Commonwealth v. Balboni

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revision and are superseded by the advance sheets and bound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 cases1).

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.

1
One of the cases is against Balboni, and two are against
Samuel Doxsey.
2

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.

2
Balboni and Doxsey were also indicted for conspiracy to
commit malicious burning of personal property. The judge
allowed the defendants' motion to sever the conspiracy charges,
which, at the close of trial, were placed on file and are not
before us.
3

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 --

where the paint had burned away. Captain Wilson observed a

flaming object on the ground and found that the truck's plastic

door handles had been consumed by fire and had fallen off the

rear doors. Other evidence at the scene of the fire led Captain

Wilson to conclude that the fire had started in the rear

passenger compartment, where the incineration was most

concentrated, and burned outward toward the truck's exterior.4

During his investigation, Captain Wilson learned that the

truck was last driven approximately four hours before it caught

fire and was parked in the location where firefighters found it.

3
Feehan was known to drive the truck and to park it at the
curb outside his apartment.
4
On the ground near the burning truck, police found a black
baseball cap and a red gas can lying on its side. The gas can
contained a small amount of liquid that, according to Captain
Wilson, smelled like gasoline. The liquid was later disposed of
without being tested. When the fire was extinguished, Captain
Wilson observed that the rear passenger seat of the truck had
been completely destroyed and very little remained of the
interior, but that the gas tank, located under the truck bed,
remained intact.
4

He reasoned, therefore, that the engine had been cold at the

time the fire started. He was unable to identify any source of

ignition for the fire; there were no keys in the truck's

ignition to engage the electrical system and no electrical

accessories that might have sparked the fire.5 Captain Wilson

concluded that the fire had been intentionally set.6

Cellular site location information (CSLI)7 associated with

Doxsey's cellular telephone (cell phone) number showed that

between the hours of 11:20 P.M. and 1:30 A.M., Doxsey's cell

5
The power door locks, which remain active whenever the
vehicle is connected to a live battery, had been completely
consumed by fire; thus, Captain Wilson was unable to inspect
them as part of his investigation. Without having examined the
power locks, Captain Wilson testified that he was unable to
conclusively rule out an electrical source of the fire.
6
During Captain Wilson's testimony, he stated that he had
prepared a report outlining his investigation that, through
oversight, had not been seen by the parties prior to trial. The
report, which was read in evidence and admitted at trial,
concluded as follows, "During my investigation I was unable to
find a conclusive ignition source and I'm unable to rule out
accidental causes. The presence of the gas container
(containing gasoline), the late hour and the ball cap that
looked like someone left in haste. I believe that this fire was
intentionally set."
7
"Cellular site location information (CSLI) . . . . is a
record of a subscriber's cellular telephone's communication with
a cellular service provider's base stations (i.e., cell sites or
cell towers) during calls made or received[;] . . . this
identifies the approximate location of the 'active cellular
telephone handset within [the cellular service provider's]
network based on the handset's communication with a particular
cell site.'" Commonwealth v. Estabrook, 472 Mass. 852, 853 n.2
(2015), quoting from Commonwealth v. Augustine, 467 Mass. 230,
238 (2014), S.C., 470 Mass. 837 (2015).
5

phone connected to cellular towers in Durham, New Hampshire, but

that at 3:44 A.M., Doxsey's cell phone initiated a call that

connected to a cellular tower in Waltham, Massachusetts.8 On

April 18, 2009, Lexington police Detective Richard Corazzini

travelled to the University of New Hampshire campus in Durham,

New Hampshire, where he observed a black Ford Explorer sport

utility vehicle with Massachusetts license plates parked in a

lot behind the fraternity house where Doxsey lived.9 A report

from the registry of motor vehicles identified Cristina Balboni

as the owner of the vehicle.

As discussed more fully, infra, investigation revealed that

the defendants had purchased a gas can and gasoline at a gas

station close to the scene of the fire on the date in question.

