded language to establish the quantity and price of a 

purchase. At one meeting at the music studio, the victim and 

his roommate saw a tall man with a shaved head who had a number 

of tattoos, including one on the back of his head that read,

"LYNN, MASS."4

In June, 2012, one of Marshall's friends, Adam Bradley, 

told her that he needed someone to rob, and inquired about the 

possibility of robbing the victim and his roommate. At first, 

Marshall declined to help Bradley because the victim and his 

roommate were friends of her cousin. On July 6, 2012, Bradley 

came to the music studio and reiterated that he wanted to rob 

the victim and his roommate. After initially refusing, Marshall 

agreed to help. Around 5 P.M., Marshall sent the victim's 

roommate several text messages asking if he wanted to purchase 

marijuana. She was attempting to ascertain whether the roommate 

 

3 Ashley Marshall testified at trial under a grant of 

immunity.

4 The Commonwealth introduced a booking photograph of Adam 

Bradley that showed a tattoo on the back of his head which 

reads, "LYNN, MASS." Marshall also testified that Bradley had 

such a tattoo.
5

had cash in the house.5 The roommate, who had had reservations 

about dealing with Marshall and had not made any recent 

purchases from her, did not respond.

Marshall used an Internet Web site to direct Bradley to the 

victim's house. She also drew a layout of the inside of the 

house on a piece of notebook paper. Before leaving, Bradley 

asked Marshall if he needed to bring weapons; Marshall said that 

he did not, because the victim and his roommate were "little 

kids" who would not offer any resistance. Bradley returned to 

the studio later that evening and made a number of telephone 

calls. Shortly thereafter, approximately twenty Asian men 

arrived at the studio. Before they left, Bradley showed them 

the Web site with directions to the victim's house. After 

telephoning Marshall repeatedly throughout the night of July 6 

to July 7, 2012, Bradley arrived at the music studio on the 

morning of July 7, 2012; Marshall testified that he appeared to 

be "frantic."

The Commonwealth's theory at trial was that Bradley was 

assisted in the attempted armed robbery by the defendant, Steven 

Touch, Jason Estabrook, Gabriel Arias, and Sophan Keo.6 The 

 

5 A search of the victim's house after his death revealed a 

large quantity of cash and marijuana.

6 Evidence at trial suggested that the defendant, Bradley, 

Touch, Arias, and Keo were associated with the Bloods gang in 

Lynn. The judge instructed the jury that they were not to 
6

victim's brother, Ryan Koehler,7 who had been present at the 

scene and had attempted to force the armed intruders out of the 

house in the minutes before his brother was shot, described some 

of the assailants in detail, but was able to give only a vague

description of others. Forensic evidence at the scene, medical 

records, and statements by Marshall tied some of the men to the 

scene. As evidence of the joint enterprise involving all of the 

men, the Commonwealth relied heavily on surveillance video

footage of two white automobiles that seemed to be acting in 

concert for approximately one hour before, and immediately 

after, the shooting, and extensive evidence of cellular 

telephone calls among the men, as well as CSLI showing a pattern

of movement of all of their cellular telephones toward and away 

from the victim's Billerica home at the time of the shooting.

Keo owned a white Honda Civic with distinctive blue aftermarket headlights. Touch regularly used his girl friend's white 

Toyota Corolla with her permission. 

 

consider the evidence "to infer anything about [the] defendant's 

character or general propensity to commit a crime. The only 

purpose for which any evidence concerning alleged gang 

affiliation may be considered by . . . the jury is on the 

limited issue of what the Commonwealth claims may have been a 

particular defendant's state of mind at a particular time either 

to form a motive for the offenses charged in this case, or to 

participate in a joint venture or criminal enterprise."

7 Because they share a last name, we refer to the victim's 

brother, Ryan Koehler, by his first name.
7

At 2:51 A.M. on July 7, 2012, an officer of the Billerica 

police department, who was on routine patrol, entered the 

license plate of Keo's vehicle in the police computer system. 

Surveillance footage taken by a camera at a Billerica 

convenience store on Route 3A, near the victim's home, shows 

that at 3:19 A.M. and 3:33 A.M., a Honda Civic drove past the 

store. At 3:25 A.M. and 3:33 A.M., a Toyota Corolla drove past 

the store. At 3:38 A.M., both vehicles entered a parking lot 

across the street from the convenience store, in view of the 

surveillance camera, and each vehicle extinguished its lights. 

