Commonwealth v. Vee Fahnbulleh.

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-542

COMMONWEALTH

vs.

VEE FAHNBULLEH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant,

Vee Fahnbulleh, was convicted of assault and battery by means of

a dangerous weapon, armed robbery, and armed assault in a

dwelling as a joint venturer with Kevin Lopez, Kristina

O'Halloran, Jesse Peralta, and another man, known only as

"Prince."1 On appeal he argues that the electronic

communications were improperly admitted at trial because they

were not authenticated and that his motion for a new trial,

based on the Commonwealth's failure to disclose exculpatory

1Prince was later identified as Martins Omonkhegbe, but he
was referred to exclusively as Prince at the defendant's trial.
evidence, was wrongly denied. We affirm the judgments and the

order denying the new trial motion.

Background. We set forth the basic facts that the jury

could have found, reserving other facts for later discussion.

In August 2016, the defendant and four others formed a plan to

break into the Dighton home of Derek Desvergnes (victim) to

steal money and marijuana. Lopez and O'Halloran, a woman who

lived with the victim as his romantic partner but was also

involved with Lopez, formed the plan and recruited three others

to participate: Lopez's cousin, Peralta; the defendant, who was

Peralta's close childhood friend; and Prince.

On the morning of August 27, the four men drove to the

victim's home in two cars, a black Lexus belonging to the

defendant and a Toyota belonging to Peralta's girlfriend. They

entered the home, their faces covered with articles of clothing.

The victim's father, who also lived there, awoke to the sound of

a dog barking, then got up and saw the intruders smashing a

glass door. He fled to a neighbor's house to call the police.

The victim, who had been asleep in his bedroom with O'Halloran,

encountered the intruders. They demanded money, restrained his

hands with zip ties, struck him with a hammer and a pellet gun,

and used a taser. Peralta entered the house after the others

and left before them, returning to the Toyota. Lopez came out

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of the house, placed a garbage bag containing jars of marijuana

in the Toyota's trunk, and went back toward the house.

While Peralta waited in his car, the police arrived and

apprehended him; the others fled. The police later searched the

other vehicle parked outside the home, the defendant's black

Lexus. Inside the Lexus they found a registration certificate

for the vehicle in the defendant's name, three cellphones, the

defendant's Rhode Island driver's license, and a photo

identification card from the defendant's workplace bearing the

name "Mickey Fahnbulleh."

Peralta first "made up a story" that he was present because

he worked nearby; the police arrested him. He later entered

into a cooperation agreement with the district attorney's office

and was the key witness at the defendant's trial.

Discussion. 1. Authentication of text messages. At

trial, numerous text messages among the five codefendants were

entered in evidence. For the first time on appeal, the

defendant argues that most of the text messages were not

properly authenticated, that they should have been excluded, and

that their admission created a substantial risk of a miscarriage

of justice.

Authentication of electronic communications requires

evidence sufficient to support a finding that the communications

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are what their proponent claims them to be. See Commonwealth v.

Welch, 487 Mass. 425, 440 (2021); Mass. G. Evid. § 901(a)

(2025). The same authentication principles that apply to

letters and telephone calls apply to electronic communications.

See Commonwealth v. Purdy, 459 Mass. 442, 448-450 (2011). When

the issue of authentication is raised at trial, the judge must

make a preliminary finding that "the evidence was sufficient for

a reasonable jury to find by a preponderance of the evidence

that the [individual] authored the communications" (quotation

omitted). Welch, supra, quoting Commonwealth v. Webster, 480

Mass. 161, 170 (2018).

The defendant argues that the evidence did not establish

that any of the authors of the text messages were who the

Commonwealth claimed them to be. It is true that a name on an

account or device, standing alone, is insufficient. See Purdy,

459 Mass. at 450. However, authentication may be established

through "confirming circumstances" that permit a finding of

authorship or participation. Id. Confirming circumstances may

be established with direct or circumstantial evidence, including

the appearance, substance, and any distinctive aspects of the

communications. See Welch, 487 Mass. at 441. See also

Commonwealth v. Earl, 102 Mass. App. Ct. 664, 683 (2023)

("Authentication of an item may be proved by the contents of the

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item itself"). Expert testimony, proof of exclusive access, or

proof that the author physically typed the messages is not

required. See Welch, supra at 442; Purdy, supra at 451 n.7.

Finally, evidence that others may have used the device affects

the weight of the evidence, not its admissibility. See Purdy,

supra at 451.

Here, the evidence included an interconnected web of

confirming circumstances. To begin, Peralta testified that, in

addition to having in-person meetings with Lopez, the defendant,

and Prince to plan the robbery, he also used a phone number

ending in 8908 to communicate with Lopez about it. When

communicating with Peralta, Lopez used a number ending in 8810.

