Commonwealth v. Lehan

100 Mass.App.Ct. 246

176 N.E.3d 1016

COMMONWEALTH

v.James LEHAN.

No. 20-P-901

Appeals Court of Massachusetts, Essex.

Argued May 13, 2021

Decided September 17, 2021

Ann Grant, Committee for Public Counsel Services, for the defendant.

Kathryn L. Janssen, Assistant District Attorney, for the Commonwealth.

Present: Meade, Englander, & Grant, JJ.

ENGLANDER, J.

After a jury trial, the defendant was convicted of criminal stalking, G. L. c. 265, § 43 (a ), and vandalism of property, G. L. c. 266, § 126A. The evidence at trial showed that the defendant and the victim frequented the same fitness center (gym), and that for a period of approximately three years beginning in 2015, the defendant had hounded the victim when she was at the gym, repeatedly asking her out, staring at her, and appearing at her car in the parking lot. While the defendant's actions during this period did not involve physical contact (with one exception, where he grabbed the victim's arm), his actions instilled fear in the victim, to the point where she varied her schedule at the gym, and obtained a firearm for protection.

In 2018 the victim's car was vandalized at her home. Over the defendant's objections, the Commonwealth introduced exhibits purportedly generated from a global positioning system (GPS) bracelet worn by the defendant, which included charts that showed the defendant to be located in the vicinity of the victim's home on the night her car was vandalized (GPS charts).¹ We say purportedly, because although the investigating police officer was allowed to testify to his "conclu[sions]" from reviewing the GPS charts, no one with personal knowledge testified to how the GPS charts were generated, or to what the GPS charts actually showed.

On this appeal, we reject the defendant's contention that the evidence presented was insufficient to meet the elements of criminal stalking. We vacate the judgments and set aside the verdicts, however, because the admission of the GPS charts, and the officer's testimony about those charts, did not comport with the law of evidence.

Background. 1. The trial evidence. The jury could have found the following facts from the victim's trial testimony and the testimony of the investigating officer, Officer Alex Klimarchuk. We supplement these facts from the record on appeal where necessary to discuss the evidentiary issues.

The victim first encountered the defendant in the summer of 2015 at the gym in Saugus where they both played racquetball. The defendant offered to play racquetball with the victim and to give her some pointers, and the victim testified that "[a]t first, I didn't mind when he asked if I wanted some help. But every time I was there, he was there, and he only wanted to play with me, and I didn't want to just play with him." After about two or three weeks, the defendant began to ask the victim if she "wanted to go to dinner or lunch or have coffee" with him, and he did so repeatedly. The victim declined such requests "[o]ver [twenty] times," and eventually began "avoid[ing] [the defendant] ... because ... I didn't want to give him the wrong impression."

Beginning in the fall of 2015, the defendant loitered near the victim's car in the parking lot, or parked his own car near hers, so that he could speak to her when she was leaving the gym. On one occasion, he approached the victim inside the gym, "grabbed [her] arm," and requested that she come out to the parking lot so that he could ask her a question. When the victim came outside the defendant again asked whether the victim would go to dinner with him, and the victim again declined, stating that she did not mean to give the defendant the "wrong impression," and that she had a boyfriend. The victim testified that after this incident she began to feel nervous and "very unsafe"; from then on, she "decided to stay away from [the defendant] as much as [she could]."

During the period after the arm-grabbing incident, the victim changed her gym and work schedules in an attempt to avoid the defendant, but despite her own schedule changes, the defendant would "coincidentally be there at the same time [as her] all the time," and "[a]nytime she was at the gym, [the defendant] made sure that he saw [her]." During this period the defendant never spoke to the victim, but the victim testified that on "[o]ver ten" occasions, the defendant had stared through the glass window at the victim while she participated in exercise classes. This pattern continued for roughly three years from 2015 to 2018. The victim testified that the encounters with the defendant made her fearful, and that she applied for and received a license to carry a firearm as a result.