At 3:40 A.M., both vehicles' lights were turned on, and they

left the parking lot eleven seconds apart.

During this time, there were repeated calls among cellular 

telephones registered to, or used by, the defendant and the 

other five men; although none of the alleged accomplices lived 

in Billerica, the calls connected to towers in the Billerica 

area, heading toward the victim's house. Evidence of the cell 

towers that were accessed, the times and duration of the calls, 

and the locations of the cell towers on a map relative to the 

victim's house was introduced by a State police trooper who was 

a member of its technical surveillance unit, as well as a member 

of the Federal Bureau of Investigation's cellular analysis 

survey team.
8

According to the CSLI records, a telephone registered to 

the defendant traveled from Revere to Billerica during the

period immediately prior to the shooting. On July 7, 2012, the 

defendant's cellular telephone activated a cellular tower in

Revere at 1:41 A.M., a cellular tower in Burlington at 2:43 A.M. 

and 2:45 A.M., and a cellular tower in Billerica at 2:46 A.M., 

2:47 A.M., 3:34 A.M., 3:37 A.M., 3:38 A.M., 3:44 A.M., and 

3:46 A.M. A cellular telephone associated with Bradley 

activated a cellular tower in Lynn at 1:14 A.M, a cellular tower 

near Wakefield at 2:31 A.M, and a cellular tower in Bedford at 

3:50 A.M.8 Between 1:33 A.M. and 3:37 A.M., the defendant's 

telephone connected with Keo's telephone three times. During 

the early morning hours of July 7, it also connected with a 

telephone associated with Touch five times, and received two 

text messages from that number,9 and connected with Arias's

telephone four times.

At approximately 3:50 A.M. on July 7, 2012, the victim and 

his brother, Ryan, were watching a movie in the victim's bedroom

when they heard loud noises from the kitchen. The brothers ran 

into the kitchen to investigate and discovered three men, each 

 

8 The telephone number was registered to JMB Construction, a 

company owned by Jane and Michael Bradley. The address of JMB 

Construction address was the same as the address on Adam 

Bradley's driver's license.

9 This cellular telephone number was registered to Christina 

Danh, who testified that she paid for Touch's telephone service.
9

with a firearm, standing near the door. Ryan described one man 

as being blonde with blue eyes, wearing a grey bandana and a 

hat, and holding a semiautomatic weapon.10 Ryan testified at 

trial that he was focused on this man as he entered the kitchen, 

following his brother, because the man was pointing the weapon 

at him. Ryan was able to describe the other two men only as 

wearing dark clothing; he said that he did not know their 

height, age, or race.11 The first man told the victim to "get 

down on the ground." The victim responded that the men should

"take the fake ass BB guns and . . . shove them up their candy 

ass and get the fuck out of the house." The blonde intruder 

then racked the firearm.12 The victim instructed Ryan to get a 

sword from the victim's bedroom. Before Ryan could do so, the 

victim armed himself with a tea kettle from the top of the 

stove, and Ryan grabbed a frying pan.

Ryan then noticed a fourth man, who was larger and heavier,

wearing a red T-shirt, black shorts with a blue stripe, and 

 

10 The Commonwealth introduced evidence from a social media 

Web site that contained an image of Bradley wearing a grey 

bandana.

11 On cross-examination, after his memory was refreshed by 

reviewing his grand jury testimony, Ryan testified that he had 

said at that time that the third man was "white" and had dark 

hair, but that he had no present memory of the man's appearance.

12 Ryan testified that he understood the differences between 

an automatic and a semiautomatic weapon, and that he knew the 

weapon was a semiautomatic.
10

black sneakers, near the refrigerator. When the man ran at the 

victim, Ryan tackled him to the ground and the victim used the 

tea kettle to hit him in the head "with everything he had." As 

the brothers were trying to push the man toward the door, three 

shots rang out and the victim slumped to the floor. While Ryan 

attempted to put pressure on the wound, the intruders fled

through the broken kitchen door.13 The victim was taken to the 

hospital, where he died of a gunshot wound to the head.

