Commonwealth v. Alden ( 2018 )

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16-P-309 Appeals Court
COMMONWEALTH vs. MATTHEW G. ALDEN, JR.
No. 16-P-309.
Middlesex. March 8, 2018. - June 21, 2018.
Present: Green, C.J., Kinder, & Henry, JJ.
Intimidation of Witness. Witness, Intimidation. Evidence,
Authentication, Best and secondary, Cross-
examination. Cellular Telephone. Practice, Criminal,
Cross-examination by prosecutor, Instructions to jury,
Required finding.
Complaint received and sworn to in the Marlborough Division
of the District Court Department on January 20, 2015.
The case was tried before Michael L. Fabbri, J.
Luke Rosseel for the defendant.
Erin D. Knight, Assistant District Attorney, for the
Commonwealth.
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 G. L. c. 268, § 13B. On appeal, the defendant
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claims (1) evidence regarding the text messages was improperly
admitted, (2) the judge incorrectly instructed the jury
regarding the Commonwealth's burden of proof, and (3) the
evidence was not sufficient to prove the defendant's guilt
beyond a reasonable doubt. We affirm.
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
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E.B. should "leave their personal stuff out of the courtroom and
that if she opened her mouth it'd be the worst thing she tried
to do -- . . . or the biggest mistake she ever made." E.B.
believed the text messages referred to her role as a witness in
the criminal case then pending against the defendant.
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
1 The defendant testified that his aunt, her husband, his
two cousins, and their girl friends also lived at the residence.
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in evidence, a judge must determine whether sufficient evidence
exists 'for a reasonable jury to find by a preponderance of the
evidence that the defendant authored' the
communication." Commonwealth v. Oppenheim, 86 Mass. App. Ct.
359, 366 (2014), quoting from Commonwealth v. Purdy, 459 Mass.
442, 447 (2011). "[I]rrespective of whether the communication
is introduced through testimony or a physical item of evidence,"
proponents seeking to introduce such electronic communications
into evidence must first establish authenticity. Commonwealth
v. Connolly, 91 Mass. App. Ct. 580, 587 (2017).
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
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evidence that, for over one year, E.B. had contacted the
defendant multiple times each week using the telephone number
from which the threatening messages originated. When she called
that number, the defendant answered. When she sent a text
message to that number to arrange a meeting with the defendant,
he appeared. From this pattern of conduct, the judge could
reasonably infer a direct connection between the defendant and
the telephone number from which the threatening messages were
sent. See Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 672
(2011) ("Fatal to the defendant were the actions he took in
conformity with the information contained in [the messages]").
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
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were not properly authenticated. In Salyer, the Commonwealth
failed to introduce admissible evidence establishing any
connection between the offending pages and message on MySpace
and the defendant. Salyer, supra at 355-356. In Williams,
where the messages were alleged to have been sent by the
defendant's brother, the Supreme Judicial Court emphasized that
there was no evidence regarding any limitation on access to a
MySpace account, and no circumstances beyond the messages'
content that linked them to the defendant's
brother. Williams, supra at 868-869. The Supreme Judicial
Court explained that "[a]nalogizing a My[S]pace Web page to a
telephone call, a witness's testimony that he or she has
received an incoming call from a person claiming to be 'A,'
without more, is insufficient evidence to admit the call as a
conversation with 'A.'" Id. at 869. Here, by contrast, there
was more. In addition to the content of the text messages,
E.B.'s prior relationship with the defendant and her use of the
telephone number to communicate with him over a significant
period of time provided the necessary link. Simply put, these
confirming circumstances sufficiently connected the defendant to
the threats. See Purdy, 459 Mass. at 450-451.
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
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at trial, we review any error for a substantial risk of a
miscarriage of justice. See Commonwealth v. Leary, 92 Mass.
App. Ct. 332, 336 (2017). "The best evidence rule provides
that, where the contents of a document are to be proved, the
party must either produce the original or show a sufficient
excuse for its nonproduction." Commonwealth v. Ocasio, 434
Mass. 1, 6 (2001). There is an exception, however, regarding
statements of parties. "The proponent may prove the content of
a written statement of the party against whom the evidence is
offered without producing or accounting for the original."
Mass. G. Evid. § 1007 (2018). Here, once the judge made a
preliminary determination that the evidence was sufficient to
authenticate that the text messages were sent by the defendant,
this exception applied. Accordingly, the best evidence rule did
not. There was no error, much less a substantial risk that
justice miscarried.
