Commonwealth v. Justin Arrigo.

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

25-P-693

COMMONWEALTH

vs.

JUSTIN ARRIGO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Justin Arrigo, was convicted of larceny from a

building. He argues that he is entitled to a new trial because

(1) trial counsel provided him with ineffective assistance and

(2) the judge permitted the Commonwealth to introduce improperly

authenticated photographs in evidence. We affirm.

Background. The victim and his siblings owned an

automotive sales and autobody business in Lynn. Approximately

nine people work at the family-owned business, which has been

operating for approximately one hundred and two years. The

business is located in a three-story building with the sales

counter on the first floor and automotive parts stored on the
second and third floors. Approximately twelve years prior to

May of 2023, the victim packed various items including personal

belongings, sports collectibles, other "collectibles," and tools

in cardboard boxes and stored them on the second floor. The

boxes were labeled, inventoried, and neatly arranged. The

victim never gave anyone permission to take anything out of the

boxes.

At various times in the days leading up to May 8, 2023, the

office manager (manager), who had worked at the business for

nearly twenty-seven years, noticed certain items1 on the first-

floor counter beside the defendant, who was an employee at the

business. The manager asked the defendant, "several of these

times," about the items. On one occasion, he responded that he

"found that on the floor . . . in a pile of tags." Asked on

later occasions about other items, the defendant provided "kind

of the same answer." The defendant worked at the first-floor

counter only, but on occasion he "would have to go upstairs to

retrieve a part." The manager noticed, however, that on certain

occasions the defendant would go upstairs "to retrieve these

parts with a bag," which was something that she had never seen

anyone else do in nearly twenty-seven years of working at the

business. In addition, the parts were located among the first

1 The "items" referenced by the manager included "toys" and
"figurines."

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four racks on the second floor and there would be no reason for

the defendant "to go in the back of the building," where the

victim's boxes containing the victim's personal items were

stored.

On one occasion, the manager saw the defendant with a boxed

"Spiderman, Batman, type of" Marvel figurine, and on another

occasion saw him with a "Raggedy Ann and Andy type toy." The

defendant claimed that he "got [these items] at Walmart." The

manager had seen some of these items in the past on the second

floor of the building, and subsequently "noticed these things in

the defendant's bag in the week leading up to May 8th of 2023."

In addition, "a couple of times," the manager saw the

defendant's "Facebook Marketplace"2 page on the computer screen

at the defendant's workstation. On that page she saw, among

other items, a label maker that belonged to her and that she had

kept on the second floor of the building as well as other items

that she recognized as belonging to the victim. The manager,

with a coworker who logged into his Facebook Marketplace

account, was able to see various listings on the defendant's

Facebook Marketplace page, including baseball cards, figurines,

and other items that belonged to the victim and had been stored

2 "Facebook Marketplace" is a social media platform "that
allow[s] users to do things like sell or purchase goods." Moody
v. NetChoice, LLC, 603 U.S. 707, 790 & n.35 (2024) (Alito, J.,
concurring).

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among the victim's "boxed things upstairs." Photographs of some

of those Facebook Marketplace listings depicting the label maker

and items belonging to the victim were admitted in evidence as

an exhibit.

On May 8, 2023, the manager confronted the defendant and

stated, "[w]e know that you've been stealing a lot of things out

of here." The defendant responded that he "didn't know what

[she] was talking about, and just kind of chuckled at [her]."

The manager also told the defendant that she had called the

police, and "then, [the defendant] walked out the door and

left."

Through cross-examination and closing argument, the defense

at trial focused on the accessibility of others to the area

where the stolen items were stored, the absence of direct

evidence, and the victim's credibility. Following trial, the

defendant, represented by new counsel, filed a motion for new

trial alleging ineffective assistance of trial counsel.

Following a nonevidentiary hearing, the judge denied the motion

in a written decision. The defendant appealed therefrom, and

his appeal from the denial of the motion for new trial was

consolidated with his direct appeal.

Discussion. 1. Ineffective assistance. The defendant

contends that the judge abused his discretion in denying his

motion for new trial. Specifically, he argues that trial

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counsel rendered ineffective assistance by introducing an

unredacted "restitution request form" in evidence because the

exhibit contained, inter alia, a victim impact statement. The

victim impact statement included the victim's written statement

that he had "been violated" by the defendant's actions; the

defendant "has no regard for the property of others;" the victim

recommended a "maximum sentence;" and the "victim is a habitual

stealer."3

Pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435

Mass. 1501 (2001), a judge may grant a new trial "if it appears

that justice may not have been done." "In reviewing the denial

of a motion for new trial, we examine the motion judge's

conclusions only to determine whether there has been a

significant error of law or other abuses of discretion"

(quotation and citation omitted). Commonwealth v. Ferreira, 481

Mass. 641, 648 (2019). See L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014). "Motions for a new trial are granted only in

extraordinary circumstances . . . ." Commonwealth v. Comita,

441 Mass. 86, 93 (2004). Because the judge who ruled on the

motion for new trial was also the trial judge, we extend

"special deference" to his denial of the motion. Commonwealth

3 We assume that the reference to the "victim" in the
statement was a mistake and should have referenced the
"defendant."

