Opinion
21-P-371
06-16-2022
COMMONWEALTH v. EVERETT HOPPER. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Everette Hopper, was convicted of two counts of rape of a child in violation of G. L. c. 265, § 23 and one count of indecent assault and battery on a child under fourteen in violation of G. L. c. 265, § 13B. All charges stemmed from an alleged decades-long pattern of sexual abuse against his stepson, Bill. The defendant filed a timely notice of appeal, raising two claims. First, he argues that purported screenshot images of Facebook Messenger conversations between the defendant and Bill were insufficiently authenticated prior to admission and contained inadmissible hearsay. Second, he argues that the prosecution made improper remarks during closing argument which impermissibly vouched for Bill's credibility as a witness, appealed to the jury's sympathy, and made improper use of first complaint evidence. We affirm.
As is our custom, we use the name that appears on the indictment.
Background.
a. The abuse.
We take these facts from the evidence, viewing it in the light most favorable to the Commonwealth.
Bill and his mother began living in Beverly with the defendant, who ultimately married Bill's mother, when Bill was four years old. When Bill was four or five years old, roughly between 1989 and 1990, the defendant began coming into Bill's room, where he would engage with Bill in activities that constituted rape of a child. The defendant and Bill would lie naked in bed together, where the defendant would fondle Bill's penis and instruct Bill to fondle the defendant's penis. Similar abuse sometimes occurred in the living room, while Bill's mother was away. Eventually the abuse progressed and the defendant would fellate Bill's penis and put his own penis in Bill's mouth. Bill testified that this abuse occurred "whenever [his] mom wasn't around, sometimes two to three times a week." He also testified that he "enjoyed it as a child," that he "thought it was okay" and that "it felt great." In fact, Bill stated that he began to initiate the sexual contact when he was six years old because he enjoyed it and because at this point it had become an expectation whenever he was alone with the defendant. During the same time period, the defendant began showing Bill pornographic images, after which they would have oral sex. Between the ages of six and seven, the defendant began abusing Bill in the shower, but Bill still did not report the abuse, believing it was okay. The abuse continued steadily as the family moved around to accommodate the defendant's employment as a prison guard and even as Bill came to view the defendant as a father and began calling him "dad," while the defendant referred to him as his son.
When Bill was in eighth grade, he viewed a video involving sexual abuse by a father against his son in a health education class and was confused because he had experienced such sexual abuse at the hands of the defendant "most of [his] life" but believed he had "enjoyed it." This caused Bill to question whether he should permit the defendant to continue to sexually abuse him. When Bill was fifteen years old, he told the defendant that they "should stop doing this," after which the abuse only involved touching and fondling as opposed to oral penetration. The abuse eventually stopped altogether when Bill was sixteen, after he yelled at the defendant once for coming into the bathroom while Bill was showering.
b. The first complaint and Facebook Messenger exchanges.
In 2014, Bill was a member of the armed forces and was stationed abroad, where he lived with his wife, Nina. In the spring of 2014, Nina was pregnant with the couple's first child and Bill accompanied her to their first ultrasound appointment. Bill was "extremely happy" at the prospect of having a child, but became deeply concerned because he had read that "somebody who had been abused sometimes becomes an abuser themselves." This caused him to reflect on the defendant's sexual abuse of him and become very upset to the point where he started to cry while sitting in the car with Nina after leaving the ultrasound appointment. At Nina's insistence that he share what was upsetting him, Bill disclosed that he had been "molested" by his stepfather, the defendant, for many years, that he had read about sexual abuse victims becoming abusers, and that he did not want to be like that. At trial, Bill testified that this was the first time he disclosed the abuse because at the time he was being abused, "[he] was confused. [He] didn't know whether [he] was straight, gay, or any of that at that time. To come out and say this stuff had happened to you and you liked it, so [he] just kept it to [himself]. [He] didn't want to tell anyone."
A pseudonym.
At the same time, Bill kept in regular contact with his mother and the defendant through 2015, including communicating with the defendant via Facebook Messenger. These Facebook Messenger exchanges began years prior to the disclosure, when Bill and the defendant became Facebook friends in 2010, and they communicated regularly about topics including themselves, Bill's mother, and his siblings. They discussed topics particular to the family such as his mother's smoking, financial matters, travel plans, and where Bill might be stationed. Bill never deleted these messages from his Messenger application.
