Commonwealth v. Walters , 472 Mass. 680 ( 2015 )

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SJC-11799
COMMONWEALTH vs. MICHAEL WALTERS.
Bristol. May 4, 2015. - September 18, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Stalking. Criminal Harassment. Abuse Prevention. Perjury.
Social Media. Threatening. Evidence, Threat, Intent,
Photograph, Relevancy and materiality, Argument by
prosecutor, Disclosure of evidence. Constitutional Law,
Freedom of speech and press. Intent. Practice, Criminal,
Instructions to jury, Argument by prosecutor, Disclosure of
evidence, Impeachment by prior conviction. Due Process of
Law, Disclosure of evidence. Witness, Impeachment.
Indictments found and returned in the Superior Court
Department on March 28, 2011.
The cases were tried before E. Susan Garsh, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Ethan C. Stiles for the defendant.
David B. Mark, Assistant District Attorney (Shoshana Stern,
Assistant District Attorney, with him) for the Commonwealth.
The following submitted briefs for amici curiae:
Claire Laporte, Marco J. Quina, Rebecca M. Cazabon, Stephen
T. Bychowski, & Bendan T. Jarboe for Domestic & Sexual Violence
Council, Inc., & others.
2
Helen Gerostathos Guyton, Sandra J. Badin, Lyzzette M.
Bullock, & John Nucci for Jane Doe Inc. & others.
Steven M. Freeman, Lauren A. Jones, & Melissa Garlick, of
New York, & Joseph Berman for Anti-Defamation League.
Kirsten V. Mayer, Kavitha A. Mecozzi, Jennifer S. Pantina,
Alexandra L. Roth, Matthew R. Segal, Jessie J. Rossman, & Mason
Kortz for American Liberties Union of Massachusetts.
BOTSFORD, J. This case raises the question whether a
posting to the Web site Facebook may constitute a threat within
the meaning of the stalking statute, G. L. c. 265, § 43 (a)
(§ 43 [a]). We conclude that although content posted to
Facebook may qualify as a threat as defined in the statute, in
this particular case, a reasonable jury could not have found
that the defendant's Facebook profile page constituted such a
threat. We therefore vacate the defendant's conviction of
stalking. The defendant's remaining convictions of criminal
harassment, criminal violation of a restraining order pursuant
to G. L. c. 209A, § 7 (two counts), and perjury (two counts) are
affirmed.1
1
We acknowledge the amicus briefs submitted by the Domestic
& Sexual Violence Council, Inc., Foley Hoag Domestic Violence
and Sexual Assault Prevention Project, Massachusetts Law Reform
Institute, Victim Rights Law Center, Community Legal Services
and Counseling Center, Greater Boston Legal Services, Domestic
Violence Institute at Northeastern University School of Law,
Family Advocacy Clinic of Suffolk University Law School, Justice
Center of Southeast Massachusetts, and Community Legal Aid; Jane
Doe Inc., the Women's Bar Association of Massachusetts, the
Women's Bar Foundation, the National Network to End Domestic
Violence, and the National Center for Victims of Crime; the
3
Background. 1. Facts. Because the defendant challenges
the sufficiency of the evidence presented with respect to the
charges of stalking and criminal harassment, we summarize the
facts the jury could have found in the light most favorable to
the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671,
677 (1979). We reserve certain facts for further discussion in
connection with other issues raised.
The defendant met the victim,2 an elementary school teacher
in Rhode Island, in the late 1990s or early 2000s. They began
dating and later bought a house together in Rhode Island where
they lived for about three years. During that time, the
defendant asked the victim multiple times to marry him; she
initially refused but eventually agreed to become engaged.
However, they made no wedding plans and never married.
In May, 2006, the defendant and the victim jointly
purchased a new home in Seekonk, Massachusetts (Seekonk house).
The Seekonk house had four bedrooms and a finished basement, and
was located on one and one-half acres of land. There were two
sheds on the property as well as a driveway and a garage.
Anti-Defamation League; and the American Civil Liberties Union
of Massachusetts.
2
In accordance with G. L. c. 265, § 24C, we omit the
victim's name from this opinion.
