COMMONWEALTH v. GABBIDON (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On January 13, 1994, the defendant broke into the apartment of his former girlfriend, whom we shall call Mary, brutally assaulted her, and left her for dead. Mary survived the attack and identified the defendant as the perpetrator. Responding police officers immediately went to the defendant's residence, but the defendant was not there. He was indicted for armed assault with intent to murder, breaking and entering in the nighttime with the intent to commit a felony, mayhem, assault and battery by means of a dangerous weapon, and threatening to commit a crime.

Various law enforcement agencies tried to find the defendant over the course of the next twenty years. The story of the crime and the search for the defendant also appeared on the television program, “America's Most Wanted.” The defendant eventually was discovered living in Jamaica. He was returned to the Commonwealth and arraigned on the indictments in 2015. In 2017, a Superior Court jury convicted the defendant of mayhem and assault and battery by means of a dangerous weapon.² The trial judge dismissed the assault and battery by means of a dangerous weapon conviction as duplicative of the mayhem conviction and sentenced the defendant to a term of imprisonment for not less than eighteen and not more than twenty years.³ On appeal, the defendant claims that he was deprived of a fair trial by the judge's decisions to (1) exclude from evidence passages from a letter the defendant claims Mary sent to America's Most Wanted, (2) admit prior bad act evidence, and (3) give a consciousness of guilt instruction. We affirm.

Standard of review. We review the judge's evidentiary rulings for an abuse of discretion. See Commonwealth v. Fritz, 472 Mass. 341, 348 (2015). The judge's decision to give a consciousness of guilt instruction is reviewed under the same standard. See Commonwealth v. Cole, 473 Mass. 317, 326 (2015). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the 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” (quotations and citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The defendant did not object in so many words when the judge excluded the America's Most Wanted letter, but asked (1) that he be allowed to read passages therefrom “that are conceivably prior inconsistent statements with what [Mary] said on the witness stand,” and (2) for an instruction that the jury needed to find the statements were Mary's before considering them as evidence. We conclude that the defendant preserved the claim that the statements in the letter should be admitted by making it “known to the court the action which he desire[d] the court to take.” Mass. R. Crim. P. 22, 378 Mass. 892 (1979). See Commonwealth v. Wray, 88 Mass. App. Ct. 403, 405-406 (2015). His claim that the judge should have admitted passages from the letter is reviewed for prejudicial error.⁴ Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). As the defendant objected to the admission of prior bad act evidence and to the jury instruction on consciousness of guilt, if we conclude that the judge abused his discretion with respect to these matters, we apply the same standard. See Cole, 473 Mass. at 325; Commonwealth v. Foxworth, 473 Mass. 149, 160 (2015).

Discussion. 1. America's Most Wanted letter. The Commonwealth produced in discovery an unsigned, handwritten letter to America's Most Wanted that began, “My name is [Mary],” and described in first-person narrative Mary's relationship with the defendant. The four and one-half page letter apparently was stapled to an envelope that said “from [Mary],” in what the judge thought “look[ed] like the same handwriting that the document [was] in.”⁵ Although the letter was undated, its contents suggested that it was written in 1994 or 1995.

On cross-examination, Mary denied making the statements in the letter, having seen the letter before, or that it was her handwriting. Following a break in Mary's testimony, the prosecutor represented to the judge that during the break Mary had reviewed the letter and had said, “[M]aybe someone wrote i[t] for me because ․ some of the information accurately reflects biographical information.” Defense counsel did not elicit testimony to this effect when Mary's cross-examination continued after the break, and he did not question her further about the contents of the letter.

Detective William Phillips testified on cross-examination that he believed he had seen the America's Most Wanted letter before but did not know who wrote it. When defense counsel read passages from the letter to Phillips and asked him whether Mary had ever made such statements, the Commonwealth objected and challenged the adequacy of the evidence that the statements were Mary's. In response to the objection, the judge was required to make a preliminary determination “whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence” that Mary authored or dictated the statements. Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). Such evidence could be direct or circumstantial.

There was no direct evidence to support such a finding. A voir dire of Phillips produced evidence that Phillips recalled Mary making a statement to him in 1994 that was like one of the statements in the letter.⁶ Based on Phillips's answer and circumstantial evidence that the letter (1) was produced in discovery, (2) purported to be from Mary, (3) was accompanied by an envelope upon which Mary's name appeared to have been written in the same handwriting, and (4) contained personal information, the defendant claims that the judge abused his discretion when he found the evidence inadequate to authenticate the statements in the letter as Mary's. We disagree.