The pattern broke on September 21, 2018, when the victim discovered that her car had been seriously vandalized while parked outside her home. The victim reported the incident to the Saugus police department. Officer Klimarchuk responded to the call, and testified to viewing the damage, which included two slashed tires and a lengthy mark carved into the body paint. Officer Klimarchuk also testified that the victim told him that she suspected that the defendant may have been responsible for the damage. Klimarchuk began investigating the defendant, and as a result learned that the defendant was wearing a GPS bracelet at the time of the vandalism.

Over a series of defense objections, Officer Klimarchuk was allowed to testify regarding the GPS charts that the judge admitted under the business records exception to the hearsay rule. The GPS charts contained the legend "Position History for: James Lehan from 9/20/2018 12:00:00 AM to 9/20/2018 11:59:59 PM." The charts consisted of maps of the Saugus area, on which were shown the location of the victim's home in Saugus as well as various symbols that, inferentially, showed a path of travel, with time notations at various locations.

No witness testified to who prepared the GPS charts, or to how they were prepared. Once the GPS charts were admitted, Officer Klimarchuk testified in substance (1) that he "investigated" the defendant's "location" on the day before the car was vandalized, (2) that in "response" to his "inquiry," he received the previously admitted GPS charts, and (3) that after reviewing the GPS charts, and based upon his "experience as an officer and the information and investigation that [he] did," Officer Klimarchuk "came to the conclusion" that on the date of the vandalism, the defendant had left the gym at 3:45 that afternoon and gone directly to "the area of [the victim's home]," where he remained "for a few minutes," after which the defendant left the area, but returned later that night around 10:51 P.M. As the victim did not have personal knowledge that the defendant had vandalized her car, the GPS records establishing the defendant's location were the key evidence linking the defendant to the vandalism.

2. The motion in limine regarding the GPS records and charts. As noted, the defense objected to most of Officer Klimarchuk's testimony, and both Klimarchuk's testimony and the GPS records were the subject of a motion in limine and an extensive pretrial hearing. At the hearing the prosecutor stated that two of the charts had been provided to Officer Klimarchuk by the electronic monitoring program of the probation department (ELMO), which is responsible for maintaining GPS data from the GPS bracelets. She also stated that there would be no trial witness from ELMO or from the probation department, but that some of the records had been certified as "business records" under G. L. c. 233, § 79J, and that the GPS records (including the charts) should accordingly be admitted. The prosecutor also contended that Officer Klimarchuk should be allowed to testify (1) that he had "received" the GPS charts during his investigation, and (2) as to his conclusions from his review of the charts.

Defense counsel argued many grounds for excluding both the GPS records and Officer Klimarchuk's testimony, which for present purposes can be summarized as follows: (1) authentication -- the GPS records could not be authenticated without a witness; (2) hearsay -- the GPS records could not be established as business records without a witness with personal knowledge as to how the charts (and the data underlying them) were created and maintained at ELMO; (3) foundation -- there was no witness with personal knowledge sufficient to testify about what the GPS charts showed, and specifically, that Officer Klimarchuk did not have such personal knowledge and instead was merely passing along hearsay that he received from a contact at ELMO; and (4) confrontation clause -- the GPS charts were "testimonial" hearsay evidence, because ELMO had created them in response to Officer Klimarchuk's request and their admission therefore violated the Sixth Amendment to the United States Constitution.²

The judge ultimately ruled that the certified records could be admitted as business records, including the GPS charts.³ He also allowed Officer Klimarchuk to testify regarding the charts he had received as part of his investigation, including Klimarchuk's conclusion that the GPS charts showed the defendant's location on the dates and times shown on the charts. The underlying basis for the judge's conclusion was that the GPS records had been certified in an affidavit from ELMO's keeper of the records, pursuant to G. L. c. 233, § 79J.

The jury returned verdicts of guilty on the stalking and vandalism charges.⁴ The defendant appeals.

Discussion. 1. Sufficiency of the evidence. The defendant first challenges the sufficiency of the evidence of criminal stalking. We evaluate such a challenge under the familiar Latimore standard, which requires that we determine "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979)....