Commonwealth v. Alden
Commonwealth v. Alden
Opinion
*439 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 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
,
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.
*285 [Another] implied that she should kill herself and she should do it tonight." An additional text message stated that 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 *440 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 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
,
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,
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
,
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
*442
at trial, we review any error for a substantial risk of a miscarriage of justice. See
Commonwealth
v.
Leary
,
c. Cross-examination of the defendant . At the close of cross-examination of *287 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 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
,
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.
"We review objections to jury instructions to determine if there was any error, and, if so, whether the error affected
*288
the substantial rights of the objecting party."
Beverly
v.
Bass River Golf Mgmt.
,
"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
,
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 determine whether the defendant's motion should have been granted at that time,' "
Commonwealth
v.
Morgan
,
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
,
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
,
*446
Commonwealth
v.
Walker
,
Judgment affirmed .
The defendant testified that his aunt, her husband, his two cousins, and their girl friends also lived at the residence.
For example, the prosecutor asked, "[D]o you deny saying, 'I hope you kill yourself, bye-bye?' "
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
,
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."
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).
"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."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.