Commonwealth v. Salyer
Commonwealth v. Salyer
Opinion of the Court
Following a trial by jury, the defendant, Angelina Salyer, was found guilty of making a false report of a crime in violation of G. L. c. 269, § 13A, and criminal harassment in violation of G. L. c. 265, § 43A(o). We conclude that because her attorney provided ineffective assistance of counsel in failing to object and move to strike certain inadmissible evidence, there must be a new trial on the charge of criminal harassment.
Background. The jury could have found that beginning in 2001, the defendant and Richard Dicato were involved in a relationship and had two children together. At the end of their relationship, a dispute arose over custody of the children. A bitterly contested custody case ensued in the Probate Court and was ongoing in the fall of 2008. At some point in 2007, the defendant married Jeffrey Salyer (Jeffrey). During 2008, Jeffrey and the defendant lived in a home on Mason Road in Townsend. They remained married to each other at the time of the trial in the present case. Jeffrey frequently served as a babysitter for the defendant’s two children. In the fall of 2008, the defendant’s daughter accused Jeffrey of molesting her. Although the allegations were not supported and Jeffrey was promptly cleared, the Probate Court changed the schedule for the defendant’s visits with her children, who were living with Dicato. Prior to the accusations against Jeffrey, the defendant had had the right to unsupervised visits with her children twice a week, including whole weekends; after the allegations, she was only permitted to visit with her children one day per week, the visits had to be supervised, and Jeffrey could not be present.
1. Evidence related to the false report of a crime charge. On the evening of Saturday, November 22, 2008, the defendant and her mother went to the Townsend police department. The defendant told Officer Kimberly Mattson that she had received a threatening electronic mail message (e-mail) that day from her former boyfriend, Dicato. She gave Officer Mattson a printout of the e-mail message and signed a statement. She told Officer Mattson that she was in fear for her safety. This alleged e-mail, which was admitted in evidence at trial, is from a Yahoo! e-mail
The jury also heard that later in October, some clients notified Dicato of messages on MySpace from alleged customers of his business on what appeared to be a facsimile of Dicato’s “Flesh by Design” page. He testified that in all he found seventeen pages of these MySpace messages that were disparaging of him and his tattoo business. Dicato printed them and showed them to the police. As he had never received a complaint from a customer and in view of the ongoing custody case, he felt “weird,” experienced stress, and could not sleep. At trial, he produced nine of these MySpace messages consisting of a total of twelve sheets each appearing to have originated from a different IP address.
The defense filed a pretrial motion in limine to exclude this evidence and objected when it was offered at trial. The judge admitted the twelve pages of disparaging MySpace pages and messages in evidence de bene based on the Commonwealth’s representation that the testimony of Jeffrey would provide the missing link connecting this evidence to the defendant.
In his testimony, Jeffrey, the defendant’s husband, denied
During the investigation, Townsend police Officer Girard asked Jeffrey to examine the home computer “to try [to] find anything and everything” that he could and “try to get it to [Officer Girard] as evidence.” Jeffrey testified that the defendant had a “list of stuff” on their desk which had “all different names, all different e-mail addresses, and stuff like that,” and he did not know what she was doing with it. In particular, when he asked her about this fist, she said she was using these things to make fun of Dicato’s business and to ruin him so she could gain custody of the children. Jeffrey also testified that he deleted some things on their home computer because it was “going slow.” Later, he testified, when the defendant was using the computer and learned what he had done, she became upset and told him that he had deleted the software she had downloaded to use so “no one can identify your IP address. It automatically changes.”
