Opinion
19-P-535
06-12-2020
COMMONWEALTH v. DAISHAUN DIXON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, Daishaun Dixon was convicted of crimes including, as relevant to this appeal, stalking in violation of a restraining order, G. L. c. 265, § 43 (b); and threatening to commit a crime. G. L. c. 275, § 2., These convictions hinged on evidence of a series of text messages sent by the defendant to his ex-wife in violation of a restraining order that she had obtained against him. On appeal, the defendant challenges the admissibility at trial of the text messages, the adequacy of the judge's jury instructions, and the judge's exclusion of certain expert witness testimony; claims that his trial counsel was ineffective; and argues that the case should have been dismissed because the defendant was irreparably harmed by lost evidence. We affirm.
The complaint charged the defendant with assault and battery on a family or household member, G. L. c. 265, § 13M (a); violation of a firearm surrender order, G. L. c. 209A, § 3C; strangulation or suffocation, G. L. c. 265 § 15D (b); stalking in violation of a restraining order, G. L. c. 265, § 43 (b); three counts of violation of a harassment prevention order, G. L. c. 209A, § 7; four counts of threatening to commit a crime, G. L. c. 275, § 2; malicious destruction of property of a value of over $250, G. L. c. 266, § 127; and intimidation of a witness, G. L. c. 268, § 13B.
The defendant was also convicted of two additional counts of violating an abuse prevention order and malicious destruction of property over $250. The Commonwealth entered a nolle prosequi as to the count of the complaint that alleged a violation of a firearm surrender order. The trial judge dismissed one of the convictions for violation of an abuse prevention order as duplicative of the conviction for stalking in violation of an abuse prevention order. The defendant was acquitted of the remaining charges.
1. Authentication of text messages. The defendant first argues that the trial judge erred in admitting, without proper authentication, evidence of the substance of text messages the victim testified that she had received on her cell phone. Specifically, he contends that there was an inadequate factual basis for the judge to make the required threshold determination that the text messages were sent by the defendant. See Mass. G. Evid. § 104(b) (2019). As the defendant raised the issue in a motion in limine, we review the judge's ruling for prejudicial error. See Commonwealth v. Coates, 89 Mass. App. Ct. 728, 732 (2016).
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). "[T]o admit testimony about the substance of [text] messages, the proponent must 'authenticate the messages' through foundational testimony establishing the 'identi[ty] [of] the person who actually sent the communication.'" Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 587 (2017), quoting Commonwealth v. Williams, 456 Mass. 857, 869 (2010). Evidence may be authenticated by direct or circumstantial evidence, including its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics." Commonwealth v. McMann, 97 Mass. App. Ct. 558, 560 (2020), quoting Mass. G. Evid. § 901(b)(4) (2019). A judge may look to "'confirming circumstances' sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the [communication]." Commonwealth v. Purdy, 459 Mass. 442, 450 (2011), quoting Commonwealth v. Hartford, 346 Mass. 482, 488 (1963).
Before admitting the text messages in this case, the judge conducted a voir dire of the victim. Although the telephone number from which the text messages were sent was unfamiliar to the victim, the evidence elicited on voir dire included sufficient "confirming circumstances" to show that the defendant authored the messages. See Purdy, 459 Mass. at 450; Mass. G. Evid. § 901(b)(11). The sender addressed the victim using a nickname only the defendant used for her, and responded to the victim's references to him by the defendant's name. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 759 (2016) (confirming circumstances included sender's use of "pet names the defendant and victim used for each other, and references to events in which the two alone participated"). Cf. McMann, 97 Mass. App. Ct. at 559 (insufficient confirming circumstances in digital communication where recipient recognized username of purported sender, but message included no other distinctive characteristics). Significantly, several of the messages focused on the sender's interest in having contact with and controlling access to the defendant's children. The sender identified one child using a distinctive nickname; referred to the victim's having failed to let him know that she had moved the children back to Springfield; became "upset" when the victim denied his request to see the children; and indicated displeasure about his children's being around the victim's new boyfriend. See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 441 (2018) ("content of the text messages reinforced their link to the defendant"); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 368 (2014) (confirming circumstances included references to prior discussions and to sender's son).
