In May 2021 Sakunthear Dany exchanged text messages with an undercover state trooper in Lynn. In three separate exchanges, the trooper texted Dany asking to purchase fentanyl. Each time Dany responded by directing the trooper to a certain location in the city. The trooper would meet Dany, who then got into the trooper’s car and exchange drugs for cash.
On the third exchange, police arrested Dany and searched his vehicle. In the backseat, officers found the cell phone used to arrange all of the illicit transactions.
Dany was charged with three counts of distributing fentanyl. At trial, prosecutors showed jurors Dany’s text messages which were saved on the state trooper’s phone. Defense counsel objected to the evidence arguing that there was insufficient evidence to show the texts had in fact come from Dany.
The objection was overruled and Dany was ultimately convicted by the jury.
He appealed his case, claiming that the trial judge erred by allow the text messages into evidence.
The Appeals Court upheld the trial judge’s ruling.
In their opinion, the justices first recite the applicable law for electronic communications used as evidence:
Before admitting an electronic communication in evidence, a judge must determine whether sufficient evidence exists for a reasonable jury to find by a preponderance of the evidence that the defendant authored” the communication. In making this determination, a judge may look to confirming circumstances that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be. (Citations and quotations omitted.)
Based on this standard, the justices concluded that there was ample justification for the trial judge to allow the texts into evidence:
Here, there were sufficient confirming circumstances to allow a reasonable jury to find by a preponderance of the evidence that the defendant was the author of the text messages. Those circumstances include the numerous text messages between the trooper and the person associated with the 0629 phone number in negotiating price, quantity, time, and location in advance of three separate drug purchases; the defendant’s arrival at Ray Street with the agreed-on quantity of fentanyl soon after a text message from the same phone that directed the trooper there for the first drug purchase on May 12, 2021; the defendant’s arrival at Light Street after a telephone call from the same phone directed the trooper there for the third drug purchase and minutes after a text message from the phone stated he was five minutes away on May 24, 2021; and the recovery of the 0629 cell phone from the backseat of the Honda Accord, where the defendant exited from before getting into the trooper’s car that same day. Because these facts constituted sufficient confirming circumstances to authenticate the text messages as having been sent by the defendant, the judge did not abuse his discretion in admitting the text messages as evidence.
Accordingly, the judge’s decision and the jury’s verdict were affirmed.
The full text of the opinion is attached below.