Discussion. 1. False report charge. With regard to the false report charge, the Commonwealth had to prove that (1) the defendant reported a crime to the police; (2) the report was false; (3) the defendant intended to make the false report to a police officer; and (4) the defendant knew the report she was
In Wright, supra, which involved the charge of posing a child under the age of eighteen in a state of nudity, knowing the child to be under eighteen, we explained that the jury could not, simply by choosing to disbelieve the defendant’s testimony that the victim was eighteen years of age, conclude beyond a reasonable doubt that the defendant knew or should have known that the victim was under the age of eighteen. Here, in contrast, the jury were warranted in inferring that the defendant acted knowingly and intentionally, based on several affirmative representations she made to the police about the e-mail address she attributed to Dicato on the printout she delivered to the police and other circumstantial evidence. First, she told the police that the e-mail address in question was Dicato’s “normal e-mail we have used for years.” Based on Dicato’s testimony and the Yahoo! records in evidence, the jury would have been warranted in concluding that this statement was false. Second, she
2. The criminal harassment charge. The defendant argues that defense counsel provided ineffective assistance at trial in failing to object to evidence subject to the marital disqualification, failing to move to strike certain evidence from the record,
Criminal harassment in violation of G. L. c. 265, § 43A(a), requires the Commonwealth to prove that (1) the defendant committed not less than three separate acts of wilful and malicious conduct directed at the victim, (2) the victim was seriously alarmed by the conduct, and (3) a reasonable person would have suffered substantial emotional distress as a result of this conduct. See Commonwealth v. O’Neil, 67 Mass. App. Ct. 284, 290 (2006). The evidence relied upon by the Commonwealth to prove the criminal harassment charge consisted principally of (1) statements reportedly made by the defendant to Jeffrey that, with the aid of specialized software that could automatically change a computer’s IP address, she was using MySpace to harm or make fun of Dicato and his business; (2) the threatening MySpace message and the twelve pages of false MySpace messages that appeared on the facsimile of Dicato’s MySpace page; and (3) testimony of Detective Gilbert and Officer Girard about the contents of records not in evidence, which provided a link between a home on the street where the defendant resided and the false MySpace messages. Timely objections or a motion to strike would have resulted in the exclusion of this evidence.
a. Counsel’s failure to object to evidence subject to the marital disqualification. In both civil and criminal cases, “a witness shall not testify as to private conversations with a spouse occurring during their marriage.” Mass.G.Evid. § 504(b)(1) (2013). Because the defendant and Jeffrey were married at the time of trial and the evidence indicates that the conversations that Jeffrey related he had had with her about obtaining software to change her IP address and about her plan to harm Dicato were private, a timely objection would have resulted in a ruling excluding these highly incriminating statements. See Gallagher v. Goldstein, 402 Mass. 457, 459 (1988) (“The contents of private conversations are absolutely excluded”; “[tjestimony as to the
Although defense counsel’s theory that Jeffrey, not the defendant, committed the crimes may have been a sound strategy, it did not compel the admission of these private conversations. In her cross-examination of Jeffrey, defense counsel made no use of this evidence. In fact, the admission of these conversations did considerable damage to her defense. The conversations related by Jeffrey reinforced that the defendant had a motive to harm Dicato and established that she had the means and the opportunity to commit the crimes. The failure to object to this evidence was not the result of any plausible and reasonable trial strategy, was manifestly unreasonable, and was substantially below the level of adequate representation expected of reasonably competent counsel. See Commonwealth v. Gillette, 33 Mass. App. Ct. 427, 432 (1992). See also Commonwealth v. Adams, 374 Mass. 722, 728 (1978).
b. The MySpace pages and other evidence. As noted earlier, the twelve pages of MySpace messages which Dicato testified that he had discovered on a facsimile of his business’s MySpace page were admitted de bene based on the Commonwealth’s representation that the missing foundation would be supplied later in the case. See Harris-Lewis v. Mudge, 60 Mass. App. Ct. 480, 485 (2004) (relevant evidence may be received de bene, subject to a later motion to strike if the necessary foundation or requirement is not supplied).
Evidence admitted de bene remains in the case and is available to the jury for its full probative value unless opposing counsel moves to strike it from the record. See Commonwealth v. Sheppard, 313 Mass. 590, 595-596 (1943). The court has no duty to strike de bene evidence on its own motion even though the necessary foundation evidence promised by the proponent is not forthcoming. See ibid. The duty to strike such evidence
Even if we assume that there was no dispute that the MySpace messages were false and had been fabricated, in order for them to meet the threshold test of relevancy, see Mass.G.Evid. § 401 (2013), the Commonwealth had to satisfy the judge that they were authentic, which in these circumstances meant that they were created by or at the direction of the defendant. See Mass.G.Evid. § 901(a) (2013) (“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”).
In addition, the threatening MySpace message which Dicato said he had received and which he and Detective Gilbert described in detail despite repeated objections was never linked to the defendant. Without a foundation linking this evidence to the defendant, it was not relevant and the testimony should have been excluded. See Mass.G.Evid. §§ 401, 402 (2013).
In sum, as noted above, the evidence properly admitted on the false report charge was sufficient to withstand a motion for
Applying the appropriate standard for assessing a claim that counsel provided ineffective assistance in failing to object to evidence that was admitted at trial — whether there is a serious doubt that the result of the trial might have been different if counsel’s errors had not been made, see Commonwealth v. Azar, 435 Mass. 675, 675-676, 687 (2002), and considering the strength of the Commonwealth’s proof with regard to the false report charge and the nature and significance of the error, we are not left with uncertainty as to whether the defendant’s guilt was fairly adjudicated on the charge of filing a false report. Id. at 687.
