COMMONWEALTH v. ARMSTRONG (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon (knife), witness intimidation, and threatening to commit a crime.² The primary evidence of the crimes came from the victim's testimony, supported by print copies of screenshots the victim took of messages she received through Facebook, a social networking website. On appeal the defendant argues that (1) the Facebook messages admitted in evidence were not properly authenticated, (2) the messages were otherwise inadmissible because they were irrelevant and unduly prejudicial, (3) the victim's reading at trial of an unredacted message that had been ordered redacted required a mistrial, and (4) the messages attributed to the codefendant were inadmissible because they violated the defendant's confrontation rights. We affirm.

Background. The defendant and the victim had a child together but their romantic involvement had ended years ago and both were in subsequent relationships by January, 2018. On January 31, 2018, the victim obtained an abuse prevention order against the defendant. Within a week, the victim received a Facebook message which appeared to be from the defendant:

“So this is the game you want to play BITCH I will give you [another] concussion don't forget and yeah your nigga can get it too as far as Markia goes yea I gave her everyone address and if anyone has a problem your know where I'm at don't make me have to put hands on you [again] Lil girl”3

Two days later, on February 8, 2018, the victim and her boyfriend were in court in connection with allegations that they had assaulted the defendant's girlfriend, codefendant Johnson, the previous month; the victim came home to her apartment building that day without her boyfriend as he had been detained at court. Later that night, the victim received additional Facebook messages which appeared to be from Johnson:

“How does it feel for your nigga to be behind bars you played yourself dummy should of never filed that restraining order against John now you got criminal charges and your punk ass nigga too now you anit have no one to save you so me and John will be coming to your house BITCH I will slit your throat and John will hold you down you lil BITCH nigga won't be home to save you I told my family a lie when I said I was going to dead it I'm going to tell the police and judge whatever I want and there going to believe me have fun being alone”

“BITCH we standing right outside ya door waiting” Minutes later, the victim stepped out of her apartment door to find the defendant and Johnson in the hallway. The defendant pinned the victim against the wall and Johnson put a knife to her throat. Both warned her that, if she didn't remove the restraining order, “this is really going to happen next time.” The victim pushed her way back into her apartment and reported the attack to the police.

The defendant and Johnson were subsequently charged with the attack on the victim. Months later, but a few weeks before trial, the victim received a message that appeared to be from the defendant:

“You think i care about an order i wanna see my son or remove him off of the restraining order we are goin ti come back to your house and markia is going to beat your ass while I beat your nigga up been telling you i don't want him around my son now you got jr calling and thinking he his dad”

Within ten minutes, the victim received another message which appeared to be from Johnson:

“Nothing can stop me after this case is over so you better watch out bitch cuz we coming back and this time we gonna slit your throat this time bitch”

Discussion. 1. Authentication. The defendant contends that the judge erred in allowing into evidence Facebook messages that were not authenticated. “To properly authenticate evidence, the proponent of the evidence must make a showing ‘sufficient to support a finding that the item is what the proponent claims it is.’ ” Commonwealth v. Mack, 482 Mass. 311, 318 (2019), quoting Commonwealth v. Woollam, 478 Mass. 493, 498 (2017), cert. denied, 138 S. Ct. 1579 (2018). The trial judge, for his part, must “determine whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be. If so, the evidence should be admitted, if it is otherwise admissible.” Mack, supra, quoting Commonwealth v. Purdy, 459 Mass. 442, 447 (2011).

“We review a judge's preliminary determination of [authentication] under an abuse of discretion standard.” Commonwealth v. Meola, 95 Mass. App. Ct. 303, 309 (2019), citing Commonwealth v. Leonard, 428 Mass. 782, 786 (1999). “That standard means that we will not disturb the judge's ruling absent a clear error of either law or ‘judgment in weighing the relevant factors.’ ” Meola, supra, quoting Commonwealth v. Brown, 477 Mass. 805, 820 (2017).

“[B]ecause the relevance and admissibility of the communications [here] depended on their being authored by the defendant, 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 authored the [Facebook messages].” Purdy, 459 Mass. at 447, citing Leonard, 428 Mass. at 785–786. Importantly,

“[e]vidence that the defendant's name is written as the author of an [electronic communication] or that the electronic communication originates from ․ a social networking Web [page] such as [on] Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.”

