Opinion
18-P-1660
03-13-2020
COMMONWEALTH v. Anthony L. GREEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Boston Municipal Court, the defendant was found guilty of assault and battery, in violation of G. L. c. 265, § 13A (a ). On appeal, the defendant claims error in the following: (1) denial of the defendant's motion to compel production of the victim's school records, (2) the trial judge's refusal to give a missing witness instruction, (3) deferral of a ruling on the defendant's motion in limine to exclude evidence of prior convictions until after the defendant's decision not to testify, and (4) the admission at trial of text messages, which the defendant claims were inadmissible. We affirm.
Discussion. 1. Motion to compel. The defendant argues that the motion judge erred in denying the defendant's motion to compel production of the victim's school records. See Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979). The underlying discovery request sought "[a]ny and all records relating to [the victim] including any disciplinary reports, transcripts, attendance reports, and teacher evaluations." Relying only on a school counselor's comments describing the victim as having "behavioral" issues and as being "the biggest bully they have in school," the defendant argues that the victim's records were relevant to a theory of self-defense. See generally Commonwealth v. Adjutant, 443 Mass. 649 (2005).
On appeal, the defendant has abandoned his alternative argument raised below that the records were relevant to a defense of parental discipline. See generally Commonwealth v. Dorvil, 472 Mass. 1 (2015).
In order to obtain a summons for third-party records, the moving party "must establish good cause, satisfied by a showing ‘(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition." ’ " Commonwealth v. Dwyer, 448 Mass. 122, 140-141 (2006), quoting Commonwealth v. Lampron, 441 Mass. 265, 269 (2004). The defendant must satisfy the rule in its entirety "before any documents of any kind may be summonsed from any third party prior to trial." Dwyer, supra at 140. We review the motion judge's decision regarding production of thirty-party records for an abuse of discretion. See Lampron, supra at 271.
An abuse of discretion occurs if a judge "made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the defendant's motion amounted to no more than a "fishing expedition." The school counselor's statements do not indicate any acts of prior violent behavior, and the defendant's assertion that the records requested would have contained evidence of violent acts committed by the victim was purely speculative. In any event, the defendant offers absolutely no basis to support the relevance of the requested transcripts, attendance reports, or teacher evaluations, among other requested records. Because the motion to compel merely asserted "[p]otential relevance and conclusory statements regarding relevance," it failed to show good cause, and the motion judge did not abuse his discretion in denying it. Dwyer, 448 Mass. at 142, quoting Lampron, 441 Mass. at 269.
The only evidence in the record describing the nature of the victim's alleged "bullying" involved one occasion on which she made other students carry her backpack.
Trial counsel's offer, made toward the conclusion of the motion hearing, to narrow the request to "a one-year period of time" or to change the request to "not all records but simply the disciplinary reports, transcripts, attendance reports and teacher evaluations" does not change our conclusion. The failure of the request to identify a clear basis of relevance was based in the nature of the records, and not the duration over which they extended.
2. Missing witness instruction. The defendant contends he was entitled to a missing witness instruction with regard to the victim's cousin, as she was the "only adult percipient witness" to the incident and it would be expected that the Commonwealth would call her.
A missing witness instruction "may be appropriate when a party ‘has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case, and the party, without explanation, fails to call the person as a witness’ " (quotation omitted). Commonwealth v. Williams, 475 Mass. 705, 720-721 (2016), quoting Commonwealth v. Saletino, 449 Mass. 657, 667 (2007). If a judge decides a missing witness instruction is not warranted, "counsel are not permitted to argue the issue during closing." Williams, supra at 721.
"The decision whether to provide a missing witness instruction to the jury is within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable." Saletino, 449 Mass. at 667. Where, as here, the defendant requested the instruction but did not object when the jury instructions were given without the missing witness instruction, we review only for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We conclude no error occurred.
"An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not materially influence[ ] the guilty verdict" (quotation and citation omitted). Alphas, 430 Mass. at 13.
