Opinion
13-P-1380
12-04-2014
COMMONWEALTH v. JESSEY L. DEITNER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of violating an order issued under G. L. c. 209A to refrain from contacting the victim. On appeal, the defendant claims that the text messages and a photograph he used to contact the victim were improperly authenticated and should not have been admitted in evidence. The defendant further claims that the trial judge erred by failing to give the jury a curative instruction regarding references to the defendant having previously been in jail and a prior warrant for his arrest. We affirm.
Authenticity of text messages. "An item offered in evidence must be 'what its proponent represents it to be.'" Commonwealth v. Williams, 456 Mass. 857, 868 (2010), quoting from Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). Authenticity may be established through witness testimony or circumstantial evidence. Williams, supra. See Mass. G. Evid. § 901 (2014). This principle applies to photographs, Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002), as well as to electronic communications, Commonwealth v. Purdy, 459 Mass. 442, 448-450 (2011). Competent testimony that a photograph is a "fair and accurate representation" of what it depicts, Figueroa, supra, and circumstances confirming that a communication is what its proponent claims, Purdy, supra at 449-450, are sufficient methods of authentication.
Although the parties stipulated that the text messages and the photograph used to contact the victim were sent from a telephone number registered to the name "Eric Taylor," "the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence" that the defendant was the sender. Id. at 447. Most significantly, the victim testified that she recognized the defendant's voice when she answered calls from the telephone number in question. She was well acquainted with his voice from their prior dating relationship, and her testimony effectively linked him to the telephone number used to send the text messages and the photograph. See Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 368 (2014). Compare Commonwealth v. Anderson, 404 Mass. 767, 770 (1989). This evidence of positive identification distinguishes this case from those in which the only evidence identifying the author is contained solely in the communication sought to be introduced. See, e.g., Commonwealth v. Howard, 42 Mass. App. Ct. 322, 324-325 (1997).
Moreover, other confirming circumstances were present. The text messages contained slang that the victim testified the defendant used, references to the parties' mutual acquaintances, and a nickname for the victim. The messages also contained the photograph, which the victim testified (and the jurors could verify) was an accurate depiction of the defendant. This evidence was more than sufficient to meet the foundational requirement of authenticity, and the trial judge did not abuse her discretion in determining that the text messages and the photograph were properly before the jury.
No evidence was introduced, and no arguments were made, to establish the identity of Eric Taylor or his relationship to the case.
Absence of curative instruction. During cross-examination of the victim, defense counsel asked when she last visited the defendant's Facebook page. She answered that she checked his Facebook page "when they had a warrant out for his arrest" so that she "could keep tabs on him." Defense counsel did not object to or move to strike the answer. During the charge conference, however, the judge raised the issue of "references to the defendant having been in jail[] and having a warrant for his arrest," and said she intended "to talk to the jurors about how that is not to be used as evidence of guilt on these three charges." Defense counsel explained that he had not raised any objection during the victim's testimony because "the cat was already out of the bag," and drawing the jurors' attention to the comment "would just make matters worse." Although defense counsel welcomed the judge's promise to give a curative instruction, she ultimately failed to do so, and defense counsel did not object. Thus, the issue is waived, and we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Zimmerman, 441 Mass. 146, 150 (2004). See also Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979).
In the text messages, the defendant referred to being homeless, stated that jail is better, and said that if the victim went to the police, it would put him "back in jail."
The judge's failure to give the promised curative instruction, if error, did not create a substantial risk of a miscarriage of justice. See Commonwealth v. White, 452 Mass. 133, 139 (2008). Further reference to this isolated evidence in a curative instruction risked drawing the jury's attention to it. "[T]here was a danger that the jury would misuse" a curative instruction to conclude that the defendant "had a propensity" to violate court orders. See Commonwealth v. Errington, 390 Mass. 875, 881 (1984). As a result, we perceive no error in the judge's failure to so instruct the jury.
Furthermore, the judge's instructions as a whole made the defendant's presumption of innocence and the Commonwealth's burden of proof "abundantly clear." Commonwealth v. Gomes, 459 Mass. 194, 207 (2011). The jurors acquitted the defendant of two other counts of violating the no-contact order. We are confident that the absence of a curative instruction did not materially influence the verdict. See Commonwealth v. Morris, 82 Mass. App. Ct. 427, 438 (2012).
Judgment affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 4, 2014.