Purdy, supra at 450, citing Commonwealth v. Williams, 456 Mass. 857, 868–869 (2010). “There must be some ‘confirming circumstances’ sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the [messages].” Purdy, supra, citing Commonwealth v. Hartford, 346 Mass. 482, 488 (1963).

Here, two of the messages (February 6 and one of the July 23 messages) originated from a Facebook account that displayed: the defendant's nickname, which he had tattooed on his body, a picture of the defendant with his children, and additional pictures of the defendant. Additional confirming circumstances that suggested the defendant authored these two messages were present. The messages appeared to reference: Johnson, with whom the defendant had some personal relationship; a specific past injury that the defendant had inflicted on the victim; a protective order that the victim had obtained against the defendant; and the defendant's disapproval that the son he shared with the victim had begun to regard the victim's boyfriend, rather than the defendant, as his father. Perhaps most significantly, one of the messages suggested that the codefendants would “come back” to the victim's home to attack her, apparently in reference to the earlier attack.

The other messages (February 8 and the other July 23 message) originated from a Facebook account that displayed: a name matching part of Johnson's first name -- which could reasonably be a nickname -- preceding Johnson's middle name, and pictures of Johnson. Additional context suggested that Johnson authored these messages. The messages appeared to reference: the defendant, with whom Johnson had some personal relationship; the same protective order the victim had obtained against the defendant; that the victim and her boyfriend had appeared in court to answer charges relating to an alleged attack on Johnson; and that the victim's boyfriend had been arrested and was then in jail, which would make him unable to assist her in an impending assault -- a prediction that turned out to be accurate. The other message referenced a past attack and an associated court proceeding, as well as an intention to “come back” to slit the victim's throat “this time” -- an apparent reference to the earlier knife assault.

The defendant nevertheless argues, consistent with his trial theme, that anyone, including the victim, could have created false Facebook profiles for the codefendants and that no computer forensics were conducted to ensure the authenticity of the messages. Yet, “the mere possibility that a digital communication was fraudulently sent by someone other than the person associated with a particular social media ․ account from which the communication originated is not a bar to its authentication.” Meola, 95 Mass. App. Ct. at 311, citing Purdy, 459 Mass. at 450. Nothing “precludes a judicial determination that digital evidence may be authenticated circumstantially based on its contents and the surrounding circumstances.” Meola, supra at 313. This is true even absent evidence of “account information supplied by the social media platform through which the message was sent, the Internet protocol (IP) address of the computer or device from which the message was sent, or evidence that a copy of the message was found on a device in the [defendant's] possession” (footnote omitted). Id.

Thus, we cannot say here that the judge's threshold determination -- that adequate circumstantial evidence and confirming circumstances indicated the codefendants authored the Facebook messages ⁴ -- constituted clear error of law or judgment.⁵ See Meola, 95 Mass. App. Ct. at 309.

2. Relevance and prejudice. The defendant next argues that the Facebook messages admitted in evidence were irrelevant and prejudicial. “Evidence is relevant if it has a ‘rational tendency to prove an issue in the case,’ ․ or render a ‘desired inference more probable than it would be without [the evidence].’ ” Commonwealth v. Keo, 467 Mass. 25, 32 (2014), quoting Commonwealth v. Sicari, 434 Mass. 732, 750 (2001), cert. denied, 534 U.S. 1142 (2002). “The general rule to be followed in this Commonwealth is that all relevant evidence is admissible unless within an exclusionary rule.” Meola, 95 Mass. App. Ct. at 307 (2019), quoting Poirier v. Plymouth, 374 Mass. 206, 210 (1978).

One such exclusionary rule is that “the prosecution may not introduce evidence of a defendant's prior or subsequent bad acts for the purpose of demonstrating bad character or propensity to commit the crime[s] charged.” Commonwealth v. Butler, 445 Mass. 568, 574 (2005), quoting Commonwealth v. Barrett, 418 Mass. 788, 793 (1994). “Such evidence, however, ‘is admissible for other relevant probative purposes.’ ” Butler, supra, quoting Commonwealth v. Cordle, 404 Mass. 733, 744 (1989), S.C., 412 Mass. 172 (1992). “The question of admissibility of bad act evidence ․ is properly left to the sound discretion of the trial judge.” Butler, supra at 574-575.

All of the messages were relevant and admissible. The February 6 and February 8 messages constituted direct evidence of the charged conduct of threats: “I will give you a[ ] concussion,” “don't make me have to put hands on you,” “I will slit your throat and John will hold you down.” See Commonwealth v. Bigelow, 475 Mass. 554, 569 n.23 (2016), quoting Commonwealth v. Sholley, 432 Mass. 721, 724-725 (2000), cert. denied, 532 U.S. 980 (2001) (“The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat”).

