Summary
concluding that "postings on the defendant's own Facebook page" were "electronic communication" within the meaning of the stalking statute
Summary of this case from Purifoy v. MafaOpinion
16-P-259
03-13-2017
COMMONWEALTH v. C.M.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a two-day jury trial in the District Court, the defendant was convicted of stalking, pursuant to G. L. c. 265, § 43(a ). On appeal, the defendant contends that the evidence was insufficient to support her conviction, her motion to suppress evidence should have been allowed, and she received ineffective assistance of counsel. We discern no cause to disturb the judgment and affirm, addressing the defendant's claims in turn.
The challenges based on ineffective assistance of counsel are raised in accordance with Commonwealth v. Moffett , 383 Mass. 201 (1981).
1. Insufficient evidence . The trial judge did not err in denying the defendant's motion for a required finding of not guilty. There was sufficient evidence for a rational trier of fact to conclude that the defendant was guilty of stalking beyond a reasonable doubt. See Commonwealth v. Latimore , 378 Mass. 671, 677 (1979). "A person is guilty of stalking if he or she ‘(1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury’; the conduct, acts, or threats may be accomplished by means of electronic communication." Commonwealth v. Walters , 472 Mass. 680, 689 (2015), quoting from G. L. c. 265, § 43(a ). The defendant does not need to communicate the threat directly to the victim as long as he or she intends that the threat reach the victim. See Commonwealth v. Hughes , 59 Mass. App. Ct. 280, 282 (2003).
Here, there is no question that the defendant's communications met the requirements of the stalking statute. The defendant directed more than three communications to the victim with the intent of seriously alarming or annoying her; through a private message to the victim on the Web site Facebook, through postings on the defendant's own Facebook page, and through pages uniquely connected to the victim or the victim's parents. See Commonwealth v. Cullen , 79 Mass. App. Ct. 618, 620 (2011). Given the sexually explicit content of the communications and the inclusion of personal information, the postings were inherently threatening and would cause a reasonable person to suffer substantial emotional distress. See Commonwealth v. Chou , 433 Mass. 229, 234 (2001).
Most notably, in one posting set forth in Commonwealth's exhibit five, the defendant communicated a true threat to the victim. "A ‘true threat’ need not take the form of an explicit statement that the speaker intends to cause imminent, physical harm to the victim, but may comprise ‘words or actions that—taking into account the context in which they arise—cause the victim to fear such harm now or in the future.’ " Commonwealth v. Walters , 472 Mass. at 691, quoting from O'Brien v. Borowski , 461 Mass. 415, 425 (2012). The documentary and testimonial evidence was sufficient to prove beyond a reasonable doubt that the defendant directed more than three communications to the victim with the intent of causing her emotional distress; one of those communications was designed to place a reasonable person in imminent fear of death or bodily injury; and one specific communication ultimately did place a reasonable person, the victim, in imminent fear of death or bodily injury as required by G. L. c. 265, § 43(a ). See Commonwealth v. Walters , supra at 692.
2. Motion to suppress . The defendant argues that the evidence collected as a result of the entry into her apartment should have been excluded as the initial entry was not supported by a warrant or justified by exigent circumstances. The motion judge did not err in denying the defendant's three motions to suppress evidence. The initial warrantless entry into the defendant's apartment fell within the emergency aid exception to the warrant requirement, which "permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm." Commonwealth v. Peters , 453 Mass. 818, 819 (2009).
On appeal the defendant only raises the issue of the motion to suppress on the basis of the warrantless entry into the defendant's residence.
Here, Sergeant May was responding to a telephone call informing him that the victim was being harassed by the defendant via Facebook postings. The Facebook postings included both obscene messages directed to the victim and messages indicating that the defendant intended to commit suicide. In investigating the Facebook posts, Sergeant May and Officer Collins asked for the assistance of Officer Smith who was familiar with the defendant. Officer Smith believed the defendant to be mentally unstable. After receiving this information, Sergeant May prepared an application for an authorization of temporary involuntary hospitalization pursuant to G. L. c. 123, § 12(a ), and went directly to the home of the defendant. Once the officers arrived at the defendant's apartment, they knocked repeatedly on the door and, after receiving no response, entered the apartment. Subsequently, the officers called out for the defendant, spoke with her, and then brought her to the ambulance waiting outside.
