MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 ), 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 23.0 or 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).
A jury of the Superior Court convicted the defendant, Malik Knight, of firearm-related offenses. On appeal, he claims error in the denial of his motion to suppress, in the admission of a Snapchat video recording, and in certain jury instructions. For the reasons that follow, we affirm.
On June 7, 2017, a customer encountered the defendant at the checkout counter of a Dorchester convenience store. The customer waited off to the side as the defendant ordered items and interacted with the clerk. She recalled that the defendant's order took a long time and that she waited patiently. However, at some point, the defendant turned toward the customer and asked her whether she had a problem. He began to walk toward her, repeating his question. The customer noticed that his pants, buckle, and zipper were undone displaying the handle of a firearm tucked inside his shorts. She responded that there was no problem.
At this point the clerk, sensing that there was some animosity, took the customer's order. The customer quickly left the market, went to her car, and called the police. She described the defendant to a responding police officer. Several hours later, police saw a person in the area matching her description. Police officers stopped the defendant on the street and conducted a patfrisk. The defendant did not have weapons on his person.
Five days later, the police arrested the defendant for assault with a dangerous weapon and executed a search warrant at the defendant's residence. In the defendant's bedroom, they found a .22 caliber firearm and ammunition hidden above a ceiling tile. Elsewhere in the defendant's bedroom, police seized a black jacket with a white North Face emblem and a pair of True Religion jeans.
The defendant was indicted on several charges: (1) possession of a firearm on June 7 without a license, not at home or at work; (2) possession of a firearm on June 12 without a firearm identification card; (3) possession of ammunition on June 12; and (4) assault by means of a dangerous weapon on June 7. The jury found the defendant guilty of the June 7 and June 12 possession of a firearm charges and not guilty of the June 12 possession of ammunition and the June 7 assault by means of a dangerous weapon charges.
1. Motion to suppress. Prior to trial, the defendant filed a motion to suppress the evidence seized from his residence. He now challenges the denial of this motion.
a. The firearm. First, the defendant argues that the facts in the search warrant affidavit were insufficient, because the observation of a firearm on his person at the market on June 7 could not establish probable cause that a firearm would be located in his apartment five days later.
Our review of whether an affidavit in support of a search warrant establishes probable cause is restricted to the "four corners of the affidavit" (citation omitted). Commonwealth v. O'Day, 440 Mass. 296, 297 (2003); Commonwealth v. Perez, 90 Mass.App.Ct. 548, 551 (2016). We review whether there was probable cause to issue a search warrant de novo and "in a commonsense and realistic manner . . . without overly parsing or severing it, or subjecting it to hypercritical analysis" (quotation omitted). Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). "An affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Cinelli, 389 Mass. 197, 213, cert. denied, 464 U.S. 860 (1983). "[T]he nexus between the items to be seized and the place to be searched need not be based on direct observation." Id. The nexus may be established by "(1) the type of crime, (2) the nature of the items sought, (3) the extent of the suspect's opportunity to conceal the items at the location to be searched, and (4) reasonable inferences as to where a criminal would likely hide items of the sort sought." Commonwealth v. Harmon, 63 Mass.App.Ct. 456, 461 (2005).
We are not persuaded by the defendant's argument that "[t]he issuance of the warrant rests almost exclusively on the [a]ffiant's general knowledge" regarding the illegal possession of firearms. The affidavit contained information relating to all four factors above. Relevant here, it described: the customer's observations of the firearm; the affiant's knowledge, based on his training and experience, that people store their firearms in their homes for long periods of time, particularly where they are unable to acquire them legally;1 that the defendant was unable to legally possess a firearm; and that the defendant lived near the market and had returned home before he was stopped and frisked by the police. This evidence was more than sufficient for the magistrate to find probable cause that the defendant had not discarded the gun after he left the market but rather hidden it in his home.2
b. The defendant's clothing. Second, the defendant challenges the seizure of his clothing, which the Commonwealth later argued was evidence to support his identity as the one who assaulted the customer at the market.
"There is no prohibition against seizure of articles of clothing to be used for evidentiary purposes where . . . there is a nexus between [the] articles and the crime." Perkins, 478 Mass. at 107, quoting Commonwealth v. Murray, 359 Mass. 541, 547 (1971).
The defendant does not challenge the nexus between the clothing and the crime. Instead, he claims that the judge erred in denying his motion to suppress because his clothing did not serve an evidentiary purpose. According to the defendant, the clothing did not "[a]id [i]n [his] [a]pprehension [o]r [c]onviction." It was not necessary to identify him because police had already arrested him.
Contrary to the defendant's claim, however, our courts have recognized that seized clothing has evidentiary value where it corroborates other evidence of the defendant's identity. See Perkins, 478 Mass. at 108-109. That the defendant was already apprehended and that police already had other evidence of his identity is not dispositive. See id.
2. Snapchat video recording.
The judge allowed the prosecutor to introduce evidence of a Snapchat video posted by the defendant on June 6, the day before the incident at the market. A police officer observed the video and used his cell phone to record the defendant's post. In the video recording, the defendant posed with the same .22 caliber firearm with a gold trigger that police found in his bedroom.3
a. Bad act evidence. The defendant first contends that the video recording was evidence of an inadmissible prior bad act. In general, "evidence of a defendant's prior bad act is inadmissible to show the defendant's bad character or propensity to commit a crime." Commonwealth v. Tavares, 482 Mass. 694, 712 (2019). This evidence is admissible if relevant for another purpose such as "to establish motive, opportunity, intent, preparation, plan, knowledge, identity, . . . pattern of operation," or means to commit a crime. Commonwealth v. Walker, 460 Mass. 590, 613 (2011), quoting Commonwealth v. Horton, 434 Mass. 823, 827 (2001). See Commonwealth v. Corliss, 470 Mass. 443, 450 (2015). "The judge, within sound discretion, must consider whether the probative value of [the] evidence is outweighed by potential prejudice . . . and the judge's determination is not disturbed absent palpable error" (quotations and citation omitted). Corliss, supra.
