Commonwealth v. Louf, 2019 Mass. App. Unpub. LEXIS 403 (Mass. Ct. App. May 23, 2019) (summary decision):

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following an eight-day trial in October, 2016, a jury convicted the defendant, Joseph Louf, of ten of the eleven charges against him, all of which were based on his severe physical abuse of his former girlfriend.¹ On appeal, Louf argues that his convictions should be reversed and his case remanded for a new trial because (1) the trial judge erred in failing to conduct a voir dire when the possibility of a juror's "dozing off" during the trial was brought to his attention; and (2) the trial judge abused his discretion in permitting the victim and the victim's mother to testify about the substance of text messages allegedly sent to them by the defendant, where the text messages themselves were not offered in evidence. For the reasons below, we affirm.

Discussion. 1. Sleeping juror. Louf argues that the court's failure to conduct a voir dire of a juror whom defense counsel informed the judge "appeared to have been dozing off" was structural error and violated his right to a fair trial, requiring reversal of his convictions. See Commonwealth v. Valentin, 470 Mass. 186, 196, 23 N.E.3d 61 (2014), quoting United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (structural errors are ones that render "adversary process itself presumptively [*2]  unreliable"). We disagree.

Louf's counsel raised the issue of a potentially inattentive juror at a sidebar conference:

Defense Counsel: "My client and [my paralegal] has [sic] observed that the juror, the Spanish juror in the back, has been, appears to have been dozing off. And a couple of days ago when I tried to look I didn't notice it, but I just wanted to raise it to the [c]ourt's attention."

The Court: "Well, you should raise that to the [c]ourt's attention immediately whenever it's observed."

Defense Counsel: "Like I said, Judge, I did not observe it myself. I was trying to keep an eye on it. But at this point they said [he] just did it again, so that's why I bring it to the [c]ourt's attention."

The Court: "Well, there's a difference between closing eyes and nodding off, but I will keep a very sharp eye on him. I certainly haven't noticed it. And I want you —"

Defense Counsel: "Certainly."

The Court: "— to bring it to my attention."

Defense Counsel: "I certainly will. That's why I'm doing it now because I haven't seen it myself."

The Court: "I know. But you didn't do it when you were told earlier. I want to know that sort of thing immediately."

Defense Counsel: "I understand, Judge."

 [*3] "A fundamental right enjoyed by all citizens is the right to trial before an impartial jury . . . . Inherent in that right is the requirement that an impartial juror must also be attentive." Commonwealth v. Dyous, 79 Mass. App. Ct. 508, 513, 947 N.E.2d 576 (2011). Accordingly, where a judge observes a sleeping juror, or where a judge becomes aware of reliable information indicating that a juror is asleep,² the judge is required to act promptly "to protect the rights of the defendant and the rights of the public." Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181, 912 N.E.2d 525 (2009). The judge's obligation to intervene is only triggered if the judge first determines that the information is reliable. If the information is not reliable, the judge has no obligation to act on it. See Commonwealth v. Villalobos, 478 Mass. 1007, 1007, 84 N.E.3d 841 (2017). While a judge who receives information about a sleeping or inattentive juror must determine whether the report is reliable, and if so, must address it, "not every complaint regarding juror attentiveness requires a voir dire." Commonwealth v. McGhee, 470 Mass. 638, 644, 25 N.E.3d 251 (2015), quoting Commonwealth v. Beneche, 458 Mass. 61, 78, 933 N.E.2d 951 (2010). "[T]he judge has discretion regarding the nature of the intervention and the remedies," Dancy, supra, and we will not vacate a subsequent conviction unless the defendant shows the judge's response was "arbitrary or unreasonable." Id. at 182.

