Opinion
20-P-298
04-09-2021
COMMONWEALTH v. Dominic BALLARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of one count of rape, in violation of G. L. c. 265, § 22 (b ). On appeal, he claims that the trial judge erred by excluding portions of his statement to the police and by instructing the jury on consciousness of guilt. We affirm.
The jury also acquitted the defendant of one count of rape.
Background. The jury could have found the following facts. In October 2017, the defendant and the victim, whom we shall call Kate, were students at the University of Massachusetts Amherst. They met each other after communicating through a dating application known as Tinder. On their first encounter, which occurred on October 4 at the defendant's apartment, they engaged in consensual sexual intercourse.
On the Tinder application, users create a dating profile containing photographs and search for potential dating matches. Tinder utilizes the user's location, derived from the global positioning system device built into his or her "smart phone," together with the user's profile, to suggest potential matches within a certain geographical radius. A hallmark of Tinder is the "swipe" feature, which allows a user to swipe his or her finger either left, indicating interest in a profile, or right, indicating lack of interest. If two users’ swipes indicate mutual interest, Tinder opens a direct line of communication between the users allowing them to message one another.
The two exchanged text messages on the following day and the defendant indicated that he wanted to see Kate again. Ultimately, they agreed to get together that evening; however, Kate warned the defendant that they could not "hook up," meaning they could not have sex, because she was experiencing heavy menstrual bleeding. The defendant responded that "it was fine [and they] could just hang out." The defendant picked Kate up, and they drove to her apartment. Once there, in Kate's bedroom, the two began kissing and, although Kate said "[w]e can't have sex" the defendant had sexual intercourse with her. At trial, Kate testified that the defendant removed her tampon, pushed her down, and then got on top of her. The jury acquitted the defendant of the charge of rape based on this incident.
Later that night, Kate sent a text message to the defendant telling him she was uncomfortable with what had happened. The defendant replied with an apology and asked if he could come over to Kate's apartment. Kate did not want the defendant to return to her apartment, but she wanted to talk about what had happened earlier and, therefore, around midnight, she went to the defendant's apartment. When she arrived, Kate told the defendant that they could not "hook up," and that she only wanted to talk. The two talked, and the defendant apologized again. Because it was late, Kate spent the night.
When they woke up the following morning, Kate and the defendant began to kiss, but Kate again asserted that they could not "hook up" and at one point she turned her back to the defendant. The defendant then "flipped" Kate over, removed her pants and underwear, got on top of her and proceeded to have vaginal intercourse while Kate told him "no" and that she was not kidding about not "hooking up." Afterward, Kate was upset and tried to find a ride home. Eventually, the defendant drove Kate home. The jury found the defendant guilty of rape based on this incident.
Upon arriving at her apartment, Kate blocked the defendant from her social media accounts. Later that morning the defendant sent Kate two text messages. The first read: "IK [I know] I forced it. I'm sorry. But gonna delete me on everything?" The second read: "I get it. I wouldn't want anything to do with me, either. I'm sorry I fucked up. I hope you don't think of me as a bad guy."
Kate took screenshots of the text messages and sent them to a friend before deleting them. The screen shots of the text messages were retrieved from the friend's cell phone and admitted in evidence. Kate had purchased a new cell phone and had not preserved the test messages.
Kate told various friends about the defendant's conduct, but she did not report the events to the police until December 2017. The police then contacted the defendant who came to the Amherst police station voluntarily and spoke with Detective Yvonne Feliciano. The interview, which lasted about one hour, was videotaped. The defendant did not deny that he and Kate had sexual intercourse. He admitted that they had, and claimed that it was consensual. A few excerpts from the interview were played for the jury. In those excerpts, the defendant acknowledged, among other things, that before his last sexual encounter with Kate she had told him "not today." He also stated that while they had sexual intercourse Kate said "let's not have sex, but she was kind of giggling about it," and he admitted that he had sent Kate a text message and said "sorry for whatever, I'm sorry what happened. I'm like I forced it."
While the defendant was at the police station, he agreed to Detective Feliciano's request for another officer, Sergeant Gregory Wise, to extract data from his cell phone. At trial, Officer Wise explained that based on his review of the data, the text that began with "I get it" had been deleted from the cell phone. He also testified that the text that began with "[I know] I forced it" did not appear in the data, and that it could have been deleted before the extraction process began.
The defendant testified at trial. He maintained that his sexual encounters with Kate were consensual. He also explained that the text in which he said, "[I know] I forced it," he meant that "I messed up, I did something wrong," and not that he had forced Kate to have sexual intercourse.
Discussion. 1. Exclusion of portions of the defendant's statement to police. Prior to trial, in response to the Commonwealth's notice informing defense counsel it intended to introduce the inculpatory statements the defendant made to Detective Feliciano during his interview, counsel filed a motion in limine requesting the admission of the entire video recording under the doctrine of verbal completeness. The judge denied the motion on the grounds that the remainder of the statement constituted inadmissible hearsay. We discern no error.
