Commonwealth v. Jamal R. Escobar.

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-474

COMMONWEALTH

vs.

JAMAL R. ESCOBAR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial, the defendant, Jamal R. Escobar,

was convicted of assault and battery by means of a dangerous

weapon, failing to stop for a police officer, leaving the scene

of an accident causing property damage, and reckless operation

of a motor vehicle. On appeal, the defendant claims the trial

judge erred in failing to enter a not guilty finding on the

charge of operating a motor vehicle with a suspended license; in

allowing the in-court identification of the defendant at trial;

in allowing the admission of certain text message evidence; and

in instructing the jury on consciousness of guilt. On direct

appeal the defendant also claims ineffective assistance of

counsel. We agree with the defendant that a finding of not

guilty should have entered on the charge of operating a motor
vehicle with a suspended license and, finding no other error, we

affirm the remaining convictions.

Background. We summarize the evidence presented at trial

as follows. At approximately 5:30 P.M. on July 30, 2021, the

defendant was observed sitting in the passenger's seat of a

motor vehicle in the city of Somerville. Detective Fernando

Cicerone was familiar with the defendant from past interactions.

Detective Cicerone became aware that the defendant had several

active warrants and called for backup and waited for their

arrival before attempting to stop the car. In the meantime, the

car stopped at a residence and the defendant, who was now the

sole occupant of the car, drove in the direction of Route 28.

Detective Cicerone activated his cruiser lights to stop the car,

but the defendant refused to stop and continued onto the highway

at a high rate of speed. During the pursuit, Sergeant Daniel

Rego, who was driving an unmarked cruiser, drove parallel to the

defendant's car to force him to stop. While the two cars were

parallel to one another, the defendant looked directly at

Sergeant Rego, then swerved his car into Sergeant Rego's

unmarked police vehicle and rammed into it. The defendant then

continued to flee and drove in an erratic manner for about

another mile and proceeded to travel off the highway ramp at

approximately eighty miles per hour. Due to safety concerns,

the police stopped the pursuit.

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About one month later in Attleboro, several officers,

including Detective Cicerone, effectuated an arrest of the

defendant at his residence. The defendant was found in the

basement of the home and taken into custody. His license,

wallet and cellphone were seized. After a search warrant was

issued, Detective Cicerone "was able to view the contents of"

the cellphone, which included several text messages about the

defendant's interaction with the police on July 30th. 1 One

message sent July 31st read "I went on a highspeed chase."

Another message indicated that he crashed into the police, and

another sent on the day of the crash stated, "[I'm] going to

deny it."

At trial, the defendant did not present any evidence in his

defense. Instead, his counsel argued that while the defendant

made some "incredibly stupid" decisions that day and admitted

that he did run from the police, he did not intentionally crash

into the police cruiser.

Discussion. The defendant makes five arguments. We

address each argument in turn.

1. Operation of a motor vehicle after suspension. After

the Commonwealth rested its case, the prosecutor realized that

1 There is no doubt that the evidence from the defendant's text
messages was damning. Texts from the defendant's phone included
the following message: "I took that shit on a highspeed chase
on their jurisdiction."

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she had failed to introduce evidence that the defendant's

license to operate a motor vehicle was suspended. She requested

dismissal and the judge and defense counsel both agreed. On

appeal, the defendant contends that jeopardy had attached and

that he was entitled to a finding of not guilty on this charge

because the jury had been empaneled, sworn in, and heard the

entirety of the Commonwealth's case. The Commonwealth agrees

that the defendant was entitled to a finding of not guilty. See

Mass. R. Crim. P. 25 (a), as amended, 420 Mass. 1502 (1995). We

also agree and therefore vacate the entry of dismissal and order

that a finding of not guilty be entered as to this charge.

2. Police familiarity with the defendant and active

warrants. Prior to trial, the Commonwealth filed a motion in

limine pursuant to Commonwealth v. Crayton, 470 Mass. 228

(2014), to have Detective Cicerone identify the defendant in

court because he was not arrested at the scene of the high speed

chase and because the detective was familiar with him from past

interactions. The motion was allowed, over the defendant's

objection, and the judge cautioned the Commonwealth to limit the

questioning about the detective's familiarity with the

defendant. Defense counsel did not object to Detective

Cicerone's testimony that the reason for the stop of the

defendant was because he had several active warrants.

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We review the judge's decision to admit this evidence for

an abuse of discretion. See Commonwealth v. Collins, 92 Mass.