These threats explicitly or implicitly referenced court proceedings and could be viewed as made to interfere with those proceedings, thereby constituting direct evidence of witness intimidation. See G. L. c. 268, § 13B (b) (witness intimidation statute, providing that, “Whoever willfully ․ threatens ․ another person who is a ․ witness ․ with the intent to ․ interfere with a ․ criminal proceeding of any type ․ or any other civil proceeding of any type ․ shall be punished”). See also Criminal Model Jury Instructions for Use in the District Court, Instruction 7.360 (2019).

Additionally, the February 8 messages, indicating that the codefendants were “standing right outside” the victim's door (and threatening to “slit” the victim's throat) just prior to the attack, and the July 23 messages, threatening to come “back” to the victim's house (to actually slit the victim's throat “this time”) constituted circumstantial evidence of the charged offense of assault and battery by means of a dangerous weapon (knife). See G. L. c. 265, § 15A.

Additionally, all of the messages provided evidence of a common course of conduct, intent, or motive with respect to the charged crimes, as they expressed anger regarding the victim's protective order against the defendant and an intention to physically harm the victim. See Butler, 445 Mass. at 574, quoting Barrett, 418 Mass. at 794 (“permissible relevant purposes [to admit prior or subsequent bad act evidence] includ[e] 'to show a common scheme or course of conduct ․ intent, or motive'”).

In sum, all of the messages were relevant and admissible for nonpropensity purposes.⁶ The judge did not abuse his discretion in admitting them. See Butler, 445 Mass. at 574-575.

3. Unredacted message. The defendant contends next that the judge erred in denying his motion for mistrial after the victim read to the jury an unredacted Facebook message that the judge had ordered be redacted. “We review the denial of [a] motion for a mistrial for an abuse of discretion.” Commonwealth v. Durand, 475 Mass. 657, 668 (2016), cert. denied, 138 S. Ct. 259 (2017), citing Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990).

Here, the victim read the following portion of the first message before the defendant objected: “So this is the game you want to play, bitch. I will give you another concussion. Don't forget.” The single word that should not have come before the jury was “another.” The jury heard the inadmissible word (“another,” in the context of, “I will give you another concussion” [emphasis added] ) only one time. See Gallagher, 408 Mass. at 517-518 (solitary reference to inadmissible evidence less likely to taint jury). Additionally, the judge immediately struck the testimony at issue.⁶ He also twice forcefully instructed the jury -- at the outset and then again at the close of trial -- that they could not consider struck testimony. See Durand, 475 Mass. at 669 (“jurors are presumed to have followed [a] judge's instructions to disregard ․ evidence”).

Under the circumstances, the jury's exposure to a word that should have been redacted was not so inflammatory as to require a mistrial. See Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). The judge did not abuse his discretion in denying the defendant's motion.

4. Confrontation clause. Finally, the defendant argues that admission of the Facebook messages attributed to Johnson violated his confrontation rights, because Johnson did not testify and thus was unavailable for cross-examination regarding the Facebook messages in which she implicated the defendant (as well as herself) in the crimes. However, Johnson was the defendant's codefendant at trial and the Commonwealth proceeded on a joint venture theory. The messages attributed to Johnson, therefore, were admissible as statements in furtherance of a joint venture and did not violate the defendant's confrontation rights. See Commonwealth v. Collado, 426 Mass. 675, 681 (1998), citing Bourjaily v. United States, 483 U.S. 171, 182–183 (1987).

On appeal, the defendant argues that there was no evidence of a joint venture, “[a]side from the alleged victim's incredible version of events that had no independent corroboration.” Yet, on appeal “we view the evidence presented to support the existence of a joint venture ‘in the light most favorable to the Commonwealth,’ recognizing also that the venture ‘may be proved by circumstantial evidence.’ ” Commonwealth v. Bright, 463 Mass. 421, 435 (2012), quoting Commonwealth v. Braley, 449 Mass. 316, 320 (2007).

Here, the evidence amply supported the existence of a joint venture between the defendant and Johnson, most notably by their joint attack on the victim at her front door. Johnson held a knife to the victim's throat as the defendant pinned her against the wall and warned that she “better get the restraining order off.” This was sufficient to show that both Johnson and the defendant knowingly participated in the crimes of assault and battery by means of a dangerous weapon and witness intimidation. See Commonwealth v. Rakes, 478 Mass. 22, 37 (2017) (joint venture is knowing participation in crime with requisite intent).

