NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11933 COMMONWEALTH vs. ANTHONY ROBERTSON. Suffolk. February 9, 2018. - August 31, 2018. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Homicide. Robbery. Firearms. Cellular Telephone. Identification. Jury and Jurors. Fair Trial. Constitutional Law, Search and seizure, Jury, Fair trial, Fair trial. Search and Seizure, Warrant, Affidavit. Practice, Criminal, Capital case, Motion to suppress, Warrant, Affidavit, Jury and jurors, Empanelment of jury, Challenge to jurors, Voir dire, Fair trial. Indictments found and returned in the Superior Court Department on September 27, 2011. A pretrial motion to suppress evidence was heard by Patrick F. Brady, J., and the cases were tried before him. Elizabeth A. Billowitz for the defendant. Kathryn E. Leary, Assistant District Attorney (David J. Fredette, Assistant District Attorney, also present) for the Commonwealth. CYPHER, J. The defendant, Anthony Robertson, appeals from his convictions of murder in the first degree, armed robbery, 2 and carrying a firearm without a license. He argues that he did not receive a fair trial because eyewitnesses improperly identified him in court; the prosecutor misstated evidence in closing argument; the judge erred in declining to question jurors about potential racial bias; the Commonwealth improperly excluded black men from the jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979); cellular telephone (cell phone) records that should have been suppressed were introduced; hearsay testimony was improperly admitted; a police officer offered extensive irrelevant testimony about the condition of the apartment where the defendant was arrested; and voluntary manslaughter is the degree of guilt most consonant with justice. The defendant also submitted a separate brief, pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981), arguing that the jury instructions and the prosecutor's closing argument were erroneous and trial counsel was ineffective.1 Because the defendant's right to a fair trial as provided by Batson, supra, and Soares, supra, was violated, we vacate the 1 "Because we find no error, we need not address the Commonwealth's contention that our decision in Commonwealth v. Moffett, 383 Mass. 201, 208, 216–217 (1981), was not intended to permit 'hybrid representation,' and that we should not consider these claims of error." Commonwealth v. Brown, 462 Mass. 620, 634 n.14 (2012). We remind the Commonwealth that it is often difficult for defense counsel to coordinate filings with a client who is incarcerated. 3 verdicts and remand for a new trial. We address other claims of error that are likely to recur upon retrial. Background.2 On June 26, 2011, the victim, Aaron Wornum, was with two friends, Erik Hicks and Jason Heard. The victim, who was wearing a ...
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