The defendant's motion in limine requested admission of the entire recording. The defendant advances a narrower argument on appeal focusing on specific portions of the statement. The Commonwealth argues that this argument, which differs from that presented below was not preserved. In light of our conclusion that there was no error, we need not address the standard of review.
"Under the doctrine of verbal completeness, [w]hen a party introduces a portion of a statement or writing in evidence, a judge has the discretion to allow[ ] admission of other relevant portions of the same statement or writing which serve to clarify the context of the admitted portion" (quotations and citations omitted). Commonwealth v. Aviles, 461 Mass. 60, 75 (2011). "[T]he additional portions of [a] statement must be (1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement." Commonwealth v. Eugene, 438 Mass. 343, 350-351 (2003). "[T]he mere fact that the Commonwealth has introduced a portion of the defendant's statement, or the mere fact that the omitted portions are relevant to the case, does not provide a sufficient basis for admissibility." Id. at 351. "Rather, the portions proffered by the defendant must be necessary to a fair understanding of the portions placed in evidence by the Commonwealth." Id.
As previously noted, the Commonwealth only introduced excerpts from the defendant's hour-long interview. There is no question that those excerpts were admissible and the defendant does not suggest otherwise. Rather, he claims, as he did before the trial judge, that the entire video recording should have been played for the jury to provide context for his inculpatory statements.
We have reviewed a transcript of the interview and conclude, as did the judge, that the excluded portions of the interview constitute inadmissible hearsay. We further conclude that the excerpts were not taken out of context, there was nothing "misleading about the Commonwealth's selection of [those] portion[s] of the defendant's statement[s]," and the excluded portions were "not necessary to an understanding of" the excerpts. Eugene, 438 Mass. at 351. Thus, the doctrine of verbal completeness did not apply, and the judge properly excluded the remainder of the video recording.
The defendant's reliance on Commonwealth v. O'Dell, 392 Mass. 445 (1984), is misplaced. In that case, the Supreme Judicial Court dismissed an indictment on the ground that the grand jury proceedings had been impaired by the prosecutor's failure to present exculpatory portions of the defendant's statement. Here, by contrast, the jury knew that the defendant had told the police that the encounters with Kate were consensual. The excerpts themselves so indicated; thus, unlike the situation in O'Dell, the jury was aware of the defendant's exculpatory comments.
2. Consciousness of guilt. Over defense counsel's objection, the judge instructed the jury, based on Sergeant's Wise's testimony, as follows: "You have heard evidence suggesting that the [d]efendant may have deleted text messages from his phone. If the Commonwealth has proven that the [d]efendant did such conduct, you may consider whether such actions indicate feelings of guilt by the [d]efendant and whether, in turn, such feelings of guilt may tend to show actual guilt on these charges." The remainder of the instruction tracked the standard instruction approved by our case law, and included the admonition that "[s]uch conduct does not necessarily reflect feelings of guilt." The defendant argues that, despite Sergeant Wise's testimony, there was no evidentiary support for a consciousness of guilt instruction and, as a result, he was denied his constitutional right to a fair trial.
The defendant does not challenge the substance of the instruction.
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Because the issue was preserved, we consider whether "we can be certain that [any] improper instruction ‘did not influence the jury, or had but very slight effect.’ " Commonwealth v. Morris, 465 Mass. 733, 737 n.2 (2013), quoting Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008). We conclude that the instruction was proper and that the judge acted within his discretion in deciding to give the instruction over the defendant's objection.
"Consciousness of guilt instructions are permissible when there is an ‘inference of guilt that may be drawn from evidence of flight, concealment, or similar acts,’ such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness." Commonwealth v. Vick, 454 Mass. 418, 423-424 (2009), quoting Stuckich, 450 Mass. at 453. "To determine whether a consciousness of guilt instruction is warranted, a judge need only assess the relevancy of the evidence." Morris, 465 Mass. at 738. Here, based on Sergeant Wise's testimony regarding the extracted data from the defendant's cell phone, the jury could have found that the defendant deleted both messages in an attempt to conceal or destroy evidence. See Vick, supra. The evidence was therefore relevant to consciousness of guilt. As such, it was not an abuse of discretion to give an instruction on consciousness of guilt.
We are not persuaded by the defendant's argument that it was not rational to conclude that he would have deleted the messages at issue in light of the fact that he (1) admitted that he sent both messages, and (2) did not know that the messages had not been preserved on Kate's cell phone. Certainly, the jury could reject the premise that the defendant deleted the messages, but it was up to them to determine whether the defendant had done so. Furthermore, the jury was instructed that if they found the defendant had deleted the messages, they were not required to draw an inference of guilt and "should not do so unless they appear to be reasonable in light of all the circumstances in this case." In short, there was no error.
Judgment affirmed.