Accordingly, for the above reasons, on count one of the complaint, charging filing a false report of a crime, the judgment is affirmed. On count two of the complaint, charging criminal harassment, the judgment is reversed and the verdict is set aside.
So ordered.
The header information of the e-mail allegedly sent by Dicato to the defendant reads as follows: “From: Richard Dicato <[email protected]> To: [email protected] Sent: Saturday, November 22, 2008 12:24:11 PM Subject: Hi.” It states “I” (allegedly Dicato) “will bury you and Jeff” and destroy Jeff’s career and the defendant’s marriage, and says further that the sender has the power to make the defendant “disappear” and that her days are “numbered.” This e-mail message appears to be a response to an e-mail sent by the defendant to Dicato several years earlier which appears on the same printed page. The header information in the earlier e-mail message reads as follows: “From: Angelina Salyer <[email protected]> To: [email protected] Sent: Saturday, August 30,2004 2:11:17 PM Subject: Hi.” The earlier e-mail is principally a complaint about Dicato’s refusal to agree to joint custody and Dicato’s allegedly false accusation that Jeffrey had slapped their daughter. It closes with this statement: “If you continue on this path of obvious destruction, I will be forced to fight for custody, because you are no longer doing the right thing for my children.” The defendant’s mother testified that the defendant forwarded the e-mail allegedly sent by Dicato to Dicato’s lawyer in the custody case, which is confirmed by the entries appearing on the top of the page of what was marked as an exhibit at trial. Dicato testified that a copy of this e-mail was forwarded to him by his attorney.
The New Oxford American Dictionary 1658 (3d ed. 2010) defines “social media” as “websites and applications used for social networking.” See also Vinson, The Blurred Boundaries of Social Networking in the Legal Field: Just “Face” It, 41 U. Memphis L. Rev. 355 (2010) (overview of the legal issues that arise in connection with the use of social media).
An IP address has been defined as a “unique numerical address identifying each computer on the internet.” In re Application of the United States for Order Authorizing Use of Pen Register and Trap on Internet Service Account/ User, 396 F. Supp. 2d 45, 48 (D. Mass. 2005).
The judge sustained an objection to Detective Gilbert’s testimony that the account was opened from an DP address that was linked to the Salyers’ home. Although no records relating to any Comcast accounts were offered by the Commonwealth, the court, over objection, admitted a business record from MySpace which, the jury could infer from Detective Gilbert’s testimony, led him to establish a link between the defendant and the threatening MySpace message sent to Dicato. Detective Gilbert’s testimony on this point is difficult to follow because it is interrupted in the transcript by several unintelligible or incompletely recorded sidebar conferences. It appears that, based on a value he identified as a user ID (422885246) appearing on both a MySpace account and a Comcast account, he concluded that the threatening MySpace message received by Dicato originated from a computer with an IP address that could be traced to a home on Mason Road in Townsend.
Dicato read aloud for the jury portions of these messages. Among other things, these communications alleged that DiCato charged excessive fees, that he had caused one customer to contract an infection, that he had inappropriately
Jeffrey disclosed to the jury his e-mail address, which is unrelated to any of the e-mail addresses in evidence in this case.
The evidence turned over to the Townsend police by the defendant and which was admitted in evidence at trial consisted of three allegedly linked messages. In chronological order, the first message was a 2004 e-mail allegedly sent by the defendant to Dicato at Yahoo address rd!977. The second message was the threatening e-mail allegedly sent by Dicato in reply to the defendant. The third message was an e-mail from the defendant forwarding the two prior e-mails to Dicato’s lawyer.
Ordinarily, a claim of ineffective assistance of counsel raised for the first time on appeal will be rejected in favor of a motion for a new trial because otherwise the appellate court lacks the benefit of trial counsel’s explanation for the challenged conduct or omission. See Commonwealth v. Taylor, 463 Mass. 857, 869 (2012). When, as here, such a claim is raised on direct appeal, “we will reverse the defendant’s convictions only if the ineffectiveness ‘appears indisputably on the trial record.’ ” Commonwealth v. Medeiros, 456 Mass. 52, 61 (2010), quoting from Commonwealth v. Zinser, 446 Mass. 807, 811 (2006).
If Jeffrey’s testimony were not subject to exclusion due to the marital disqualification, the judge would have been warranted in relying on it to supply the “confirming circumstances” necessary to authenticate the twelve pages of MySpace messages as having originated with the defendant. See Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). Contrast Commonwealth v. Williams, 456 Mass. 857, 868-869 (2010) (inadequate foundation linking MySpace page to defendant or his brother).
The defendant is also correct in her assertion that the testimony, objected
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