That the text messages were sent via a messaging application, using a number which with the victim was not familiar, was not fatal here, in light of the ways in which the content of the messages related them to the defendant. See Oppenheim, 86 Mass. App. Ct. at 368 (evidence sufficient to authenticate defendant's authorship where tone was familiar to recipient, and messages referred to earlier discussions with recipient and personal details about defendant). See also Meola, 95 Mass. App. Ct. at 311, citing Purdy, 459 Mass. at 448 ("mere possibility that a digital communication was fraudulently sent . . . is not a bar to its authentication"). Cf. McMann, 97 Mass. App. Ct. at 559-560 (fact that recipient of Instagram message recognized username of sender insufficient to authenticate otherwise generic message). The judge did not err in determining that this evidence was sufficient for a reasonable jury to find, by a preponderance of the evidence, that the defendant authored the text messages at issue. See Purdy, supra at 447.
The specificity and personalization of the substance of the communications in these text messages distinguishes the facts of this case from those in Williams, 456 Mass. at 867, 869, on which the defendant relies.
Furthermore, even if the voir dire did not adequately establish the authenticity of the text messages, any error in the admission of the messages was not prejudicial; the evidence presented to the jury was sufficient to authenticate them. See Alden, 93 Mass. App. Ct. at 440-441 ("confirming circumstances" that threatening messages originated from telephone number directly connected to defendant, and defendant acted in accordance with messages exchanged using that number). See also Commonwealth v. Caruso, 476 Mass. 275, 291 (2017) (erroneously admitted evidence did not prejudice defendant where evidence was "cumulative of much more compelling evidence" from other sources).
The jury heard the victim reiterate the substance of her voir dire testimony and heard her testify to the defendant's prior use of a private number to contact her, and to his attacking her after she received a text stating, "I'll wait for you to leave your house."
2. Jury instruction. The defendant claims that the trial judge erred in failing to instruct the jury that as a prerequisite to considering the text messages, they were required to find that the Commonwealth had proven that the defendant was the person who sent them. As the defendant neither requested the instruction he now claims was improperly omitted, nor objected to the jury instructions as given, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Shea, 467 Mass. 788, 790-791 (2014).
Where the authenticity of an electronic communication is at issue, it is "better practice" for the judge to instruct the jury that they must find, by a preponderance of the evidence, that the defendant authored the communication. Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 738 (2014). The defendant, however, cites no cases, and we find none, holding that a judge is required to give such an instruction sua sponte. See Gilman, 89 Mass. App. Ct. at 759 n.8 (although judge should have instructed jury on authorship, no substantial risk of miscarriage of justice by instruction's omission). The holding in Oppenheim is not to the contrary. See Oppenheim, 86 Mass. App. Ct. at 364-365.
Even if the judge had abused his discretion in failing to instruct the jury on this point, reviewing the instructions as a whole, we conclude that a reasonable juror would have interpreted them to require the jury to reject the evidence of the text messages if the Commonwealth failed to prove that the defendant had sent them. See Commonwealth v. Harbin, 435 Mass. 654, 658 (2002); Commonwealth v. Foster, 411 Mass. 762, 766 (1992). We do not discern a substantial risk of a miscarriage of justice in the judge's jury instruction.
3. Exclusion of expert testimony. The defendant next argues that he was deprived of his constitutional right to present a defense when, as a discovery sanction, the trial judge precluded the defendant's expert from offering testimony beyond the scope of the defendant's pretrial witness disclosure. We review the judge's ruling for an abuse of discretion, and balance the judge's authority against the defendant's constitutional right to present evidence. See Commonwealth v. Paiva, 71 Mass. App. Ct. 411, 414 (2008).
Specifically, that accurate information about the source and timing of the text messages at issue could only be obtained through analysis of the victim's cell phone.
There was no error in the judge's conclusion that the defendant failed to make a timely disclosure of the disputed feature of the expert's anticipated trial testimony. See Mass. R. Crim. P. 14 (a) (1) (B), as amended, 444 Mass. 1501 (2005). The defendant's pretrial expert disclosure did not identify the analysis of the text message data as part of the expert's anticipated testimony; we are not persuaded by the defendant's argument that attaching the expert's affidavit to a pretrial motion to dismiss was an adequate substitute for the disclosure required under rule 14.