In the present case, there was no evidence that the witness could have been "located and brought forward" to testify. Williams, 475 Mass. at 720, quoting Saletino, 449 Mass. at 667. The Commonwealth attempted to "hand-serve [the cousin] but was unable to locate her." The victim had not had contact with her cousin since the victim's birthday the previous year, and the victim had no way to get in contact with her cousin because neither the victim nor her mother had the cousin's telephone number. Thus, the trial judge's determination that there was no "evidence that [the witness was] available at all" was not manifestly unreasonable, and there was no error in declining to give a missing witness instruction. See Saletino, supra.
Moreover, after the trial judge declined to give the missing witness instruction, the defendant argued in his closing that it was "significant that you didn't hear from [the cousin]." Even if the refusal to give the requested missing witness instruction were erroneous, it did not give rise to a substantial risk of a miscarriage of justice because the defendant was allowed to present the adverse inference argument to the jury; in doing so, "the defendant got more than he was entitled to in the first place." Salentino, 449 Mass. at 672.
3. Motion in limine. The defendant next argues that the trial judge committed error by deferring a ruling on the defendant's motion in limine to exclude prior convictions, and that this error "deprived him of the necessary information to make a calculated decision to take the stand and testify on his own behalf."
The defendant's claim is without merit. While it is preferable for a trial judge to rule on a motion in limine before trial, the deferral of a ruling until the question becomes a live issue at trial is not erroneous. See Mass. G. Evid. § 103(f) note to (2019). See also Commonwealth v. Diaz, 383 Mass. 73, 81-82 (1981). The defendant did not request a ruling on his motion before recording his election not to testify, and there is nothing in the record to suggest that his decision not to testify was based on his fear of an adverse ruling on the motion.
The defendant's reliance on Commonwealth v. Preston, 27 Mass. App. Ct. 16 (1989), is misplaced. Preston holds that a defendant may claim ineffective assistance of counsel when a motion in limine to exclude prior convictions is not filed at all and the defendant is impeached by prior convictions while testifying or, alternatively, when the motion is filed but not renewed and the defendant is impeached by prior convictions while testifying. Id. at 23. Similarly, this was not an occasion where defendant's counsel filed a motion, that motion was subsequently denied, and defense counsel failed to object to the denial. See id. See also Commonwealth v. Boyer, 400 Mass. 52, 56-59 (1987).
4. Text messages. Finally, there is no merit in the defendant's claim that the trial judge erred in admitting the content of text messages at trial. The defendant contends that the Commonwealth failed to show "it was more likely than not that the [d]efendant was the author of the messages," and that because the Commonwealth failed to properly authenticate the text messages, the best evidence rule applies.
Before an electronic communication may be admitted, "a judge must determine whether sufficient evidence exists ‘for a reasonable jury to find by a preponderance of the evidence that the defendant authored’ the communication." Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366 (2014), quoting Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). See Mass. G. Evid. §§ 901(a), (b)(11) (2019). In determining whether a communication is properly authenticated, a judge "may look to ‘confirming circumstances’ that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be." Purdy, supra at 449. Because the defendant did not object to the admission of the text messages at trial, we review for a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13. We discern no error in the trial judge's admission of the content of the text messages, as they were properly authenticated.
See also note 5, supra.
The victim had multiple conversations with the defendant by way of text message prior to the incident, his name was saved in her telephone under the number that she used for text communications with him, and she had spoken to him on the telephone at that number before. In addition to the text messages being sent from a number associated with the defendant, they were sent to the victim after the assault and were apologetic. These were " ‘confirming circumstances’ sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the [text messages]." Purdy, 459 Mass. at 450.
Accordingly, because the text messages were properly authenticated as being authored by the defendant, there was no error in allowing the victim to testify regarding their content.
There is likewise no merit to the defendant's contention that the admission of testimony regarding the content of the text messages, rather than the messages themselves, violated the best evidence rule. As the Commonwealth observes, the best evidence rule does not apply to statements of the parties. See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 442 (2018). See also Mass. G. Evid. § 1007 (2019).
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Judgment affirmed.