Commonwealth v. Adrian Hinds.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-844

COMMONWEALTH

vs.

ADRIAN HINDS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury found the defendant, Adrian Hinds,

guilty of assault and battery by means of a dangerous weapon on

two victims, Miranda Arthur-Smith and Nathaniel Cherniak. On

appeal, the defendant claims that a text message and two

Facebook posts were erroneously admitted at trial and that he

was deprived of his constitutional right to present a defense.

Because the Facebook posts were improperly admitted, the

defendant was unfairly deprived of the opportunity to present

expert testimony to challenge the posts' authenticity, and these

errors were prejudicial, we reverse.

Background. The procedural history of this case is set

forth in Commonwealth v. Hinds, 487 Mass. 212, 213 & n.1, 217

(2021). The evidence at the defendant's second trial was

largely the same as that at the first trial, see id. at 214-216,
with three prominent differences: the admission of the expert

testimony of Sophie Bjork-James, see id. at 223-224; of Arthur-

Smith's statement, "Even if you seen that, how the fuck could

you prove it?," see id. at 233-234; and of the text message and

Facebook posts discussed in detail herein. As at the first

trial, the case turned on the credibility of the defendant,

Cherniak, and Arthur-Smith. See id. at 216, 229.

Discussion. 1. Text message and Facebook posts. The

defendant argues that the admission of a text message and two

Facebook posts extracted from his cell phone amounted to an

abuse of discretion requiring reversal.

The text message was sent from the defendant's phone to an

unidentified third party nine months before the incident. The

body of the message read as follows:

"Death to those in 65 miranda and nate will work work
under false names they will die along with those who abuse
their power and feed off suffering."

The Facebook posts, also extracted from the defendant's phone,

were associated with a Facebook account under the username of

"Adrian Anomaly Hinds." The first post was dated six months

before the incident and stated,

"the half chink and Hispanic transgender punk (occupant of
66) as well as the brujeria store owner (occupant of 68)
are getting scared all your loteria and san muerte and
portugese bullshit witchcraft aint doing shit"

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The second one, posted about four months before the incident,

said,

"as soon as you leave the little meth head chink in 66
leaves"

Prior to trial the defendant filed a motion in limine to

exclude the text message and Facebook posts on the grounds that

they were not authenticated and that, in any event, they were

more prejudicial than probative. The judge initially excluded

them, without addressing the authentication issue. With respect

to the Facebook posts, the judge stated that Cherniak's

ethnicity had no relevance to the case and was irrelevant in

determining whether Cherniak had "white supremacist tendencies."

Although the posts showed the defendant's "obvious animosity

towards the occupants of 66 and 68," the judge stated, their

prejudicial effect outweighed their probative value "too

greatly." While excluding the statements as substantive

evidence, the judge stated that if the defendant took the stand

and testified that "he never harbored any negative feelings

towards Mr. Cherniak, they may become admissible for purposes of

impeachment." The judge likewise excluded the text message (and

other text messages extracted from the phone) because "their

probative value may be significant but their prejudicial effect

greatly outweighs it. And they predate the incident by a number

of months." Again the judge recognized that the text messages

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may have impeachment value, stating "these are out" unless the

defendant testified "that he had no negative feelings towards

Mr. Cherniak."

The defendant did elect to testify, and on cross-

examination the prosecutor asked whether he had any negative

feelings toward Cherniak. The defendant responded, "Yes." He

explained, "After [Cherniak] asked me to sell drugs with him and

made the racist comment, that I must be selling drugs to afford

my Porsche, I felt very angered by that. That's a negative

feeling, is it not?" The cross-examination continued,

Q.: "And did you ever make any racial slurs towards him?"

A.: "No, I never said anything racial to him."

Q.: "Did you ever post anything negative about him?"
[Defendant's objection overruled]

A.: "No."

