COMMONWEALTH v. Ivan SILVESTRE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of possession of a class A substance with intent to distribute, second or subsequent offense, G. L. c. 94C, § 32, and possession of a class B substance with intent to distribute, second or subsequent offense, G. L. c. 94C, § 32A (d). He now appeals.
The defendant argues that recordings of his outgoing telephone calls from jail to his girlfriend that were introduced at trial were more prejudicial than probative and should have been excluded from evidence. These calls, to which the members of this panel have listened, run for a cumulative time of almost one hour.
At trial, the defendant objected that the calls both revealed that the defendant was incarcerated and contained “foul language,” and that therefore the risk of unfair prejudice outweighed their probative value. That claim is therefore preserved. See Commonwealth v. Almele, 474 mass. 1017, 1018 (2016).
In fact, the calls consist largely of the defendant verbally, emotionally, and psychologically abusing his girlfriend in repeated attempts to get her to go to what the evidence, viewed in the “light most favorable to the Commonwealth,” Commonwealth v. Marrero, 427 Mass. 65, 66 (1998), showed was the apartment they shared, where drugs were hidden. The calls contain evidence from which the jury could have inferred that the drugs there belonged to the defendant, that he was signaling her as to where exactly they could be found in the apartment, and that he was urging, even imploring her to go to the apartment and dispose of the drugs. The calls include what the jury could have found to be repeated attempts by the defendant to persuade his girlfriend to claim responsibility for the drugs so that he would not be convicted and incarcerated. The calls contain offensive name calling of the girlfriend by the defendant -- though the actual use of foul language directed at her is hardly the worst of it -- and repeated threats to withhold his love and himself from her if she refused to go along with his demands, belittlement, and degradation.
In the calls, the defendant evinces no sympathy for the girlfriend, who repeatedly described her fear of the various consequences for her of the actions the defendant proposed. To give a sense of the tenor of these abusive phone calls by the defendant, at one point, the crying girlfriend offers to kill herself after he has repeatedly called her a “fucking moron,” “retarded,” and a “fucking idiot” for consenting to a police search of the apartment. (The judge did order redactions to sections of the calls that referred to the fruits of a separate search of the apartment, which occurred a few days before the consent search, and which was later deemed unlawful. The judge also excluded one phone call altogether because it was made between the girlfriend and an unidentified caller, and the Commonwealth failed to show that it was admissible under the coconspirator statement hearsay exception or as nonhearsay evidence of the girlfriend's state of mind). A great deal of what the defendant says in the admitted calls could be construed as significantly inculpatory.
Because these recordings reveal the defendant essentially attempting to obstruct justice and intimidate a witness, we think that the defendant is correct that these phone calls amount to past bad act evidence and, therefore, they were admissible only if their probative value outweighed the risk of unfair prejudice. See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). This is the standard the motion judge used in allowing the recorded calls to be played for the jury.
As to the preserved claim of error, that the risk of unfair prejudice from the fact that the calls revealed the defendant's incarceration and contained foul language outweighed their probative value, we see no abuse of discretion in the judge's conclusion. The probative value of this evidence was extremely high. Indeed, the evidence contained in these calls was essential to the prosecution's case.
On appeal, the defendant raises a new, additional claim that the defendant insulting and verbally abusing the witness while using hostile and offensive language is what creates a risk of unfair prejudice. This claim not having been brought below, can succeed only if admission of the evidence would have been an abuse of discretion under the standard for admitting past bad acts evidence, see Commonwealth v. Barbosa, 457 Mass. 773, 794 (2010), and its admission created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
As described, these calls contained powerfully probative evidence against the defendant. Because the manner in which the defendant spoke to his girlfriend on the calls -- which he knew were being recorded -- is interwoven with and inseparable from the probative evidence, to the extent the question is whether it was an abuse of discretion to admit these recordings rather than excluding them in their entirely, it was not.
To the extent the defendant argues that there should have been redactions -- and the defendant does not point specifically to how he thinks these calls should have been redacted -- we may assume without deciding that, at some point, the admission of some of the defendant's repeated threats and cajoling was cumulative, and, upon proper objection, might have warranted redaction. However, given the strength of the evidence against the defendant and what the jury would permissibly have heard of the recordings even if they were redacted, we conclude that the failure of the judge to redact the recordings sua sponte did not create a substantial risk of a miscarriage of justice.
In his argument, the defendant also contends that the judge erred by not listening to a recording of the calls before he made his ruling. As the defendant acknowledged, however, the record does not indicate that he provided the judge with a copy of the recorded calls with his motion or at any other time before the hearing on the motion. The parties and the judge at the motion hearing worked without objection from a transcript provided by the Commonwealth, a copy of which has not been included with the record; as appellant, the defendant is responsible for creating a record from which the court can evaluate his claims. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 641 (1998). On this record, which contains no evidence the defendant asked the judge to review the recordings rather than the transcript, or that the defendant provided the recordings to the judge in a timely fashion, or even the degree to which the written transcript that the judge was given sufficed to reflect the tenor of the calls, the defendant cannot meet his burden of showing there was any error.
Lastly, the defendant argues for the first time before us that there was insufficient evidence of his intent to distribute the drugs on July 17, 2015, the date of the crime as specified on the indictments. In fact, the defendant was arraigned on July 14, 2015, and the apartment was searched with the consent of the girlfriend, and the drugs seized, on July 17, 2015. The defendant argues that the evidence was that he intended to have the drugs destroyed on July 17, not to distribute them.
The defendant has not demonstrated that the date of the offense is an element of either of the offenses of which he was convicted. See Commonwealth v. Knight, 437 Mass. 487, 492 (2002), quoting Commonwealth v. Campiti, 41 Mass. App. Ct. 43, 50 (1996) (“The time alleged for an offense is ordinarily treated as a matter of detail rather than substance”). To the extent there was a variance between the allegations contained in the indictment and the proof, because the “essential elements of the crime [were] correctly stated,” the defendant is not entitled to relief unless he was “prejudiced in his defence.” G. L. c. 277, § 35. The defendant does not argue, and our review of the record does not reveal, that he was.
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