The admissibility of the messages attributed to Johnson then depended on whether they were made during and in furtherance of the joint venture. See Rakes, 478 Mass. at 37 (once joint venture is established by independent evidence, challenged statements are examined). The defendant makes no argument that they were not. Indeed, the first message indicated planning for the joint attack on the victim. See id. at 38-39 (statement of declarant's intent to participate in joint venture admissible). The last message stated an intention to repeat the attack, suggesting that the joint venture was ongoing. The fact that the defendant also sent a threatening message to the victim within ten minutes of Johnson's message supports the inference that the two continued to act in concert. See Commonwealth v. Allison, 434 Mass. 670, 676 (2001) (coordinated activity permits inference supporting joint venture). Thus, the judge did not abuse his discretion in admitting the messages attributed to Johnson. See Commonwealth v. Winquist, 474 Mass. 517, 521 (2016) (judge's determination as to existence of joint venture and statements in furtherance thereof reviewed for abuse of discretion).

For the first time on appeal, the defendant argues that the judge erred in failing to instruct the jury to consider the messages attributed to Johnson only if they found that a joint venture existed. See Commonwealth v. Boyer, 52 Mass. App. Ct. 590, 598 (2001). Because the issue was not raised at trial, we review for a substantial risk of a miscarriage of justice.

As an initial matter, evidence that the defendant and Johnson were working in concert was strong, making it unlikely that the jury would not have found the existence of a joint venture. Additionally, the messages attributed to Johnson, including “John will hold you down” and “we gonna slit your throat” were not appreciably any more incriminating than other evidence in the case. The jury had the victim's firsthand account of the defendant's attack on her outside her home. Additionally, the jury had the messages attributed to the defendant in which he repeatedly expressed his intention to beat her and threatened that he and Johnson would “come back” to the victim's home so that they could beat the victim and her boyfriend. Given the strength of this evidence, we discern no substantial risk of a miscarriage of justice from the absence of a limiting instruction concerning statements of joint venturers.

Judgments affirmed.

FOOTNOTES

1.   The defendant was tried with a codefendant, his girlfriend Markia Johnson, who was charged and convicted of assault and battery by means of a dangerous weapon (knife) and witness intimidation.

3.   The judge ordered the bracketed words redacted.

4.   The defendant additionally argues that there was “[insufficient] proof as to which defendant sent which messages,” in part because the victim testified “either of the two defendants could have sent the messages.” As the Commonwealth's theory was that the codefendants were engaged in a joint venture, which of the codefendants authored each of the messages discussed above is immaterial, at least for purposes of authentication.

5.   We note that “by its nature, the judge's preliminary [authentication] determination ․ [was] not conclusive and require[d] the finders of fact to make their own independent determination of the same question before they [could] consider the evidence.” Meola, 95 Mass. App. Ct. at 312-313, citing Commonwealth v. Alden, 93 Mass. App. Ct. 438, 443 (2018). The jury were so instructed here. Further, “after the [Commonwealth] ․ adduced sufficient evidence to support a finding that the proffered evidence [wa]s what it [wa]s claimed to be, the [defendant] remain[ed] free to challenge the reliability of the evidence, to minimize its importance, [and] to argue alternative interpretations of its meaning.” Meola, supra at 313, quoting United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014). “[B]ut these and similar other challenges go to the weight of the evidence -- not to its admissibility.” Id.

6.   We also reject the defendant's argument that “because [the victim] could testify to the event in question as well as the ‘bad blood’ between her and the defendants, the Facebook messages were not relevant.” “[T]he judge was not obligated to consider whether the Commonwealth needed the [other] act evidence or whether there was some alternative means by which the Commonwealth could prove its case.” Commonwealth v. Copney, 468 Mass. 405, 413 (2014).

6.   At sidebar immediately following the struck testimony, the defendant's trial counsel did not request a curative instruction. “There is no requirement that, in circumstances like these, a judge must give a curative instruction sua sponte.” Commonwealth v. Qualls, 440 Mass. 576, 584 (2003), citing Commonwealth v. Leonardi, 413 Mass. 757, 764 (1992). Moreover, the judge reasonably was concerned that a contemporaneous instruction would draw attention to the struck testimony.