Mary's testimony that she did not write the letter, that it was not her handwriting, and that she did not make the statements in the letter was not contradicted by testimony from someone who was familiar with Mary's handwriting, for example. See Mass. G. Evid. § 901(b)(2) (2019) (testimony of person familiar with author's handwriting can satisfy authentication requirement). There was no “authenticated specimen” of Mary's handwriting for the jury to use as a comparison, id. at § 901(b)(3), and there was no testimony to support an inference that the letter's contents or internal patterns were accurate and attributable to Mary.⁷ Id. at § 901(b)(4). Thus, evidence that the writer identified themselves as Mary was inadequate to authenticate the statements in the letter as hers. See Purdy, 459 Mass. at 449-450.

To be sure, Phillips believed he had seen the letter before, the contents of the letter suggested that the author had personal knowledge of Mary's relationship with the defendant, and the appearance and contents of an item may provide adequate evidence of authentication when “taken together with all the circumstances.” Mass. G. Evid. § 901(b)(4). However, the circumstances here were limited to Phillips's vague recollection of Mary making a statement similar to one that appeared in a four and one-half page letter. At best, Phillips's testimony was arguably sufficient for the judge to submit to the jury the issue whether the letter was authentic. “The test of authenticity is straightforward. The standard [a court] must apply in evaluating a[n] [item]'s authenticity is whether there is enough support in the record to warrant a reasonable person in determining that the evidence is what it purports to be. This requirement may be met with various forms of evidence, including ‘[t]estimony that an item is what it is claimed to be’ or evidence of ‘[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.’ Fed. R. Evid. 901(b) (1), (4)” (quotations and citations omitted). United States v. Vázquez-Soto, 939 F.3d 365, 373 (1st Cir. 2019). But here, absent testimony from a witness who had knowledge that the statements were what the defendant claimed them to be, see Mass. G. Evid. § 901(b)(1), testimony from any witness who could “identify the person who actually sent the communication,” Commonwealth v. Williams, 456 Mass. 857, 869 (2010), or any evidence of “ ‘confirming circumstances’ that would allow a reasonable jury to conclude” that Mary made the statements in the letter, Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 737 (2014), quoting Purdy, 459 Mass. at 448-449, we cannot agree that the judge's decision to exclude the letter, or its contents, constituted an abuse of discretion. Contrast Purdy, supra at 450-451 (sufficient confirming circumstances where defendant acknowledged he owned and provided passwords for hard drive on which incriminating messages were found, his picture was attached to another message, and third message described unusual services defendant provided); Foster F., supra (juvenile appeared to play dating game just as person sending messages from juvenile's Facebook account proposed); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 368 (2014) (familiar tone of exchange, references to prior discussions between defendant and witness, and details of digital conversations sufficient to authenticate defendant as sender of communications).

In any event, we conclude that the defendant was not prejudiced. As the judge observed, the jury were made aware of Mary's prior, allegedly inconsistent statements because “[t]he defense questioned several witnesses as to whether [Mary] had made statements like” those in the letter. The judge also instructed the jury on prior inconsistent statements even though he excluded the letter. Where (1) Mary's credibility was the central issue at trial, (2) the jury were instructed to consider whether prior statements attributed to Mary affected her credibility, and (3) Mary's testimony was corroborated by physical evidence and the testimony of the other witnesses, we are persuaded that any error in excluding passages from the America's Most Wanted letter “did not influence the jury, or had but very slight effect” (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

2. Prior bad acts. Mary testified that the defendant pushed and hit her in July, 1993. On October 12, 1993, the defendant threw dishes at Mary, threatened to kill her, and stated, “Bitch, if I can't have you, no one's going to have you.” The police responded and placed the defendant under arrest for malicious destruction of property. Mary then obtained an abuse prevention order, which the defendant immediately violated. Mary's testimony about these acts was corroborated by the testimony of various police officers, who also testified that the defendant (1) called and threatened Mary at least ten times on October 24, 1993, while a police officer was there, and (2) was arrested outside Mary's apartment on October 25, 1993, and charged with stalking her. The parties stipulated that, on December 9, 1993, the defendant was convicted of stalking and admitted to sufficient facts to support a finding of guilty of malicious destruction of property.⁸