2. Discussion. a. Motions to suppress. The defendants

appeal from the denial of their motions to suppress documentary

evidence obtained from third parties on the grounds that the

Commonwealth failed to follow proper procedures to obtain the

records. The challenged evidence includes historical CSLI and

telephone (phone) records associated with Doxsey's cell phone

8
The apartment complex where the truck fire occurred was
located on the border between the towns of Lexington and
Waltham.
9
At trial, Lexington police Detective Richard Corazzini
testified that the driving time between Durham, New Hampshire
and Lexington, Massachusetts, is approximately one hour and
twenty minutes.
6

number and credit card records from accounts belonging to Doxsey

and Balboni.

A grand jury investigating the truck fire issued three

subpoenas duces tecum: to Verizon Wireless, seeking cell phone

records associated with the cell phone numbers of Doxsey and his

sister; to American Express (AmEx), seeking credit card records

pertaining to Balboni's account; and to USAA Federal Savings

Bank (USAA), seeking credit card records pertaining to Doxsey's

account. Record keepers at Verizon Wireless, AmEx, and USAA

produced the summonsed documents, affixed with certificates of

authenticity, to the grand jury.

i. CSLI records. In furtherance of the grand jury

investigation, the Commonwealth sought production of Doxsey's

CSLI from Verizon Wireless, pursuant to a Superior Court order

issued under 18 U.S.C. § 2703(d) (2006) of the Federal Stored

Communications Act (§ 2703[d] order). Doxsey claims that the

Commonwealth did not follow proper, constitutionally mandated

protocols to obtain his personal cell phone records, because a

search warrant was required for the CSLI. In April, 2010, the

motion judge entered a margin ruling denying Doxsey's pretrial

motion to suppress, based on her determination that compliance
7

with § 2703 was all that was required to properly obtain CSLI

from a third-party cellular service provider.10

In June, 2009, the Commonwealth sought and obtained

Doxsey's CSLI, consisting of "call detail records with cellsite

information (geographical location, including street address and

town/city of each cell tower) for the time period from April 4,

2009 through April 5, 2009,"11 using a § 2703(d) order issued by

the Superior Court.12 The § 2703(d) order directed Verizon

Wireless to produce the information for consideration of the

grand jury on or before June 18, 2009. In support of its

application for the § 2703(d) order, the Commonwealth provided

an affidavit prepared by Lexington police Detective Steven

Garabedian, in which he set forth the steps taken in the truck

fire investigation and concluded that the CSLI sought would

10
In her margin ruling, the judge stated that "[w]ith
respect to [CSLI], the application to the court which found
specific and articulable facts pursuant to the statutory
standard is sufficient at this point in the development of
Mass[achusetts] law. G. L. c. 271, § 17B; In re: Application
of U.S. for Orders, 509 F. Supp. 2d 76 (D. Mass. 2007)."
11
In addition, the § 2703(d) order also directed Verizon
Wireless to produce records of all incoming and outgoing calls
to and from Doxsey's cell phone number from April 4, 2009,
through April 5, 2009.
12
To obtain a § 2703(d) order compelling production of
certain cell phone records, a governmental entity must offer
"specific and articulable facts showing that there are
reasonable grounds to believe that the . . . records or other
information sought . . . are relevant and material to an ongoing
criminal investigation." 18 U.S.C. § 2703(d).
8

establish "whether Samuel Doxsey travelled from New Hampshire to

Lexington, Massachusetts on April 5, 2009," and whether Doxsey

"was in the area of the Lexington Ridge Apartments at the time

of the fire."

In February, 2014, while this case was pending on direct

review, the Supreme Judicial Court announced a new rule for

acquiring historical CSLI in Commonwealth v. Augustine, 467

Mass. 230 (2014) (Augustine I), and held that art. 14 of the

Massachusetts Declaration of Rights requires the Commonwealth to

obtain a search warrant supported by probable cause, in addition

to a § 2703 order, before seeking to obtain a person's CSLI.

Id. at 257. As a new rule, the warrant requirement was held to

apply "to cases in which a defendant's conviction is not final,

that is, to cases pending on direct review in which the issue

concerning the warrant requirement was raised." Ibid. The

court also invited the Commonwealth in such a case to show that

its application for the § 2703(d) order satisfied the probable

cause standard. Ibid. at n.40.