In October 2015, Bill planned on attending a family wedding in Massachusetts, where he expected to see the defendant for the first time in several years. In anticipation of this encounter, he messaged the defendant via Facebook Messenger, saying that he "forg[a]ve" the defendant for what he had done, but that he would not be allowed "to touch [Bill's] daughter." Bill took multiple screen shots of the Facebook Messenger exchange that ensued between him and the defendant (username "Everette Hopper") over the course of several days:
A pseudonym.
Monday at 3:36 P.M.
[Bill]: "Just want you to know I forgive you. But you are never allow[ed] to touch my daughter."
Monday at 10:17 P.M.
"Everette Hopper": "[Bill, ] you know I would never ever do anything towards your family and I am so very sorry that I did anything to you but I am not that same person and would like your forgiveness can we have a Frank discussion between you and me when I get there.
"As. You wish I will not hold her
"Does [Nina] know of your wishes"
[Bill]: "Yes [she] knows"
Monday at 10:32 P.M.
"Everette Hopper": "Hopefully this will not cause any family problems this short visit
"I am not a sick perverted man that molests children"
Tuesday at 1:15 P.M.
[Bill]: "Your right Everette, I was just a twisted little boy who was lead to believe that it's OK to perform sexual acts with his step father."
Tuesday at 3:54 P.M.
"Everette Hopper": "No your wrong it was my problem and you were very innocent and I took advantage of a young boy that I was not so good a father and I am so sorry that I let it happen
"Never blame yourself for my mistake I hope you truly forgive me one day."
[Bill]: "You do know some day I will tell mom, it may not be now, but she has the right to know."
Tuesday at 4:24 P.M.
"Everette Hopper": "I realize that but I would prefer it much later we are in a area of our lives that it would be devastating to her and I would like to tell her myseld"
Bill showed these messages to his wife as he received them, and she witnessed him typing up and sending his responses. Both identified the copies of the screenshots offered at trial as reflecting that exchange. A few days after the exchange, Bill noticed that he was unable to locate the defendant's Facebook profile, that the defendant's username in the Facebook Messenger exchange had been replaced with "Facebook User," and that the defendant's profile photograph was no longer visible.
On March 8, 2016, Bill met with Detective Darlene Prinz of the Beverly Police Department. He showed her screenshots of the Facebook Messenger exchange from October 2015 and she had him log into his Facebook account at the police station to pull up the conversation he was referencing, but she did not view the prior conversation history between the accounts at the time. As part of her investigation, Detective Prinz requested information from Facebook regarding the defendant's records from October 1-31, 2015. Facebook responded, "Could not find an account for Everette Hopper on 10/26/2015 UTC." Just before trial, Detective Prinz viewed Bill's Facebook Messenger application and observed the longer message exchange between him and "Facebook User," (identified by Bill as the defendant) dating back to 2011, which was offered as an exhibit at trial.
Discussion.
1. Admission of Facebook Messages.
Two sets of Facebook Messenger screenshot images were provided to the police by Bill that the Commonwealth alleged reflected conversations between the defendant and Bill. First were screenshots of messages from the aforementioned October 2015 exchange (exhibit 2), and second were previous messages between the accounts dating back to 2011 (exhibit 1), which were offered to establish the fact that the October exchanges were in fact with the defendant. The trial judge ruled that exhibit 2 contained direct admissions by the defendant, rendering it highly probative, and that the prior messages were relevant for corroboration because there was a dispute as to authenticity. Ultimately the trial judge found that the messages were sufficiently authenticated and admitted both sets in their entirety.
On appeal, the defendant renews his claim that the Commonwealth provided insufficient authenticating evidence as to the messages in exhibit 2. He also argues for the first time that the username designation, date, and time contained in the screenshots of the Facebook messages are inadmissible hearsay. We disagree.
a. Authentication.
We review the defendant's preserved claim that the messages were insufficiently authenticated for prejudicial error; i.e., to determine whether such error, if any, "did not influence the jury or had but a very slight effect." See Commonwealth v. Tate, 486 Mass. 663, 669 (2021). "Before a communication may be admitted in evidence, the judge must make a determination regarding its authenticity; that is, the judge must determine whether there exists sufficient evidence that, if believed, a reasonable jury could find by a preponderance of the evidence that the communication in question is what it is purported to be." Commonwealth v. Lopez, 485 Mass. 471, 477 (2020). The judge does not determine that the evidence is what it is claimed to be, and, if there is a proper basis for doing so, the opposing party can urge the jury to conclude otherwise; the judge must only determine that there is sufficient evidence to support a finding by the trier of fact that the evidence is what is claimed.
