Commonwealth v. Purdy

• Decision Date: 15 April 2011
• Docket Number: SJC–10739.
• Parties: COMMONWEALTHv.Duncan PURDY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 442
945 N.E.2d 372

COMMONWEALTH
v.
Duncan PURDY.

SJC–10739.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 6, 2010.Decided April 15, 2011.

[945 N.E.2d 376]

Sejal H. Patel for the defendant.KerryAnne Kilcoyne, Assistant District Attorney, for the Commonwealth.Present: SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹GANTS, J.

[459 Mass. 443] The defendant was convicted of deriving support from the earnings of a prostitute, in violation of G.L. c. 272, § 7, and maintaining a house of prostitution, in violation of G.L. c. 272, § 6.² The Appeals Court affirmed in an unpublished memorandum and order pursuant to its rule 1:28, Commonwealth v. Purdy, 76 Mass.App.Ct. 1119, 923 N.E.2d 122 (2010), and we granted the defendant's application for further appellate review. On appeal, the defendant challenges the admission of ten electronic mail (e-mail) exchanges that he claims were not properly authenticated. He also argues that the trial judge erred in failing to provide the jury with an instruction limiting their use of statements made by an alleged prostitute to an undercover officer who visited the defendant's establishment. After oral argument, we requested supplemental briefing regarding whether the judge's definition of “sexual intercourse” in her final instructions on the elements of the crime of maintaining a house of prostitution created a substantial risk of a miscarriage of justice, and whether the evidence was legally sufficient to support a conviction of that offense.

We conclude that the judge's instruction regarding “sexual intercourse” was error that created a substantial risk of a miscarriage of justice as to the indictment charging maintaining a house of prostitution, and that the evidence at trial was insufficient as a matter of law to support a finding of guilt as to that indictment. We therefore vacate the defendant's conviction on that indictment, set aside the jury verdict, and order judgment to be entered for the defendant. However, we affirm the defendant's conviction of deriving support from the earnings of a [459 Mass. 444] prostitute because we conclude that the e-mail exchanges were properly authenticated and admitted in evidence, and that, while the judge erred in not providing an instruction limiting the jury's use of a masseuse's out-of-court statements, the error was not prejudicial because we find with “fair assurance” that it “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994), quoting Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445, 446 N.E.2d 117 (1983).

Background. We summarize the evidence at trial, viewed in the light most favorable to the Commonwealth, reserving certain details for our discussion of the legal issues. The defendant owned and operated the About Hair Salon (salon) in Harvard Square in Cambridge, which was

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simultaneously a hair salon, antique store, art studio, and massage parlor. The gist of the Commonwealth's case was that the massage business the defendant ran provided sexual services as “extras” to the massages.

Two undercover detectives entered the salon and received massages. The first, Detective Louis Cherubino of the Cambridge police department, entered on September 22, 2005, and told the defendant he was looking for a massage but was “in a hurry.” The defendant suggested the fifteen-minute massage for sixty dollars, and asked if he was interested in any “extras,” such as “topless” for an additional twenty-five dollars or “totally nude” for an additional fifty dollars. Detective Cherubino paid the defendant sixty dollars in cash, using marked bills, and was introduced to a masseuse, whom the defendant called Lydia.

The detective entered a small room that was separated from the rest of the salon only by a “stand-up bifold door,” and Lydia told him to undress and lie down on the massage table. When she confirmed that he was only getting a fifteen-minute massage, without “extras,” the detective asked what the extras were. She discussed the available extras, including “pop the cork,” which she explained was anal intercourse. She told the detective that if he wanted any extras, he should speak to the defendant.

After the massage, Lydia gave the detective a “massage menu” that listed various services and prices, including “pop the cork” for fifty dollars and a “Russian ending” for twenty-five dollars. In explaining the “Russian ending,” Lydia exposed one of her breasts and said she would offer the service, which [459 Mass. 445] caused the detective to understand that, in a “Russian ending,” the customer puts his penis between the masseuse's breasts until he ejaculates. Before leaving the salon, the detective asked the defendant whether there would be other females available for services. The defendant said that he had “just let a few go” but was in the process of interviewing and should have some available by the following week.

