Opinion
18-P-1457
02-28-2020
COMMONWEALTH v. Noel TIRADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant of three counts of aggravated rape of a child, G. L. c. 265, § 23A, three counts of forcible rape of a child, G. L. c. 265, § 22A, one count of assault to rape a child, G. L. c. 265, § 24B, four counts of indecent assault and battery of a child under the age of fourteen, G. L. c. 265, § 13B, one count of dissemination of matter harmful to minors, G. L. c. 272, § 28, one count of violating a restraining order, G. L. c. 209A, § 7, and one count of threat to commit a crime, G. L. c. 275, §§ 2, 4. In this direct appeal, the defendant argues that (1) the restraining order violation charge should not have been joined with the sexual assault indictments; (2) the trial judge should have instructed the jury to perform their gatekeeping function with respect to authenticity and to assess whether the Commonwealth proved by a preponderance of the evidence that the defendant authored the inculpatory text messages; (3) the admission of the unauthenticated text messages prejudiced the defendant because they did not establish he authored them; (4) there was insufficient evidence that the defendant violated the protection order by calling his wife from jail because she did not accept the calls or did not answer the telephone; and (5) trial counsel was ineffective because he failed to present expert testimony or to explore a third-party culprit defense. We affirm.
1. Prejudicial joinder. The defendant argues that the protection order violation charge ("Count 13" under the indictments numbered MICR 2013-971) should not have been joined with the sexual assault charges because proof of the former would reveal that he was incarcerated on the latter. Related offenses may be joined if "they are based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes." Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979). "If it appears that a joinder of offenses ... is not in the best interests of justice, the judge may upon his own motion or the motion of either party order an election of separate trials of counts." Mass. R. Crim. P. 9 (d) (1). The defendant's claim of prejudicial joinder must be raised "in writing and ... before trial." Mass. R. Crim. P. 9 (d) (2). The motion must "be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests." Id. Where the prejudice only becomes cognizable at trial, "a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known." Id. Where the defendant raises the issue for the first time on appeal, we review only to determine if any error created a substantial risk of a miscarriage of justice. Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 159 (2008).
The defendant did not file a written pretrial motion to sever Count 13 from the indictment. Nor did the defendant contend that any prejudice only became cognizable at trial. Although the defendant opposed the Commonwealth's motion to join the two sets of indictments numbered MICR 2013-971 and MICR 2013-1216, he did not argue that Count 13 alone should be severed. Nor did he so argue to the judge during the hearing on the Commonwealth's motion. In short, he did not raise in the trial court the argument he presses now on appeal.
We are not persuaded by the defendant's argument that the offenses are not sufficiently closely related. Count 13 is part of the same course of criminal conduct as the sexual assault charges; all of the events occurred within a two-week period and involved the same two family members (mother and daughter). See Mass. R. Crim. P. 9 (a) (1) ; Commonwealth v. Magri, 462 Mass. 360, 364 (2012) (judge may consider "the time and place of the charged offenses"). Furthermore, the mother's testimony regarding the telephone calls would have been admissible in a separate trial on the sexual assault charges. Magri, supra (judge may consider "whether evidence in the trial of one offense would be admissible in the separate trial of another"). The judge, accordingly, did not err in concluding that the offenses were sufficiently related to be joined. See Commonwealth v. Pillai, 445 Mass. 175, 180-184 (2005).
The following events happened between June 1 and June 13, 2013. On June 12, 2013, the defendant threatened to kill himself and his wife, the victim's mother, while driving the mother home from her doctor's appointment. That same day, the victim showed her mother the text messages between her and the defendant, which suggested sexual assault. The text messages occurred between June 1 and June 4, 2013. On June 13, 2013, the mother obtained a restraining order against the defendant. Later that same day, the defendant made eighteen calls to the mother, none of which the mother picked up. These calls were the subject of Count 13.
The defendant has also failed to show that the joinder caused him any unfair prejudice, especially given the judge's limiting instructions. See Commonwealth v. Allison, 434 Mass. 670, 679 (2001) ("defendant must show that any prejudice from joinder was beyond the curative power of the judge's limiting instructions"); Commonwealth v. Mamay, 407 Mass. 412, 417-418 (1990) (no abuse of discretion in not severing offenses where judge gave limiting instructions). Here, the judge carefully instructed the jury both during preliminary instructions and in her final charge that they were not to consider the fact that the defendant was held in custody in determining his guilt or innocence. In short, the judge did not abuse her discretion in not severing Count 13 sua sponte. Nor did the joinder of Count 13 result in a substantial risk of a miscarriage of justice.