Neither the cellular telephone of the defendant nor the 

cellular telephones of the other alleged accomplices registered

any activity between 3:50 A.M. and 3:53 A.M. At 3:53 A.M., the

cellular telephone associated with Bradley contacted the 

telephone associated with Touch and activated a cellular tower 

in Burlington. At 3:59 A.M., the telephone associated with 

Bradley called the defendant's cellular telephone. During this 

call, the defendant's telephone activated a cellular tower in 

Burlington, and Bradley's telephone activated a cellular tower 

in Woburn. Beginning at 5:15 A.M, the defendant's cellular 

telephone activated a tower in Lowell, the city listed on his 

 

13 Evidence was presented at trial that Ryan told the first 

responding officers that there were three intruders, two of whom 

had been armed, and that he repeated that assertion during an 

interview with investigators on July 8, 2012. During direct 

examination, Ryan testified that there had been four intruders, 

three standing together and one he saw later. On re-direct 

examination, he was presented, and read portions of, his grand 

jury testimony, in which he described four intruders; this 

testimony was allowed to rebut a claim of recent fabrication.
11

driver's license, multiple times; one of these calls, at 

6:20 A.M, was to Touch's telephone.

At around 5:20 A.M., Estabrook drove to the North Shore 

Medical Center seeking treatment for a head injury, shoulder 

pain, and back pain.14 He reported that he had been in a fight 

and that "they hit me with a tea kettle to the head." He was 

wearing a red shirt, black shorts, and black high-top sneakers.15

Investigating officers recovered two hats at the victim's 

house that had not been present during the evening before the 

shooting, when family members and friends had stopped by to see 

Ryan, who had been away for six months at a residential 

treatment facility. One hat, a navy blue Boston Red Sox 

baseball cap, was found on the porch just outside the kitchen 

door. The other, a black and red Chicago Bulls baseball cap,

was found in the area between the kitchen and the laundry room. 

The major deoxyribonucleic acid (DNA) profile on the headband of 

the Red Sox cap was consistent with the defendant's DNA; the 

contributors to the minor profile could not be identified. The 

frequency of the major profile was approximately 1 in 59.07 

billion in the Caucasian population, 1 in 81.9 billion in the 

 

14 A still image from surveillance footage from the hospital 

parking lot shows a motor vehicle, consistent with the vehicle 

operated by Touch, at 5:12 A.M.

15 This clothing is consistent with Ryan's description of 

the clothing worn by the fourth man in the victim's kitchen.
12

African-American population, 1 in 92.94 billion in the Hispanic 

population, and 1 in 211.2 billion in the Asian population.16 

The band of the Bulls cap contained a primary DNA profile 

consistent with the DNA profile of an individual police 

concluded had not been present at the scene, because he had a 

curfew that required him to be in his house at night, and was 

being monitored by a GPS bracelet, which did not register a 

violation on July 7, 2012. A secondary profile found on the 

headband was not associated with any of the suspects.

Later on the morning of July 7, 2012, one of the victim's

neighbors found a pair of rubber gloves on a side street 

adjacent to his house that he had not noticed the previous day. 

He telephoned the police; officers responded and retrieved the 

gloves. Forensic testing of the gloves was undertaken at the 

State police crime laboratory. The major DNA profile on the 

gloves matched the DNA profile of Adam Bradley. Analysts at the 

crime laboratory also found gunshot primer particles on the 

gloves, which allowed a forensic scientist to conclude that the 

person who wore the gloves either had handled a firearm or had 

been in close proximity to a firearm.

2. Defendant's theory of the case. The defendant argued 

that the Commonwealth presented insufficient evidence that he 

had been present at the scene. His strategy for doing this was

 

16 The defendant is Asian.
13

to question the credibility and reliability of much of the 

Commonwealth's evidence. The defendant extensively crossexamined Ryan and impeached him with evidence of his prior 

convictions of, inter alia, armed home invasion (with a shotgun) 

and causing serious bodily injury. To further the suggestion 

that Ryan's testimony was unreliable, defense counsel called a 

State police trooper who testified that, when he arrived at the 

scene at approximately 4:30 A.M., he was given the descriptions 

of three suspects that Ryan had provided when officers first 

arrived. Additionally, during an extended interview on July 8, 

2012, Ryan told officers that he had seen the blonde-haired 

intruder holding a gun and two other men. The State police

trooper also testified that, during the interview on July 8, 

2012, Ryan described the noise from the kitchen as the sound of 

a door being knocked down. In his closing argument, the 

defendant highlighted that this statement was inconsistent with 

Ryan's grand jury testimony that he thought the sound was the 

family dog knocking something over. The defendant suggested 

that Ryan's testimony was unreliable and that his feelings of 

guilt at heading toward the sound rather than telephoning police 

or hiding, thus resulting in his brother's death, had caused his 

story to change.