The second undercover detective to enter the defendant's business was Detective James Hyde of the Somerville police department, who visited the salon on October 4, 2005, having previously arranged for a 7 p.m. massage appointment. When he arrived, the defendant informed him that the masseuse was still with the previous customer, and asked him to wait. During the one-half hour wait, the detective overheard the defendant telling someone on the telephone that a “Russian ending” was “a satisfactory ending to the session between a woman's breasts.” The defendant handed the detective a menu listing massage services and prices, and the detective ordered a fifteen-minute massage for sixty dollars with the masseuse being “topless” for an additional twenty-five dollars. The defendant gave him a five dollar discount because he had waited so long, and the detective paid the defendant the eighty dollars in cash, using marked bills. He then entered the massage room and received a massage from a topless masseuse.

The police executed a search warrant of the salon on October 7, 2005, and during the course of that search seized a desktop computer. After the defendant received Miranda warnings and waived his rights, he told Detective Joseph Murphy of the Cambridge police department, in response to his questions, that the desktop computer was his and that he used it. He also provided, from his own memory, the passwords needed to access programs on the computer. The defendant was searched and found to have $1,608 in cash, including

[945 N.E.2d 378]

three of the marked bills that had been paid by Detective Hyde.

Detective Murphy made an exact copy of the hard drive of the defendant's computer and, in searching it, located numerous e-mails, of which ten e-mail exchanges were admitted in evidence. These e-mails were sent from an e-mail account that the defendant acknowledged during his testimony that he used, with [459 Mass. 446] an e-mail address that contained the defendant's first and last names. Detective Murphy also located 69,000 images on the computer, some of which were photographs that were shown to the jury, and thousands of which were photographs that were taken with a digital camera found in the salon.

Among the e-mail exchanges admitted in evidence was one that was initiated from the defendant's e-mail address and signed with the defendant's name and the address of the salon, and had the “header,” “personal assistant with benefits?.” The author wrote that he was “seeking a personal secretary with an open mind, who ... knows where to keep her nose and where not.” In response to a reply from a recipient, the author described himself as a “working artist, as well [as an] entrepreneur, small business guy, hairstylist, art and antiques dealer, [and] massage therapist,” and added, “and I operate a service.” ³ In a later e-mail in this exchange, also from the defendant's e-mail address, the author asserted that potential earnings could range from $200 to $2,000 per week.

A separate e-mail was entitled “massage” and was sent from the defendant's e-mail address and signed with the defendant's first name. The author describes a “blond girl” who is “fairly new and so a little nervous,” and states: “If you are gentle and kind to her I'm sure you're going to have a very good time.” He adds, “She has beautiful breasts and she will allow light touching. It is ok, but no other touching.” The recipient of the e-mail responded that he wanted an “unhurried session” with a “gal who will treat me right[,] be slow [,] gentle and very friendly within her limits.” ⁴ An e-mail from the defendant's e-mail address and signed with the defendant's first initial replied, “I will make sure you are treated well.”

The defendant testified that he operated his massage business by renting space to masseuses, charging fifty dollars for a four-hour rental period; he denied hiring any masseuses. He claimed [459 Mass. 447] to be unaware of any sexual services performed on the premises in exchange for a fee and testified that he was clear with the masseuses that there was to be no sexual activity or lewdness. The defendant also denied offering Detective Cherubino any “extras” or authoring the e-mails in evidence.

The computer was located in the area of the salon that was devoted to the sale of antiques, near the massage room, and the defendant testified that it was always on and that other people in the salon, particularly the masseuses, knew the passwords to his computer and used the computer frequently. He testified that they used his e-mail account to play pranks on him, and that they answered e-mails in his name. Asked about each e-mail individually, the defendant asserted that most of the e-

[945 N.E.2d 379]

mails in evidence were pranks and he was unsure what the others were.

Discussion. 1. Authentication of e-mail messages. The defendant argues that the judge erred in admitting the ten e-mail exchanges because the evidence was insufficient to authenticate...