The prosecutor also questioned the defendant about his

Facebook accounts. The defendant testified that his personal

Facebook account was under the name "Black Clark Kent," but that

there were "multiple Facebook pages made of [him]" because he

was a musician. He admitted that he sometimes went by the name

Adrian Anomaly Hinds, and that the Facebook account under that

name included a picture of him, but he insisted that he did not

post the picture and that the account was not his.

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After the defense rested, the Commonwealth recalled

Westfield Police Patrolman Detective Todd Edwards, who had

previously testified about extracting a photograph from the

defendant's cell phone, to testify that he had also extracted

the text message and Facebook posts. When the Commonwealth

attempted to admit the text message, the defendant objected that

it was "not a rebuttal" of the defendant's testimony because he

had admitted having negative feelings about the victims. The

judge nonetheless reversed his previous ruling and overruled the

objection with no explanation except that the Commonwealth had

agreed to redact other text messages on the same page of the

extraction. The judge then admitted the Facebook posts over the

defendant's objections, including that he was not the author of

the posts, finding that although they were "very prejudicial,"

they were also "very probative," and that "it's not more

prejudicial than probative, because it is so probative, given

[the defendant's] testimony."

a. Admissibility of text message. Evidence is relevant if

"it has any tendency to make a fact more or less probable than

it would be without the evidence." Mass. G. Evid. § 401(a)

(2023). Even if evidence is relevant, a judge should exclude it

"if its probative value is substantially outweighed by a danger

of . . . unfair prejudice." Mass. G. Evid. § 403 (2023). See

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Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014). 1

"Evidentiary rulings on relevance, probative value, and

prejudice are left to the sound discretion of the trial judge."

Commonwealth v. MacCormack, 491 Mass. 848, 863 (2023). A

judge's evidentiary rulings are reviewed for abuse of discretion

and "will be upheld unless the judge made a clear error of

judgment, such that the decision falls outside the range of

reasonable alternatives." Id. See L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

Our evaluation of the judge's evidentiary rulings does not

hinge on the fact that he changed his mind about the

admissibility of the evidence midtrial, see MacCormack, 491

Mass. at 864 (no abuse of discretion where judge reversed

initial ruling as evidence developed), or that he permitted the

Commonwealth to introduce the evidence on rebuttal, see

1 Arguably, the text message and Facebook posts, which depicted
the defendant as having threatened the victims in the past using
racial, ethnic, and other slurs, and as generally being hostile
and erratic, "should have been analyzed as prior bad act
evidence potentially admissible for a nonpropensity purpose."
Commonwealth v. Correia, 492 Mass. 220, 227 (2023) (discussing
admissibility of rap lyrics written by defendant referencing
violence, gangs, and guns). The text message and Facebook posts
reflected badly on the defendant's character and created a risk
that the jury would impermissibly infer that he had a bad
character or propensity to commit the crimes charged. See id.
at 229. "[E]ven if offered for a permissible purpose, bad act
evidence nevertheless is inadmissible where 'its probative value
is outweighed by the risk of unfair prejudice to the defendant,
even if not substantially outweighed by that risk.' Mass. G.
Evid. § 404(b)(2)." Id. at 228-229.

6
Commonwealth v. Roberts, 433 Mass. 45, 51 (2000) (judge has

nearly unreversible discretion to permit rebuttal testimony).

Nor is there any per se rule requiring reversal if a judge makes

a ruling based on a "misapprehension" of the defendant's

testimony. 2 That said, we do consider the judge's prior rulings

and explanations for changing his mind in assessing the

reasonableness of his exercise of discretion.

