COMMONWEALTH v. SIMON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a trial in the Superior Court, a jury convicted the defendant, Nicoreli Simon, of aggravated rape, two counts of assault and battery by means of a dangerous weapon, and kidnapping.² On appeal, he contends that the admission in evidence of a letter he wrote to the victim constituted harmful error because the Commonwealth did not authenticate his handwriting. He also argues that the judge's failure to instruct the jurors, sua sponte, that they could not consider the letter unless they believed it was written by him, created a substantial risk of a miscarriage of justice. We affirm.

Background. The Commonwealth presented substantial evidence regarding the volatile dating relationship between the defendant and the twenty-five year old victim. In September of 2016, the defendant stopped working and sought to traffic the victim. On October 1, 2016, the defendant “tried to set [her] up on a date with someone.” The victim falsely told the defendant that she had already arranged another date, and instead went to a restaurant with friends. Later that evening, the victim returned to her apartment, where she lived with her daughter and the defendant. After midnight, the defendant returned to the apartment, hid the victim's keys and cell phone, woke her up, and rummaged through the apartment looking for money. The defendant struck her, pushed her, prevented her from leaving the apartment, threatened her myriad times, ripped her dress off, beat her with a belt, poured freezing cold water over her, burned her chest with lit cigarettes, bent her over the couch, and forced his penis into her mouth and anus.

In the early morning, the victim managed to sneak away from the apartment while the defendant was still asleep. After telling her mother what had occurred, she went to the hospital where she received treatment and met with a detective.³ A treating nurse observed injuries to the victim's body including bruises, abrasions, burns, and contusions. At trial, the Commonwealth introduced medical records, DNA evidence, and witness testimony that corroborated the victim's description of events. The Commonwealth also introduced a letter purportedly written by the defendant to the victim that contained numerous references and admissions to the crimes. The letter was in an envelope indicating that it had originated from the Essex County Correctional Institution, where the defendant was being held.

The defense at trial was that the Commonwealth conducted an incomplete and insufficient investigation, and that the evidence, although unpleasant, did not prove the defendant's guilt beyond a reasonable doubt. The defendant did not call any witnesses at trial.

Discussion. 1. Authentication of letter. The defendant contends that the judge erroneously admitted the handwritten letter, over defense counsel's objections, because the Commonwealth never authenticated the handwriting on the letter as the defendant's. We are not persuaded.

Contrary to the defendant's argument, he did not preserve the issue for appellate review. Rather, following a series of discussions and objections on varied grounds regarding the admissibility of the letter, defense counsel specified on the record that he was “not challenging authenticity of [the] letter.”  ⁴ As defense counsel withdrew the objection, we review to determine whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Leary, 92 Mass. App. Ct. 332, 336 (2017) (in view of withdrawal of objection to admission of evidence, appellate review limited to whether any alleged error created substantial risk of miscarriage of justice).

Here, we discern no such risk. The Commonwealth authenticated the handwriting as the defendant's. First, the victim testified, inter alia, that she had “often” seen the defendant's handwriting, and that in October of 2016, she went to her apartment and saw a letter from the defendant addressed to her. Further, shown the letter at trial, she testified that she recognized it as the “letter from [the defendant] to me.” Although somewhat inartful, this testimony “identified the handwriting in [the] letter as that of the defendant.” Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). See Mass. G. Evid. § 901(a) (2019) (“To satisfy the requirement of authenticating ․ an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is”). In addition, other “confirming circumstances” supported the judge's conclusion that the evidence was “sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the [letter].” Purdy, 459 Mass. at 450. Those circumstances included, but were not limited to, the fact that the letter referred to the victim by her middle name, which only the defendant used; that the letter stated that “[i]t's so crazy that my next court date is guess what? October 11th,” which was the defendant's birthday;⁵ and that the letter was sent from the jail where the defendant was held.⁶