The defendant also challenged the forensic evidence found 

at the scene. He argued that the Red Sox baseball cap with the 
14

defendant's DNA could have been borrowed or stolen, and did 

nothing to establish the defendant's presence at the scene, just 

as the Bulls cap found in the laundry room near the back door

contained the DNA of an individual who the Commonwealth 

acknowledged had not been present at the time of the incident.

Additionally, in cross-examining the Commonwealth's expert 

witness on CSLI and during his closing argument, the defendant 

advanced a theory that three or four vehicles must have been

used, and argued that the Commonwealth's theory that only two 

vehicles had been used was not consistent with the most likely 

interpretation of the telephone calls as having been made 

between people who were in different vehicles, rather than 

between those who were in the same vehicle.17 Based on the calls 

placed between various cellular telephones, defense counsel thus 

argued that only certain individuals would have been in vehicles 

together, and, accordingly, at least a third vehicle must have 

been used, with likely a fourth as well.

3. Discussion. In this appeal, the defendant argues, as 

he did in the Superior Court, that there was insufficient 

evidence to establish that he was present at the scene, that he 

possessed a firearm or knew that any of the intruders had a 

 

17 Adam Bradley and Jason Estabrook have been convicted of 

murder in the first degree and related offenses. Steven Touch 

and Sophan Keo are currently awaiting trial on indictments of 

murder in the first degree and other related offenses.
15

firearm, or that he intended to commit any crime. The defendant

also argues that the admission of the CSLI evidence requires a 

new trial, because the records were not self-explanatory and the 

State police trooper who testified about them was not a 

representative of the cellular telephone provider and was not 

otherwise qualified to explain them. In addition, the defendant 

challenges the judge's decision not to instruct the jury, in 

response to their question, "if we find the defendant guilty of 

one or more of the underl[ying] felonies, can we still find him 

not guilty of felony murder?" that they could reach factually 

inconsistent verdicts. He also asks this court to exercise our 

extraordinary authority under G. L. c. 278, § 33E, to grant him 

relief.

a. Sufficiency of the evidence. In determining whether 

the Commonwealth met its burden of proof to establish each 

element of the offense charged, we apply the familiar Latimore

standard. See Latimore, 378 Mass. at 677-678. "[The] question 

is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a 

reasonable doubt." Id. at 677, quoting Jackson v. Virginia, 443 

U.S. 307, 319 (1979). Although a conviction may be based 

entirely on circumstantial evidence, and inferences drawn need 

only be reasonable, not inescapable, see Commonwealth v. Rakes, 
16

478 Mass. 22, 32, 45 (2017), a "conviction may not rest on the 

piling of inference upon inference or on conjecture and 

speculation." Commonwealth v. Lao, 443 Mass. 770, 779 (2005), 

citing Commonwealth v. Swafford, 441 Mass. 329, 339–343 (2004).

As the defendant was convicted as a joint venturer, "we 

must determine whether the evidence showed that he knowingly 

participated in the commission of the crime charged, alone or 

with others, with the intent required for the offense." Rakes, 

478 Mass. at 32. See Commonwealth v. Zanetti, 454 Mass. 449, 

467-468 (2009). Under the theory of felony-murder, "[o]nce a 

defendant participates in the underlying felony, with the intent 

or shared intent to commit that felony, he or she becomes liable 

for a death that 'followed naturally and probably from the 

carrying out of the joint enterprise.'" Commonwealth v. Morin, 

478 Mass. 415, 421 (2017), quoting Commonwealth v. Hanright, 466 

Mass. 303, 307 (2013). "[I]t is no defen[s]e for the associates 

engaged with others in the commission of a robbery, that they 

did not intend to take life in its perpetration, or that they 

forbade their companions to kill." Morin, supra, quoting 

Commonwealth v. Devereaux, 256 Mass. 387, 392 (1926).