We discern no abuse of discretion in the judge's ultimate

decision that the text message was relevant and more probative

than prejudicial. The text message, which referred to Arthur-

Smith and Cherniak by name and said "they will die," went to the

central issues in the case: the defendant's intent to do them

harm and the veracity of his version of the events. 3 See

Commonwealth v. Butler, 445 Mass. 568, 575-576 (2005) (bad act

evidence admissible to show "hostile nature" of relationship and

2 The single case on which the defendant relies for his
"misapprehension of defendant's testimony" argument, People v.
Reagan, 374 N.Y.S.2d 33, 33-34 (2d Dep't 1975), has no
persuasive value. It is a five-sentence memorandum of decision,
based on "the circumstances of this case," which are not
discussed, and cites no authority whatsoever for this
proposition. Likewise, the defendant's argument that the judge
violated his due process rights by changing his ruling cites no
legal authority and does not rise to the level of appellate
argument. See Commonwealth v. Savageau, 42 Mass. App. Ct. 518,
522 n.4 (1997); Mass. R. A. P. 16 (a) (9) (A), as appearing in
481 Mass. 1628 (2019).
3 The jury could also reasonably infer that the statement, "Death

to those in 65," referred to Arthur-Smith and Cherniak, even
though the apartment number was off by one.

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"continuing animosity on the defendant's part" toward victim).

Although the judge's initial decision to exclude the text

message was based in part on its remoteness in time, after

hearing Cherniak testify about the nature of his relationship

with the defendant, which began around the date of the text

message, and the defendant testify that he had initially been

friendly with Cherniak, the judge could have reasonably

determined that the hostile text message nine months prior to

the incident was relevant to paint a full picture of the

relationship. Although the judge initially stated that the text

message might be admissible to impeach the defendant's

credibility if he denied having negative feelings about

Cherniak, which the defendant did not do, it was within the

judge's discretion to reconsider the initial ruling and

determine that the text message had probative value for purposes

other than impeachment.

Nor did the judge abuse his discretion in determining that

the probative value of the text message outweighed any unfair

prejudice. "[I]n balancing the probative value against the risk

of prejudice, the fact that evidence goes to a central issue in

the case tips the balance in favor of admission." Commonwealth

v. Jaime, 433 Mass. 575, 579 (2001). Moreover, the judge could

have reasonably determined that the risk of unfair prejudice was

minimized after the Commonwealth agreed to redact other

8
incendiary text messages from the extraction report. Although

the judge should have articulated his weighing of the text

message's probative value against its prejudicial effect more

clearly on the record, "the judge's failure to do so is not

fatal." Commonwealth v. Samia, 492 Mass. 135, 148 (2023).

b. Admissibility of Facebook posts. The admission of the

Facebook posts is more problematic. Setting aside the question

of authenticity, although the Facebook posts exhibited some

generalized animosity toward Arthur-Smith and Cherniak, the

admission of racial epithets in evidence requires particular

scrutiny because it "poses a risk of inflaming a jury's

emotions." Commonwealth v. Bishop, 461 Mass. 586, 596 (2012).

Thus, "[t]he most significant factor in determining whether

racial references are improper is the extent to which they have

probative value with respect to the issues at trial."

Commonwealth v. Washington, 28 Mass. App. Ct. 271, 273 (1990).

The posts had little probative value. As the judge

initially ruled, Cherniak's ethnicity had nothing to do with any

triable issue, and this remained true up to the time the

Facebook posts were admitted. Nor was Arthur-Smith's ethnicity

or gender identity an issue. Nonetheless, the judge ruled that

the Facebook posts had become "very probative" in light of the

defendant's testimony. The judge did not explain what aspect of

the defendant's testimony had made the Facebook posts "so

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probative." As with the text message, however, he had

previously stated that he would consider admitting the Facebook

posts for impeachment purposes if the defendant testified that

"he never harbored any negative feelings towards Mr. Cherniak."

Because the defendant did admit that he harbored negative

feelings, the posts could not be used to impeach this aspect of

his testimony. Likewise, because there was no evidence that the

Facebook posts were directed toward or seen by Cherniak, they

could not be used to impeach the defendant's testimony that he

"never said anything racial to him." The only aspect of the

defendant's testimony that the posts contradicted was his denial

of "ever post[ing] anything negative" about Cherniak, an issue

far removed from the charges against the defendant.