The Snapchat video recording depicting the defendant in possession of the .22 caliber firearm one day before the confrontation at the market was probative that he had the means to commit the crime. The Supreme Judicial Court has ruled in similar circumstances that such evidence is admissible. See Corliss, 470 Mass. at 450 (evidence that defendant possessed firearm "relevant to show that the defendant had the means to perpetrate the crime"); Commonwealth v. Ridge, 455 Mass. 307, 322 (2009) (prior bad act involving firearm admissible to show defendant's "access to, and knowledge of, firearms and bullets"). Moreover, the judge instructed the jury regarding the limited purpose for which they could consider the Snapchat video recording. See Ridge, supra at 323. We presume that the jury followed that instruction. See Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).
b. Authentication. To authenticate the Snapchat video recording, the Commonwealth offered the testimony of a lay witness, Officer Joseph Connolly. The defendant argues that the content of the video recording was not properly authenticated.
We review a judge's decision regarding authentication for an abuse of discretion. See Commonwealth v. Connolly, 91 Mass.App.Ct. 580, 585 (2017). In determining the authenticity of evidence, the judge, acting as gatekeeper, must "assess the evidence and determine whether the jury or judge, acting as the fact finder, could find that the item in question is what its proponent claims it to be." Commonwealth v. Meola, 95 Mass.App.Ct. 303, 308 (2019), citing Mass. G. Evid. § 104(b) (2019). Authenticity is typically established by testimony from a qualified witness showing "(1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be." Commonwealth v. Perez, 460 Mass. 683, 699 (2011), quoting Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977). Evidence including digital evidence "may be authenticated circumstantially based on its contents and the surrounding circumstances." See Meola, supra at 313.
To authenticate the Snapchat video recording, the Commonwealth offered its contents along with testimony of the police officer, Officer Connolly, who observed and recorded it.4 Connolly's testimony established that he viewed the video on Snapchat on June 6, 2017, and recorded it with his cell phone. The parties also stipulated to the timestamps depicted on the video recording which showed that the defendant posted it to his account roughly one-half hour before Connolly made the recording. Together, these three sources of information provided sufficient circumstantial evidence for both the judge and the jury to determine that the defendant posted the Snapchat on June 6.5 See Meola, 95 Mass. App. Ct. at 312-313. There was no abuse of discretion.
The defendant also argues that the introduction of the Snapchat video recording required expert testimony. Specifically, he claims that Connolly's testimony about how Snapchat works was based on technical knowledge likely to confuse the jury without expert testimony. The defendant cites no authority to support this argument. We reject his claim that the basic functioning of the Snapchat application requires scientific or technical knowledge that is outside the common understanding and experiences of the jury. See Commonwealth v. Gerhardt, 477 Mass. 775, 785-786 (2017). Neither our caselaw nor our rules of evidence have required expert testimony to authenticate digital communications. See Commonwealth v. Purdy, 459 Mass. 442, 450 (2011); Mass. G. Evid. § 901(b)(11) (2021).
c. Selective prosecution. The defendant lastly contends that the police detection of his Snapchat video was the product of racial profiling in violation of his equal protection rights and should have been suppressed as a result.
As the issue was not raised during trial, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Francis, 485 Mass. 86, 106 (2020). We discern no such risk because the defendant offers no evidence or argument to support his claim. A defendant who seeks to suppress evidence gained through racial profiling must first raise a reasonable inference of racial profiling through a motion to suppress. Commonwealth v. Long, 485 Mass. 711, 724 (2020). The defendant filed no such motion, nor did he attempt to set forth evidence of his claim on appeal.6
3. Jury instruction.
Finally, the defendant claims error in the jury instruction regarding the June 7 possession charge. Before instructing the jury on the elements, the judge reminded the jury of each of the offenses, describing the June 7 possession charge as "possession of a firearm . . . not at home or work, without a license." The judge went on to describe the elements of the offense as follows: "[T]he Commonwealth must prove the following three things beyond a reasonable doubt. . . . First, the defendant possessed an item. Second, the item meets the legal definition of firearm. Third, the defendant knew that he possessed that firearm."
The defendant argues that the judge failed to instruct the jury on an essential element of the crime: that he possessed the firearm outside of his residence and employment. He claims that the absence of this instruction could have caused the jury to convict him of uncharged conduct.
We again review for a substantial risk of a miscarriage of justice as defense counsel did not object to the instruction at trial. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We disagree that the place of possession is a distinct element of the crime. Rather, G. L. c. 269, § 10 (a), provides a statutory exemption for persons who possess firearms in their homes or at their jobs. See G. L. c. 269, § 10 (a) (1); Commonwealth v. Harris, 481 Mass. 767, 780 (2019); Commonwealth v. Anderson, 445 Mass. 195, 214 (2005) (judge did not err in omitting residence instruction as statutory exemption is affirmative defense which defendant must put forward). The defendant did not raise the exemption as an affirmative defense, and it was not implicated for the June 7 possession charge. The judge was not required to provide instruction on the issue. Furthermore, the jury were informed that the June 7 possession must have occurred outside of the defendant's home and work on numerous occasions. This information was contained in the indictment, which the clerk read to the jury after empanelment; in the judge's instructions describing the offenses; and on the verdict slips. We see no substantial risk of a miscarriage of justice.