In messages extracted from Lopez's 8810 phone, Peralta's 8908

number was associated with Peralta's first name, "Jessi." The

day before the robbery, Lopez sent a text message to Peralta

telling him, "Meet at [V]ees." When Peralta pressed Lopez for

details about the plan, Lopez responded, "Vee on that," and "Me

and Vee already scooped [sic] out the crib and the get away

route."

One of the phones seized from the defendant's Lexus had a

phone number ending in 6976. The defendant was the registered

subscriber, and the phone had been named "Mickey's iPhone 6."

The passcode for the phone was the last four digits of the

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defendant's social security number. Data extracted from this

phone included numerous communications about the robbery with

Lopez's 8810 number, which on the defendant's phone was

associated with Lopez's first name, "Kev." In one message dated

a few days before the robbery, Lopez sent the defendant the

street address of the victim's house in Dighton, the same

address Lopez had provided Peralta. A string of instant

messages extracted from the defendant's phone was an exchange

with a number ending in 4397, associated with the name "Prince,"

about acquiring a getaway car.

Another corroborating set of messages extracted from the

defendant's phone was a conversation with a contact identified

as Marcus and others about a dishwasher, an electrician,

preparation of a lease, and monthly rent payments. Peralta

testified that Marcus was the name of the defendant's housemate.

In this conversation Marcus wrote, "Everybody text me your full

name," and the defendant responded, "Vee Mickey Fahnbulleh."

Finally, a lengthy string of texts extracted from Lopez's 8810

phone was a sometimes flirtatious exchange with a number ending

in 3858, associated with the name "K*" -- as in Kristina

O'Halloran -- during the week leading up to the robbery, in

which K* described the activities and whereabouts of an unnamed

man, whom the jury could infer was the victim, and his father.

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Based on Peralta's trial testimony identifying the

participants and describing their planning of the robbery;

police and expert testimony regarding the seizure of the

defendant's phone from his car, his ownership of the phone, and

the data extracted from his phone; and the content of the

messages themselves, including user names, time stamps, and

detailed discussions of plans for the robbery, a reasonable jury

could have concluded it was more likely than not that the

defendant authored the communications associated with the 6976

number, and that Peralta, Lopez, O'Halloran, and Prince authored

the messages associated with the numbers ending in 8908, 8810,

3858, and 4397, respectively. See Commonwealth v. Lopez, 485

Mass. 471, 478 (2020) ("evidence of the contents of the

messages, including identifying information and other

corroborating evidence, together with evidence of the

originating device, was sufficient to authenticate the

communications as having been authored by the defendant"). As

the electronic communications were properly authenticated and

admitted in evidence, there was no error; therefore, "there can

be no risk of a miscarriage of justice." R.B., petitioner, 479

Mass. 712, 718 (2018).

2. Withholding of exculpatory evidence. Under Mass. R.

Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005), in

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effect at the time of the defendant's trial, the Commonwealth

was required to disclose any statements made by a codefendant,

by a person who testified before a grand jury, or by a person

intended to be called as a witness. In addition, the defendant

made a discovery request for the prior inconsistent statements

of any witness expected to testify. Notwithstanding these

discovery obligations, the Commonwealth withheld a recorded

interview of Peralta, conducted by the Dighton police shortly

after his arrest, and a recorded interview of the victim,

conducted the next day. Both interviews included statements

that were inconsistent with aspects of the witnesses' trial

testimony. The defendant filed a motion for a new trial,

arguing that the Commonwealth's failure to disclose this

"crucial impeachment evidence" violated his State and Federal

due process rights. The trial judge denied the motion.

A motion for a new trial may be granted "if it appears that

justice may not have been done." Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001). We review the judge's

denial of the motion for "a significant error of law or other

abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307

(1986). "[W]e grant special deference to a decision on a motion

for a new trial of the judge who was also the trial judge."

Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992). However,

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"[i]f the new trial claim is constitutionally based, this court

will exercise its own judgment on the ultimate . . . legal

conclusions." Commonwealth v. Diaz, 100 Mass. App. Ct. 588, 592

(2022), quoting Commonwealth v. Rodriguez-Nieves, 487 Mass. 171,

176 (2021).

"To obtain a new trial on the basis of nondisclosed

exculpatory evidence, a defendant must establish (1) that the

evidence [was] in the possession, custody, or control of the

prosecutor or a person subject to the prosecutor's control; (2)

that the evidence is exculpatory; and (3) prejudice" (citations

and quotations omitted). Commonwealth v. Sullivan, 478 Mass.

369, 380 (2017). There is no dispute that the Commonwealth

possessed and withheld the recorded interviews, which could have

been used for impeachment purposes, and were therefore

exculpatory. See Commonwealth v. Murray, 461 Mass. 10, 19-20

(2011); Diaz, 100 Mass. App. Ct. at 594. Accordingly, the only

issue is whether the defendant established prejudice.

