Opinion
21-P-141
04-27-2022
COMMONWEALTH v. James M. LAWRENCE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, James Lawrence, appeals from convictions after a District Court jury trial of two counts of possession of child pornography, G. L. c. 272, § 29C. We conclude that there were sufficient confirming circumstances that the defendant authored the e-mails to which the child pornography was attached. Further concluding that the four business records were properly authenticated and admitted, the judge acted within her discretion in admitting images containing the charged child pornography, a jury instruction created no substantial risk of a miscarriage of justice, and the judge acted within her discretion in finding a juror impartial, we affirm.
1. Authorship of the e-mails. "In the case of a digital communication that is relevant only if authored by the defendant, a judge is required to determine whether there is sufficient evidence to persuade a reasonable trier of fact that it is more likely than not that the defendant was the author of the communication." Commonwealth v. Meola, 95 Mass. App. Ct. 303, 308 (2019). "Evidence that the defendant's name is written as the author of an e-mail or that the electronic communication originates from an e-mail ... that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant." Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). "There must be some ‘confirming circumstances’ sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the e-mails." Id., quoting Commonwealth v. Hartford, 346 Mass. 482, 488 (1963). "We review a judge's preliminary determination of conditional relevancy under Mass. G. Evid. § 104(b) under an abuse of discretion standard." Meola, supra at 309. Here, there were sufficient confirming circumstances to authenticate the e-mails as written by the defendant.
First, when the investigating officer arrived at the defendant's home, the defendant said, "I haven't ever hurt any kids." This comment suggested the defendant's awareness of the child pornography and provided strong support that he had sent and received the child pornography.
In addition, the defendant told the officer that the e-mail account from which the e-mails were sent (account) had belonged to him. The February 2015 e-mail attaching child pornography was sent from a T-Mobile internet protocol (IP) address, and the defendant subscribed to T-Mobile from June 18, 2014, to May 5, 2015. There was considerable IP evidence of the defendant's use of the account for the December 2015 e-mails as well. On December 2 and 7, 2015, the account connected to the defendant's boss's wireless network (Wi-Fi). On December 11, 2015, the account connected to the defendant's neighbor's Wi-Fi.
This admission is supported by several e-mails sent from the account including an e-mail regarding a shoe return in 2011, which references the defendant's home address, an e-mail regarding the defendant's tax information from 2012, and a chain of e-mails from 2014 regarding the defendant's job at a cleaning company.
Other evidence connected the account to the defendant. Between December 8 and 15, 2015, the account received several e-mails from the defendant's daughter's school. The December e-mails attaching the child pornography were signed, "Sent from my T-Mobile 4G LTE Device," which is consistent with the police officer's testimony that this signature could remain as the default e-mail signature line on the defendant's phone after his T-Mobile subscription ended.
On June 1, 2016, the defendant told an officer that he had not been able to access the account for months. That claim is consistent with the defendant accessing the account on December 12, 2015.
These are sufficient confirming circumstances. See Purdy, 459 Mass. at 450-451 (sufficient confirming circumstances that defendant is author of e-mails when e-mails originate from account bearing defendant's name, used by defendant, and stored on defendant's password-protected computer). See also Meola, 95 Mass. App. Ct. at 314 (sufficient confirming circumstances when message came from Facebook account that had defendant's name and profile picture of defendant's daughter, and video sent showed defendant naked); Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 368 (2014) (sufficient confirming circumstances when instant messages matched tone of defendant and referenced previous conversations between defendant and witness). Contrast Commonwealth v. Williams, 456 Mass. 857, 869 (2010) (insufficient confirming circumstances that person authored MySpace message where there was no testimony regarding MySpace account security). The judge acted within her discretion in finding that the defendant authored the e-mails.
2. Authentication of business records. "A record falls within the scope of the business records hearsay exception ‘if the judge finds that it was (1) made in good faith; (2) made in the regular course of business; (3) made before the action began; and (4) the regular course of business to make the record at or about the time of the transaction or occurrences recorded.’ " Commonwealth v. Kozubal, 488 Mass. 575, 588 (2021), quoting Commonwealth v. Fulgiam, 477 Mass. 20, 39 (2017). We review for an abuse of discretion. See Kozubal, supra at 589.
We assume, without deciding, that the defendant's objections were properly preserved. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
Here, the four custodians of records testified that the records from their respective businesses were created and kept in the ordinary course of the businesses, the records were kept contemporaneously, the information was recorded prior to the start of the criminal proceeding, and the records were not created in anticipation of trial.