4
On July 4, 2007, the defendant and the victim had a
barbecue and invited members of each of their families.3 During
the party, the defendant became involved in a physical
altercation with the victim's son, who had been living with
them.4 The victim, seeing this, was concerned for her son's
safety, and shouted at the defendant to leave her son alone.
After the incident, the victim told the defendant that she could
no longer be involved with him romantically, and returned the
engagement ring he had given her. However, the victim continued
to live in the Seekonk house because she did not know where else
to go, her dog and all of her belongings were there, and her
personal finances were comingled with the defendant's.5
a. Pattern of harassment following the breakup. The
defendant refused to accept the breakup. Although around the
beginning of August, 2007, he agreed to sell the Seekonk house,
he repeatedly told the victim that there would be
"repercussions" if she left him, such as that he would take
3
By this point, the victim was generally unhappy in the
relationship with the defendant, at least in part as a result of
the defendant's attitude toward her friends and family and
controlling behavior.
4
The victim's daughter also lived at the Seekonk house for
at least a few months in 2007.
5
The victim's son moved out of the Seekonk house after the
incident on July 4, 2007, but her daughter continued living in
the house until September, 2007.
5
their dog and she would never see it again. He also told her
that he was "keeping a file" on her, and would often go into
their computer room, say that he was "adding to the file," and
shut the door. In addition, the victim began to notice more
often that the defendant was appearing unexpectedly in places
outside the home that she went on her own, such as a craft store
and a work-related conference. The defendant also insisted on
accompanying the victim to a gymnasium, and when she told him
she did not want him to come, he would wait near or in her
vehicle when she came home from work. During this period, the
victim slept with a cellular telephone under her pillow, so that
she could make a call immediately if she had to, and to prevent
the defendant from gaining access to her telephone in order to
see to whom she had been talking.
The defendant told the victim that he had been a sniper in
the military, and he kept guns in the home. Prior to July 4,
2007, the victim rarely saw the defendant's guns, but after that
date, she began to see them more often. Sometimes, she saw the
defendant sitting on a stump in the backyard with a rifle. In
November, 2007, the victim came home and saw the defendant
cleaning a gun on the coffee table in the living room. At least
three times, the victim also heard the defendant say, "[O]ne
shot, one kill," although he did not say it directly to her.
6
Seeing the defendant's guns made the victim feel scared and
threatened.
On Christmas Day, 2007, the victim went home briefly from
her father's house, where she had been spending the holiday, to
retrieve some forgotten presents. The defendant was sitting at
the coffee table with a gun, and there was another gun on the
stairs. The victim felt afraid; she retrieved the presents and
left without speaking to the defendant. When she returned home
later that evening, the defendant yelled at her for not having
spent Christmas with him. The victim said that she was leaving,
ran out of the house, and drove less than one mile to a corner
store, where she sat in her automobile and telephoned her
father. While on the telephone, she saw the defendant pull up
near her in his truck. She tried to lock her vehicle's doors,
but the defendant jumped into her vehicle and tried to wrestle
her telephone away while shouting and cursing at her. Another
vehicle pulled up next to her's; the defendant got out and
seemed to drive away. When the victim ultimately drove home to
the Seekonk house, she discovered that she had been locked out.
She then telephoned the police, who escorted her into her house
to get some of her belongings; she spent that night at her
father's home. Two days later, on December 27, 2007, the victim
obtained an abuse prevention order pursuant to G. L. c. 209A
(restraining order), requiring the defendant immediately to
7
leave and stay away from the Seekonk house, and to remain at
least one hundred yards away from her. The restraining order
was served on the defendant, the defendant left the house, and
the victim moved back in.
The defendant had a construction business and kept
equipment related to this business on the Seekonk property.
This equipment included a number of large items, including a
trailer and an excavator. In order for the defendant to access
his equipment, on December 31, 2007, at the defendant's request
and with the victim's assent, a District Court judge modified
the restraining order to allow the defendant "access to the
garage area between 7:45 A.M. and 4:00 P.M.[,] Monday through
Friday."6
Around December, 2007, the victim began dating a sergeant
in a Rhode Island police department whom we shall call
"Stephen."7 The victim and Stephen had been friends for
approximately four years prior to that point, but the
relationship did not become romantic until then. Nevertheless,
from July 4, 2007, onward, the defendant frequently accused the
victim of having an affair with Stephen. On the evening of
6
The restraining order remained in effect, with other
modifications to be discussed infra, until April 9, 2009.