Second, even assuming, arguendo, that the Commonwealth failed to authenticate the handwriting, we discern no substantial risk of a miscarriage of justice. The Commonwealth's case was strong, and corroborated by abundant physical and forensic evidence. Furthermore, defense counsel made the tactical decision to avoid challenging the authenticity of the letter to avoid having the envelope -- showing that it originated from the Essex County Correctional Institution -- admitted in evidence. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986) (under substantial risk test, appellate courts consider, inter alia, “the strength of the Commonwealth's case against the defendant ․, the nature of the error,” and “whether it can be inferred ‘from the record that counsel's failure to object was not simply a reasonable tactical decision’ ”).⁷

2. Jury instruction. The defendant next argues that the judge's failure to give a “slightly modified version of the humane practice instruction,” sua sponte, created a substantial risk of a miscarriage of justice. Specifically, he claims that the judge should have instructed the jury to the effect that they must determine whether the defendant in fact wrote the letter. As the defendant correctly conceded at oral argument, this argument largely hinges on the success or failure of his first argument regarding the authentication of the letter at trial.⁸ As detailed above, the Commonwealth properly authenticated the letter, and the defendant withdrew his objections to authentication for sound tactical reasons. Accordingly, this claim is also unavailing.

Judgments affirmed.

FOOTNOTES

2.   The jury found the defendant not guilty of one count of assault and battery by means of a dangerous weapon, one count each of aggravated rape, strangulation, and attempted murder, and two counts of assault and battery.

3.   The victim subsequently assisted the detective in locating the defendant, which led to the defendant's arrest.

4.   The Commonwealth raised the issue of the admissibility of the letter in a motion in limine. Following several ensuing discussions, the judge stated that she would admit the letter, “[s]ubject to proper authentication.” Defense counsel asked her to hold off on her ruling because he did not “want the Commonwealth to mention it in their opening.” The judge agreed to reserve her ruling and “think further” on the issue. The next day of trial, the judge advised that she intended to admit the letter in evidence, and advised defense counsel to object prior to its admission. Defense counsel responded by asking, in part, “[y]ou're finding that it's authentic so that it becomes admissible at trial; is that accurate?” The judge responded, “I can't find it authentic yet․ If there appears to be a problem in the authentication before it's admitted, make your objection, I'll see you at sidebar, and we'll deal with it if there's something unexpected that we don't know now.” Following the victim's testimony, wherein she stated that she had “[o]ften seen things that the defendant had written,” and recognized the letter as the “letter from [the defendant] to me,” defense counsel stated, “[w]ithout waiving my prior objection to this letter, I believe that there's been sufficient foundation laid for the letter ․ but I'm still objecting.” The judge admitted the letter in evidence over the objection. During a subsequent discussion regarding the letter and the date on which it was mailed, defense counsel stated, “I'm afraid to stipulate to authenticity. I heard what was testified to, and I think it's been authenticated. I would agree with that ․ So if I now stipulate that it's authentic, I don't want to waive my client's appellate rights to challenge the allowance of the introduction of that letter.” The judge allowed defense counsel “to think about it over the weekend.” The next day of trial, following the weekend “to think about it,” defense counsel advised the judge that he would stipulate that the letter was mailed from the house of correction on October 5, 2016. He further stated, “I'm not challenging authenticity of that letter.” The judge responded, “So there's a stipulation of when it was mailed, and no challenge to the authenticity.”

5.   The evidence at trial confirmed that the defendant's birthday was October 11, and that he indeed had a court date scheduled that day.

6.   The defendant contends that our case law has misapplied the “confirming circumstances” principle to the authentication analysis. This claim is unavailing. Indeed, that language stems from Purdy, 459 Mass. at 450, and describes one potential consideration, among others, in determining whether a reasonable jury may find by a preponderance of the evidence that a person authored a particular writing. See id.

7.   Of final note, following closing arguments, defense counsel objected to the prosecutor's use of certain language taken from the defendant's letter. In rejecting the request for a curative instruction, the judge stated, in part, “[t]here's no question that he's the one who wrote the letter. You've agreed to the authentication of the letter. It's his characterization.” Defense counsel replied, “[t]hank you,” and did not correct the judge, argue that he nonetheless objected to authentication, or claim that authentication was still a live issue. The defendant does not challenge the Commonwealth's closing argument on appeal.

8.   We acknowledge appellate counsel's candor in this regard.