Complaints received and sworn to in the
Ayer Division of the District Court Department on July 17, 22, 27 and 30, 2009;
September 1 and 10, 2009; and October 7 and 27, 2009.
The cases were tried before Sarah W.
Spavento for the defendant.
Johnsen, Assistant District Attorney, for the Commonwealth.
This case involves convictions for stalking and other crimes based on a
series of anonymously sent e-mail messages (e-mails). As part of its proof that the defendant sent
the e-mails, the Commonwealth offered evidence of the subscriber information
for the accounts from which the e‑mails were sent. We consider whether expert testimony was
required to explain the subscriber information, which included the e‑mail
address associated with each account and the date each account was created and,
for some accounts, last used. We
conclude that expert testimony was not required.
Convicted by a District Court jury of one
count of stalking in violation of a restraining order, ten counts of violation
of a G. L. c. 209A restraining order (209A order), and thirteen
counts of witness intimidation, the defendant appeals. He argues that (1)
the judge erred in admitting thirty-three e‑mails because the Commonwealth did
not prove that he sent them; (2) the judge erred in admitting business records
summonsed from Google Inc. (Google) showing the subscriber information for
eight e‑mail accounts, absent expert testimony to explain them; (3) the victim
should not have been permitted to testify, without objection, that the 209A
order was permanent; and (4) the evidence was insufficient to prove witness
intimidation. We affirm.
Background. The victim and defendant were married for
more than a decade. The defendant was,
in the victim's words, "very savvy" about technology. He installed all their computers and
telephones and set up her accounts. He
used to refer to women he deemed unintelligent as "Princess Not So
Bright," or "PNSB."
In August 2008, a judge issued a 209A
order directing the defendant, among other things, to have no contact with the
victim or her mother. The 209A order
originally was issued for a month, then was extended to August 28, 2009. The victim and defendant went through a contentious
divorce, which became final in June 2009.
On July 11, 2009, the victim received an e‑mail
from an address she did not recognize, "email@example.com," that was
also sent to her current romantic partner, Brad. It referred to Brad's relationship with
"Princess not so Bright (aka:
PNSB)." A barrage of
subsequent e‑mails from the same e‑mail address sent throughout July 2009
disclosed certain details personal to the victim and Brad, including
information that would be known only by a sender who had access to e‑mails
between them. An e‑mail to Brad stated,
"Please talk some sense into our Princess.
The Pepperell police?? . . .
Does PNSB think they care? Besides,
what have I done wrong? I did not send
this." An e‑mail to both the victim
and Brad stated,
tell our [PNSB] its not nice to keep calling the police on me.
. . . They cannot and are not
going to do anything. . . .
Why is [PNSB] so convinced I'm going to hurt her?? Is it because her feeble attempt to get me to
get rid of my guns by filing the bogus restraining order failed misribly. OMG!!!
[PNSB] filed some crap, I'm so scared I will turn my guns in
immediately. NOT!!! Does this scare you too???"
The victim reported the e‑mails to police,
and on July 20, 2009, Pepperell police Detective William Greathead telephoned
the defendant and informed him of the investigation. The defendant admitted he knew of the 209A
order, but denied sending the e‑mails.
After that, the e‑mails intensified.
On July 22, the victim's mother received an e‑mail saying that Brad
"was afraid to stay with PNSB when I came to MA for divorce
hearing." Also on July 22, Brad
received an e-mail that said, "By the way, you realy should tell our
Princess to stop wasting the police's time." The victim received an e‑mail referring to
the coordinates of the location of her cell phone with the words,
"Hint: Mapquest." An e‑mail to the victim stated:
stop with the cops Princess. I told you
they don't care. I have not done
anything wrong. Inspiring something and
doing something are different. Have you
told the cops how you lied to get a restraining order??? We both know you did lie. You don't realy think I'm dangerous do you???
. . . Besides if I am so
dangerous why have they not come looking for the guns i alledgely have. We both know I don't have any, well not here
After Brad canceled his personal e-mail
address, the victim received an e‑mail mentioning that fact and stating Brad's
work contact information, as well as his elderly father's name, address, and
telephone number. After the victim
changed her telephone number, she received an e‑mail stating her new number in
the subject line with the message, "Princess, Princess, Princess, their's
no point changing your phone number."