Evidence before the jury could have allowed them to 

conclude that Bradley, with the assistance of Marshall, formed a 

plan to rob the victim and his roommate, and enlisted others in 

the enterprise. Bradley requested Marshall's help in setting up 
17

a robbery of the victim and his roommate, and Marshall then sent 

text messages to the roommate purportedly offering to sell 

marijuana. Bradley made telephone calls from Marshall's studio 

in Lynn, after which Marshall testified that she saw a number of

Asian men arrive and that Bradley showed them the location of 

the victim's house using an Internet Web site. Two white 

automobiles -- one that looked to be a vehicle registered to 

Keo, and one that appeared to be a vehicle registered to Touch's

girl friend, but routinely used by Touch -- headed to Billerica

in a close procession, stopped briefly at a parking lot, then 

drove together towards the victim's house; their movements were 

captured on surveillance footage from a security camera at a 

convenience store near the crime scene. CSLI records 

established that telephones associated with the defendant, 

Bradley, Touch, Keo, and Arias repeatedly activated cellular 

towers near Billerica in the minutes before and after the

shooting; the telephones all traveled toward Billerica prior to 

the shooting, and traveled away from Billerica in the minutes 

after the shooting. Four men, three of whom were armed, broke 

down the door and entered the victim's home, where the victim 

was shot and killed.

While the defendant challenged Ryan's testimony as to 

whether there were three or four men present in the victim's 

kitchen, the primary focus of the trial, and particularly this 
18

appeal, was whether the defendant knowingly participated in the 

armed home invasion that resulted in the victim's death.

With respect to the defendant's knowing participation in a 

plan to rob the victim and his roommate, the Commonwealth 

presented evidence that a baseball cap with the defendant's DNA 

on the inner band was found immediately outside the door through 

which the intruders gained access to the kitchen, as well as 

evidence that the defendant's telephone traveled from Revere to 

Burlington and then to Billerica in the hours before the

shooting, that the telephone activated cellular towers in 

Billerica minutes before the incident, and that it then traveled 

away from Billerica in the minutes after the victim was shot.

Additionally, evidence of the defendant's possible state of mind 

at the time of the armed home invasion and shooting was 

introduced through evidence of his lengthy affiliation with most 

of the other alleged accomplices, some of whom he had known 

since childhood, and all but one of whom were described in trial 

testimony as being members of the Bloods gang.

Taken together, the evidence at trial would have allowed a 

jury to conclude that the defendant was one of the four men in 

the kitchen at the time of the shooting, and that he was armed 

with a firearm. See Commonwealth v. Netto, 438 Mass. 686, 701-

702 (2003) (defendant's fingerprint in home, in conjunction with 

testimony that print was "fairly fresh" and evidence that 
19

defendant had been excluded from residence for one week prior to 

killing, was sufficient evidence of her presence). Contrast

Commonwealth v. Morris, 422 Mass. 254, 256-258 (1996) (evidence 

that defendant's fingerprint was on mask found at scene of armed 

home invasion did not, alone, establish defendant's presence).

To prove the underlying felony of armed home invasion, the 

Commonwealth was required to prove that the defendant or other 

joint venturers "'knowingly enter[ed] the dwelling place of 

another'; 'knowing or having reason to know that one or more 

persons are present within'; 'while armed with a dangerous 

weapon'; and 'use[d] force or threaten[ed] the imminent use of 

force upon any person within such dwelling place whether or not 

injury occur[red], or intentionally cause[d] any injury to any 

person within such dwelling place.'" See Commonwealth v. 

Stokes, 440 Mass. 741, 747 (2004), quoting G. L. c. 265, § 18C.

For both armed home invasion and attempted armed robbery, the 

Commonwealth must prove either that the defendant was armed or 

that he knew that his joint venturers were armed. See 

Commonwealth v. Brown, 477 Mass. 805, 812 (2017).