Where a defendant makes a general request, or no request,

for exculpatory evidence, to be entitled to a new trial the

defendant must establish prejudice by demonstrating "a

substantial risk that the jury would have reached a different

conclusion if the evidence had been admitted at trial."

Tucceri, 412 Mass. at 413. When nondisclosure follows a

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specific request, however, "a standard of prejudice more

favorable to the defendant is justified." Commonwealth v. Pope,

489 Mass. 790, 801 (2022). In that situation, the "defendant

need only demonstrate that a substantial basis exists for

claiming prejudice from the nondisclosure." Id., quoting

Tucceri, supra at 412. "In judging whether the defendant has

shown prejudice [under the standard for specific requests], we

must decide whether there is a reasonable possibility that the

nondisclosed evidence would have made a difference" (quotation

and citation omitted). Diaz, 100 Mass. App. Ct. at 595.

Here, there is no dispute that the motion should have been

decided under the standard applicable for specific requests.

See Rodriguez-Nieves, 487 Mass. at 179 n.12 (mandatory discovery

provisions of rule 14 "deemed a specific request for all

statements of persons the party intends to call as witnesses"

[quotation and citation omitted]). At one point in her decision

on the new trial motion, however, the judge erroneously quoted

Commonwealth v. Gaines, 494 Mass. 525, 541-542 (2024), for the

more demanding "substantial risk" standard applicable when there

is no request or only a general request.

Nonetheless, conducting our independent review of the

constitutional question whether the defendant demonstrated a

reasonable possibility that the withheld evidence would have

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made a difference in the outcome of the trial, we agree with the

judge, for essentially the same reasons she articulated, that

the defendant did not make such a showing.

In the undisclosed, recorded police interview, Peralta

identified Lopez and O'Halloran as being involved in the

robbery, but stated that he did not know the identities of the

remaining participants. When specifically asked if he knew

"someone by the first name of Vee," he denied it. On cross-

examination during trial, however, Peralta admitted that, during

his initial interview with the Dighton police, he "immediately

finger[ed]" Lopez and O'Halloran, but did not identify the

remaining participants. He acknowledged that he did not disclose

the defendant's involvement until after he decided to cooperate

with the district attorney's office. Thus, the fact that during

the recorded interview he likewise refused to divulge the name

of his close childhood friend was, as the judge found,

"cumulative of evidence that was elicited during cross-

examination."2

Although Peralta was the Commonwealth's key witness, unlike

in Pope, 489 Mass. at 801, his testimony was not "riddled with

2 Indeed, the withheld recorded interview of Peralta was
cumulative of the information contained in the police report
provided to the defense, which stated that Peralta "claim[ed]
there was only he, his cousin, and two other male parties
unknown to him going into the home."

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inconsistencies." Nor did this case rise and fall with

Peralta's credibility. See id. The defendant's abandoned car,

identification, and cell phone were found at the crime scene,

and his electronic communications implicated him in the planning

and commission of the crime. Defense counsel effectively cross-

examined Peralta with his initial failure to name the defendant,

his incentive to curry favor with the prosecution by entering

into a cooperation agreement, and his late disclosure of the

defendant's participation. We agree with the judge that "the

evidence at trial of the defendant's culpability was

overwhelming and did not primarily rely upon witness

credibility," and that Peralta's cumulative, recorded interview

"would not have been a real factor in the jury's deliberations."

The recorded interview of the victim was inconsistent with

his trial testimony that he heard one of the intruders say to

another, "Vee, shoot this n-----." In the victim's recorded

interview, when he reported that one of the intruders told

another to shoot him, he did not tell the police that any

intruder said the name "Vee."3 However, the victim's grand jury

3 While the victim's reference to "Vee" at trial was
certainly harmful to the defendant's case, the transcript does
not support the defendant's claim in his brief that "the jury
was left with the impression that [the victim] heard the name
'Vee' multiple times."

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testimony was consistent with his trial testimony in this

regard. It is possible that defense counsel could have used the

victim's recorded interview to establish that the name "Vee"

might have been suggested to the victim in the short period

between the crime and his grand jury testimony, thereby

impeaching the victim's claim that he heard the defendant's name

during the commission of the crime. Even so, given the strength

of the Commonwealth's case, depriving the defendant of this

narrow avenue of impeachment did not create a reasonable

possibility that the outcome of the trial would have been

different. Unlike Pope, 489 Mass. at 801-802, this is the

ordinary case where the failure to disclose evidence tending

merely to impeach a witness does not warrant a new trial.

Judgments affirmed.

Order denying motion for new
trial affirmed.

By the Court (Meade,
Massing & Brennan, JJ.4),

Clerk

Entered: March 19, 2026.

4 The panelists are listed in order of seniority.

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