Detective Greathead received an e‑mail from a second Google e‑mail
address that referred to the restraining order and the divorce and stated,
"There's freedom of speech, even in Pepperell. I have the constatutional right to talk to
write or say anything I want to. I'm not
Between August 7 and 17, 2009, the victim,
her mother, Brad, and several of his coworkers received five e‑mails from three
other Google e‑mail addresses, one using the victim's mother's name and another
using Brad's name, although neither had set up those accounts. The e‑mails disparaged Brad, threatened to
disclose confidential information of his employer, and demanded, "Fire
[Brad] and I promise to leave [the employer] alone forever."
On August 28, 2009, the 209A order was
made permanent and served on the defendant.
Later that same day and the next day, seven e‑mails were sent in quick
succession to the victim, her mother, Brad, and Detective Greathead; five of
those, styled as press releases (press release e‑mails), were also sent to
dozens of Brad's coworkers and divulged intimate details of the victim's
relationship with Brad, as well as the victim's unlisted telephone number.
Authentication of e-mails. The
defendant argues that the judge erred in admitting the thirty-three e‑mails
received by the victim, her mother, Brad, his coworkers, and Detective
Greathead. Because the defendant
objected to the admission of the e-mails, we review for an abuse of discretion
resulting in prejudice to the defendant.
See Commonwealth v. Wood, 90 Mass. App. Ct. 271, 275 (2016). Here, the circumstantial evidence that the
defendant sent the e‑mails was not only sufficient, but overwhelming.
"[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, 86 Mass. App. Ct.
359, 366 (2014), quoting Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). "Evidence may be authenticated by direct
or circumstantial evidence, including its appearance, contents, substance,
internal patterns, or other distinctive characteristics" (quotation and
citation omitted). Purdy, supra at
447-448. See Mass. G. Evid.
§ 901(b)(4) (2021). See also
Commonwealth v. Welch, 487 Mass. 425, 440-442 (2021) (text messages
authenticated by circumstantial evidence, including details of defendant's and
victim's lives). Neither expert testimony
nor proof of the defendant's exclusive access to the computer from which the e‑mails
originated was necessary to authenticate the e‑mails as having been sent by
him. See Purdy, supra at 451 n.7. See also Mass. G. Evid. § 901(b)(11)
In ruling the e‑mails admissible, the
judge carefully applied the applicable case law. She heard voir dire testimony from the
victim, Detective Greathead, and Brad as to the details of the e-mails that
authenticated them by circumstantial evidence.
The judge did not abuse her sound discretion in performing her
gatekeeper role and determining that the jury could find that the e‑mails were
in fact sent by the defendant. See
Commonwealth v. Meola, 95 Mass. App. Ct. 303, 307-309 & n.13 (2019). See also Commonwealth v. Gilman, 89 Mass.
App. Ct. 752, 759 (2016) ("Facebook chat messages" were "replete
with personal references, including pet names"); Oppenheim, 86 Mass. App.
Ct. at 368 (instant messages referring to details of prior conversations between
defendant and recipient). Contrast
Commonwealth v. McMann, 97 Mass. App. Ct. 558, 560 (2020) (Instagram message
"Yoooo" devoid of content or tone to show defendant sent it).
The judge's instructions about the e‑mails
further ensured that the jury understood their role in determining whether the
defendant sent them. See Oppenheim, 86
Mass. App. Ct. at 369. Twice during the
victim's testimony, the judge instructed the jurors that unless they found by a
preponderance of the evidence that the defendant sent the e‑mails, the jurors
may not consider them or any testimony about them. The judge repeated that instruction a third
time in her final charge. She also made
clear that it was the Commonwealth's burden to prove beyond a reasonable doubt
that the defendant committed each offense.
See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 443-444 (2018), cert.
denied, 139 S. Ct. 2010 (2019).
Lack of expert testimony about Google records. The defendant argues that the judge erred in
admitting business records that were summonsed from Google pursuant to Mass. R.
Crim. P. 17 (a) (2), 378 Mass. 885 (1979), setting forth the subscriber
information for the eight accounts from which the e‑mails were sent. At trial, the defendant argued that the
Google records contained "some dates and times and codes" that would
be "confusing" to the jury without expert testimony. He argues here that absent expert testimony
about the Internet protocol (IP) address from which the e‑mail accounts were
created, the Google "records would not be understood by an ordinary
layperson" and so were inadmissible.