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
2
For example, the prosecutor asked, "[D]o you deny saying,
'I hope you kill yourself, bye-bye?'"
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appeal, the defendant claims that this line of cross-examination
improperly relied on facts not in evidence. We are not
persuaded.
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
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the cross-examination. See Commonwealth v. Durand, 475 Mass.
657, 662 (2016). 3
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.
3 The defendant's remaining claims regarding the
prosecutor's examination of witnesses "have not been overlooked.
We find nothing in them that requires discussion." Commonwealth
v. Domanski, 332 Mass. 66, 78 (1954).
4 The judge instructed the jurors on this point as follows:
"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."
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"We review objections to jury instructions to determine if
there was any error, and, if so, whether the error affected the
substantial rights of the objecting party." Beverly v. Bass
River Golf Mgmt., 92 Mass. App. Ct. 595, 603 (2018) (quotation
omitted). Because the Commonwealth sought to introduce evidence
of the contents of text messages, an instruction on a
preliminary determination of authorship was appropriate, and the
instruction given was an accurate statement of the law.
See Purdy, 459 Mass. at 447-450; Oppenheim, 86 Mass. App. Ct. at
363-369. The judge also properly instructed the jury on the
elements of the crime, including that the Commonwealth had the
burden to prove beyond a reasonable doubt that it was the
defendant who directly or indirectly threatened the victim. 5
Three times the judge emphasized that the Commonwealth's burden
was to prove each element of the crime beyond a reasonable
doubt.
"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
5 The judge instructed: "In order to prove the defendant
guilty . . . the Commonwealth must prove three . . . elements
beyond a reasonable doubt . . . . First, that the defendant
either directly or indirectly made a threat" (emphasis
supplied).
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(1) preliminary determination of the authenticity of the text
messages and (2) proof of the defendant's identity as the
perpetrator of the threats. Nevertheless, authenticity and
identity are different legal concepts, and the judge did not err
in explaining the distinction. While, in the context of this
case, it would have been preferable to instruct the jury more
directly that authorship of the threatening text messages was an
element of the offense that had to be proved beyond a reasonable
doubt, the judge acted within his discretion in framing the
instructions as he did. Moreover, the judge gave a curative
instruction after the defendant objected. 6 Considering these
instructions as a whole, see Commonwealth v. Allen, 474 Mass.
162, 168 (2016), we are confident that the defendant's
substantive rights were not adversely affected by the
supplemental jury instruction.
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
6 "Just so . . . I'm not confusing you, the preliminary
issue as to the admissibility of the text messages, the standard
is preponderance of the evidence. So you have to first
determine by a preponderance of the evidence, was the defendant
the person on the other side of the conversation. Only then can
you [consider] them in determining whether or not the government
has proven the elements of the offense beyond a reasonable
doubt."
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determine whether the defendant's motion should have been
granted at that time,'" Commonwealth v. Morgan, 449 Mass. 343,
349 (2007), quoting from Commonwealth v. Sheline, 391 Mass. 279,
283 (1984), that is, "whether the Commonwealth [had] presented
sufficient evidence of the defendant's guilt to submit the case
to the jury," Commonwealth v. Dustin, 476 Mass. 1003, 1003
(2016) (quotation omitted). The evidence is sufficient if,
"viewing the evidence in a light most favorable to the
Commonwealth, 'any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt'
(emphasis original)." Commonwealth v. Cohen (No. 1), 456 Mass.
94, 120 (2010), quoting from Latimore, 378 Mass. at 677.
To establish a violation of G. L. c. 268, § 13B, "the
Commonwealth was required to prove that the defendant wilfully
engaged in intimidating conduct, that is, acts or words that
would instill fear in a reasonable person, and did so with the
intent to impede or influence a potential witness's testimony"
against the defendant. Commonwealth v. Rivera, 76 Mass. App.
Ct. 530, 535 (2010). The defendant does not dispute the
threatening nature of the messages or that they were intended to
impede or influence E.B., a potential witness in a criminal case
pending against him. As to the sufficiency of the evidence, the
defendant's only claim is that no rational juror could have
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found beyond a reasonable doubt that he authored the text
messages. We disagree.
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
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overwhelming contrary evidence. "As the jury were free to
disbelieve the defendant's account, there was nothing compelling
in this evidence which caused the prosecution's case to
deteriorate." Commonwealth v. Walker, 401 Mass. 338, 343-344
(1987). Accordingly, we discern no error in the judge's denial
of either of the defendant's motions for a required finding of
not guilty.
Judgment affirmed.