In assessing the reliability of a particular report of juror inattention, a judge should take into account "the nature and source of the information presented, as well as any relevant facts that the judge has observed from the bench." McGhee, 470 Mass. at 644. The "nature and source" of the report could include a multitude of factors, including the level of detail included in the report, whether the reporter's information was based on first-hand observation or on some other person's report, and the degree of the reporter's confidence that the conduct at issue was actually demonstrative of sleeping or inattention. Compare id. at 645 (juror's report that she heard fellow juror loudly snoring during trial and saw juror nodding his head as if awakening appeared reliable), and Commonwealth v. Braun, 74 Mass. App. Ct. 904, 905, 905 N.E.2d 124 (2009) (multiple contemporaneous observations and reports required voir dire despite judge's "uncertainty"), with Commonwealth v. Bois, 476 Mass. 15, 28, 62 N.E.3d 513 (2016) (no need for further action where court considered both basis of report and innocent explanation for apparent inattentiveness), and [*4]  Beneche, 458 Mass. at 78-79 (reports that juror "seems to be sleeping" and "maybe nodding," but might have been taking notes, were tentative and did not obligate judge to intervene).

Here, the record shows that the trial judge took seriously counsel's second-hand report that a juror "appear[ed]" to have been "dozing," but implicitly found it to have been not sufficiently reliable to require a voir dire.³ That implicit determination was reasonable in light of the fact that the report included no details about the juror's appearance or conduct, included only limited information about when the juror appeared to be dozing, provided no information about the duration of the suspected inattention, and could not be confirmed by trial counsel's own observation. See Commonwealth v. Vaughn, 471 Mass. 398, 411-412, 30 N.E.3d 76 (2015) (judge entitled to rely on own observations where report was unreliable and lacked any description of basis for counsel's suspicion). Additionally, we note that the parties' conduct suggests that they, like the judge, viewed the reports of the juror's possible inattention as tentative. Louf neither requested that the court conduct a voir dire nor objected to the court's plan to watch the juror going forward. See Commonwealth v. Alleyne, 474 Mass. 771, 778, 54 N.E.3d 471 (2016). In these circumstances, the judge's decision [*5]  to "keep a very sharp eye on" the juror was a reasonable response. See Beneche, 458 Mass. at 78-79 (where juror "seem[ed] to be sleeping," but might have been taking notes, judge's decision simply to observe juror without conducting voir dire was reasonable).

Even were we to assume that the juror at issue had been sleeping and the judge erred in not conducting a voir dire, the defendant nonetheless would not be entitled to a new trial. The record does not identify the juror whom Louf argues occasioned structural error in the case. The only description of that juror was as "the Spanish juror in the back." There is no record of the juror's name, juror number, or seat number, and the record likewise fails to show whether the juror at issue actually deliberated on the case. Contrast Villalobos, 478 Mass. at 1008-1009 & n.2 (noting that at least one potentially inattentive juror participated in deliberations). There would have been no risk of structural error unless that juror deliberated on the case, since a nondeliberating juror's inattention at trial could not impact the defendant's right to an attentive and impartial jury. See Commonwealth v. Hampton, 457 Mass. 152, 163, 928 N.E.2d 917 (2010) (structural error is that which renders trial "fundamentally unfair" or "unreliable" to determine guilt or innocence). [*6] 

2. Authenticity of text messages. The defendant argues that the trial judge erred in permitting testimony by the victim and her mother about the substance of text messages without proper authentication. More specifically, he contends that there was an inadequate factual basis for the judge to make the required threshold determination that the messages were sent by Louf. See Mass. G. Evid. § 104(b) (2019). We review the judge's evidentiary rulings for an abuse of discretion. See Palinkas v. Bennett, 416 Mass. 273, 277, 620 N.E.2d 775 (1993); Commonwealth v. Helfant, 398 Mass. 214, 229, 496 N.E.2d 433 (1986).

The requirement of authentication calls for the trial judge to assess the evidence, see Mass. G. Evid. § 104(b), and "to determine whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be." Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011), quoting M.S. Brodin & M. Avery, Massachusetts Evidence § 9.2, at 580 (8th ed. 2007). Here, the issue is the defendant's authorship of the text messages the victim and her mother received. "[I]rrespective of whether the communication is introduced through testimony or a physical item of evidence . . . to admit testimony about the substance of electronic messages, the proponent must 'authenticate the messages' through foundational testimony establishing the 'identi[ty] [*7]  [of] the person who actually sent the communication.'" Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 587, 78 N.E.3d 116 (2017), quoting Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162 (2010). Accordingly, while the object of Louf's authenticity challenge is testimony about text messages, and not the messages themselves, the question is properly framed as one of authentication. See Connolly, supra.