For each account, the Google records
listed the e-mail address, the date and time the account was created, and a
Google account number; most of the Google records also referred to the date that
service ended for that account, or the date it was last used. From those dates, the prosecutor argued in
closing that the e‑mail accounts were created "in succession" and
that each account was created "around the time" when the first e‑mail
in evidence from that account was sent, and that most of the accounts
"stopped being used" after the e‑mails in evidence from those
accounts were sent.
We conclude that expert testimony was not
necessary for the jurors to understand the Google records setting forth the
dates and times each e‑mail account was created and, for most of them, last
used. Understanding the dates of service
for each account did not require any "scientific, technical, or other
Commonwealth v. Canty, 466 Mass. 535, 541 (2013). See Commonwealth v. Mason, 485 Mass. 520, 538
(2020) (expert testimony not required to explain use of mapping website to plot
route from defendant's home to victim's home).
See also Commonwealth v. Woollam, 478 Mass. 493, 498-499 (2017), cert.
denied, 138 S. Ct. 1579 (2018) (cell phone logs showing dates and times of
calls, and that defendant did not call victim after his death, admitted without
objection). Contrast Commonwealth v.
Gonzalez, 475 Mass. 396, 412 n.37 (2016) (expert testimony necessary to admit
opinion, based on cell phone records, as to which cell site transmitted call).
To the extent that the defendant claims
that in order to introduce the Google records the Commonwealth should have been
required to present expert testimony about the IP address from which each e‑mail
account was created, that claim is unavailing. The Google records did not contain any IP
addresses. Rather, for each of the eight
e‑mail accounts, the Google records stated, "No user IP logs
data." The defendant did not ask to
redact that information. In fact,
defense counsel argued in closing that the defendant's name was "not in
the Google records," which "have no relation to him at all," and
that absent a computer record linking him to the e-mails, the Commonwealth had
not met its burden.
The judge did not err in admitting without
expert testimony the Google business records showing the subscriber information
for the eight e‑mail accounts.
Victim's testimony that restraining order had been extended permanently. The defendant argues that a substantial risk
of a miscarriage of justice arose when the victim testified that the 209A order
she had obtained against the defendant was extended "permanent[ly]" on
August 28, 2009. No such risk arose.
Evidence that the 209A order was made
permanent on August 28, 2009, tended to prove that the defendant was the source
of the seven e‑mails sent later that day and the next to the victim, her
mother, Brad, Brad's coworkers, and Detective Greathead, including two e‑mails
that referred to a "restraining order." That the defendant persisted in sending e‑mails
even after the permanent 209A order entered also proved his intent as to crimes
that had occurred in July, including stalking in violation of a restraining
order. See Commonwealth v. Reddy, 85
Mass. App. Ct. 104, 109 (2014) ("duration of the order" must be
established to prove violation of 209A order).
Moreover, the victim's testimony about the permanent 209A order was
cumulative of the order itself, which was admitted in evidence and stated twice
that the 209A order was "Permanent."
Sufficiency of evidence of witness intimidation. The defendant argues that the judge should
have allowed his motion, made at the close of the Commonwealth's case-in-chief,
for a required finding of not guilty as to five counts of witness intimidation,
G. L. c. 268, § 13B, pertaining to the five press release e‑mails
that were sent to both the victim and Brad on August 28 and 29, 2009.
As in effect at the time of these crimes,
the statute defined the crime of witness intimidation to proscribe conduct
including that by which a defendant "directly or indirectly, willfully
. . . intimidates or harasses" a witness or potential witness. G. L. c. 268, § 13B (1) (c),
as appearing in St. 2006, c. 48, § 3.
The statute defined "harass" as "to engage in any act
directed at a specific person or persons, which act seriously alarms or annoys
such person or persons and would cause a reasonable person to suffer
substantial emotional distress."
G. L. c. 268, § 13B (3), as appearing in St. 2006,
c. 48, § 3.