The defendant argues that there was insufficient evidence 

that he was armed or knew that any of the intruders were armed, 

or that he shared their intent to commit an armed offense. We 

do not agree. Viewing the evidence in the light most favorable 

to the Commonwealth, the jury reasonably could have determined 
20

that the defendant was one of the men in possession of a firearm 

in the kitchen of the victim's home. Ryan testified that three 

of the intruders were armed.18 The unarmed intruder was the 

fourth man, who was hit with a tea kettle. Based on Estabrook's

medical records at the emergency room, including a statement 

that he had been struck by a tea kettle during a fight, and 

images from the hospital surveillance camera that showed him 

wearing clothing consistent with Ryan's description, the jury 

reasonably could have concluded that this unarmed man was 

Estabrook, who reported to medical personnel the unusual 

instrument that had been used during the fight. Given the 

permissible inference that Keo and Touch, the fifth and sixth 

men, had remained with their vehicles, the jury reasonably could 

have inferred that the defendant was in the kitchen and was 

armed with a firearm.19

 

18 The defendant called a police witness who testified that 

Ryan informed him that he saw two firearms in the kitchen, 

rather than three. Ryan testified that there were three armed 

men, and that the fourth man, who was hit by the tea kettle, was 

unarmed. We resolve this inconsistency in favor of the 

Commonwealth.

19 While Marshall testified that she told Bradley that he 

did not need to bring firearms, the defendant was not present 

when Marshall made this remark. In any event, Bradley 

disregarded that suggestion and brought a firearm with him to 

the victim's house. His decision to carry a weapon suggests 

that Bradley did not tell the other intruders that they were 

robbing "little kids" who were unlikely to offer resistance. 

Regardless, the testimony was clear that three of the four 

intruders in the victim's kitchen were carrying firearms.
21

b. CSLI records. The defendant contends that the CSLI 

records were not properly admitted because they were not selfexplanatory and the Commonwealth did not offer a qualified 

witness to explain them. He argues that a "[company] 

representative or other qualified individual needed to explain 

those records to the jury. The person used by the Commonwealth 

. . . was not so qualified. Whereas the verdicts relied on that 

improperly admitted evidence, the defendant's convictions must 

be reversed."

It is well established that CSLI records are business 

records. See Commonwealth v. Williams, 475 Mass. 705, 722 n.22 

(2016), citing Commonwealth v. Augustine, 467 Mass. 230, 232 

(2014); United States v. Burgos-Montes, 786 F.3d 92, 119 (1st 

Cir.), cert. denied, 136 S. Ct. 599 (2015). A "record [that] 

was made in good faith in the regular course of business" may be

admissible, in the judge's discretion, notwithstanding that it 

is hearsay. G. L. c. 233, § 78. See Mass. G. Evid. § 803(6)(A)

(2018).

Pursuant to G. L. c. 233, § 78, a trial judge has 

discretion to require a party offering a business record to call 

as a witness a "person who made the entry, writing or record 

offered or the original or any other entry, writing, document or 

account from which the entry, writing or record offered or the 

facts therein stated were transcribed or taken, or who has 
22

personal knowledge of the facts stated in the entry, writing or 

record offered." Here, the judge consulted with counsel at 

sidebar before the telephone records were introduced, and asked 

the defendant if he had any objection. The defendant renewed 

the objection he had made in his motion to suppress, which had 

been denied prior to trial, that the records should not be 

admitted due to the administrative subpoena that had been used 

to obtain them. The judge then inquired whether the defendant 

"ha[d] any objection with regard to the authenticity of these 

records." The defendant did not. Because the defendant did not 

object to the admission of the CSLI as an unauthenticated 

business record when prompted by the judge at sidebar, we review 

the judge's determination for a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Fulgiam, 477 Mass. 

20, 27, cert. denied, 138 S. Ct. 330 (2017).

The cellular telephone records contain an affidavit of the 

keeper of the records certifying that they are true and 

complete, and there is no evidence or allegation to the 

contrary. The records are clearly relevant and central to the 

Commonwealth's case, and were described in depth by the State 

police trooper after he was accepted as an expert witness 

following an extensive voir dire. We conclude that the judge 

did not abuse her discretion in allowing the introduction of the 

CSLI as business records.
23

Even where evidence may be relevant and otherwise 

admissible, a trial judge has discretion to exclude it if its 

probative value is substantially outweighed by the risk of 

confusion. Mass. G. Evid. § 403 (2018). See Commonwealth v. 

Rosa, 422 Mass. 18, 25 (1996) ("When prejudice, including 

confusion of the jury, is possible, the judge must weigh the 

probative value of the evidence against such danger"). "The 

trial judge [is] best situated to assess the extent to which 

[business records] might have been confusing to the jury." 

Commonwealth v. Dabney, 478 Mass. 839, 860 (2018).