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v. Robertson, 88 Mass. App. Ct. 52, 59 n.14 (2015), citing

Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

Where a motion for new trial is based on ineffective

assistance of counsel, the defendant must show that the behavior

of counsel fell "below that . . . [of] an ordinary fallible

lawyer" and that such failing "likely deprived [him] of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See

Commonwealth v. Millien, 474 Mass. 417, 429-430 (2016).

"[A]rguably reasoned tactical or strategic judgments" do not

amount to ineffective assistance of counsel unless they are

"manifestly unreasonable" when made. Commonwealth v. Rondeau,

378 Mass. 408, 413 (1979), quoting Commonwealth v. Adams, 374

Mass. 722, 728 (1978).

Here, the plaintiff's argument that the introduction of the

victim impact statement constituted ineffective assistance of

counsel is unavailing. As to the first prong of the ineffective

assistance test, the record is clear that defense counsel

offered the restitution request form at trial, over the

Commonwealth's objection, and represented at that time that he

was making a calculated, tactical decision. Defense counsel

used the exhibit to impeach the victim's credibility by showing

that at least as of June 8, 2023, the victim estimated a high

cost of alleged stolen goods yet (1) failed to delineate any

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stolen item with any specificity, and (2) wrote "compiling

complete list," on the form yet failed to provide any such list

until the eve of trial. In essence, he used the exhibit to

contrast the victim's inaction and inability to specify the loss

with his claim that the alleged stolen items were of great value

and importance to him.

The defendant now claims that this decision was manifestly

unreasonable because of the information in the victim impact

statement contained in the exhibit. This argument ignores the

deference that must be given to trial counsel. See Commonwealth

v. Fisher, 433 Mass. 340, 357 (2001) ("Impeachment of a witness

is, by its very nature, fraught with a host of strategic

considerations, to which we will . . . still show deference").

Moreover, it ignores defense counsel's statement at trial that

the statements on the form "would be natural from the . . .

alleged victim, I guess." Finally, it ignores defense counsel's

persistence, in the face of the judge's multiple inquiries, to

assure the judge that he wanted the victim impact statement in

evidence. In other words, as defense counsel recognized at the

time, the issue in this case was whether the Commonwealth

presented sufficient evidence to prove that this defendant

committed this crime. It was obvious that any victim would be

upset and want retribution vis-à-vis anyone who allegedly stole

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myriad items from him. Indeed, as the judge found in denying

the motion for new trial, this tactic

"was not inadvertent. It was not an oversight. It was
intentional. The alleged prejudicial portions of the said
two-page exhibit were prominent and in plain sight.
[Defense counsel] knew exactly what he was doing and did so
with a tactical purpose, which was to undermine the
credibility of a witness."

While it might have been prudent to seek redaction of the victim

impact portion of the document, we cannot say that the judge

abused his discretion in concluding that he could not find that

defense counsel's "calculated, tactical, purposeful, strategic

decision, was manifestly unreasonable."

Even assuming, arguendo, that the defendant has satisfied

the first prong of the ineffective assistance test, he has

nonetheless failed to satisfy the prejudice prong of the test.

We note that the Commonwealth did not reference the exhibit or

its contents in closing argument. See Commonwealth v. Brown,

462 Mass. 620, 628 (2012) (risk of any unfair prejudice from

admission of alleged prejudicial information mitigated by

absence of any reference to such information in prosecutor's

closing argument). Furthermore, contrary to the defendant's

argument, the evidence of the defendant's guilt -- including the

eyewitness testimony of the manager who had worked at the

business for twenty-seven years, the defendant's surreptitious

and repeated trips to an area that he had no reason to enter,

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his use of the bag to secrete items, and the observations and

photographs depicting the defendant's Facebook Marketplace

listings of items for sale, including the manager's label maker

and the victim's sports collectible items -- was strong. See

Commonwealth v. Despasquale, 86 Mass. App. Ct. 914, 917 (2014)

(despite counsel's deficient performance, second prong of

ineffective assistance test not met in view of strength of

Commonwealth's case). This evidence was further bolstered by

the defendant's departure from the shop after being informed by

the manager that she had called the police. See Commonwealth v.