There is no dispute that the warrant requirement announced

in Augustine I applies to the Commonwealth's efforts to obtain

Doxsey's CSLI in this case.13 We therefore consider whether the

13
In Commonwealth v. Estabrook, 472 Mass. 852 (2015), the
Supreme Judicial Court refined the warrant requirement, holding
that, as long as the Commonwealth proceeds in compliance with 18
U.S.C. § 2703, it may obtain a person's CSLI for a period of six
9

Commonwealth is able to meet the search warrant requirement

through a demonstration of probable cause in the affidavit

originally submitted to support the § 2703(d) order.14 "Because

a determination of probable cause is a conclusion of law, we

review a search warrant affidavit de novo." Commonwealth v.

Foster, 471 Mass. 236, 242 (2015).

Our inquiry as to whether an affidavit supports a finding

of probable cause "always begins and ends with the 'four corners

of the affidavit.'" Commonwealth v. O'Day, 440 Mass. 296, 297

(2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct.

426, 428 (1995). We consider the affidavit as a whole and

interpret it "in a commonsense and realistic fashion."

Commonwealth v. Kaupp, 453 Mass. 102, 111 (2009), quoting from

United States v. Ventresca, 380 U.S. 102, 108 (1965).

"[I]nferences drawn from the affidavit need only be reasonable

hours or less without meeting the probable cause standard for a
search warrant. Id. at 858 n.11. In this case, where the
Commonwealth sought CSLI evidence for a period of two days, or
forty-eight hours, we understand Augustine I to require a
warrant.
14
In the recent case of Commonwealth v. Broom, 474 Mass.
486, 492-493 (2016), where, as here, the warrant requirement set
forth in Augustine I was announced while the case was on direct
appeal, the Supreme Judicial Court concluded that because the
defendant had not raised the warrant issue before or during
trial, he was not entitled to the benefit of the new rule.
Here, the defendant did object to the introduction of the CSLI
records without a warrant and is entitled to the application of
the rule.
10

and possible, not necessary or inescapable." Commonwealth v.

Cavitt, 460 Mass. 617, 626 (2011).

To justify the production of a person's CSLI, a supporting

affidavit must demonstrate probable cause to believe "that a

particularly described offense has been, is being, or is about

to be committed, and that [the CSLI being sought] will produce

evidence of such offense or will aid in the apprehension of a

person who the applicant has probable cause to believe has

committed, is committing, or is about to commit such offense."

Augustine I, supra at 256, quoting from Commonwealth v.

Connolly, 454 Mass. 808, 825 (2009). See Commonwealth v. Broom,

474 Mass. 486, 491 n.8 (2016).

We summarize the facts recited in Detective Garabedian's

affidavit. On April 5, 2009, at about 4:00 A.M., Lexington

police and firefighters responding to an alarm at an apartment

complex encountered a gray pickup truck fully engulfed in

flames. On the ground beside the burning truck, they found a

red one-gallon plastic gas container and a black baseball cap.

Captain Wilson, a former arson investigator who responded to the

truck fire, opined that the fire had been intentionally set.

On April 10, 2009, Detective Garabedian interviewed Feehan,

whose father was the owner of the burned truck. Feehan told

Detective Garabedian that, on the night of April 4, 2009, he had

been extremely intoxicated and, at a party at his home, he
11

grabbed the blouse of Doxsey's sister, pulled it down, and

exposed her breast.

On April 14, 2009, police detectives visited a gas station

in Lexington, where they learned that a red one-gallon plastic

gas container matching the one found at the scene of the fire

was purchased from that location at 3:07 A.M. on April 5, 2009.