7
The victim married Stephen in November, 2008.
8
January 14, 2008, the victim and Stephen were sitting in the
victim's father's house, when the victim saw the defendant in
her father's front yard. The victim and Stephen got into a
vehicle and drove away from the house looking for him. When
they caught up to him, Stephen and the defendant shouted at each
other, and the defendant accused Stephen of "tagging" the victim
for years.
In February, 2008, the victim came home one day and
discovered that the defendant's excavator, which previously had
been parked on land to the right of the Seekonk house, had been
moved so that it was now blocking access to one of the two
sheds, and the victim was unable to move it. Around the same
time, she also discovered that the doors to the other shed had
been screwed and hammered shut, which had never been the case
before.8 Around the end of February, the victim found the
defendant's trailer at the end of her driveway. The trailer was
blocking the entrance to the driveway, and was inoperable. For
a time, she could still access the garage by driving to another
part of the property and then across the lawn.9 However, shortly
8
The first shed contained some of the victim's gardening
tools and other items, while the second shed contained the
house's recycling bins.
9
Before the trailer was left in the driveway, the Seekonk
property had cement blocks on either side of the driveway, as
well as a row of taller blocks along the front of the property.
9
after the trailer began blocking the driveway, several boulders
that were too large to have been placed by hand appeared on the
property, preventing her access to the garage even by driving
across the lawn.10 A sign that read "Michael J. Walters Inc.,
General Excavation Contracting," and that had never been on the
property before, also appeared. After that, around March, 2008,
the victim found another piece of the defendant's heavy
equipment in the garage, blocking the space where she would
normally park her vehicle. Throughout this time, the
restraining order remained in effect.
On another night in March, 2008, the victim discovered that
the light bulbs had been removed from all of the lights on the
outside of the Seekonk house. There were no other lights
illuminating the path from the driveway to the door of the
house, nor were there any streetlights, causing the area to be
dark at night and stress for the victim. The defendant admitted
to a Seekonk police officer that he had unscrewed the light
bulbs because the lights were being left on twenty-four hours
These blocks prevented the victim from simply driving around the
side of the trailer and back onto the driveway.
10
The defendant's placement of these boulders on the
Seekonk property was the basis for one of the two convictions of
violating the restraining order.
10
per day, the electricity bill was still in his name, and he did
not want to have to pay for unnecessary electricity.11,12
A real estate agent had created a page on a Web site,
called Zillow, to advertise that the Seekonk house was for sale.
The victim visited the page and discovered that the defendant
had posted a copy of her affidavit in support of her request for
the restraining order, but the affidavit contained additional
information that she had not included in the original, such as
that the victim had "mixed thyroid medication and wine." The
affidavit was posted immediately after the victim obtained the
restraining order, in December, 2007. In the months that
followed, the victim saw other posts on Zillow that disparaged
her or Stephen.13 Other posts referenced subject matter that the
11
The defendant's removal of the light bulbs from the
exterior of the house was the subject of the other restraining
order violation.
12
From December 27, 2007, until approximately June, 2008,
the victim was not receiving mail at the Seekonk house,
including household bills. At least some of these bills
remained in the defendant's name; however, the victim attempted
to have the bills changed to her name. She also contacted the
post office regarding the problem with her mail but received no
explanation for it and eventually arranged to have her mail
delivered to her father's house.
13
For example, at least one post referred to her as an
"adulteress," and another suggested that she had "[b]ipolar
[e]pisodes." Another post referred to observations that
Stephen's vehicle had been driven across the lawn and parked in
the garage at the Seekonk house multiple times over the weekend
11
victim and Stephen had discussed in private electronic mail
messages (e-mails) to one another.14 The defendant had access to
the Zillow page and admitted to having made the posts.15
Although the posts do not indicate the date that they were
uploaded to the Web site, they appear to have been posted no
later than April 6, 2008.