"Authenticity is usually proved by testimony of a witness either '(1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be.'" Williams, 456 Mass. at 868, quoting Commonwealth v. Nardi, 452 Mass. 379, 396, 893 N.E.2d 1221 (2008). The proponent can satisfy its burden by direct or circumstantial evidence, and we may consider "'confirming circumstances' sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the [communication]." Purdy, 459 Mass. at 450, quoting Commonwealth v. Hartford, 346 Mass. 482, 488, 194 N.E.2d 401 (1963). "Confirming circumstances" may include, for example, the communication's "appearance, contents, substance, internal patterns, or other distinctive characteristics." Purdy, supra at 448, quoting Mass. G. Evid. § 901(b)(4) (2018). See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 441, 105 N.E.3d 282 (2018) (judge can infer connection between defendant and telephone number from which threatening messages were sent based on yearlong relationship and past communications).

Here, the circumstantial evidence included sufficient confirming circumstances [*8]  to meet the standard articulated in Purdy for authenticating digital communications, and to show that Louf was the source of the text messages about which the victim testified. Among other things, the victim's testimony established that she had communicated by text message with the defendant immediately after meeting him online in early 2012 through the time of the text messages at issue here. By the time the victim received the text messages Louf sent to her on Christmas morning, 2012, she was, as the judge noted, "well into" the relationship with him, giving her familiarity with his manner of communicating; the victim recognized the text messages she received as coming from the defendant. Additionally, there was evidence that Louf made certain demands on the victim by text message that day, that the victim called Louf on his telephone and that he answered, and that their telephone conversation was consistent with his earlier text messages in tone and substance. Together, this evidence was sufficient to meet the Commonwealth's burden of production on the authenticity of Louf's text messages to the victim. See Alden, 93 Mass. App. Ct. at 440-441. See also Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 368, 16 N.E.3d 502 (2014) (source of instant message authenticated by familiar tone, sender's [*9]  knowledge of earlier discussions, and personal details).

The evidence concerning the text messages received by the victim's mother also included foundational facts providing sufficient confirming circumstances to meet the threshold requirements for authentication. The victim testified that she knew that Louf was using her phone to text her mother and that she had participated in his efforts to mislead her mother into believing she was sending the text messages Louf sent. There was no evidence that anyone other than the victim and Louf had access to the victim's phone. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 759, 54 N.E.3d 1120 (2016) ("confirming circumstances" included absence of evidence that anyone other than defendant had access to laptop computer in establishing authenticity of social networking website Facebook chat messages). Additionally, the mother, with whom the victim had lived and had been on good terms before becoming involved with Louf, testified that the wording and tenor of the messages that she received were inconsistent with the way that the victim communicated with her, even when angry. Cf. Oppenheim, 86 Mass. App. Ct. at 368 ("familiar tone of the exchange" was "confirming circumstance").

Judgments affirmed.

 

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¹ In the course of the trial, two of the charges were amended to lesser included offenses. The charges on which the jury deliberated were mayhem (counts 1, 2); assault with intent to maim (count 3); assault (count 4); assault and battery by means of a dangerous weapon (counts 5, 9, 10, 11); aggravated assault and battery (counts 6, 7, 8); and assault and battery (count 12). Louf was acquitted on one count of mayhem.

² A judge's obligation to act on a reliable report of a sleeping juror does not depend on the judge's own observation of the juror's inattention. See Commonwealth v. Villalobos, 478 Mass. 1007, 1008, 84 N.E.3d 841 (2017) ("[T]he receipt of reliable information from any source, not just the judge's own observation, that a juror is sleeping requires prompt judicial intervention").

³ While we find adequate grounds for our determination in this case, we take the opportunity to highlight the value to an appellate court of a trial court's making a record of its finding as to the reliability of a report of a sleeping juror. See McGhee, 470 Mass. at 644 ("The judge's decision can best be assessed if the judge makes a record of his or her findings, initially as to the reliability of the information presented, and subsequently . . . as to whether the juror in question was indeed asleep or inattentive . . .").