Authentication of digital evidence such as screenshots from a website "is a condition precedent to its admissibility." Commonwealth v. Meola, 95 Mass.App.Ct. 303, 307 (2019), quoting Commonwealth v. Foster F., 86 Mass.App.Ct. 734, 737 (2014). Here, the relevance and admissibility of the exhibit 2 messages depended entirely on their being authored by the defendant, so the judge was required to determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant had authored them. Commonwealth v. Purdy, 459 Mass. 442, 447 (2011).
Evidence may be authenticated by direct testimony or circumstantial evidence. See Commonwealth v. Williams, 456 Mass. 857, 868 (2010), quoting Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). Indeed, circumstantial evidence and confirming circumstances alone may be sufficient to support such a determination. Meola, 95 Mass.App.Ct. at 310-311. These confirming circumstances may include, for example, the communication's "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics." Purdy, 459 Mass. at 448, quoting Mass. G. Evid. § 901(b)(1), (4) (2011).
In the present case, there was sufficient evidence to support a finding by the jury that the screenshots in exhibits 1 and 2 reflected Facebook Messenger exchanges between Bill and the defendant. Bill identified the screenshots in both exhibits and testified that they reflected exchanges he had with a person he believed to be the defendant, under the username "Everette Hopper," bearing the defendant's profile photograph, over the course of many years, beginning in 2011 and culminating in the October 2015 admissions. Bill's wife also corroborated his account of receiving the October 2015 messages from "Everette Hopper" and testified she was with Bill as he received the messages, that Bill showed them to her as they came in, and that she witnessed him sending replies to those messages.
The content of the 2015 messages from "Everette Hopper" also support a finding that they were sent by the defendant, as the sender responded to being called by the defendant's name, referred to the sender as being "not so good a father" to Bill, referenced an upcoming family trip, and indicated that the sender wanted to tell Bill's mother about the abuse himself because "we are in a area of our lives that it would be devastating to her."
The prior messages in exhibit 1, despite their remoteness in age, provided further corroboration of the authenticity of the exhibit 2 messages, as they are replete with references to members of Bill's and the defendant's family, address Bill as "son," and discuss private family subjects such as Bill's mother's smoking, the defendant's retirement, and Bill's military deployments.
All this provided more than sufficient evidence to support a finding by a preponderance of the evidence that the screenshots contained images of messages sent from the defendant to the complainant. The defendant points to a number of characteristics of the messages that, he argues, undermine the conclusion that the 2015 messages were from the defendant --including alleged patterns in the content of the 2015 messages that he asserts indicate they were written by someone other than the author of the 2011 messages, and the remoteness in time of the 2011 messages. Although this might have persuaded the jury, none of it sufficiently undermines the evidence described above to render it insufficient to support a finding that the 2015 messages were written by the defendant.
b. Hearsay.
The defendant claims for the first time on appeal that the username designation and date and time stamps on the various Facebook Messenger exchanges constitute inadmissible hearsay. Accordingly, we review this claim for substantial risk of a miscarriage of justice. Commonwealth v. Gilman, 89 Mass.App.Ct. 752, 757 n.6 (2016).
The defendant asserts that time and date stamps recorded on the Facebook Messenger messages admitted in exhibits 1 and 2 constitute impermissible hearsay because "the timestamping of a given message is inextricably intertwined with the human input that both determines the content of the message and triggers the application of the timestamp applied to it." In Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010), the Supreme Judicial Court held that computer records may reflect a hybrid of computer-generated and computer-stored data, the latter of which are generated by humans, thus implicating the hearsay rule. Accord Commonwealth v. Davis, 487 Mass. 448, 464-465 (2021) (inputting defendant's name to global positioning system mapping program not purely computer-generated and thus potentially subject to hearsay analysis). However, the date and time stamps here are purely computer-generated records, "created solely by the mechanical operation of a computer and do not require human participation," and therefore "cannot be hearsay." Davis, supra at 465, citing Commonwealth v. Royal, 89 Mass.App.Ct. 168, 171-172 (2016). We held in Commonwealth v. Perez, 89 Mass.App.Ct. 51, 56 (2016), that automatic time and date stamps printed on teller slips were computer-generated, which "do[] not raise hearsay concerns," and the defendant has offered no argument distinguishing the date and time stamps here. In both cases, the stamps are automatically generated in response to a human action, i.e., processing a purchase or sending a message, but require no actual human input or discretion in their generation. This is not hearsay. Cf. Royal, supra at 172 n.6 (conviction of operating motor vehicle while under the influence must be entered into Registry of Motor Vehicles website before suspension notice is automatically generated, rendering Registry database "at best a hybrid, comprising computer-stored records of human statements regarding triggering events as well as computer-generated notices"). There was no error in admitting the date and time stamps.
