COMMONWEALTH v. ANTHONY STOKES (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial, the defendant was convicted of domestic assault and battery in violation of G. L. c. 265, § 13M (a). On appeal, he contends that various evidentiary rulings were erroneous, requiring reversal of his conviction. We affirm.

Background. On August 6, 2017, the defendant visited his ex-girlfriend, whom we shall call Ava. The Commonwealth's theory of the case was that the defendant punched Ava in the face, grabbed her by her hair, dragged her from room to room, and threw her into a kitchen cart and against a window. Afterwards, the defendant called a woman friend to pick him up, whom we shall call Elena. According to the Commonwealth, he threatened Ava as he left. According to the defense, no such assault occurred, no cuts or bruises were visible on Ava when the defendant's friend came to get him, and he made no threats. The judge found the defendant not guilty of threatening to commit a crime, see G. L. c. 275, § 2, but found the defendant guilty of the domestic assault and battery. The arguments on appeal focus on the credibility issues.

Discussion. “We review evidentiary rulings for an abuse of discretion, which requires a demonstration that the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 476 (2017).

1. Opportunity to refresh recollection. Elena testified that she picked the defendant up at a South Boston location but could not recall the address. The defendant sought to refresh Elena's recollection of the address with a criminal complaint that she had not previously seen, but withdrew this question when the Commonwealth agreed (and the judge concurred) that there was no dispute that Elena picked the defendant up at Ava's home.¹ While we agree that the defendant would have been permitted to refresh the witness's recollection with a document not of her making, see Commonwealth v. Woodbine, 461 Mass. 720, 731-732 (2012), the judge did not issue a final ruling on the issue because the question was withdrawn. The judge did not abuse her discretion, as there was no dispute about the address, and there was no prejudice to the defendant, who was able to argue that it strained “credibility to think that this woman is anyone other than [Ava].” The defendant argued during oral arguments that refreshing Elena's recollection of the address with the complaint may have prompted her to then testify that she recognized Ava as the woman she saw that day. This argument is simply too attenuated and speculative to support a claim of error.

2. Hearsay. On her arrival, Elena saw a woman “walking back and forth past [Elena's] truck yelling.” She further testified that the woman was belligerent. The defendant also sought to admit testimony that Elena heard Ava yelling “sexual innuendos.” The Commonwealth objected on hearsay grounds. The defendant offered to “rephrase my line of questioning ․ to avoid any hearsay problems.” The judge struck the testimony as to what Ava said, but admitted the testimony that Ava was “belligerent.” The defendant went on to inquire whether the witness could see injuries to Ava's face or body. Elena testified she saw none.

On appeal, the defendant asserts that the statements were admissible to show “the victim's state of mind towards the defendant about her claims of physical abuse.” See Mass. G. Evid. § 803 (3) (B) (i) (2022). However, “[w]hen the judge noted that the statement was hearsay, the defendant made no claim, as he now does, that the state of mind exception to the hearsay rule applied. The issue argued to us was not properly preserved for appellate review and does not involve a substantial [risk] of a miscarriage of justice. In any event, the judge did not err in the exercise of [her] discretion to exclude the evidence.” Commonwealth v. Casavant, 426 Mass. 368, 369-370 (1998).

Additionally, it is apparent from the defendant's willingness to limit his questioning to nonhearsay matters, and his subsequent inquiries, that the purpose of Elena's testimony was to show that Elena saw Ava (and not someone else), that Elena had the opportunity to observe Ava, and that Ava did not appear injured. The current argument on appeal thus deviates substantially from the strategy pursued at trial, and for that reason does not establish error or a substantial risk of a miscarriage of justice. See Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 324 (2016) (“Counsel may not try a case on one theory of law, and then obtain appellate review on another theory which was not advanced at trial” [citation omitted]).

Finally, from the descriptions of the woman provided by Elena, the defendant was able to establish that Ava was argumentative and belligerent. To the extent that Ava's state of mind related to her identity, another somewhat attenuated argument, there was evidence of her state of mind, and we do not discern either an abuse of discretion or a substantial risk of a miscarriage of justice.

3. Authentication of photographs. Emergency medical personnel responded to the home and, according to Ava, took photographs of her injuries. These photographs were admitted at trial over the defendant's objection. The defendant claims that this was error because the photographs were not properly authenticated; they were not date stamped and the person who took the photographs did not testify.

“Any witness who could have testified that the photographs were a fair and accurate representation of the victim's wounds could have authenticated the photographs.” Commonwealth v. Housen, 458 Mass. 702, 712 (2011). See Mass. G. Evid. § 901 (a) (2022). Ava testified that the photographs were “a fair and accurate representation of [her] injuries” on the day of the assault. The judge did not abuse her discretion in admitting the photographs. Housen, supra at 713.

4. Authentication of text messages. Finally, the defendant sought to introduce “friendly” text messages that reportedly came from Ava after the alleged assault. The Commonwealth objected and the judge excluded the text messages.

At trial Ava testified that she did not initiate any contact with the defendant after the events in question. We agree with the defendant that, if properly authenticated, the evidence of “friendly” text messages would have been admissible to impeach her credibility. We therefore turn to authentication.

“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. ․ [T]he authentication of text messages may be accomplished by way of direct or circumstantial evidence including its [a]ppearance, contents, substance, internal patterns, or other distinctive characteristics” (quotations and citations omitted). Commonwealth v. Welch, 487 Mass. 425, 440-441 (2021). We agree with the defendant that the text messages could have been authenticated through the witness; the defendant was not required to testify in order to admit the text messages. To the extent that the truncated and incomplete transcript before us indicates that the judge may have thought otherwise, that would be error. See id. Cf. Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 587 (2017), quoting Commonwealth v. Williams, 456 Mass. 857, 869 (2010) (to admit testimony about substance of electronic messages, proponent must “'authenticate the messages' through foundational testimony establishing the 'identi[ty] [of] the person who actually sent the communication'”).

However, we are faced with a record which does not show that the defendant took steps to either authenticate the text messages, or to make an offer of proof regarding authentication. The transcript of the sidebar conference was incomplete. According to the parties' reconstruction, the judge excluded the text messages after expressing concern they had not been disclosed during pretrial discovery,² and because she questioned whether the witness could authenticate the text messages. The witness had denied communicating with the defendant after the incident. The defendant offered no evidence of confirming circumstances (such as the defendant's and Ava's telephone numbers or telephone records) to illustrate who authored the text messages and made no further effort apparent on the record to lay a foundation.³ On the basis of the limited record before us, it has not been made to appear that the judge abused her discretion in excluding the text messages.

Judgment affirmed.

FOOTNOTES

1.   Counsel stated, “If there's no dispute, I won't go down that road.” As the judge noted, there remained a dispute as to who the witness saw when she arrived at the home.

2.   We do not have the pretrial discovery orders in the record. On this basis alone, the appeal founders, because it is the appellant's burden on appeal to show error in the judge's ruling that the text messages should have been produced. See Mass. R. A. P. 16 (e), as appearing in 481 Mass. 1628 (2019); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). However, for the reasons stated, we need not rely exclusively on this ground on appeal.

3.   Alternatively, there was no attempt to refresh the witness's recollection without admitting the text messages.