The evidence sufficed to prove that by
sending the five press release e‑mails, the defendant intimidated or harassed
the victim and Brad. Those e‑mails were sent to the victim, her mother,
Brad, dozens of his coworkers, and Detective Greathead; disclosed details of
the victim's and Brad's intimate relationship and the victim's unlisted
telephone number; and disparaged the victim, Brad, and his employer. As discussed above, the timing of those e‑mails
shortly after the 209A order was made permanent showed that the defendant
intended to intimidate or harass the victim and Brad in their roles as
witnesses. Cf. Commonwealth v. Robinson,
444 Mass. 102, 111 (2005) (under prior version of G. L. c. 268,
§ 13B, defendant's photographing victim's family shortly after show cause
hearing was "an act of sufficient hostility" to constitute
In determining whether the five press
release e‑mails would cause a reasonable person to suffer substantial emotional
distress, the jury could consider them in the context of the other e‑mails. See Commonwealth v. Carvalho, 88 Mass. App.
Ct. 840, 845-846 (2016). E‑mails sent in
July and earlier in August had disclosed private information about the victim
and Brad, threatened to disclose Brad's employer's confidential information,
and demanded that the employer "[f]ire" Brad. Two e‑mails sent on August 28 and 29,
interspersed with the five press release e‑mails, were directed to the victim,
her mother, Brad, and Detective Greathead, and asked for "someone [to]
talk some sense into PNSB," referenced police involvement in the case and
the "BULLSHIT restraining order," and warned, "I've got a deal
for you . . . go away, crawl back under the rock you are from and
maybe I'll leave you alone . . . but again maybe I wont."
There was evidence that both the victim
and Brad were seriously alarmed or annoyed by the five press release e‑mails,
taken in the context of all the e‑mails.
The victim testified that receiving all the e‑mails made her feel
"[h]orrible" and "[a]bsolutely violated," and that she
"feared for [her] life." An
August 17 e‑mail had warned, "The LAST thing she should want is for me to
have to come to Massachusetts for ANY reason.
Tell PNSB to remember what I once told her would happen . . . the only
difference is [Brad] would be adder to the list (the top of the
list)." From that, and based on
something the defendant had said during their marriage and references to guns
in other e‑mails, the victim was afraid that the defendant "was going to
kill [her] and shoot [her]." Brad
testified that the e‑mails as a group were "threatening" and made him
feel "unsafe," and that those sent in July that mentioned his elderly
father's name and address made him "very uncomfortable" and concerned
that his father was not safe at home alone.
See Carvalho, 88 Mass. App. Ct. at 845-846 (defendant's statements
implied he could make victim lose her job and would make her life
miserable). See also Commonwealth v.
Rivera, 76 Mass. App. Ct. 530, 532-535 (2010).
 Nine convictions for violation of a
209A order were placed on file as subsumed in the conviction of stalking in
violation of a restraining order.
 A pseudonym.
 E‑mails are quoted as originally
 An IP address is a unique string of
numbers identifying any computer that connects to the Internet. See Commonwealth v. Martinez, 476 Mass. 410,
 At trial, the defendant conceded, as
he does here, that the Google records were admissible as business records. See G. L. c. 233, § 78. See also Commonwealth v. Andre, 484 Mass.
403, 411 (2020) (account information for Sony gaming console admitted as business
record); Mass. G. Evid. § 803(6)(A) (2021).
 The defendant has not argued, here or
in the trial court, that the Google records were not authenticated. As mentioned in note 5, supra, he conceded
that they were admissible as business records.
If he had raised an objection on authentication grounds, it would have
been "futile." Woollam, 478
Mass. at 499. The subscriber information
in the Google records pertained to the eight e‑mail addresses from which the
thirty-three e‑mails in evidence were sent.
Further, after Detective Greathead telephoned the defendant on July 20
and told him about the investigation, an e‑mail was sent to the detective on
July 28, from an e‑mail account created that same day, mentioning the
restraining order and the divorce. See
Oppenheim, 86 Mass. App. Ct. at 368 (instant messages authenticated because
they referred to details of prior conversations).
 The defendant did not ask that the
judge redact the word "Permanent" from the 209A order, or argue in his
brief that any such redaction should have been made; we do not suggest that it
should have been redacted. The judge did
redact the 209A order in accordance with Reddy, 85 Mass. App. Ct. at 108-109.
 As explained in a chart that the judge
provided to the jury, one count of witness intimidation pertained to conduct
targeting the victim on August 28, three counts pertained to conduct targeting
her on August 29, and three counts pertained to conduct targeting Brad on