Satisfied that the judge was within his discretion in sanctioning the defendant for his failure to comply with rule 14, we turn to the appropriateness of the particular sanction imposed. Considering the factors set out in Paiva -- "prevention of surprise"; "evidence of bad faith in the [failure to timely disclose anticipated expert testimony]"; "prejudice to the other party caused by the testimony"; "the effectiveness of less severe sanctions"; and "the materiality of the testimony to the outcome of the case" -- we discern no abuse of discretion in the exclusion of the disputed expert testimony. Paiva, 71 Mass. App. Ct. at 414, quoting Commonwealth v. Durning, 406 Mass. 485, 496 (1990). The record supports the judge's determination that the Commonwealth was unfairly surprised by the undisclosed portion of the expert's testimony; that the Commonwealth would have been prejudiced had the expert been permitted to testify to the new subject matter at the time that it was offered; and that the disputed evidence was not material. See Commonwealth v. Chappee, 397 Mass. 508, 518 (1986).
The judge did not address the effectiveness of less severe sanctions (and the defendant did not propose any alternative sanction). See Paiva, 71 Mass. App. Ct. at 415 n.3.
Even if the evidence was incorrectly excluded, because it would have been merely cumulative of other evidence of which the jury were already aware, the error was not prejudicial. The defendant proffered that the expert would testify that without the victim's telephone, "[one] can't get an accurate picture of who, from -- or to, from, date, time [of the text messages received on it]." The jury had already heard that the text messages at issue came from an unknown telephone number, and the defendant vigorously challenged both the authenticity of the messages and the credibility of the victim's testimony about how she came to receive them. See Commonwealth v. Smith, 460 Mass. 385, 398 (2011) ("The exclusion of cumulative evidence rarely constitutes prejudicial error").
4. Ineffective assistance. For the reasons we have just discussed, we agree with the defendant that his trial counsel's failure to disclose all aspects of his expert witness's anticipated trial testimony satisfied the first prong of the well-known Saferian test for ineffective assistance of counsel, but conclude that defendant has failed to show that he was prejudiced by counsel's mistake. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Accordingly, the defendant's ineffective assistance claim fails.
We note that the defendant presents his ineffective assistance claim on direct appeal -- the weakest form of such a challenge. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006) (preferred method for raising claim of ineffective assistance is through motion for new trial). The record does not, under these circumstances, include an affidavit of trial counsel identifying his tactical choices at trial.
5. Lost evidence. Several months before trial, the defendant moved to dismiss all charges against him on the basis that the victim had lost the telephone on which she had received the text messages at issue. He appeals the judge's denial of that motion. "In reviewing the denial of a motion based on the Commonwealth's loss of allegedly exculpatory evidence, we do not disturb the judge's decision absent a clear abuse of discretion." Commonwealth v. Kee, 449 Mass. 550, 554 (2007).
Even assuming that the defendant met his initial burden of establishing "'a reasonable possibility, based on concrete evidence rather than a fertile imagination,' that access to the [lost evidence] would have produced evidence favorable to his cause," Commonwealth v. Dinkins, 440 Mass. 715, 717 (2004), quoting Commonwealth v. Neal, 392 Mass. 1, 12 (1984), a question that we do not reach, there is no record evidence that the Commonwealth was ever in control of the subject telephone. The Commonwealth's duty to preserve exculpatory evidence is limited to evidence actually in its control. See Neal, supra at 8; Commonwealth v. Nicholson, 20 Mass. App. Ct. 9, 16 (1985). The telephone was lost by the victim, not by the police. The judge did not abuse his discretion in denying the motion to dismiss. See Commonwealth v. Cintron, 438 Mass. 779, 784-785 (2003).
To the extent that the defendant contended that the police should have been more proactive in securing the victim's telephone after the victim showed the texts to the police, he failed to pursue that line of inquiry at trial. See Commonwealth v. Semedo, 456 Mass. 1, 16 (2010).
Judgments affirmed.
By the Court (Henry, Desmond & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk. Entered: June 12, 2020.