This evidence was highly probative of the defendant's motive, intent, and plan on January 13, 1994, and it also demonstrated the existence of a hostile relationship between the defendant and Mary. The evidence was admissible for these purposes, provided the probative value was not outweighed by the risk of unfair prejudice to the defendant. See Commonwealth v. Butler, 445 Mass. 568, 574 (2005); Mass. G. Evid. § 404(b)(2) (2019). Whether the probative value of relevant evidence is outweighed by its prejudicial effect is a question “within the sound discretion of the judge.” Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). The defendant argues that the judge abused his discretion in allowing the Commonwealth to present so much evidence of prior bad acts. To evaluate this claim, “we examine [the judge's] decision in the context of the trial.” Commonwealth v. McCowen, 458 Mass. 461, 478 (2010).

The Commonwealth sought permission to introduce evidence of sixteen prior bad acts, allegedly committed by the defendant between 1989 and the date of the attack, by filing a motion in limine. The judge carefully considered the motion and limited the Commonwealth to evidence of ten events that occurred after the spring of 1993, when Mary terminated the relationship. The judge ruled that evidence of these events was admissible to show the defendant's motive, state of mind, intent, and knowledge on January 13, 1994. Implicit in this ruling was the judge's conclusion that evidence of acts committed before the relationship ended was more prejudicial than probative, while evidence of events that occurred after that date was more probative than prejudicial.

It is a somewhat closer question whether evidence the defendant said, “Bitch, if I can't have you, no one's going to have you,” in October 1993, and again during the January 1994, attack “was more prejudicial than probative.” Commonwealth v. Gomes, 475 Mass. 775, 785 (2016). However, the trial judge was in the best position to resolve that question. Id. Any error in his decision was mitigated by two contemporaneous limiting instructions that were repeated in the final charge. See Commonwealth v. Crayton, 470 Mass. 228, 251 (2014). “[T]he jury appear to have paid attention to the judge's warnings about misuse of the evidence because they acquitted the defendant” of several of the indictments. Butler, 445 Mass. at 576.

3. Consciousness of guilt. Finally, the judge did not err when he gave a consciousness of guilt instruction over the defendant's objection. The Commonwealth argued that the defendant absented himself for twenty years and did not maintain contact with his family because “he knew exactly what he did” to Mary. The consciousness of guilt instruction balanced that argument and “add[ed] the important caveat that a defendant may not be convicted on such evidence alone.” Commonwealth v. Morris, 465 Mass. 733, 739 (2013).⁹ In these circumstances, the judge's decision did not fall “outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. at 185 n.27.

Judgment affirmed.

FOOTNOTES

2.   The defendant was acquitted of armed assault with intent to murder and armed burglary. The Commonwealth entered a nolle prosequi of the indictment alleging threat to commit a crime.

3.   The Appellate Division of the Superior Court increased the minimum end of the defendant's sentence to not less than nineteen and one-half years' incarceration.

4.   If the judge's decision infringed on the defendant's right under the Sixth Amendment to the United States Constitution to confront Mary, as the defendant argues on appeal, we would review to determine whether exclusion of the letter was harmless beyond a reasonable doubt. See Commonwealth v. Morales, 76 Mass. App. Ct. 663, 665 (2010). However, we conclude that the Constitution is not implicated because Mary testified at trial and was subject to cross-examination. See Commonwealth v. Irene, 462 Mass. 600, 617 (2012), and cases cited (confrontation clause bars admission of testimonial out-of-court statements by a witness who does not appear at trial). We therefore apply our standard for reviewing claims of nonconstitutional error.

5.   We were provided with a copy of the letter but not the envelope.

6.   Defense counsel asked Phillips about that statement in front of the jury.

7.   The prosecutor's representation that Mary thought someone may have written the letter for her because it contained accurate biographical information was not evidence.

8.   Contrary to the defendant's argument on appeal, his “[a]dmission to sufficient facts to warrant a finding of guilty is treated as a plea of guilty.” Luk v. Commonwealth, 421 Mass. 415, 418 n.6 (1995).

9.   The defendant's argument that Morris was wrongly decided cannot be adjudicated by this court.