Because the exact timing of the postings was unclear, the officers believed the threat to the defendant to be ongoing. Several of the timestamps on the Facebook posts said "seven hours ago," "six hours ago," and "a minute ago".
Sergeant May was also familiar with the defendant; he had been to her apartment before for a well-being check at the request of the defendant's daughter.
In light of the defendant's Facebook posts, the officers' familiarity with the defendant, and the lack of response they received after arriving at the home and repeatedly knocking, "(1) the authorities had reasonable ground to believe that an exigency existed, and (2) their actions were reasonable under the circumstances." Commonwealth v. McDermott , 448 Mass. 750, 766, cert. denied, 552 U.S. 910 (2007) (quotations omitted). Accordingly, the evidence traceable to this entry, much of which formed the basis for the later search warrant, was properly admitted.
There is likewise no merit to the defendant's claim that the emergency had ended because the officer's entry was not timely. The officers responded immediately after learning of the defendant's posts. Compare with Commonwealth v. Bates , 28 Mass. App. Ct. 217, 221 (1990) (the three-hour delay in dispatching officers indicated that the police department did not consider the situation to be an emergency).
3. Ineffective assistance of counsel . For the first time on appeal, the defendant contends that she received constitutionally ineffective assistance of counsel, by reason of fifteen separate deficiencies in the performance of her various lawyers before and during trial. The ineffective assistance of counsel claims fail both on procedural and substantive grounds. The claims lack citation to appropriate legal authority and to the record, presumably because most of the defendant's factual assertions were rejected by the judge or have no basis in the evidence. Furthermore, the defendant's argument regarding the alleged deficiencies in the performance of her various lawyers is not developed in any meaningful way. Conclusory arguments that are devoid of factual detail and legal reasoning do not meet acceptable appellate standards. See Kellogg v. Board of Registration in Med ., 461 Mass. 1001, 1003 (2011). In light of these defects, we need not reach the merits of the appeal. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
In any event, the ineffective assistance claims are without evident substantive merit and do not provide grounds for reversal. There is no evidence that defense counsel "failed to meet a minimum standard of performance." Commonwealth v. Wright , 411 Mass. 678, 681 (1992). Depending on the alleged deficiency in defense counsel's performance before and at trial, the defendant's claims are either unsupported by the record or the record is inadequate to determine if defense counsel's behavior was "manifestly unreasonable." Commonwealth v. Dodgson , 80 Mass. App. Ct. 307, 316 (2011) (quotations omitted).
(a) Record is inadequate . The record on direct appeal is inadequate to consider three of the defendant's claims. "[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight." Commonwealth v. Peloquin , 437 Mass. 204, 210 n.5 (2002). An ineffective assistance claim can be resolved on direct appeal only "when the factual basis of the claim appears indisputably on the trial record." Commonwealth v. Zinser , 446 Mass. 807, 811 (2006), quoting from Commonwealth v. Adamides , 37 Mass. App. Ct. 339, 344 (1994). The narrow Zinser exception does not apply to the following three ineffective assistance claims.
The defendant claims that her defense counsel were ineffective for (1) failing to listen to and communicate with her when her insight would have provided substantial grounds supporting the defense, and (2) failing to listen to her about the manner in which she wanted her case to be tried. The record does not indicate whether defense counsel listened to the defendant's input; whether the input was incorporated into the defense strategy; and, if it was not incorporated, whether that decision rested on tactical grounds or "manifestly unreasonable judgment." Commonwealth v. Dodgson , supra at 316. Accordingly, the record on direct appeal is inadequate to consider this claim.
The defendant argues that her defense counsel were ineffective for failing to introduce her writings which would have portrayed her in a more positive light. This claim requires a determination whether defense counsel's decision not to introduce this type of evidence was tactical or "manifestly unreasonable." See ibid . The record does not contain any information on trial counsel's strategy or decision for excluding this evidence, and, as such, is inadequate to consider this claim.
