In Commonwealth v. Alden, the Appeals Court affirmed the defendant’s conviction of intimidating a witness, ruling that the prosecutor’s cross-examination of the defendant was not improper even though it referred to facts that were not in evidence.
The background was as follows. “The victim in the case, E.B., was the defendant’s former girl friend…. In January, 2015, there was a criminal case pending against the defendant, in which E.B. was a potential witness. On January 19, 2015, E.B. reported to the police that she was receiving threatening text messages from someone she believed to be the defendant. The messages were received from the telephone number E.B. had used to communicate with the defendant by text messages and telephone calls every few days for over one year. The messages threatened that, if E.B. ‘went to court[, she would] be sorry[,] and that [the defendant] would have people come after [her]….’ More specifically, ‘[o]ne of [the messages] told [E.B.] to keep her hoe ass mouth shut. [Another] implied that she should kill herself….’ 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 biggest mistake she ever made.’ E.B. believed the text messages referred to her role as a witness in the [defendant’s pending] criminal case.”
Prior to his trial, the defendant filed a motion in limine seeking to exclude the text messages on the ground that “the evidence was not sufficient to authenticate [the messages] as having been authored by him. The judge … [ruled] that the Commonwealth had established by a preponderance of the evidence that the text messages were authentic.” At the trial, “[t]he defendant denied sending the threatening text messages to E.B.” “[He] testified that at the time the … messages were received by E.B., he … had been living with his aunt for ‘[a] couple of months.’ The defendant and his mother testified that the cellular telephone … associated with the number from which the … messages 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,” including “his new girl friend [who] did not like E.B.” “At the close of cross-examination of 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.” “For example, the prosecutor asked, ‘[D]o you deny saying, “I hope you kill yourself, bye-bye?”’” “In each instance, the defendant denied sending the text message. On appeal, the defendant claim[ed] that this line of cross-examination improperly relied on facts not in evidence.” Continue reading →