Commonwealth v. AldenCommonwealth v. Alden
KINDER, J. Following a jury trial in the District Court, the defendant, Matthew G. Alden, Jr., was convicted of intimidating a witness by sending her threatening text messages in violation of
Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The victim in the case, E.B., was the defendant‘s former girl friend. At the time of trial, she had known the defendant for at least five years. In January, 2015, there was a criminal case pending against the defendant, in which E.B. was a potential witness. On January 19, 2015, E.B. reported to the police that she was receiving threatening text messages from someone she believed to be the defendant. The messages were received from the telephone number E.B. had used to communicate with the defendant by text messages and telephone calls every few days for over one year.
The messages threatened that, if E.B. “went to court[, she would] be sorry[,] and that [the defendant] would have people come after [her] if [she] went to court.” More specifically, “[o]ne of [the messages] told [E.B.] to keep her hoe ass mouth shut. [Another] implied that she should kill herself and she should do it tonight.” An additional text message stated that
The defendant testified that at the time the threatening messages were received by E.B., he and his new girl friend had been living with his aunt for “[a] couple of months.” The defendant and his mother testified that the cellular telephone (cell phone) associated with the number from which the threatening messages were received was not owned by the defendant. According to the defendant, his aunt had purchased the cell phone, but it was shared with the defendant and at least six other people who lived at his aunt‘s residence.1 The cell phone was not password protected and remained at the aunt‘s house for use by its residents. The defendant denied sending the threatening text messages to E.B. He testified that, at the time the text messages were sent, he was at the mall and did not have the cell phone with him. Finally, the defendant testified that his new girl friend did not like E.B.
Discussion. 1. Evidentiary issues. a. Authentication of text messages. “[B]efore admitting an electronic communication
Here, the defendant filed a motion in limine to preclude evidence of the text messages because they were not “properly authenticated” -- that is, because the evidence was not sufficient to authenticate them as having been authored by him. The judge deferred ruling until trial, but ultimately concluded that the Commonwealth had established by a preponderance of the evidence that the text messages were authentic. We discern no error in that decision.
“A judge making a determination concerning the authenticity of a communication sought to be introduced in evidence may look to ‘confirming circumstances’ that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be.” Purdy, supra at 448-449, citing Commonwealth v. Hartford, 346 Mass. 482, 488 (1963). Here, there was
The content of the text messages reinforced their link to the defendant. It is undisputed that at the time she received the text messages, E.B. was a witness in a pending case against the defendant. In this context, where there was evidence that the text messages directed her to “keep her hoe ass mouth shut” and “leave their personal stuff out of the courtroom” or “people [would] come after [her] if [she] went to court,” it was reasonable to infer that the defendant was responsible for sending the messages.
The defendant‘s reliance on Commonwealth v. Williams, 456 Mass. 857 (2010), and Commonwealth v. Salyer, 84 Mass. App. Ct. 346 (2013), is misplaced. In those cases, electronic communications sent on the social networking Web site MySpace
b. Best evidence rule. The defendant claims that the best evidence rule precluded testimony regarding the content of the text messages. Because the defendant never raised this argument
c. Cross-examination of the defendant. At the close of cross-examination of the defendant, the prosecutor posed to the defendant a series of ten questions, each asking whether the defendant had sent a particular text message. Each question incorporated the exact language of the text message.2 In each instance, the defendant denied sending the text message. On
Generally, “[a] prosecutor may not conduct cross-examination ‘in bad faith or without foundation.‘” Commonwealth v. Christian, 430 Mass. 552, 561 (2000), quoting from Commonwealth v. White, 367 Mass. 280, 285 (1975). Here, although some of the questions included text messages not previously described by E.B., the Commonwealth had a “reasonable belief that the facts implied by the questions could be established by admissible evidence.” Commonwealth v. Peck, 86 Mass. App. Ct. 34, 39 (2014). The jury had already heard the general nature of the threatening text messages through the testimony of E.B. and a police witness. Moreover, “screen shot[s]” of the text messages had been preserved and made available to the defendant. Although the screen shots themselves were never offered in evidence, the prosecutor was aware, prior to the defendant‘s testimony, that the judge had found “by a preponderance of the evidence that those text messages are authentic, even though they weren‘t presented in the form of photographs or business records.” Therefore, the prosecutor had a good faith belief that the threats implied by the questions could be established by admissible evidence. Accordingly, the judge did not abuse his discretion in allowing
2. Instruction. In addition to the general instruction that the Commonwealth had the burden of proving each element of the offense beyond a reasonable doubt, the judge gave a supplemental instruction that, before they could consider the content of the text messages, the jury must be satisfied by a preponderance of the evidence that the messages had been sent by the defendant.4 The defendant claims that the supplemental instruction was reversible error because it confused the jury regarding the Commonwealth‘s burden of proof. We disagree.
“Trial judges have ‘considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.‘” Commonwealth v. Kelly, 470 Mass. 682, 688 (2015) (quotation omitted). We acknowledge that in this case there was a fine line between the
3. Sufficiency. “Where, as here, a defendant moves for required findings at the close of the Commonwealth‘s case and at the close of all the evidence, ‘[w]e [first] consider the state of the evidence at the close of the Commonwealth‘s case to
To establish a violation of
We have previously discussed the circumstantial evidence linking the defendant to the threatening messages. First, the jury heard that there had been a long-standing pattern of communication between the defendant and E.B. using the telephone number from which the threats originated. Second, the jury could rationally conclude that the threats to “leave their personal stuff out of the courtroom” or “people [would] come after [her] if [she] went to court” were intended by the defendant to intimidate E.B., so that she would not testify in the case then pending against him. Viewed in the light most favorable to the prosecution, this evidence was sufficient to prove the defendant‘s identity beyond a reasonable doubt.
“We also consider the state of the evidence at the close of all the evidence, to determine whether the Commonwealth‘s position as to proof deteriorated after it closed its case.” Sheline, supra. However, “[d]eterioration does not occur merely because the defendant contradicted the Commonwealth‘s evidence . . . ‘unless the contrary evidence is so overwhelming that no rational jury could conclude that the defendant was guilty.‘” Commonwealth v. Ross, 92 Mass. App. Ct. 377, 381 (2017) (citation omitted). We do not view the uncorroborated testimony of the defendant and his mother as
Judgment affirmed.
Notes
“Before you can consider the content of those alleged text messages you must first be persuaded that the person on the other side of the conversation was, in fact, the defendant. The prosecution has to prove what is called by a preponderance of the evidence. It‘s a different standard, lower than the beyond a reasonable doubt standard. Preponderance of the evidence mean[s] that the evidence must convince you that it is more likely true than not that the person on the other end of the conversation was, in fact, the defendant. If you are not convinced that it is more likely true than not that the other person on the alleged conversation was, in fact, the defendant then you may not consider that conversation, in this case text messages as alleged, you may not consider that conversation at all against the defendant.”