On March 4, 2008, following a hearing at which the
defendant did not appear, a District Court judge reinstated in
its entirety the original restraining order requiring the
defendant to leave and stay away from the Seekonk house. On
March 10, the victim and Stephen went to the court for a follow-
up hearing regarding the order. As they pulled into the court
parking lot, the defendant got out of a large vehicle with a
camera in his hand. Other people also got out of the vehicle,
including a woman named Cynthia Dugas and two of the defendant's
sons. The defendant handed the camera to one of his sons, who
of February 29 to March 2, 2008, and suggested that art was
missing from the home.
14
The victim had not shared her electronic mail (e-mail)
password with the defendant or otherwise permitted him to access
her e-mail account.
15
There also were several posts pertaining to the victim or
to Stephen on another Web site, called MySpace, which is used
for social networking. See Commonwealth v. Williams, 456 Mass.
857, 867 (2010). The last of these posts that were admitted as
evidence at trial were posted no later than April 2, 2008.
12
began to chase the vehicle that the victim and Stephen were in.16
The victim was so nervous during this incident that she
initially did not get out of her vehicle at the court, but
instead drove away from the location. Ultimately, however, a
hearing was held that day at which both the victim and the
defendant appeared. The restraining order was extended until
April 10, 2008, and the defendant was given five days to pick up
his construction equipment, but was not permitted to enter the
house.
Around the same time,17 the defendant arranged for Dugas to
view the inside of the house, supposedly so that Dugas could
determine whether it was handicap-accessible and would be
suitable to purchase for her mother, who was ill. The defendant
drove Dugas to the property and waited for her while she was
inside.
On June 6, 2008, the defendant was granted seven business
days, beginning on June 9, to enter the Seekonk house, in the
presence of police, in order to remove his personal possessions.
16
The jury were instructed that they were to consider only
the defendant's actions in relation to this incident, and not
the actions of the defendant's sons.
17
Although the record is unclear as to whether Cynthia
Dugas viewed the inside of the Seekonk house before or after
March 4, 2008, when the original restraining order was
reinstated in its entirety, her testimony suggests that she
viewed the property at some point close to this date.
13
The defendant made at least three trips to the property to do
this. On June 10, police observed a woman who was with the
defendant taking pillows and blankets from the house that
appeared to have been just removed from a bed; they were not in
a box or otherwise packed. On June 11, the defendant removed
other belongings, including a television and chairs. Finally,
on June 17, police observed the defendant entering and leaving
the house five to eight times, and eventually removing large
pieces of furniture and appliances. When the victim returned
home that day, she discovered that the refrigerator, stove, and
bed had been removed, and the water for the whole house had been
shut off. Urine and feces had been left in the toilets, which
could not be flushed because the water was off. When the water
was turned on, water began shooting out of a pipe where the
refrigerator had been, requiring the victim to turn it off again
until that problem could be fixed. There was also food from the
refrigerator placed in the sink and on the counters, items on
the floor, and no towels with which to clean up the mess.18
Shortly thereafter, the victim moved out of the Seekonk
house. Accordingly, in November, 2008, the restraining order
was again modified to allow the defendant to return to the
18
Within approximately one month, the refrigerator and the
stove were left in the victim's attorney's parking lot.
14
property. On April 9, 2009, the order was vacated because the
victim had moved to Rhode Island.
b. Defendant's Facebook profile. No evidence was admitted
regarding the defendant's conduct toward the victim from June,
2008, until January, 2011. On January 13, 2011, Stephen,
against whom the defendant previously had filed a number of
complaints with the police department where he worked, learned
that the defendant had sent e-mails to a member of the city
council asking that Stephen be investigated. This made Stephen
concerned that the defendant might resume posting material
related to the victim on Web sites, so Stephen searched for and
viewed the defendant's Facebook profile.19 The profile page
featured a photograph of the defendant, seated in a room, with a
19
Facebook is also a social networking Web site. See
Commonwealth v. Purdy, 459 Mass. 442, 450 (2011); In re Zynga
Privacy Litig., 750 F.3d 1098, 1100 (9th Cir. 2014). The site
allows members to "develop personalized web profiles to interact
and share information with other members." Lane v. Facebook,
Inc., 696 F.3d 811, 816 (9th Cir. 2012), cert. denied sub nom.