As to the username designation, if the messages came from the defendant, the username "Everette Hopper" as reflected in exhibit 2 was manually entered by the defendant at some time, is an integral part of the communications that constitute his admissions, and was therefore admissible. See Commonwealth v. Kozubal, 488 Mass. 575, 584 (2021), quoting Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) ("[a]n extrajudicial statement made by a party opponent is an exception to the rule against the introduction of hearsay, and is admissible unless subject to exclusion on other grounds"; this exemption "encompasses any extrajudicial statement made by a party opponent, not just statements that are inculpatory or against the party's interest"). Accord Mass. G. Evid. § 801(d)(2)(A) (2022) ("Statements that are not hearsay" include an opposing party's statement where "made by the party" or "is one the party manifested that it adopted or believed to be true"). Even if the username were admissible only on the condition that the jury could have found the messages came from the defendant, as described above, there was sufficient evidence in the record to allow it to make such a finding. We therefore find no error in its admission.
2. Commonwealth's closing argument.
The defendant next argues that the prosecution made improper remarks during closing argument which impermissibly vouched for Bill's credibility as a witness, appealed to the jury's sympathy, and made improper use of first complaint evidence. The defendant objected only to the alleged vouching at trial and we review this claim for prejudicial error. Tate, 486 Mass. at 669. In contrast, his claims that the prosecutor appealed to the jury's sympathy and misused the first complaint evidence are unpreserved, and so we review them for a substantial risk of a miscarriage of justice. Commonwealth v. Silvelo, 96 Mass.App.Ct. 85, 91 (2019), S.C., 486 Mass. 12 (2020).
a. Vouching.
In the present case, the prosecutor argued:
"[the complainant] got on that witness stand, in front of all of you, and he admitted that he enjoyed the sexual touching. He admitted that it was fun for him. He admitted that he would even initiate it himself. And then, when in eighth grade he had gone to that health education class and seen that video, that when that boy had cried after his father left the room in the video, that [Bill] couldn't understand why that was, because he never cried or felt sad when the defendant left his room.
"Ladies and gentlemen, if [Bill] were fabricating this entire thing, if he were lying about this, why would he get on that witness stand and admit to you something like that?"
After giving other reasons Bill should be believed, the prosecutor mentioned Bill taking the witness stand again:
"Now, ladies and gentlemen, when [Bill] got on that witness stand, was subject to cross-examination and found credible by all of you, that's all the evidence you need. His testimony is proof beyond all reasonable doubt.
"But you have so much more in this case."
The defendant asserts first that the prosecutor ran afoul of the prohibition against arguing that "a victim's testimony is entitled to greater credibility merely by virtue of [their] willingness to come into court to testify." Commonwealth v. Helberg, 73 Mass.App.Ct. 175, 179 (2008). See Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The defendant argues that, as in Commonwealth v. Ramos, 73 Mass.App.Ct. 824, 826 (2009), the prosecutor improperly "sought to bolster the credibility of the complainant by virtue of [his] willingness, despite [the] burden" of sharing embarrassing details about the sexual assaults in the courtroom, "to come into court and testify."
In Ramos, 73 Mass.App.Ct. at 825-826, the prosecutor asked the jury to consider why the complainant would "come in almost four years later and say to a group of complete strangers, 'I was sexually assaulted. I had my period. I was wearing a pad.' Why do that? What does she get from that? . . . What motive to lie or fabricate does [she] have?" Although a prosecutor may argue that the inclusion of embarrassing details makes testimony more credible, where that argument "suggest[s] to the jury that a victim's testimony is entitled to greater credibility merely by virtue of her willingness to come into court to testify," Ramos holds that it is impermissible. Id. at 826, quoting Helberg, 73 Mass.App.Ct. at 179.