The judge conducted a voir dire hearing at which she 

herself posed certain questions to the State police trooper who 

later testified about the CSLI. The trooper also was questioned 

extensively by the defendant's and his codefendant's counsel. 

He testified to having received training from State and Federal 

agencies, including a Department of Defense contractor, on the 

uses of CSLI and how to obtain it. The trooper also said that 

he served as a member of the Federal Bureau of Investigation's 

cellular analysis survey team. The judge concluded that the 

trooper was qualified as an expert in the area of CSLI. The 

trooper then testified as an expert and explained to the jury 

how cellular telephones interact with cellular towers, the 

manner in which cellular telephone service providers produce 
24

records, and how the defendant's service provider created 

"basically [an] Excel spreadsheet[]" with relevant information.

The defendant argues that the Commonwealth never elicited 

that the trooper was trained by the defendant's service provider 

on how to interpret that company's records. In addition to his 

years of professional experience and training, however, and 

consistent with his testimony that he previously had worked with 

similar records, the trooper discussed and explained differences 

between the records of multiple different service providers,

including the defendant's. This testimony supported the judge's

conclusion that the trooper was a qualified expert, and was 

familiar with the defendant's service provider's particular 

format.20

Furthermore, the defendant relies on Dabney, 478 Mass. at

859, in support of his argument that the judge should have 

excluded the CSLI as more prejudicial than probative, given the 

absence of testimony from an employee of the cellular service 

 

20 To support his contention that a qualified individual is 

needed to "decipher" the CSLI, the defendant cites two cases 

from other jurisdictions. In Blue Coast, Inc. v. Suarez Corp. 

Indus., 870 A.2d 995, 1007 (R.I. 2005), there was no witness to 

introduce the records, and in Horner v. Commonwealth, 105 Pa. 

Commw. 59, 65-66 (1987), the witness who offered to introduce 

graphical records had received only a one-day training session 

on the records, "ten to fifteen years" before the case, and had 

not worked with the records in ten years. These cases are 

factually distinct from the instant case, however, given that 

the Commonwealth in this case called a witness with relevant 

training and ongoing experience to explain the records.
25

provider. In that case, the court determined that there was no 

error in a Superior Court judge's discretionary ruling limiting 

cross-examination of a witness concerning an invoice from a 

particular Web site on the ground that the business record would 

confuse the jury, absent an explanation from an employee of that 

company, because the witness had no ability to explain the 

meaning of certain information listed on the invoices. Id. at 

859-860. Here, the State police trooper was able to do what the 

witness in Dabney was not: he coherently explained the service 

provider's records and differentiated the terms that provider 

used to designate specific items from the terms used by other 

cellular telephone service providers. In these circumstances, 

we discern no error in the judge's discretionary determination 

that the records were not unduly prejudicial.

The defendant also challenges the admission of charts 

created by the trooper from the CSLI records, on the ground that 

the jury might have been confused and believed that the charts

were the actual CSLI data proffered by the service provider. 

The witness made clear, however, that he had created some of the 

reports that were presented to the jury, and that he had placed 

certain information pertaining to certain calls on a map using a 

specific computer program to do so. Additionally, the entire 

set of CSLI records, which contained the data that was the basis 

of the trooper's testimony and his summary, was introduced by 
26

the Commonwealth through the deputy police chief who had 

obtained the records from the service provider. The judge did 

not abuse her discretion in allowing introduction of the 

witness's reports and charts summarizing the CSLI reports. See 

Commonwealth v. Carnes, 457 Mass. 812, 825 (2010) ("Summaries of 

testimony are admissible, provided that the underlying records 

have been admitted in evidence and that the summaries accurately 

reflect the records"); Mass. G. Evid. § 1006 (2018).

c. Jury instruction on inconsistent verdicts. The 

defendant argues that the judge improperly failed to inform the 

jury, in response to their question, that they could return 

factually inconsistent verdicts. We review the judge's response

for an abuse of discretion. See Commonwealth v. Monteagudo, 427 

Mass. 484, 488 (1998), quoting Commonwealth v. Waite, 422 Mass. 

792, 807 n.11 (1996) ("The proper response to a jury question 

must remain within the discretion of the trial judge, who has 

observed the evidence and the jury firsthand and can tailor 

supplemental instructions accordingly").