"[A] judge, in his discretion, may permit impeachment by

extrinsic evidence even on collateral points." Simon v.

Solomon, 385 Mass. 91, 107 (1982). "Nevertheless, impeachment

is not a 'blank check,' and is limited by other rules of

evidence." Commonwealth v. Dabney, 478 Mass. 839, 860 (2018).

See Commonwealth v. Durand, 475 Mass. 657, 662 (2016), cert.

denied, 138 S. Ct. 259 (2017). "If rebuttal testimony also

bears on the defendant's character, thereby raising the danger

of unfair prejudice, the better practice is to exclude such

evidence if offered solely as impeachment on a collateral

matter." Commonwealth v. Ferguson, 425 Mass. 349, 355 n.6

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(1997). Moreover, "evidence that poses a risk of unfair

prejudice need not always be admitted simply because [it is

admissible]; the judge still needs to weigh the probative value

of the evidence and the risk of unfair prejudice, and determine

whether the balance favors admission." Commonwealth v. Gray,

463 Mass. 731, 753 (2012), quoting Commonwealth v. McCowen, 458

Mass. 461, 479 n.15 (2010).

We conclude that the judge made a clear error of judgment

in admitting the Facebook posts. Assuming the defendant was the

author of the posts, the fact that he referred to Arthur-Smith

and Cherniak pejoratively, including the use of racial and

ethnic slurs, was powerful evidence of the defendant's bad

character, but weak evidence for any permissible purpose. In

determining whether there was an abuse of discretion, we

consider whether the judge took "care to avoid exposing the jury

unnecessarily to . . . material that might inflame [their]

emotions and possibly deprive the defendant of an impartial

jury." Commonwealth v. Berry, 420 Mass. 95, 109 (1995). Here,

the record does not reflect a "thoughtful weighing of the risks

of unfair prejudice," Commonwealth v. Peno, 485 Mass. 378, 394

(2020), nor were contemporaneous limiting instructions given to

limit such risks, see id. at 396.

2. Exclusion of expert testimony. After the Facebook

posts were admitted in the Commonwealth's case on rebuttal, the

11
defendant sought to put on his own expert, Lindsay Hawk, to

challenge the implication from Edwards's testimony that because

that the Facebook posts were extracted from the defendant's

phone, he must have authored the posts. Hawk's testimony, if

credited, would have supported the defendant's testimony in

which he denied having posted anything negative about Cherniak.

The judge excluded the expert testimony primarily on the ground

that Hawk was not disclosed as a witness prior to trial, but

also because he thought it "clear" that the author of the posts

was "somebody with knowledge of the ethnicity of the occupant of

[apartment sixty-six]." 4

"The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights guarantee a

defendant's right to present a defense." Commonwealth v.

Dagenais, 437 Mass. 832, 839 (2002). However, "[i]n the face of

'legitimate demands of the adversarial system,' this right may

be tempered according to the discretion of the trial judge."

Commonwealth v. Carroll, 439 Mass. 547, 552 (2003), quoting

4 The defendant's authorship was necessary to establish the
authenticity, and hence the admissibility, of the Facebook
posts. See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308-
309 (2019); Mass. G. Evid. § 901 note (2023). Although the
content of the posts, together with Edwards's testimony, was
sufficient to permit the jury to find by a preponderance of the
evidence that the defendant was the author, this determination
was ultimately for the jury to make. See Meola, supra at 308
n.13, 309.

12
Commonwealth v. Edgerly, 372 Mass. 337, 343 (1977). We review

for abuse of discretion the judge's balancing of the need for an

orderly trial against the defendant's right to present evidence.

See Commonwealth v. Paiva, 71 Mass. App. Ct. 411, 414 (2008).