App. Ct. 395, 397 (2017). The defendant claims that the judge

erred in admitting the testimony of past "interactions" with

police and the defendant's active warrants because it allowed

the jury to hear evidence about the defendant's prior bad acts

and the prejudicial effect outweighed its probative value.

There was no abuse of discretion or clear error in the

allowance of the testimony relating to Detective Cicerone's

knowledge of the defendant or the testimony regarding the reason

for the motor vehicle stop. Here, the trial judge carefully

considered the motion in limine prior to its admission and set

limitations to reduce or minimize the risk of prejudice to the

defendant. The prosecutor respected those limitations and did

not linger on this evidence or highlight it to the jury. In

fact, the judge ensured that the jury would not be unduly

prejudiced by appropriately limiting Detective Cicerone's

testimony to only the fact that he had multiple interactions

with the defendant and that, as a result, he was familiar with

the defendant. Moreover, to explain the reason that the

defendant was being stopped by the police, and thereby to

prevent confusion, the Commonwealth was permitted to elicit the

limited testimony at issue to provide the jury "as full a

picture as possible of the events surrounding the incident

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itself" (quotation omitted). Commonwealth v. Phim, 462 Mass.

470, 477 (2012).

3. Consciousness of guilt jury instruction. At the close

of the case, the Commonwealth requested that the judge instruct

the jury on consciousness of guilt and the defendant did not

object. We review for a substantial risk of miscarriage of

justice. Commonwealth v. Diaz, 100 Mass. App. Ct. 588, 599

(2022).

A consciousness of guilt instruction is warranted where

"there is an inference of guilt that may be drawn from evidence

of flight, concealment, or similar acts." Commonwealth v.

Morris, 465 Mass. 733, 738 (2013), quoting Commonwealth v.

Stuckich, 450 Mass. 449, 453 (2008). "[A] judge need only

assess the relevancy of the evidence" in order to determine

whether to instruct on consciousness of guilt. Morris, supra.

Here there was no error in providing the jury with this

instruction as the jury heard evidence of the defendant driving

at a high rate of speed away from two police cruisers with

lights and sirens activated attempting to effectuate a stop.

The defendant looked directly at Sergeant Rego, who was

motioning the defendant to pull over, and then rammed his car

into the cruiser and continued driving at a high rate of speed.

Therefore the instruction was relevant to the evidence adduced

at trial.

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The defendant claims that the consciousness of guilt

instruction should not have been given because the defendant was

already fleeing the police before the collision occurred and,

even if it was warranted, the judge failed to instruct the jury

as to which counts they could consider this instruction. 2 While

the jury were free to agree with the defendant's position

regarding when he attempted to flee from police, it was up to

the jury to determine if the defendant's flight was at all

2 The judge instructed the jury that:

"You have heard evidence suggesting that the defendant
fled from the police after the alleged crash on Mystic
Ave[nue] in Somerville. The defendant may have fled after
he discovered that he was about to be arrested for the
offense for which he is now on trial. If the Commonwealth
has proved that the defendant did in fact flee from the
police after the alleged crash on Mystic Ave[nue] in
Somerville, you may consider whether such actions indicate
feelings of guilt by the defendant and whether in turn such
feelings of guilt might tend to show actual guilt of those
charges. You are not required to draw such inferences and
you should not do so unless they appear to be reasonable in
the light of all the circumstances of this case. If you
decide that such inferences are reasonable, it will be up
to you to decide how much importance to give them, but you
should always remember that there may be numerous reasons
why an innocent person might do such things. Such conduct
does not necessarily reflect feelings of guilt. Please
also bear in mind that a person having feelings of guilt is
not necessarily guilty. In fact, for such feelings are,
are sometimes found in innocent people.

"Finally, remember that standing alone, such evidence
is never enough by itself to convict a person of a crime.
You must not find the defendant guilty on such evidence
alone, but you may consider it in your deliberations along
with the other evidence."

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connected to his feelings of guilt or not. "[W]hen there are

multiple possible explanations for a defendant's flight, it is

for the jury to decide if the defendant's actions resulted from

consciousness of guilt or some other reason." Morris, 465 Mass.

at 738, quoting Commonwealth v. Prater, 431 Mass. 86, 97 (2000).

