Opinion
18-P-739
09-27-2019
COMMONWEALTH v. Emanuel G. ZARATE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M(a ). The charge stemmed from an altercation that the defendant had with his girlfriend, whom we shall call Debbie, in March, 2017. On appeal, the defendant primarily claims that he was prejudiced by the admission of prior bad act evidence. He also contends that the trial judge erred in admitting in evidence: 1) Facebook messages exchanged between himself, Debbie, and his mother; and 2) photographs of Debbie's injuries that he claims were not properly authenticated. We affirm.
Background. Debbie and the defendant began dating in July, 2016, and lived together in various places out-of-State until they moved to Pittsfield in the spring of 2017. Debbie testified on direct examination about three separate altercations with the defendant that occurred prior to the charged offense and which left her with injuries. She claimed that, in October, 2016, the defendant hit her because he did not like her tone of voice. Then, in February, 2017, an alleged altercation left Debbie with a black eye, a bloody lip, and an injured finger. Finally, on another occasion, the defendant attacked Debbie when she left the shower and entered the living room because, as she testified, the defendant believed that she had come out of the bathroom "to see him purposely, to catch him doing something."
When the couple arrived in Pittsfield, they moved into an apartment with the defendant's mother, Lola Zarate (Lola). One day in mid-March, after Lola left for work, the defendant beat Debbie severely. The assault left Debbie with bruises on her face and a split lip. Debbie took photographs of herself after the incident. The photographs were admitted in evidence over the defendant's objection. Within a week of the assault, Debbie ended the relationship and left the defendant's home. The day after leaving the defendant's home, Debbie reported the assault to the police.
We refer to Lola Zarate by her first name so as to avoid confusion.
The defendant testified on his own behalf and denied the allegations. The defense theory was that Debbie fabricated the abuse as revenge for the defendant's infidelity. Lola testified for the defendant and stated that Debbie never told her that the defendant was abusive and that she never saw the defendant hit Debbie. During cross-examination, the prosecutor asked both Lola and the defendant about messages they exchanged with Debbie using Facebook Messenger. They each acknowledged using Facebook Messenger to communicate with Debbie. However, when Lola was asked whether she had sent certain messages in which she discussed the defendant's abuse, she denied doing so. Similarly, when the defendant was asked by the prosecutor whether he had sent threatening messages to Debbie, he responded that he had not.
Facebook Messenger is a mobile tool that allows Facebook users to send instantaneous messages to other users on the platform. See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 304 n.1, 125 N.E.3d 103 (2019).
Debbie returned to the stand as a rebuttal witness and identified several messages as ones that were part of exchanges she had with the defendant and Lola via Facebook Messenger. Debbie read aloud from and explained the context of the exchanges over the defendant's objection. The trial judge instructed the jury that the messages could only be considered for the limited purpose of impeaching the testimony of the defendant and Lola. He repeated the instruction in his final charge.
Debbie stated that she received the following messages from Lola: (1) "[M]aybe he got really kit [sic ] in his leg trying to hit you before because the face on your pic shows a lot in your eyes"; (2) "[I'm] just going to hope for the best but this fucking [d]rama repeat[ed] again [I] don[']t give [a] fuck and call the police myself because this ab[u]se I can not cover [I] really can [sic ] [h]is intent of murder, physical[ ] ag[g]res[s]ion is big deal really big deal can not be covered for long."
Debbie identified the following messages as ones she received from the defendant: (1) "Keep going to[o] I can just fuckin punch you until I can't stop breathing"; (2) "[A]nd that[']s the fucking mouth that gets you thrown around the floor"; and (3) "[B]ut until then it always has to be me putting my hands on you so you act different that is no life and I refuse to go down that toxic road even if it's for you."
Discussion. 1. Prior bad acts. Prior to trial, the Commonwealth filed a motion in limine seeking permission to introduce evidence of the defendant's prior assaults against Debbie. The defendant opposed the motion. Following a nonevidentiary hearing, the motion judge ruled that testimony regarding the three prior altercations about which Debbie testified was admissible to demonstrate the hostile nature of the parties' relationship. The defendant argues that both the motion judge and the trial judge erred in admitting the prior bad act evidence because the probative value of that evidence was outweighed by the risk of unfair prejudice. We disagree.
On cross-examination, Debbie was asked about a fourth prior altercation wherein the defendant allegedly beat her with a boot. Debbie testified that Lola interrupted the assault. Because testimony regarding this incident was solicited by defense counsel, we reject the defendant's challenge to its admission. See Commonwealth v. Elder, 389 Mass. 743, 754, 452 N.E.2d 1104 (1983).