(b) Claims decided on the record . For the remaining twelve claims, which can be decided on the record, we must determine "[1] whether there has been serious incompetency, inefficiency, or inattention of counsel—behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer—and, if that is found, then, typically, [2] whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian , 366 Mass. 89, 96-97 (1974). The record on appeal clearly does not support the defendant's remaining twelve claims. As such, defense counsel were not constitutionally ineffective. See ibid .
The defendant contends that defense counsel were ineffective for failing to seek and obtain an immediate dismissal of the charges against her. The record does not provide a basis for dismissal. Defense counsel were not ineffective for failing to file a motion that had a "minimal chance of success." Commonwealth v. Conceicao , 388 Mass. 255, 264 (1983).
The defendant claims that defense counsel were ineffective for failing to seek and obtain the defendant's release on bail. This claim is contradicted by the record. At a dangerousness hearing pursuant to G. L. c. 276, § 58A, defense counsel argued strongly in favor of release on the least restrictive conditions and against a finding that the defendant was dangerous. The motion judge concluded that there were no conditions that would reasonably assure the safety of any other person or the community and withheld bail in accordance with G. L. c. 276, § 58A.
The defendant argues that defense counsel were ineffective for failing to contest in a reasonable matter the Commonwealth's allegations and the judge's ruling that she was not competent to stand trial. There is no evidence in the record to support this claim. The defendant was eventually found competent to stand trial and defense counsel reiterated this fact at the dangerousness hearing.
The defendant argues that defense counsel were ineffective for (1) failing to investigate her allegations that her computer had been hacked and that some or all of the words in the communications were altered or written by someone else; (2) failing to present evidence that her computer had been stolen and hacked and that the words which formed the basis for the charges were not shown to have been authored by her; (3) failing to investigate the fabrication of evidence offered against her, including but not limited to her statements and materials introduced at trial; and (4) failing to object to evidence that had been fabricated, including statements that she never made and physical evidence that was mistakenly attributed to her. There is no evidence that the defendant's computer was hacked or that the evidence offered against her was fabricated. "[F]ailing to pursue a futile tactic does not amount to constitutional ineffectiveness." Commonwealth v. Vieux , 41 Mass. App. Ct. 526, 527 (1996), cert. denied, 520 U.S. 1245 (1997).
In any event, during the sentencing phase of the trial, the defendant twice said, "I apologize for everything."
--------
The defendant claims that her defense counsel were ineffective for (1) failing generally to investigate and prepare any meaningful defense to the charges; (2) failing generally to prepare for trial; (3) failing to contest the charges in a meaningful way; and (4) failing to marshal the evidence in either the opening or closing statement. The record clearly indicates that the behavior of defense counsel did not fall "measurably below that which might be expected from an ordinary fallible lawyer." See Commonwealth v. Saferian , 366 Mass. at 96. Defense counsel argued strongly against the defendant being held without bail at the dangerousness hearing, including objecting to the admission of prejudicial evidence and cross-examining key witnesses. During the pretrial motion stage of the proceedings, defense counsel prepared three motions to suppress evidence and argued zealously on behalf of the defendant. At trial, defense counsel successfully precluded the defendant's prior criminal charges, moved for a required finding of not guilty, and properly marshalled evidence in the opening statement and closing argument.
Finally, the defendant contends that her defense counsel were ineffective for failing to object to the admission of most of the physical evidence introduced against her where the Commonwealth had failed to authenticate any of that evidence through such steps as calling a witness from Facebook to establish its authenticity and the claimed link to the defendant. Trial counsel was not ineffective for failing to make an objection as the evidence was properly authenticated. See Commonwealth v. Purdy , 459 Mass. 442, 447-448 (2011). An expert is not necessary to authenticate electronic communications from a social-networking Web site like Facebook. See Mass. G. Evid. § 901(b)(11) (2016). See Commonwealth v. Purdy , supra at 451 n.7.
To the extent that we have not addressed other issues raised by the defendant, they "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
Judgment affirmed.