Marek v. Lane, 134 S. Ct. 8 (2013). "The type of information
members share varies considerably, and it can include news
headlines, photographs, videos, personal stories, and activity
updates. Members generally publish information they want to
share to their personal profile, and the information is thereby
broadcasted to the members' online 'friends' (i.e., other
members in their online network)." Id. "Users can make their
profiles available to the public generally, or limit access to
specified categories of family, friends, and acquaintances." In
re Zynga Privacy Litig., supra at 1101. The defendant's
Facebook profile was apparently public, because Stephen was able
to view it after searching for it.
15
slight smile on his face, holding a large gun across his lap.
On a separate part of the page, next to an information box
marked "Favorite Quotations," was the following statement:
"Make no mistake of my will to succeed in bringing you two
idiots to justice." The page also indicated that the defendant
was a committee member of the "Governors [sic] Task Force on
Police Corruption" and included images of the singer Rihanna and
of a St. Louis Rams helmet. The photograph of the defendant
holding a gun appeared to have been uploaded to the page on
January 13, the same day that Stephen searched for and found the
page,20 but it was unclear when the other items were added. When
the victim saw the Facebook page, it made her feel terrified.21
2. Procedural history. On March 28, 2011, a grand jury
indicted the defendant for stalking, in violation of § 43 (a);
criminal harassment, in violation of G. L. c. 265, § 43A;
criminal violation of an order pursuant to G. L. c. 209A, § 7
(two counts); and perjury, in violation of G. L. c. 268, § 1
20
The trial record is ambiguous as to the specific year
that the photograph was added to the defendant's Facebook page.
However, the Commonwealth asserted at oral argument that the
evidence suggested the photograph was uploaded on January 13,
2011, and the defendant agreed.
21
In early 2011, the defendant filed civil lawsuits in
Rhode Island, one against the victim and one against Stephen.
16
(two counts).22 The charges of stalking, criminal harassment,
and violations of the restraining order identified the victim as
the sole target of these crimes.
The defendant was tried before a jury in 2012. At the
close of the Commonwealth's case-in-chief, the defendant moved
for a required finding of not guilty on all charges except one
of the charges of violating the restraining order; these motions
were denied. The jury convicted him of the stalking, criminal
harassment, restraining order violations, and perjury charges.
The defendant appealed. We transferred the appeal to this court
on our own motion.23
Discussion. 1. Stalking. A person is guilty of stalking
if he or she " (1) willfully and maliciously engages in a
knowing pattern of conduct or series of acts over a period of
time directed at a specific person which seriously alarms or
annoys that person and would cause a reasonable person to suffer
substantial emotional distress, and (2) makes a threat with the
intent to place the person in imminent fear of death or bodily
injury"; the conduct, acts, or threats may be accomplished by
22
The defendant also was indicted for rape and indecent
assault and battery of the victim. The jury found him not
guilty of these charges.
23
The defendant represented himself at trial, with the
assistance of stand-by counsel. On appeal, he is represented by
counsel.
17
means of electronic communication.24 G. L. c. 265, § 43 (a).
The defendant challenges the sufficiency of the evidence
presented with respect to both the "threat" and "pattern of
conduct or series of acts" components of stalking. We focus on
the threat component.
The Commonwealth contends that the defendant's Facebook
page containing the photograph of himself holding a gun, and, in
a space labeled "[f]avorite [q]uotations," the words, "Make no
mistake of my will to succeed in bringing you two idiots to
justice," satisfied the threat element set out in § 43 (a) (2).25
24
General Laws c. 265, § 43 (a), as amended through St.