Booker, 386 Mass. 466, 470 (1982) (evidence of defendant's

flight relevant to show consciousness of guilt). In short, the

difficulty was not with counsel's effectiveness but rather the

robust and corroborated evidence of the defendant's guilt. In

these circumstances, we cannot say that the judge abused his

discretion in determining that trial counsel's tactical decision

did not likely deprive the defendant of an otherwise available,

substantial ground of defense or created a substantial risk of a

miscarriage of justice. See Millien, 474 Mass. at 429-430.

2. Authentication. The defendant also argues that the

judge abused his discretion in admitting in evidence improperly

authenticated photographs depicting the stolen items on the

defendant's Facebook Marketplace page. We disagree.

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"'The requirement of authentication . . . as a condition

precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its

proponent claims.'" Commonwealth v. Purdy, 459 Mass. 442, 447

(2011), quoting Mass. G. Evid. § 901(a) (2011). Where the

"relevance and admissibility" of a social media post depends on

it "being authored by the defendant, the judge [is] required to

determine whether the evidence was sufficient for a reasonable

jury to find by a preponderance of the evidence that the

defendant authored the [post]." Purdy, 459 Mass. at 447. This

may be proven by direct or circumstantial evidence, including

the post's "'[a]ppearance, contents, substance, internal

patterns, or other distinctive characteristics,'" otherwise

referred to as "confirming circumstances." Id. at 448-449,

quoting Mass. G. Evid. § 901(b)(1), (4) (2011). "[T]he

proponent of the evidence must present 'confirming

circumstances' beyond simply the fact that" the post originated

"from an account in the name of the alleged author."

Commonwealth v. Meola, 95 Mass. App. Ct. 303, 314-315 (2019).

The standard of review as to a judge's preliminary determination

of authentication is deferential. See Id. at 312. Indeed,

"there is no requirement that there be direct evidence to

support a determination that a digital communication was sent by

the defendant." Id. at 310-311, citing Purdy, 459 Mass. at 450.

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"Rather, a judge making this threshold determination may

consider circumstantial evidence and look to '"confirming

circumstances" sufficient for a reasonable jury to find by a

preponderance of the evidence that the defendant authored the'"

Facebook Marketplace listings containing the photographs.

Meola, 95 Mass. App. Ct. at 311, quoting Purdy, 459 Mass. at

450.4

In the present case, the Commonwealth sought to introduce

photographs of the defendant's Facebook Marketplace page taken

by the manager.5 The judge properly conducted a voir dire of the

manager to address the issue of authentication. See note 4,

supra. Following the voir dire the judge made thorough findings

A judge's preliminary determination about whether evidence
4

is admissible "is not conclusive and requires the finder[] of
fact to make [its] own independent determination of the same
question before [it] may consider the evidence." Meola, 95
Mass. App. Ct. at 312-313. Accordingly, even after a proponent
of evidence has met the initial burden to support a finding that
the proffered evidence is what it is claimed to be, "the
opposing party remains free to challenge the reliability of the
evidence, to minimize its importance, or to argue alternative
interpretations of its meaning, but these and similar other
challenges go to the weight of the evidence -- not to its
admissibility" (citation omitted). Id. at 313.

There was conflicting testimony at trial regarding whether
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the manager took the photographs depicting the listings on the
defendant's Facebook Marketplace page, or whether the manager
took photographs of those listings from screenshots taken by
someone else. In the present context, this distinction is of no
moment. See Commonwealth v. Davis, 487 Mass. 448, 466 (2021)
(discussing authentication of video recording of video
recording).

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and concluded that there were sufficient corroborating and

confirming circumstances to satisfy the authentication

requirement. We discern no abuse of discretion. The ample and

persuasive confirming circumstances -- elicited during voir dire

of the manager, during the manager's testimony before the jury,

and during the victim's testimony before the jury -- included:

that the manager saw the Facebook Marketplace listings posted

under the defendant's name and on the defendant's computer,

which no one else had access to; that the manager saw her label

maker in one of the listings; that the manager saw the victim's

items, which she had previously seen in the boxes on the second

floor of the business, in the listings; and that the victim

identified the items depicted in the photographs of the listings

taken by the manager. Through this testimony, the Commonwealth

presented ample evidence sufficient to support a finding that

the photographs depicted what the proponent (here the

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Commonwealth) claimed them to be. See Meola, 95 Mass. App. Ct.

at 313-314. There was no abuse of discretion.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Blake, C.J.,
Vuono & Neyman, JJ.6),

Clerk

Entered: June 2, 2026.

6 The panelists are listed in order of seniority.

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