Although none of the custodians of records specifically said that the records from their businesses were "made in good faith," good faith may be inferred. See Beal Bank, SSB v. Eurich, 444 Mass. 813, 818 (2005) ("EPS, as the bank's servicing agent, had a business duty [to] accurately ... maintain such records for the bank. Given EPS's obligation to maintain these records, and the bank's reliance on such records, the judge was warranted in finding that the two computer printouts were made in good faith and in the regular course of business"); Commonwealth v. Thissell, 74 Mass. App. Ct. 773, 777-778 (2009), S.C., 457 Mass. 191 (2010) ("It can be inferred that the documents were made in good faith and in the ordinary course of business of the probation department whose duty it was to supervise the defendant's probation, including the monitoring of his location by means of the GPS device"). Here, there was adequate evidence for the judge to infer that the records were made in good faith.
Both the T-Mobile subscriber information and the Comcast subscriber IP address information were produced by parties with no interest in the outcome of the case and pursuant to administrative subpoenas. The Microsoft records, which include the e-mails and attachments that form the basis for this prosecution, were preserved by software called PhotoDNA that automatically detects child pornography and generates "a preservation into the system." Microsoft sent the IP address, account information, and e-mail with the collage attachment from the February 2015 e-mail to the National Center for Missing and Exploited Children (NCMEC). The information NCMEC received from Microsoft could not be altered by NCMEC, and the NCMEC system automatically generated the report. The mere fact that the custodians did not view the child pornography itself does not prevent the judge from inferring the existence of good faith.
To the extent that the defendant challenges the automated process that generates the reports, this is not a basis for excluding the reports as hearsay. "The classification of the records as computer-generated or computer-stored bears directly on the question whether the admission of the records would violate the rule against hearsay." Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010). A record is "[c]omputer-generated" if it "do[es] not require human participation" and was "created ... by a machine." Commonwealth v. Royal, 89 Mass. App. Ct. 168, 171 (2016). "Because computer-generated records, by definition, do not contain a statement from a person, they do not necessarily implicate hearsay concerns." Thissell, supra. The judge acted within her discretion in finding that the records were admissible as business records.
3. Admission of images containing child pornography. Relevant evidence will be excluded only if "its probative value is substantially outweighed by a danger of ... unfair prejudice." Mass. G. Evid. § 403 (2021). "Evidence is unfairly prejudicial only if it has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ " Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980). Where a photograph "is probative of a material issue, [however,] the fact that [it] is gruesome, or may have an inflammatory effect on the jury, does not necessarily preclude its admission." Commonwealth v. Walters, 485 Mass. 271, 282 (2020).
"The question whether the inflammatory quality of a photograph [substantially] outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge." Walters, 485 Mass. at 282, quoting Commonwealth v. Amran, 471 Mass. 354, 358 (2015). "A reviewing court will defer to the trial judge's exercise of this discretion unless the judge has made " ‘a clear error of judgment in weighing" the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives.’ " Walters, supra, quoting Commonwealth v. Alleyne, 474 Mass. 771, 779 (2016). We assume, without deciding, that the defendant's offer to stipulate to the admission of the February 2015 collage and statement that its admission would be "unduly prejudicial" was the functional equivalent of an objection, thus preserving the issue for review.
"A party may not preclude the admission of relevant photographs by agreeing to stipulate to the fact that the offered evidence tends to prove." Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 83 (2011). Accord Commonwealth v. Sleeper, 435 Mass. 581, 599 (2002). Assuming, as the Supreme Judicial Court has suggested but never squarely held, that it may be an abuse of discretion to refuse a defendant's offer to stipulate where the evidence is unduly prejudicial, Commonwealth v. Ortiz, 466 Mass. 475, 482 n.9 (2013), we discern no abuse of discretion here. We have reviewed the images and, although they are disturbing -- as all child pornography is -- there is nothing about them that is so disturbing or inflammatory that they would prejudice a jury against the defendant in a way that his proposed stipulation that they were child pornography would not have. See Commonwealth v. Lopes, 85 Mass. App. Ct. 341, 349 (2014) (stipulation "would avoid prejudice only if it were not read to the jury -- an option in tension with the jury's role as fact finder"). Furthermore, "[t]he prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story." Commonwealth v. Taranovsky, 93 Mass. App. Ct. 399, 404 (2018), quoting Old Chief v. United States, 519 U.S. 172, 190 (1997).