Surveillance footage recorded inside the gas station in the

early morning hours of April 5 showed two young males entering

at 3:06 A.M. and purchasing a red one-gallon gas container with

a credit card. Sales records revealed that the purchaser used

an AmEx credit card issued to Balboni. Surveillance footage

recorded by a camera overlooking the gas pumps during the same

period of time showed three males exiting a vehicle, one of whom

was wearing a hat matching the one found at the scene of the

truck fire. In the surveillance footage, one of the males who

purchased the red gas container is shown purchasing gasoline

with a credit card. Sales records revealed that he used a USAA

credit card, issued to Doxsey, to purchase .931 gallons of

gasoline at 3:09 A.M.

On April 24, 2009, Detective Garabedian interviewed

Doxsey's sister, who reported that she had telephoned Doxsey, a

student at the University of New Hampshire, on April 5, 2009, at

around 12:15 A.M. and told him that Feehan had assaulted her.
12

Her brother returned her call at around 12:45 A.M., and the two

spoke by telephone again around 9:00 A.M.

Cell phone records associated with Doxsey's number revealed

incoming and outgoing calls made during the late night hours of

April 4, 2009, and early morning hours of April 5, 2009,

including several calls made around the time of the truck fire.

The affidavit concludes with a statement that the CSLI

records are sought to determine whether Doxsey travelled from

New Hampshire to Lexington on April 5, 2009, and whether he was

in the vicinity at the time the fire was set.

Drawing reasonable inferences from Detective Garabedian's

recitation, we conclude that the affidavit established probable

cause to believe that a particularly described offense had been

committed. See Augustine I, supra at 256. The late hour of

night (a time when the truck would not have likely been in

operation); the burning of a parked vehicle (suggesting that a

malfunction was an unlikely source of the fire); and the gas can

and baseball cap beside the burning truck (suggesting a hasty

departure from the scene) permit inferences reinforced by the

opinion of Captain Wilson. These circumstances support the

inference that the truck was deliberately set on fire, in

violation of G. L. c. 266, § 5 (malicious burning of property).

We also conclude that Detective Garabedian's affidavit

demonstrated probable cause to believe that the CSLI sought here
13

would produce evidence of the offense under investigation.

Ibid.

Feehan's assault on Doxsey's sister, and her communication

with her brother immediately after the assault and hours before

the truck was burned, suggest that Doxsey had a motive for

setting the fire. Doxsey used his credit card to purchase a

small amount of gasoline, which he pumped into a gas can similar

to the one found at the scene of the fire. He was living in New

Hampshire at that time, and yet he purchased the gas in

Lexington, where the fire occurred. He was recorded at the gas

station around 3:00 A.M., one hour before firefighters and

police discovered the truck ablaze. These circumstances provide

a nexus in agency, place, and time between Doxsey and the fire.

The CSLI sought by the Commonwealth had the potential to

reveal whether Doxsey travelled from New Hampshire to Lexington

on the night of the fire, and whether he was near the scene

where Feehan's truck was set ablaze around the time that the

fire was discovered.15 Doxsey's location during the night of

15
The facts set forth in the affidavit indicate that the
relevant time period for CSLI collection would have been between
around 12:15 A.M. and 9:00 A.M. on April 5, 2009. However, the
Commonwealth sought CSLI for a forty-eight-hour period covering
April 4 and 5, 2009. The Commonwealth argued that even if
probable cause underpinned only a portion of the § 2703(d)
order, that part is severable from the defective portion, and
CSLI was properly seized under the valid portion, citing
Commonwealth v. Lett, 393 Mass. 141, 144-145 (1984), quoting
from United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.
14

April 4 and morning of April 5 would likely provide evidence of

the offense under investigation by implicating Doxsey in the

fire. In sum, the affidavit established probable cause to

conclude that Doxsey was involved in the malicious burning of

Feehan's truck. See Commonwealth v. Augustine, 472 Mass. 448,

455-460 (2015) (Augustine II). Accordingly, the Commonwealth

properly obtained Doxsey's CSLI records under Augustine I's

probable cause standard.

ii. Cell phone records. Doxsey challenges the denial of

his motion to suppress his cell phone records, which, he claims,

the Commonwealth unlawfully obtained from Verizon Wireless

without prior judicial approval. Doxsey maintains that, under

Commonwealth v. Odgren, 455 Mass. 171 (2009) (Odgren), the

Commonwealth was required to follow the formal process

established by Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979), as

construed by Commonwealth v. Lampron, 441 Mass. 265, 268-271

(2004) (Lampron), when it sought to obtain third-party records

in advance of trial.