2010, c. 92, § 9 (§ 43 [a]), provides in relevant part:
"Whoever (1) willfully and maliciously engages in a knowing
pattern of conduct or series of acts over a period of time
directed at a specific person which seriously alarms or
annoys that person and would cause a reasonable person to
suffer substantial emotional distress, and (2) makes a
threat with the intent to place the person in imminent fear
of death or bodily injury, shall be guilty of the crime of
stalking and shall be punished . . . . The conduct, acts
or threats described in this subsection shall include, but
not be limited to, conduct, acts or threats conducted by
mail or by use of a telephonic or telecommunication device
or electronic communication device including, but not
limited to, any device that transfers signs, signals,
writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photo-electronic or photo-optical system,
including, but not limited to, electronic mail, internet
communications, instant messages or facsimile
communications."
25
During the trial, the jury were instructed to consider
only the Facebook profile page in determining whether the
18
The defendant disagrees, arguing that because the Facebook page
was ambiguous and temporally remote from the alleged harassment,
the First Amendment to the United States Constitution dictates
that the page could not qualify as a "threat" under
§ 43 (a) (2), but was instead protected speech. We agree with
the defendant's contention that there was insufficient evidence
for a rational jury to find that the defendant made such a
threat. See Latimore, 378 Mass. at 677-678.
We begin with the requirements of the First Amendment.26
Generally speaking, laws that proscribe speech based on its
content are presumptively invalid. R.A.V. v. St. Paul, 505 U.S.
377, 382 (1992). Nevertheless, "certain well-defined and
narrowly limited classes of speech," O'Brien v. Borowski, 461
Mass. 415, 422 (2012), quoting Chaplinsky v. New Hampshire, 315
U.S. 568, 571, 572 (1942), do not receive constitutional
protection, including "true threats." O'Brien v. Borowski,
supra. See Virginia v. Black, 538 U.S. 343, 359 (2003); Watts
defendant had made a "threat" against the victim under
§ 43 (a) (2).
26
Both the First Amendment to the United States
Constitution and art. 16 of the Massachusetts Declaration of
Rights, as amended by art. 77 of the Amendments to the
Massachusetts Constitution, generally protect speech from
government regulation. See O'Brien v. Borowski, 461 Mass. 415,
422 (2012). Neither party suggests that a separate analysis of
this issue is necessary under each of these constitutional
provisions.
19
v. United States, 394 U.S. 705, 708 (1969). See also United
States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality
opinion) (listing "true threats" as among "historic and
traditional" categories of unprotected speech [citations
omitted]).
The United States Supreme Court has defined "true
threats" as
"those statements where the speaker means to communicate a
serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals. . . . The speaker need not actually intend to
carry out the threat. Rather, a prohibition on true
threats 'protect[s] individuals from the fear of violence'
and 'from the disruption that fear engenders,' in addition
to protecting people 'from the possibility that the
threatened violence will occur.'" (Citation omitted.)
Black, 538 U.S. at 359-360, quoting R.A.V. v. St. Paul, 505 U.S.
at 388. A "true threat" need not take the form of an explicit
statement that the speaker intends to cause imminent, physical
harm to the victim, but may comprise "words or actions that --
taking into account the context in which they arise -- cause the
victim to fear such harm now or in the future." O'Brien v.
Borowski, 461 Mass. at 425. See Black, supra at 362-363 (State
may prohibit cross burnings committed with intent to
intimidate); Commonwealth v. Chou, 433 Mass. 229, 234-235 (2001)
("sexually explicit and aggressive language" targeting
individual victim may constitute threat absent explicit
statement of intention to harm victim as long as circumstances
20
reasonably support victim's fearful response); Commonwealth v.
Robicheau, 421 Mass. 176, 179, 182-183 (1995) (defendant's
verbal threats not protected under First Amendment).
Conversely, speech that has an expressive purpose other than to
instill fear in another may be explicitly threatening, but may
nevertheless fail to rise to the level of a true threat. Watts,
394 U.S. at 706, 708 (statement at political rally was, given
its context, "political hyperbole" and not "true threat"); Chou,
supra at 237.