2. Jury instruction. The defendant argues that the judge was required to instruct the jury that they needed to find by a preponderance of the evidence that the defendant authored the text messages. He also contends that the absence of such an instruction posed a risk that the jury would attribute the content of the messages to him based only on an assumption (rather than a finding) that he was the author. We have previously held that the better practice is "to instruct the jurors that, in order to consider the ... messages as evidence of the statements contained therein, they first needed to find by a fair preponderance of the evidence that the [defendant] was the author." Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 738 (2014), citing Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 367 (2014). That said, we have not found, nor has the defendant pointed us to any case requiring, a judge to give such an instruction in all cases. In any event, because the defendant did not request such an instruction, nor object to its absence, we review to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Purdy, 459 Mass. 442, 456 (2011).
To begin, we note that the judge properly exercised his gatekeeping function by conducting an extensive voir dire of the victim out of the jury's presence for the purpose of determining whether there was sufficient evidence of authenticity. We agree with the judge that there were ample confirming circumstances to permit the jury to find by a fair preponderance of the evidence that the defendant authored the texts. See Purdy, 459 Mass. at 450. Those confirming circumstances include: (1) the victim recognized the defendant's telephone number because the first six digits were the same as her mother's telephone number; (2) the victim received some messages while in the same room as the defendant and he looked at her after sending the messages; (3) the victim recognized the defendant's misspellings and use of symbols; and (4) the content of some of the messages reflected the defendant's relationship to the victim as her stepfather. In light of the strength of the authenticity evidence, we see no risk of a miscarriage of justice from the absence of an instruction specifically telling the jury that they needed to determine authorship as a preliminary matter, particularly on a civil standard of proof. See Foster F., 86 Mass. App. Ct. at 737-738.
For these same reasons, the defendant's argument that there was insufficient evidence that he authored the texts fails.
3. Sufficiency of evidence of "contact." The defendant argues that since the mother either declined to accept the calls made from prison or did not answer the telephone when it rang, there was insufficient evidence that he violated the "no contact" provision of the protection order. "Our cases generally interpret ‘contact’ broadly; there are many ways to achieve a communication." Commonwealth v. Basile, 47 Mass. App. Ct. 918, 919 (1999). Thus, contrary to the defendant's argument, the Commonwealth did not need to prove that the defendant verbally communicated with the mother in order to "contact" her in violation of the protection order. See Commonwealth v. Butler, 40 Mass. App. Ct. 906 (1996) (sending flowers anonymously is contact); Commonwealth v. Russell, 46 Mass. App. Ct. 307 (1999) (unaccepted collect calls from defendant along with call from third person enlisted by defendant was sufficient to establish contact); Basile, supra (defendant jumping up and down, waving his arms one or more blocks away from individual constituted contact).
With this understanding of "contact" in mind, it is clear that the evidence, viewed through the required lens of Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), was sufficient. On June 13, 2013, the mother obtained a restraining order against the defendant, who was in custody. Between 4 P . M . and 6 P . M . that same day, after the defendant was served with the protection order, eighteen telephone calls were placed from the holding tank at the Cambridge jail (where the defendant was housed) to the mother's cell phone number. When the mother answered the telephone, she was informed by a recording that the call was originating from a correctional facility and asked whether she would accept the call. The defendant was the only person the mother knew to be in custody at that time. In these circumstances, the evidence was sufficient to prove that the defendant contacted the mother, even though they did not verbally communicate.
4. Ineffective assistance of counsel. Finally, the defendant asserts he was deprived of the effective assistance of counsel in two respects. First, he argues trial counsel should have introduced expert testimony to explain the victim's medical records, which indicated that the absence of physical evidence of vaginal tearing, bruising, or tearing did not necessarily indicate that sexual abuse did not occur. Second, he argues that trial counsel failed to explore a third-party culprit defense given that the victim's brother's seminal fluid was found on the victim's bed. The defendant raises these arguments for the first time on direct appeal, not having filed a motion for new trial. See Commonwealth v. Fletcher, 52 Mass. App. Ct. 166, 172 (2001). In these circumstances, a claim of ineffective assistance may be resolved only when the factual basis of the claim "appears indisputably on the trial record." Id. at 171, quoting Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). That is not the case here. Without an affidavit from trial counsel or any other factual record, there is no basis upon which to conclude that counsel's trial decisions were "manifestly unreasonable when made" (citation omitted). Commonwealth v. Frank, 433 Mass. 185, 190 (2001).
Judgments affirmed.