"[F]actors which must be taken into account in assessing such a

balance . . . include: (1) prevention of surprise; (2) evidence

of bad faith in the violation of the conference report;

(3) prejudice to the other party caused by the testimony;

(4) the effectiveness of less severe sanctions; and (5) the

materiality of the testimony to the outcome of the case." Id.,

quoting Commonwealth v. Durning, 406 Mass. 485, 496 (1990).

Moreover, "the preclusive sanction should be reserved for 'hard

core transgressions,'" Commonwealth v. Dranka, 46 Mass. App. Ct.

38, 42 (1998), quoting Chappee v. Vose, 843 F.2d 25, 31 (1st

Cir. 1988), where the defendant's failure to comply is

"deliberate and prejudicial to the Commonwealth." Dranka,

supra, quoting Reporters' Notes to Mass. R. Crim. P. 14 (c) (2),

Mass. Ann. Laws, Rules of Criminal Procedure 168 (Lexis 1977).

See Hinds, 487 Mass. at 229 n.29.

The judge did not address any of the Durning factors, all

of which weighed in favor of allowing the defendant's expert to

testify. There was no surprise or prejudice to the

Commonwealth. This was the second trial, and Hawk was known to

the Commonwealth, having testified at a motion hearing prior to

13
the first trial. The Commonwealth had its own witness, Edwards,

who was familiar with the provenance of the Facebook posts. The

record does not show, and the judge did not find, any bad faith

on the part of defense counsel. Indeed, the Facebook posts were

excluded at the first trial, and while defense counsel might

have anticipated the issue of their authenticity arising at the

second trial, nothing in the record suggests that she left Hawk

off the witness list to gain an unfair advantage. Although the

judge may have reached a conclusion about the authorship of the

posts, the issue of authenticity was for the jury to decide, see

note 4, supra, and Hawk's testimony may have been material their

consideration of the matter.

3. Prejudice. Having determined that the judge abused his

discretion by admitting the Facebook posts in evidence and

depriving the defendant of the opportunity to rebut their

authenticity, 5 we must determine whether the defendant was

prejudiced. "An error is not prejudicial if it did not

influence the jury, or had but very slight effect" (quotation

and citation omitted). Commonwealth v. Kelly, 470 Mass. 682,

688 (2015). A combination of errors may require reversal even

where no single error is sufficiently prejudicial to require

5 The defendant argues that his ability to rebut the Facebook
posts was further stymied because the judge improperly prevented
him from testifying in surrebuttal. Given our disposition of
the case, we need not address this additional argument.

14
reversal. See Commonwealth v. Cancel, 394 Mass. 567, 576

(1985). We conclude that the defendant was prejudiced.

The case turned on the defendant's credibility, and the

Facebook posts, which were inflammatory evidence of his bad

character, may have swayed the jury's evaluation of his

testimony. "[T]rial judges must take care to avoid exposing the

jury unnecessarily to inflammatory material that might inflame

the jurors' emotions and possibly deprive the defendant of an

impartial jury." Berry, 420 Mass. at 109. The preclusion of

the defendant's expert deprived him of an avenue of

rehabilitating both his credibility and his character. The risk

of prejudice is high where "[t]he errors all concern evidence

implicating credibility in a trial in which credibility was the

only real issue." Commonwealth v. Mazzone, 55 Mass. App. Ct.

345, 353 (2002). See also Commonwealth v. Dion, 30 Mass. App.

Ct. 406, 415 (1991) (errors in combination required reversal

where "[t]he case was . . . one of word against word").

Because the jury were improperly exposed to matters that

created the risk of unfair prejudice, and the defendant was

15
deprived of an opportunity to rebut, we cannot say with fair

assurance that the errors did not affect the verdict.

Judgments reversed.

Verdicts set aside.

By the Court (Milkey,
Massing & Henry, JJ. 6),

Clerk

Entered: August 8, 2023.

6 The panelists are listed in order of seniority.

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