The Commonwealth obtained call logs for the cell phone

numbers of Doxsey and his sister pursuant to a grand jury

1983) ("infirmity of part of a warrant requires the suppression
of evidence seized pursuant to that part of the warrant . . .
but does not require suppression of anything described in the
valid portions of the warrant"). At trial the Commonwealth did
not rely on any of Doxsey's CSLI outside the limited time period
for which there was undeniably probable cause.
15

subpoena served on Verizon Wireless. The subpoena ordered

Verizon Wireless to produce records of all incoming and outgoing

phone calls, and subscribers' listing and billing information

for April 4 and 5, 2009. The information, affixed with an

affidavit from the custodian of records at Verizon Wireless, was

later produced to the grand jury. Over Doxsey's objection, the

records were admitted in evidence at trial.

At the outset, the Commonwealth properly used its

investigative powers to bring the cell phone records before the

grand jury. G. L. c. 277, § 68. See Odgren, supra at 185 n.25

(Lampron standard does not apply to grand jury subpoenas).

Although the Commonwealth did not follow the rule 17(a)(2)

protocol mandated in Odgren by moving to resummons the cell

phone record evidence in advance of trial, Odgren was decided

after the Commonwealth was already in possession of the cell

phone records procured by grand jury subpoena, and more than a

month after Doxsey and his counsel received the records as part

of the Commonwealth's pretrial notice of discovery. As our case

law makes clear, suppression is not an appropriate remedy absent

a showing that the erroneously subpoenaed evidence caused

prejudice. See Commonwealth v. Hart, 455 Mass. 230, 243 (2009);

Commonwealth v. Burgos, 470 Mass. 133, 147-148 (2014).

There was no prejudice shown here. The relevant question

is whether the defendant received the material sufficiently
16

before trial in order to prepare a defense. Commonwealth v.

Kastner, 76 Mass. App. Ct. 131, 137 n.10 (2010). Doxsey and his

counsel were provided a copy of the records on September 10,

2009; trial began on February 17, 2011, allowing Doxsey and his

counsel approximately one and one-half years to prepare. See

Odgren, supra at 188 (no prejudice where defendant received

recordings early in proceedings and Commonwealth narrowed its

use of evidence to forty-six day period); Commonwealth v.

Burgos, supra at 148 (no prejudice where defendant was given

recorded phone calls one month ahead of trial).

To the extent that Doxsey claims that suppression of his

cell phone records was required because the Commonwealth's

procurement of the records violated his constitutional rights,

the claim fails. Massachusetts does not recognize a reasonable

privacy interest in cell phone records such as those at issue

here. See Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 729

(1997) ("No statute or regulation drapes a particular cloak of

confidentiality around the billing records of a telephone

company"). Doxsey's motion to suppress cell phone records was

properly denied.

iii. Credit and bank card records. Balboni and Doxsey

challenge the denial of their motions to suppress credit card

records that were obtained for trial by means other than those

set forth in rule 17(a)(2) and Commonwealth v. Lampron, supra.
17

The Commonwealth initially obtained the defendants' credit card

records using grand jury subpoenas directing AmEx and USAA to

produce to the grand jury records of all transactions between

April 1, 2009, and April 27, 2009, related to the defendants'

accounts. Before trial, the Commonwealth issued a second

subpoena, pursuant to G. L. c. 277, § 68, and G. L. c. 233,

§ 79J, ordering AmEx and USAA to produce the same records to the

court on the day that trial was scheduled to begin. The

Commonwealth used an entirely appropriate means of summoning

records to trial. See Commonwealth v. Hart, supra at 243

(subpoena issued under G. L. c. 277, § 68, must direct third

party to produce documents to court on day of trial). Rule

17(a)(2), concerning production of third-party documents prior

to trial, is inapposite in the present case. The defendants'

motions to suppress financial records were properly denied.

b. Challenged witness testimony. Balboni and Doxsey

challenge the judge's denial of their motions to strike certain

witness testimony. We find no merit in these claims.

i. Captain Wilson's testimony. Doxsey contends that the

judge committed error in failing to strike "untrustworthy"

testimony of Captain Wilson. Doxsey's claim lacks articulated

reasoning and citation to authority; we decline to reach an

argument that does not satisfy the requirements of Mass.R.A.P.

