COMMONWEALTH v. HEM (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a one-day jury trial, the defendant, Timmy Hem, was found guilty of assault and battery with a dangerous weapon. The defendant appeals, claiming that the trial judge erred in admitting two pieces of evidence and taking issue with the jury instructions. For the following reasons, we affirm.

Background. We summarize the relevant evidence presented at trial. The Commonwealth's case was as follows. On the evening of December 27, 2020, the defendant visited the victim's apartment. The victim asked the defendant to leave so she could shower, but the defendant refused to leave, and an argument ensued. During the argument, the defendant shoved a refrigerator toward the victim, pushed the victim toward a stove, and held two of the victim's cooking knives against the victim's neck. During the assault, the victim placed a 911 call. Lynn police responded to the scene and arrested the defendant.

The Commonwealth's case was primarily established with the following evidence: testimony of the victim;² testimony of police officer Edward Barrasso who responded to the scene; the 911 call made by the victim during the incident; and the knives used during the incident. At trial, the victim testified that she recognized her voice on the 911 call and both knives as the knives the defendant held to her neck on the night of the incident. The defendant argued that the Commonwealth failed to prove its case beyond a reasonable doubt because the victim was a reluctant witness, she did not unequivocally identify the defendant in the 911 call, and other responding officers did not testify.

Discussion. 1. 911 tape authentication. The defendant's first argument is that the 911 call was not properly authenticated. The defendant contested the admission of the 911 call on the grounds that it was inadmissible hearsay. Because the defendant objected to the admission of the 911 call on different grounds than he now raises, our review is limited to whether error, if any, created a substantial risk of a miscarriage of justice. See Commonwealth v. Castro, 99 Mass. App. Ct. 502, 509 (2021).

“In order to be admissible, the authenticity of the tape must be stipulated or proved like any other fact.” Commonwealth v. Wheeler, 42 Mass. App. Ct. 933, 935 (1997). A telephone conversation between a witness and another person can be authenticated by “confirming circumstances.” Commonwealth v. Loach, 46 Mass. App. Ct. 313, 316 (1999), quoting Commonwealth v. Wojcik, 43 Mass. App. Ct. 595, 606-607 (1997). See, e.g., Commonwealth v. Hartford, 346 Mass. 482, 488 (1963).

We conclude that there were sufficient confirming circumstances here. The victim testified that she called 911 during the assault, listened to the 911 call during trial, and testified that she recognized her voice as the caller. Additionally, the conversation that can be overheard on the audio recording of the call follows the sequence of events described by the victim. Because there were sufficient confirming circumstances, the admission of the 911 call was not error.

2. Knives. The Commonwealth offered two knives in evidence though the testimony of the victim. The victim recognized both the knives as the knives the defendant held to her neck on the night of the incident. The defendant argues that the admission of the knives without the testimony of the officer who recovered them violated his constitutional confrontation rights.

Since the United States Supreme Court's ruling in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), we have been confronting the various ways in which the confrontation clause affects the admissibility of evidence such as drug certificates and ballistics reports. See Commonwealth v. Barbosa, 461 Mass. 431, 434 (2012). However, we find no support for the proposition that, unlike drug certificates or ballistics reports, it is a violation of the confrontation clause to admit physical evidence when introduced by a witness who positively identifies the physical evidence.³

It is the Commonwealth's obligation to establish the chain of custody, but it is not necessary to call “everyone who laid hands on the evidence.” Melendez-Diaz, 557 U.S. at 311 n.1. In this case, the Commonwealth met its obligation when the victim identified the knives as the ones held against her neck. “In any event, the fact that there may be weaknesses in the chain of custody usually goes to the weight rather than the admissibility of the evidence.” Commonwealth v. Herring, 66 Mass. App. Ct. 360, 366 (2006). For that reason, there was no error.

3. Involuntary intoxication instruction. During direct examination, the victim testified that the defendant “wasn't ․ himself doing it. It was the drug that was doing it.” The defendant's final argument is that the trial judge should have sua sponte instructed the jury on voluntary intoxication. Because this issue was not raised at trial, we review for error, and if there was error, for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

“A voluntary intoxication instruction is not required where the evidence does not suggest a condition of debilitating intoxication that could support a reasonable doubt as to whether [the] defendant was capable of forming the requisite criminal intent” (quotations and citation omitted). Commonwealth v. Morales, 461 Mass. 765, 786 (2012). Even if the defendant met his threshold burden of providing evidence that he might have been intoxicated,⁴ his argument still fails. The defendant was found guilty of assault and battery with a dangerous weapon, which is a general intent crime in Massachusetts. See Commonwealth v. Appleby, 380 Mass. 296, 307 (1980). “Intoxication has no mitigating effect for general intent crimes.” Commonwealth v. Troy, 405 Mass. 253, 263 (1989). Therefore, the absence of a sua sponte involuntary intoxication with respect to the charge of assault and battery with a dangerous weapon was not error.

For all the above reasons, we affirm.

Judgment affirmed.

FOOTNOTES

2.   The victim was extremely reluctant to testify against the defendant, stating “he didn't mean to do it,” “I don't want to press charges,” and “I think he needs ․ mental help.”

3.   The only case cited by defendant in support of his argument is Commonwealth v. Jones, 472 Mass. 707, 711-720 (2015), which discusses whether there is a confrontation clause violation where an expert testifies regarding the process for the collection of evidence that was later tested but the expert had no personal knowledge of the process. Here the victim had personal knowledge regarding the knives, and the defense had the opportunity to cross-examine the victim regarding her personal knowledge.

4.   The witness's testimony was brief and lacked any foundation that she knew that the defendant took drugs, what the drug was, or how the drug affected his conduct.