During deliberations, the jury asked the following: "if we 

find the defendant guilty of one or more of the underl[ying]

felonies, can we still find him not guilty of felony murder?" 

The prosecutor argued that the answer to the question was "no," 

and asked the judge to reinstruct the jury not to consider the 

consequences of their verdict. At first, the defendant agreed 
27

that "the correct legal answer" is "no." The judge declined to 

answer the question "no." She reasoned that this answer would 

have foreclosed the possibility of an acquittal based on the 

Commonwealth's failure to prove that the killing did not occur 

during the commission of the predicate felonies.

The judge responded to the question by reinstructing the 

jury on felony-murder, explaining:

"If the Commonwealth has proved beyond a 

reasonable doubt that the defendant knowingly 

participated in and shared the intent required for 

either or both of the charged felonies, armed home 

invasion of Ryan Koehler or attempted armed robbery of 

Quintin Koehler as I have defined those offenses for 

you, and the Commonwealth has proved beyond a 

reasonable doubt that the death occurred during the 

commission of the felony or felonies, then the 

Commonwealth has proved the offense of felony murder."

The defendant, after the jury resumed deliberations, asked 

the judge to reinstruct the jury, "[I]f the question deals with 

can you find the defendant guilty, not guilty of the murder and 

still find him guilty of indictments two [armed home invasion]

and three [attempted armed robbery], the answer is yes." The 

judge declined to give this instruction.

On appeal, the defendant argues that the jury were

inquiring about their ability to render a factually inconsistent 

verdict, and that the judge's answer on felony-murder was 

nonresponsive. It is undisputed that juries do have the 

authority to render factually inconsistent verdicts, which 
28

allows juries to "compromise and to act out of leniency." See 

Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 33 (1984), citing 

United States v. Martorano, 557 F.2d 1, 9 (1st Cir. 1977), cert. 

denied, 435 U.S. 922 (1978). That the jury has the power to 

return inconsistent verdicts, however, does not give the 

defendant the right to a jury instruction informing the jury of 

their authority to do so. See Commonwealth v. Dickerson, 372 

Mass. 783, 812 (1977) (Quirico, J., concurring), abrogated on 

other grounds by Commonwealth v. Paulding, 438 Mass. 1 (2002). 

We decline the defendant's invitation to require a judge to 

inform the jury that they may disregard the law as it has been 

explained to them. The judge properly instructed the jury 

during her final charge that "[i]t is your duty as jurors to 

accept the law as I state it to you." Their power to disregard

her instruction does not mean "that the trial judge must inform 

them of the existence of that power and instruct them on what 

factors they may or must consider when they are contemplating 

the return of a verdict other than one required on the facts 

found by them and the law applicable thereto." Dickerson, supra

(Quirico, J., concurring). See United States v. Moran-Toala, 

726 F.3d 334, 343 (2d Cir. 2013) (trial judge erred in 

instructing jury that it was permissible to render inconsistent 

verdicts).
29

d. Felony-murder. The defendant urges this court to 

abolish the common-law doctrine of felony-murder because, inter 

alia, it is inconsistent with jurisprudence on mens rea

generally in criminal cases. In Brown, 477 Mass. at 823, we 

declined to abolish entirely the felony-murder rule.21 Instead, 

we prospectively narrowed the application of that rule to

eliminate felony-murder as an independent theory of liability. 

See id. at 825, 832-833 (Gants, C.J., concurring). As a result, 

a defendant no longer may be convicted of murder absent proof of 

one of the three prongs of malice. Id. The defendant does not 

argue that Brown was wrongly decided, nor does he provide any

reason for the court to revisit its decision in that case, and 

we decline to do so.

e. Relief pursuant to G. L. c. 278, § 33E. We have 

carefully reviewed the entire record, pursuant to our duty under 

G. L. c. 278, § 33E, and discern no reason to order a new trial

or to reduce the degree of guilt.

4. Conclusion. The judgments of murder in the first 

degree and armed home invasion are affirmed. The judgment of 

attempted armed robbery is vacated and set aside, and the matter 

 

21 The defendant's initial brief was filed before this 

court's decision in Commonwealth v. Brown, 477 Mass. 805, 823 

(2017). While his reply brief was filed after that decision, 

the reply brief does not address the court's holding in Brown.
30

is remanded to the Superior Court, where that conviction shall 

be dismissed as duplicative.

So ordered.