"A judge may appropriately attempt to mitigate the potentially prejudicial nature of a photograph by instructing the jury that the photograph is to be used in analyzing the evidence and is not designed to elicit sympathy." Commonwealth v. Pena, 455 Mass. 1, 12 (2009), quoting Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). Here, "[t]he judge ... took appropriate precautionary steps to guard against the possibility that the jury might be improperly influenced by the photographs." Commonwealth v. Vizcarrondo, 431 Mass. 360, 363 (2000). Specifically, the judge instructed the jury:
"Now, it would be improper for you to allow any feelings you might have about the nature of the crime to interfere with your decision. Any person charged with any crime is entitled to the same presumption of innocence and the Commonwealth has the same burden of proving the Defendant's guilt beyond a reasonable doubt....
"In many criminal cases, there is an element of sympathy which surrounds the trial and I'm instructing you that you may not permit sympathy to affect your verdicts."
The judge acted within her discretion in determining that the prejudicial effect of the images was not so great that the Commonwealth should be required to accept the defendant's offer to stipulate.
To the extent that the defendant challenges the admission of the other pornographic images, to which he made no objection at trial or explicit offer of a stipulation, we discern no substantial risk of a miscarriage of justice for the same reasons.
4. Jury instruction. "Trial judges have ‘considerable discretion in framing jury instructions, both in determining the precise phraseology used and the appropriate degree of elaboration.’ " Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 (2018), quoting Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). "As there was no objection at trial, ‘we review for a substantial risk of a miscarriage of justice.’ " Commonwealth v. Diaz, 100 Mass. App. Ct. 588, 599 (2022), quoting Commonwealth v. Bolling, 462 Mass. 440, 452 (2012).
Here, the judge first told the jury that, to prove the defendant guilty, the Commonwealth must show beyond a reasonable doubt that the defendant knowingly possessed the images. The judge then instructed the jury that "[t]here must be some confirming circumstances sufficient for you to find by a preponderance of the evidence that the Defendant authored the e-mails." Finally, the judge reminded the jury that, "even if you find by a preponderance of the evidence that he was the author of the e-mails, you must be mindful that the Commonwealth must prove the four elements of this offense beyond a reasonable doubt," including knowing possession of the images.
"Because the Commonwealth sought to introduce evidence of the contents of [the e-mails], an instruction on a preliminary determination of authorship was appropriate, and the instruction given was an accurate statement of the law." Alden, 93 Mass. App. Ct. at 443. Cf. Commonwealth v. McMann, 97 Mass. App. Ct. 558, 560 (2020) ("Commonwealth failed to meet its higher burden of proving beyond a reasonable doubt that the defendant was the person who wrote or sent the message to the victim"). Although the additional requirement of "confirming circumstances" does not appear in the model instructions, see Criminal Model Jury Instructions for Use in the District Court 3.610 (2021), to the extent it was unnecessary, it added to the Commonwealth's burden. Accordingly, there was no substantial risk of a miscarriage of justice.
5. Juror. "A finding that a juror is impartial will not be overturned on appeal unless the defendant makes a clear showing of abuse of discretion or that the finding was clearly erroneous." Commonwealth v. Rios, 96 Mass. App. Ct. 463, 469 (2019), quoting Commonwealth v. Emerson, 430 Mass. 378, 384 (1999), cert. denied, 529 U.S. 1030 (2000). "[W]e give a trial judge's determination of impartiality great deference." Commonwealth v. Murphy, 59 Mass. App. Ct. 571, 581 (2003), quoting Commonwealth v. Ferguson, 425 Mass. 349, 353 (1997).
"The determination of a juror's impartiality ‘is essentially one of credibility, and therefore largely one of demeanor.’ " Murphy, 59 Mass. App. Ct. at 581, quoting Ferguson, 425 Mass. at 352-353. "In assessing the credibility of a prospective juror's answers to questions by the judge or by counsel, the judge may accept a juror's statement that he or she is impartial unless ‘solid evidence of a distinct bias’ appears." Rios, 96 Mass. App. Ct. at 470, quoting Commonwealth v. Leahy, 445 Mass. 481, 499 (2005). See Sleeper, 435 Mass. at 588 ("judge may rely on a juror's assertion of impartiality").
Here, the judge saw a juror visibly crying when the collage of child pornography was published. The defendant challenged the juror on the grounds that she could not be impartial. The judge held a voir dire of the juror, and the juror affirmed that she could still decide the case based on the evidence. The judge acted within her discretion in accepting the juror's affirmation.
Judgments affirmed.