16(a)(4), as amended, 367 Mass. 921 (1975). See Commonwealth v.
18

Gray, 423 Mass. 293, 296-297 (1996) (claims of error unsupported

by reasoned argument or citations do not rise to level of

appellate advocacy required under Mass.R.A.P. 16[a][4]).

ii. Thomas Shamshak's cross-examination testimony.

Balboni claims that the judge erred in denying the defendants'

motion to strike the cross-examination testimony of defense

witness Thomas Shamshak. At trial, the defendants called

private investigator Thomas Shamshak, who photographed a black

2004 Ford Explorer registered to Cristina Balboni at the law

office of defense counsel.16 Shamshak testified that the gas

tank port was located on the left, or driver's, side of the

vehicle, unlike the vehicle with a right, or passenger's, side

gas port appearing in video footage recorded at the Lexington

gas station. Upon cross-examination, the prosecutor asked

Shamshak whether he was aware that Cristina Balboni had two Ford

Explorers registered in her name. Shamshak answered, "No, sir."

The prosecutor then asked him if he was familiar with the

Massachusetts criminal justice information system (CJIS) for

performing record checks on motor vehicles. When Shamshak

indicated that he was familiar with the system, he was shown

(over objection by defense counsel) two unauthenticated CJIS

reports, one relating to the vehicle described in Shamshak's

16
Shamshak was the sole witness who testified for the
defense at trial.
19

direct testimony, and the other relating to a different Ford

Explorer, both registered to Cristina Balboni. The two reports

were marked for identification but were not admitted in

evidence. Following cross-examination, defense counsel moved to

strike all reference to the unauthenticated records. The judge

denied the motion.

Here it appears that the prosecutor had a good faith basis

to believe that two Ford Explorers were registered to Cristina

Balboni, and pursued a line of inquiry meant to impeach the

defense witness by eliciting information that tended to show the

limited value of Shamshak's examination of the Balboni vehicle.

"[T]he question[s], on a matter put in issue in the first place

by the defendant, was within the scope of allowable cross-

examination." Commonwealth v. Baldwin, 385 Mass. 165, 179

(1982). See Commonwealth v. Key, 381 Mass. 19, 28-30 (1980)

(prosecution entitled to pursue subject raised on direct

examination by defense counsel). Furthermore, even if the

attempted impeachment exceeded the allowable scope, the

Commonwealth ultimately did not contend that the vehicle located

near the fraternity house, which was registered to Cristina

Balboni, was the same vehicle depicted in the surveillance video

from the gas station. Consequently, Shamshak's testimony

addressed a peripheral matter.
20

The scope of cross-examination is within the sound

discretion of the trial judge, and Balboni has not shown that

the judge abused her discretion in allowing the prosecutor to

use extrinsic evidence for impeachment purposes in this case.

"When the extrinsic evidence relates exclusively to a collateral

matter, the discretion of the trial judge has been described as

'nearly unreversible.'" Mass. G. Evid. § 613 (a)(4) & note

(2016), quoting from Commonwealth v. Roberts, 433 Mass. 45, 51

(2000).

c. Sufficiency of the evidence. The defendants contend

that the evidence did not suffice to prove beyond a reasonable

doubt their wilful and malicious burning of the Feehan truck.

In particular, they contend that the Commonwealth failed to

eliminate accident as the cause of the fire.

