COMMONWEALTH v. PERKINS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Nazareth Perkins, was convicted of armed and masked robbery. On appeal he contends that the judge erred in (1) admitting cell phone records in evidence, and (2) admitting a recorded “jail call” in evidence. We affirm.

Background. On or around January 19, 2017, at approximately 8:00 p.m., the defendant and two other men approached the New Family Market at 205 Humboldt Avenue in Dorchester from an alleyway at Humboldt Avenue and Crawford Street. The defendant wore a mask, maroon hooded sweatshirt, and black pants; another man wore a mask, green camouflage jacket, and hood; and the third man was unmasked and wore a knit cap. The defendant was taller than the other two men. Two of the men carried firearms and pointed them at the market workers.

During the robbery, the defendant pointed to a cash register, at which time a distinctive tattoo of an “Adidas” symbol, located on his right hand, became visible.² The defendants took money from cash registers, money from one of the market workers, and a box of cigarettes. The three men departed the market through a rear doorway that was not typically used by customers. The doorway led to Ruthven Street, where a silver 2018 Mitsubishi Mirage was waiting for them. They entered the vehicle and drove away. The unmasked robber, later identified as Richard Greene, had access to the Mitsubishi, which belonged to his girlfriend. She testified that Greene was in possession of the Mitsubishi on the date of the incident.

Through subsequent investigation into the armed robbery, the Boston Police Department determined that the defendant had a tattoo on his right hand that matched the one depicted on the surveillance video recording. In addition, a Boston Police Department database revealed that only five individuals had some form of an Adidas tattoo on their right hand, and, among these individuals, only the defendant matched the height and size of the perpetrator. Furthermore, the defendant had resided at 192B Humboldt Avenue, across the street from the market. Through cell phone records, the police also learned that the defendant and Greene (whose known nickname was “June”) had twenty-six communications on their cell phones between 3:56 p.m. and 8:51 p.m. on the date of the robbery. Moreover, many of the communications occurred just prior to the robbery, but ceased at 7:21 p.m. There were no such communications between the defendant and June between 8:00 p.m. and 8:11 p.m., which was the time when the robbery and getaway occurred. In fact, there was no cell phone activity whatsoever on either of their cell phones (with the exception of one missed call on June's cell phone from a different number), between 8:00 p.m. and 8:11 p.m. Finally, there was testimony at trial, some of which is now challenged on appeal, that the defendant and Greene knew and referred to each other by their respective nicknames, “Naz,” and “June.”

Discussion. 1. Cell phone records. The defendant contends that the judge erred in admitting evidence of cell phone records, showing calls made and received to and from the defendant's and Greene's cell phones, because there was insufficient authentication to show that the defendant himself made or received such calls. We disagree. The evidence was admissible under the business records exception to the hearsay rule. See G. L. c. 233, § 78. The defendant does not contend that the Commonwealth failed to establish the foundational requirements for admission as business records, nor could he in view of the clear record at trial. See Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674 (2011). The defendant's argument would have been better cast as a claim that such evidence should have been excluded as speculative or that the prejudicial impact outweighed the probative value. Even then, however, the argument is unavailing. The Commonwealth introduced abundant corroborative evidence from which it could be inferred that the defendant and Greene exchanged calls leading up to their joint criminal enterprise. This evidence included, but was not limited to, the following: evidence that Greene was the unmasked perpetrator; evidence that the defendant was the masked perpetrator in the maroon sweatshirt with the unique tattoo; evidence that the defendant lived or had resided across the street from the market; evidence that the crime was committed by someone familiar with the neighborhood and the market in light of the alleyway through which the perpetrators approached the market; the defendant's conduct within the market showing familiarity with the location of certain items, and the rarely used door through which the perpetrators departed the market; evidence of the numerous calls made on cell phones for which Greene and the defendant were the named subscribers immediately prior to the crime; and evidence of the sudden cessation of calls and all communications on those two cell phones at the time of the commission of the robbery.

Even assuming, arguendo, that the defendant properly casts the issue as “insufficient authentication,” the outcome would not differ. Before a communication may be admitted in evidence, a judge must determine whether there exists sufficient evidence that would allow a reasonable jury to find by a preponderance of the evidence that the communication in question is what it is purported to be. See Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). See also Mass. G. Evid. § 901(a) (2019). Authentication may be accomplished by way of “direct or circumstantial evidence, including its ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics.’ ” Purdy, supra at 448, quoting Mass. G. Evid. § 901(b)(1), (4). “Although evidence of identifying information within a communication is not sufficient by itself to authenticate the communication, see Purdy, [supra] at 450, there were other confirmatory circumstances that pointed to the defendant” as the caller and participant in the robbery, as delineated above. Commonwealth v. Lopez, 485 Mass. 471, 478 (2020). Here, for the reasons described above, the evidence -- including the identifying information, the timing of the calls, and other corroborating evidence -- was sufficient to authenticate the calls as having been made and received by the defendant.

2. Jail call. The defendant next argues that admission of “jail calls” between Greene and a female caller constituted inadmissible totem pole hearsay. The claim is unavailing. The recording was not admitted for the truth of the matter asserted, but for limited purposes. First, Greene identified himself as “June,” on the call. This statement was relevant and admissible as a statement of identification, as it showed that Greene went by the name June, which was identical to the cell phone subscriber information for his cell phone.³ The alleged second-layer hearsay -- the woman's statement that “Naz, from the Gate says ‘Hello’ ” and Greene's response, “Tell him I said, ‘What's up?’ back” -- was relevant and admissible. Specifically, Naz's statement through the woman was admissible as an admission to show the existence of the relationship between the perpetrators. See Commonwealth v. Lester, 70 Mass. App. Ct. 55, 61 (2007) (“An admission in a criminal case is a statement by the accused ․ of facts pertinent to the issue, which ․ tends in connection with proof of other facts to establish his guilt”). Likewise, Greene's statement was admissible to confirm the existence of the relationship between the perpetrators and to show that Greene knew and referred to the defendant by his nickname, “Naz.” See Commonwealth v. Martinez, 458 Mass. 684, 698 (2011) (witnesses' references to defendant's nickname relevant and admissible issue of identity); Commonwealth v. Kenney, 437 Mass. 141, 152 (2002), citing Commonwealth v. Gabbidon, 398 Mass. 1, 6-7 (1986) (testimony that children called defendant “daddy” not hearsay and admissible for limited purpose of explaining children's use of that term). There was no error.

Judgment affirmed.

FOOTNOTES

2.   A surveillance video recording from the store was entered in evidence as an exhibit.

3.   We note that the reference to Greene on the call as “June” was cumulative of other testimony at trial wherein his girlfriend testified that Greene identified himself by the name “June.”