Next, the defendant argues that even if it was not error to

instruct on consciousness of guilt, the judge erred by failing

to clarify to the jurors that the instruction did not apply to

some of the charges. We disagree. First, the judge carefully

instructed the jurors on consciousness of guilt during his

specific instructions relating to the charge of operating a

motor vehicle recklessly. Second, there can be no substantial

risk of miscarriage of justice where the defendant conceded in

his opening and closing that he failed to stop for a police

officer and that he drove recklessly. Given this admission and

a lack of any evidence to support the defendant's present

suggestion that the outcome would have been different with

clarification, we perceive no substantial risk of a miscarriage

of justice. Commonwealth v. Lapointe, 55 Mass. App. Ct. 799,

806 (2002) (a "mere possibility of a different outcome" is not

sufficient to hold there was a substantial risk of miscarriage

of justice).

4. Authentication of text messages. Next, the defendant

claims error in the admission into evidence of text messages

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from the defendant's cellphone because they were not properly

authenticated. At trial, Detective Cicerone, although he was

unsure exactly how the messages were extracted from the

defendant's cellphone, testified to several incriminating text

messages that were extracted from the defendant's cellphone and

sent by the defendant. Since the defendant did not raise this

particular objection at trial, we review for a substantial risk

of a miscarriage of justice. Commonwealth v. Quinn, 469 Mass.

641, 646 (2014).

"Before a communication may be admitted in evidence, the

judge must make a determination regarding its authenticity; that

is, the judge must determine whether there exists sufficient

evidence that, if believed, a reasonable jury could find by a

preponderance of the evidence that the communication in question

is what it is purported to be." Commonwealth v. Lopez, 485

Mass. 471, 477 (2020). Authentication of digital evidence "is a

condition precedent to its admissibility." Commonwealth v.

Meola, 95 Mass. App. Ct. 303, 307 (2019), quoting Commonwealth

v. Foster F., 86 Mass. App. Ct. 734, 737 (2014). "As with other

types of communication, the 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" (quotation

omitted). Commonwealth v. Welch, 487 Mass. 425, 441 (2021).

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There was no error by the trial judge in determining that a

sufficient showing of authentication had been made. At trial,

Detective Cicerone testified that the defendant's cellphone was

seized and that a search warrant was obtained for him to review

the contents of the phone. He further testified that he

examined the photographs, videos, and messages on the

defendant's phone. The prosecutor showed the detective a series

of text messages and Detective Cicerone recognized those

messages as coming from the defendant's phone that had been

seized. This was sufficient evidence that, if believed, a

reasonable jury could find by a preponderance of the evidence

that the text messages in question were messages sent from the

defendant's phone. Accordingly, the allowance of these text

messages was not error because they were properly authenticated.

5. Claim of ineffective assistance of counsel. In

reviewing the defendant's claim of ineffective assistance of

counsel, we determine whether counsel's behavior fell

"measurably below that which might be expected from an ordinary

fallible lawyer" and, if so, whether counsel's failures "likely

deprived the defendant of an otherwise available, substantial

ground of defense." Commonwealth v. Saferian, 366 Mass. 89, 96

(1974). The burden rests with the defendant and if the

decisions of trial counsel were "tactical or strategic" then the

defendant must establish that trial counsel's actions were

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"manifestly unreasonable." Commonwealth v. Shanley, 455 Mass.

752, 768 (2010) (quotation omitted).

It is well established that the "preferred method" for

raising a claim of ineffective assistance of counsel is for

counsel to file a motion for new trial. 3 Commonwealth v. Zinser,

446 Mass. 807, 810 (2006). In other words, "an ineffective

assistance of counsel challenge made on the trial record alone

is the weakest form of such a challenge because it is bereft of

any explanation by trial counsel for [their] actions and

suggestive of strategy contrived by a defendant viewing the case

with hindsight." Id. at 811, quoting Commonwealth v. Peloquin,

437 Mass. 204, 210 n.5 (2002).

A review of the record does not support the defendant's

claims of ineffective assistance of counsel. Simply stated, the

defendant has failed to establish that trial counsel's actions

were, given the strength of the Commonwealth's case, anything

but strategic.

Conclusion. For the reasons stated above, we vacate the

order dismissing the charge of operating with a suspended

license (count 5) and remand for entry of a not guilty finding

3 The defendant claims that a motion for a new trial would have
been futile because trial counsel is deceased. Although the
intervening death of trial counsel certainly may have
complicated any motion for a new trial, we disagree with the
defendant's argument that it rendered such a motion futile.

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as to that charge only. In all other respects the judgments are

affirmed.

So ordered.

By the Court (Milkey, Walsh &
Smyth, JJ. 4),

Clerk

Entered: August 18, 2023.

4 The panelists are listed in order of seniority.

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