996 N.E.2d 488
Mass. App. Ct.2013Background
- Angelina Salyer was convicted by a jury of (1) making a false report of a crime (G. L. c. 269, § 13A) and (2) criminal harassment (G. L. c. 265, § 43A(o)) after a custody dispute with former partner Richard Dicato.
- Salyer provided police a printed e-mail allegedly from Dicato (rdl977@yahoo.com) and a prior 2004 e-mail she said was from her to him; Yahoo! records showed Dicato used a different address (rdl977us) and rdl977 was registered to an unrelated person and inactive.
- Dicato received threatening and disparaging MySpace communications about his business; investigators produced MySpace records (user ID and an associated e-mail/IP entries) but the Commonwealth did not produce Comcast account records tying the IP to Salyer’s home.
- The Commonwealth admitted 12 pages of disparaging MySpace materials de bene (subject to later authentication) and elicited testimony from Salyer’s husband Jeffrey about private spousal conversations and other conduct; defense objected but did not move to strike when the promised foundation was not supplied.
- Salyer argued on appeal that (a) evidence was insufficient on the false report count because intent was not proved, and (b) trial counsel was ineffective for failing to exclude or strike marital communications, hearsay/best-evidence violations, and unauthenticated MySpace evidence underlying the harassment conviction.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Salyer) | Held |
|---|---|---|---|
| Sufficiency of intent for false-report conviction | Evidence of false report plus Salyer’s representations to police supported inference of knowing, intentional falsification | Salyer: jury could only disbelieve her, not infer knowledge beyond reasonable doubt | Affirmed — evidence sufficed to prove knowledge and intent |
| Ineffective assistance re: admission of spousal statements | Admission generated probative link and supported harassment proof | Salyer: counsel should have objected under marital disqualification; admission was manifestly unreasonable | Reversed as to harassment — counsel ineffective for failing to exclude spousal private communications |
| Authentication and foundation for MySpace pages (de bene evidence) | MySpace records and later testimony could supply foundation tying pages to Salyer | Salyer: Commonwealth never supplied required foundation; defense failed to move to strike de bene exhibits | Reversed as to harassment — without link to Salyer, the MySpace materials were inadmissible and essential to conviction |
| Best-evidence/hearsay and failure to move for required finding on harassment | Electronic records and testimony properly admitted to show harassment acts | Salyer: oral testimony about records violated best-evidence; insufficient proven acts linked to her; counsel failed to move for directed verdict | Reversed as to harassment — best-evidence/hearsay errors and counsel omissions prejudiced outcome; directed-verdict issue reviewed in light of other errors |
Key Cases Cited
- Commonwealth v. Wright, 60 Mass. App. Ct. 108 (supports limits on inferring defendant’s knowledge from disbelief of testimony)
- Commonwealth v. Kingsbury, 378 Mass. 751 (permitting reasonable inferences from circumstantial evidence)
- Commonwealth v. Gillette, 33 Mass. App. Ct. 427 (marital-disqualification rule: exclusion of private spousal communications)
- Commonwealth v. Scullin, 44 Mass. App. Ct. 9 (ineffective-assistance standard and review)
- Commonwealth v. Azar, 435 Mass. 675 (assessing whether counsel errors leave serious doubt about trial outcome)
- Commonwealth v. O’Neil, 67 Mass. App. Ct. 284 (elements of criminal harassment)
- Commonwealth v. Purdy, 459 Mass. 442 (authentication requirements for online accounts/MySpace evidence)
- Commonwealth v. Saferian, 366 Mass. 89 (two-part ineffective assistance test)