To convict the defendants for malicious burning of property

under G. L. c. 266, § 5, the Commonwealth was required to prove

beyond a reasonable doubt that (1) the defendants, either

individually or by knowingly participating in a joint venture,

set fire to or burned the property, or caused property to be

burned, or aided, counseled, or procured the property to be

burned; (2) the burned property was personal property of another

with a value exceeding twenty-five dollars and/or a motor

vehicle; (3) the defendants acted wilfully; and (4) the

defendants acted maliciously. "'[W]ilful' means intentional and
21

by design in contrast to that which is thoughtless or

accidental." Commonwealth v. Smith, 17 Mass. App. Ct. 918, 920

(1983), quoting from Commonwealth v. Peruzzi, 15 Mass. App. Ct.

437, 443 (1983).

We view the evidence in the light most favorable to the

Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979). Although Captain Wilson stated in his fire report that

he was unable to rule out an accidental cause of the truck fire,

on redirect examination, he explained that his inability to

examine the power door locks, which were completely destroyed by

the fire, prevented him from conclusively eliminating an

electrical source of the fire. In other testimony, he expressed

his opinion that gasoline had been used as an accelerant, and

that the fire had been intentionally set. See Commonwealth v.

Ruci, 409 Mass. 94, 97 (1991) ("inconsistencies in the

witnesses' testimony . . . go to their credibility and do not

affect the sufficiency of the evidence"); Commonwealth v.

Harris, 1 Mass. App. Ct. 265, 268-272 (1973) (expert testimony

that fire was incendiary properly admitted).

The jury were warranted in crediting Captain Wilson's

opinion testimony, as well as other evidence (set out above) to

the effect that gasoline poured onto the truck accelerated the

fire; that the vehicle's gas tank remained intact; that the

conflagration originated, and burned most intensely, in a part
22

of the truck where electrical malfunction was unlikely to occur;

and that a gas can and a baseball cap were abandoned next to the

burning truck, strongly supporting the inference of a hasty

flight from the scene.17 Viewed under the Latimore standard, the

evidence sufficed to prove that the fire was wilfully and

maliciously set.18

Doxsey argues also that the Commonwealth presented no

evidence that he was present and participated in setting the

fire. His assertion is belied by the facts in the record.

Specifically, CSLI evidence tracking Doxsey's travel from

Durham, New Hampshire, to Waltham, Massachusetts, in the early

morning hours before the fire was set, and bank card records

indicating that he purchased less than one gallon of gasoline

17
Balboni contends that the Commonwealth's failure to
perform forensic testing on the burned truck and the liquid
found in the gas can precluded proof beyond a reasonable doubt
that the fire was set wilfully and maliciously. "The fact that
the police did not conduct a test has by itself little or no
tendency to show the defendant's guilt or innocence. The
relevance of such testimony appears to lie in the reason why a
test was omitted." Commonwealth v. Flanagan, 20 Mass. App. Ct.
472, 475 (1985). In this case, Captain Wilson testified that
his reasons for not testing the materials were a limited budget
and his belief that it was unnecessary.
18
See Commonwealth v. Rhoades, 379 Mass. 810, 816 (1980)
(jury warranted in finding fire was wilfully and maliciously, as
opposed to accidentally, set); Commonwealth v. Lanagan, 56 Mass.
App. Ct. 659, 665 (2002) (jury could infer fire was
intentionally set where accidental causes were absent and area
bore signs of flammable liquid); Commonwealth v. Blackmer, 77
Mass. App. Ct. 474, 483 (2010) ("Evidence of a defendant's guilt
may be primarily or even wholly circumstantial").
23

for a gas can at a station located approximately three miles

from where the burning truck was discovered, support the

inference that Doxsey had the opportunity and the means to set

the fire. Additionally, Doxsey's knowledge that his sister was

assaulted by Feehan suggests that Doxsey had a motive to set

fire to Feehan's truck. "Based on this circumstantial evidence,

a rational juror could have concluded beyond a reasonable doubt

that [Doxsey] participated . . . in setting the fire[]."

Commonwealth v. Rousseau, 465 Mass. 372, 387 (2013).

Judgments affirmed.