MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted by a jury of violating a harassment prevention order. He filed two motions for a new trial, both of which were denied by the trial judge; his appeals from those rulings were then consolidated with his direct appeal. In the consolidated appeal, the defendant argues that a letter he wrote to the victim was improperly admitted as evidence of prior bad acts, that the admission of another letter he wrote violated the social worker-client privilege, that trial counsel was ineffective for failure to investigate, and that he was entitled to an evidentiary hearing on his second motion for a new trial. We affirm.
The defendant met the victim in 1998 when he was a seventeen year old resident at a group home where the victim worked as a residential counselor. The defendant left the group home in 1999 or 2000 and did not have contact with the victim again until a chance encounter in 2008. They exchanged contact information at that time so that the victim could help the defendant access services. The defendants contact eventually became unwanted, and the victim sought and obtained a harassment prevention order against him.
In December 2012, while the order was in effect, the victim received a package addressed to her from “Santa.” The package contained several items and a card with a handwritten note. The victim testified that the card referenced specific topics she had previously discussed with the defendant or that he had mentioned in email messages to her, and that the items were related to activities he knew she enjoyed. She further testified that there was an image of the Peanuts characters Snoopy and Woodstock on the outside of the package and that the defendant had given her Snoopy and Woodstock stuffed animals when he left the group home.
To help establish that the defendant sent the package, the Commonwealth sought to admit prior correspondence from the defendant to the victim. After a hearing on motions in limine filed by both parties, the motion judge (who was not the trial judge) excluded some of the evidence but admitted two letters for purposes of proving identity. The first was a handwritten letter that the defendant gave to the victim in 1999. The second was a letter that the defendant mailed to the victim in 2010. The judge admitted only the handwritten portion of the 2010 letter, which read, “I dont make the exact same mistake twice. Im laying it all on the line.”
The defendant argues on appeal that this handwritten portion of the 2010 letter was inadmissible evidence of prior bad acts. Even assuming that the letter constituted a bad act, however, evidence of bad acts is admissible if relevant for a purpose other than proving bad character or criminal propensity, so long as the probative value of the evidence is not outweighed by the risk of unfair prejudice to the defendant. See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Here, the letter was properly admitted as a handwriting exemplar. The Commonwealth did not need to make a threshold showing that the handwriting was “sufficiently distinctive” to establish identity, as the defendant argues. “Where [handwriting] of the defendant ha[s] been admitted in evidence as genuine and submitted to the jury,”
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it “may be used as a standard against which the jury may ․ decide the question of authorship without the need for expert testimony.” Commonwealth v. OConnell, 438 Mass. 658, 662 (2003). The letter was thus probative and did not create a risk of unfair prejudice to the defendant, where the jury saw only two sentences of the letter, the content of which was not overly inflammatory.
The defendant next argues that the 1999 letter should have been excluded because it was protected by the social worker-client privilege. Relatedly, the defendant argues that trial counsel was ineffective for failing to investigate the defendants file from the group home, which he says would have supported his claim of privilege. We disagree on both counts. The privilege applies to communications made between a client and a licensed social worker “relative to the diagnosis or treatment of the clients mental or emotional condition.” G. L. c. 112, § 135B. Even assuming that the statute would cover communications to the victim, who was not a licensed social worker in 1999, the letter cannot reasonably be viewed as related to the defendants diagnosis or treatment. It is essentially a farewell letter, in which the defendant states that he will miss the victim and will keep in touch. As the letter was not related to diagnosis or treatment, the motion judge properly concluded that the privilege did not apply, and, for the same reason, trial counsel was not ineffective for failing to investigate the claim further. Moreover, the admission of the letter did not prejudice the defendant, where nothing in it casts him in a bad light, it was admitted solely as a handwriting exemplar, and there was ample other evidence to prove that the defendant was the person who sent the “Santa” package to the victim.
Finally, the defendant argues that it was error for the trial judge to deny his second motion for a new trial without an evidentiary hearing. The judge denied the defendants first motion for a new trial in July 2019 after an evidentiary hearing. The defendant then filed his second motion, pro se, in October 2020, raising many of the same claims raised in his first motion. It was within the judges sound discretion to decide whether the defendant made a sufficient factual showing to warrant another hearing. See Commonwealth v. Raymond, 450 Mass. 729, 733 (2008). We have reviewed the defendants second motion and discern no abuse of discretion.
Judgment and orders denying motions for a new trial affirmed.
FOOTNOTES
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. Although the defendant questions whether the letter was authenticated at the motion in limine hearing, he acknowledges that the Commonwealth laid an adequate foundation at trial. His claim that trial counsel was ineffective for failing to impeach the victim with her prior testimony was not fairly raised in his new trial motions, and we do not address it. See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007).