We need not, however, determine whether the argument in this case is distinguishable from that in Ramos, because, assuming without deciding there was error under Ramos, we conclude that it was not prejudicial. In assessing this question, we must determine whether we can "sa[y] with assurance that the improper closing argument could not have influenced the jury to convict." Commonwealth v. Kelly, 417 Mass. 266, 272 (1994). Accord Commonwealth v. Martin, 484 Mass. 634, 647 (2020) quoting Commonwealth v. Rosado, 428 Mass. 76, 79 (1998) ("An error is not prejudicial only if the Commonwealth can show 'with fair assurance . . . that the judgment was not substantially swayed' by it").
In Ramos, 73 Mass.App.Ct. 826-827, where the case "rested entirely on the credibility of the complaining witness," we concluded the error was prejudicial. Having examined the record in this case, however, we conclude that any error here was not. To be sure, Bill's testimony as to his enjoyment and initiation of the sexual contact was the first reason given to the jury by the prosecutor for why Bill should be believed. But, apart from that portion of Bill's testimony, the jury had before it his description of the events at issue, the admissions of the defendant in the form of his Facebook messages, and Nina's testimony about their receipt. Given the strength of all this evidence, we can say with fair assurance that the jury's judgment was not substantially swayed by the prosecutor's argument about Bill's testimony about his enjoyment and initiation of the sexual contact, whatever its force.
b. First complaint.
The defendant next argues that there was error in the following portion of the prosecutor's closing argument, which addressed the first complaint:
"This didn't have, or wasn't connected in any way to the fact that the defendant had cheated on [Bill's mother]. This was about a year and a half earlier, when [Nina] and [Bill] had gone to their first ultrasound appointment, a day that should have been happy, one of the happiest days for [Bill] as a parent in his entire life. Instead, it was
ruined by the memories of what this defendant had done to him.
"And you heard about his complete breakdown, as he told [Nina] about the ugly truth of his childhood, how he shared with her his deep-rooted fears about what that meant for his future relationship with his child.
"Doesn't that seem so real? Doesn't that seem so human that moment right there? And if all of this hadn't happened, why would [Bill] have told something like that to his wife? For years, [Bill] had hidden this secret because he had felt shame that he had let it go on, shame that he had enjoyed it. But the emotion of seeing his unborn child in that image was his breaking point, and he told [Nina]."
The defendant argues that this impermissibly asked the jury to use the first complaint testimony substantively, to prove the truth of the allegations.
Both the first complaint witness and the complainant himself or herself "may testify about the fact of the first complaint and the circumstances surrounding the making of that first complaint." Commonwealth v. King, 445 Mass. 217, 218-219 (2005). A witness may also testify about the details of the complaint. "The complainant may likewise testify to the details of the first complaint (i.e., what [he or] she told the first complaint witness), as well as why the complaint was made at that particular time." Id. at 219. However, "[f]irst complaint testimony may be admitted for a limited purpose only, to assist the jury in determining whether to credit the complainant's testimony about the alleged sexual assault. The testimony may not be used to prove the truth of the allegations." Id.
In this case, the primary thrust of this argument was that properly admitted first complaint testimony about the circumstances and timing of the first complaint supported the credibility of the complainant. The sentence, "And if all of this hadn't happened, why would [Bill] have told something like that to his wife?," however, can be read both to support Bill's credibility and to indicate his allegation is true. But, even if it were error, a point we need not reach, we do not think it created a substantial risk of a miscarriage of justice.
All text messages are repeated as written.
The prosecutor's response to the defendant's argument that Bill was lying also properly used the circumstances and timing of the first complaint to bolster Bill's credibility: "Now, aside from the fact that we heard evidence that the defendant had purportedly cheated on [Bill's] mother more than once, you would have to think that [Bill] is an outright monster to do something like [lie about these allegations]. Because not only did he weave this web of all these details of a decade plus wor[th] of sexual abuse, he also lied to his wife and he ruined the memory of their first ultrasound with their firstborn child."
Judgments affirmed.
We also do not think the language quoted in the text rose to the level of an impermissible appeal to sympathy. Even if we are mistaken about that, we do not think any error created a substantial risk of a miscarriage of justice.