"It is well established that in appropriate cases, a defendant's prior acts of domestic violence may be admitted for the purpose of showing a defendant's motive and intent and to depict the existence of a hostile relationship between the defendant and the victim" (quotation and citation omitted). Commonwealth v. Oberle, 476 Mass. 539, 550, 69 N.E.3d 993 (2017). Here, evidence of the defendant's prior assaults against Debbie was "probative of the defendant's mental state and intent" toward her at the time the charged conduct occurred and, in our view, was not unfairly prejudicial. Id. at 551, 69 N.E.3d 993. Furthermore, the evidence was also admissible for the independent purpose of rebutting the defendant's claim that Debbie had fabricated the assault because she was jealous. See Commonwealth v. Butler, 445 Mass. 568, 574-575, 839 N.E.2d 307 (2005) (evidence of prior bad acts may be admissible for other relevant purposes). See also Commonwealth v. Hall, 66 Mass. App. Ct. 390, 394, 848 N.E.2d 781 (2006).
Lastly, the trial judge gave accurate and thorough instructions to the jury informing them that the prior bad act evidence could only be considered by them for the limited purpose of showing the nature of the relationship between the defendant and Debbie and not to show that the defendant "committed the act for which he is charged." The trial judge repeated the instruction in his final charge. We are confident that these instructions were sufficient to mitigate any unfair prejudice. See Commonwealth v. Gonzalez, 469 Mass. 410, 421, 14 N.E.3d 282 (2014).
2. Admissibility of the Facebook Messenger exchanges. Prior to trial, the defendant moved in limine to exclude certain messages he and Lola sent to Debbie via Facebook Messenger. The motion judge heard argument on the defendant's motion at the same time he addressed the Commonwealth's motion in limine regarding the defendant's prior bad acts. Defense counsel argued that the messages were inadmissible because they were not dated and could not be authenticated. The prosecutor responded that the messages attributed to the defendant included a photograph of the defendant to the left of each message and explained that the messages consisted of real time conversations. The motion judge denied the defendant's motion in a margin endorsement writing that the messages are admissible "if the Commonwealth establishes foundation for authentication/admissibility through witness testimony" (emphasis in original). The defendant argues that the Commonwealth failed to authenticate the messages as having been authored by Lola or him at trial and, as a result, the trial judge erred in permitting the Commonwealth to introduce them. We disagree.
It appears that the messages attributed to Lola were not addressed separately.
"To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Mass. G. Evid. § 901(a) (2019). See Commonwealth v. Purdy, 459 Mass. 442, 447-448, 945 N.E.2d 372 (2011). Here, the Commonwealth demonstrated adequate confirming circumstances to authenticate the messages. Although the prosecutor did not solicit testimony identifying the defendant's, or Lola's, photograph, which appears on the copies of the messages, the messages were introduced as exhibits and the jury could see the photographs and names of the sender and recipient for themselves. In addition, Debbie, Lola, and the defendant each testified that they communicated using Facebook Messenger. Debbie specifically identified the messages and explained how and when she received them. Furthermore, both Lola and the defendant acknowledged sending Debbie some of the messages in question, just not those that referred to the defendant's assaultive behavior or were threatening. This evidence was sufficient for the trial judge to conclude that the jury could find by a preponderance of the evidence that Lola and the defendant authored the messages which were admitted in evidence. See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 310-315, 125 N.E.3d 103 (2019).
Our review of the exhibits discloses that a photograph of a male, presumably the defendant, appears to the left of the messages attributed to the defendant. With regard to the messages attributed to Lola, a photograph of a flower appears next to the messages.
We are not persuaded by the defendant's unsubstantiated claim that the trial judge did not review the messages before they were introduced. Nor do we agree that the trial judge should have conducted a voir dire of Debbie before permitting the prosecutor to call Debbie as a rebuttal witness. The defendant's argument that the messages should not have been admitted because Debbie had access to his and Lola's Facebook Messenger accounts is also unavailing. This claim went to the weight of the evidence, not the admissibility of the messages. See Purdy, 459 Mass. at 451, 945 N.E.2d 372. Lastly, we discern no error in the trial judge's instruction to the jury regarding the messages. The trial judge made clear that the messages were being introduced for the sole purpose of evaluating the credibility of the testimony provided by Lola and the defendant and should "not be taken for the truth of what is alleged in them." The trial judge also admonished the jury that to the extent the messages referred to prior bad acts, such acts "are not to be taken [by] you -- in any way, as proof that the defendant committed the act for which he is accused."
3. Photographs. Finally, we reject the defendant's argument that the trial judge erred by admitting in evidence four photographs of Debbie's injuries. Debbie testified she took one of the photographs following a prior assault and took the remaining three photographs after the assault for which the defendant was charged. The absence of a date on the photographs is inconsequential. Debbie authenticated the photographs and the jury were entitled give them whatever weight they chose. See Commonwealth v. Rodriguez, 457 Mass. 461, 476, 931 N.E.2d 20 (2010).
The defendant objected to three of the four photographs on the ground they were not relevant. Only one photograph was objected to on the ground that it had not been properly authenticated. We need not be concerned with the appropriate standards of review as the photographs were properly admitted under all applicable standards.
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Judgment affirmed.