Comparing the definition of "true threat" to the threat
component of the stalking statute, we conclude that any verbal
or written communication that qualifies as a threat as defined
in the statute is also a "true threat," and therefore is not
entitled to protection under the First Amendment.27 To convict a
defendant of stalking, the Commonwealth must show that he or she
27
Other categories of unprotected speech may encompass acts
of speech that are punished under the other component of
stalking, namely, the "pattern of conduct or series of acts"
directed at another. G. L. c. 265, § 43 (a) (1). See
Commonwealth v. Welch, 444 Mass. 80, 87-88, 98-99 (2005),
abrogated on another ground by O'Brien v. Borowski, 461 Mass. at425 & n.7 (criminal harassment statute, G. L. c. 265, § 43A, is
"closely related" to criminal stalking statute; where harassment
includes "fighting words" not protected by First Amendment,
statute may penalize this conduct). See also Commonwealth v.
Johnson, 470 Mass. 300, 310 (2014) (where defendant's speech was
"integral to criminal conduct" of harassing and causing
substantial emotional distress to victims, speech could be
penalized as criminal harassment in violation of G. L. c. 265,
§ 43A [a] [citation omitted]).
21
"[made] a threat with the intent to place the [stalking target]
in imminent fear of death or bodily injury." G. L. c. 265,
§ 43 (a) (2). Thus, like "true threats," see Black, 538 U.S. at
359-360, the threat component of the stalking statute
specifically targets communications by the defendant that are
aimed at placing the victim in fear of physical violence,
whether or not the defendant actually intends to commit the
threatened act of violence. See Commonwealth v. Matsos, 421
Mass. 391, 395 (1995) (to prove threat in furtherance of
stalking, "Commonwealth need not prove that the defendant
actually intended to harm the victim . . . [;] it need only
prove that the defendant's threats were reasonably calculated to
place the victim in imminent fear of bodily injury" [citation
omitted]). See also Commonwealth v. Gupta, 84 Mass. App. Ct.
682, 687 (2014) (stalking statute "aims to protect victims of
stalking from fear itself, and not merely ultimate physical
harm"). In addition, the threat component of stalking has been
likened to assault, see Matsos, supra at 394-395; clearly,
speech that constitutes an assault or that similarly threatens
another does not enjoy First Amendment protection. See
Robicheau, 421 Mass. at 183 (denying First Amendment protection
to verbal threats that placed victim in "reasonable apprehension
of imminent serious physical harm").
22
As with an assault, for a defendant to make a threat that
meets the requirements of § 43 (a) (2), both the defendant must
intend to place the victim in immediate fear that physical harm
is likely to occur and the victim's fear must be reasonable.28
See Matsos, 421 Mass. at 394-395. See also Commonwealth v.
Gorassi, 432 Mass. 244, 248 (2000) (to commit assault, defendant
must engage in "objectively menacing" conduct with intent to
place victim in fear [citation omitted]). The reasonableness of
the victim's fear depends in part on "the actions and words of
the defendant in light of the attendant circumstances" (citation
omitted). Matsos, supra at 395. See Gupta, 84 Mass. App. Ct.
at 684, 688 (victim's "imminent fear" based on defendant's long-
distance telephone calls reasonable in light of defendant's
"mobility, history of abusive conduct, motivation," and
knowledge of victim's whereabouts). Similarly, "[i]ntent is a
factual matter that may be proved by circumstantial
28
We note that the threat element of the crime of stalking
differs from the common-law crime of assault in one important
respect: unlike assault, which requires that the defendant act
"with the intent to put the victim in fear of immediate bodily
harm," Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000), for a
threat to meet the requirements of the stalking statute, it need
not necessarily cause the victim to fear that physical harm will
come to him or her immediately. See Commonwealth v. Gupta, 84
Mass. App. Ct. 682, 685, 686-687 (2014) (observing that G. L.
c. 265, § 43 [a] [2], requires threat that places victim in
"imminent fear of death or bodily injury," rather than in fear
of "imminent death or bodily injury," and that prior cases have
been consistent with this reading).
23
evidence."29 Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427
(1985), quoting Commonwealth v. Ellis, 356 Mass. 574, 578-579
(1970).
Finally, although communication of a threat to its intended
victim is not expressly required under § 43 (a) (2), we agree
with the Appeals Court that evidence of the defendant's intent
to communicate the threat through direct or indirect means is
necessary. See Commonwealth v. Hughes, 59 Mass. App. Ct. 280,
281-282 (2003). Where communication of the threat is
indirect -- for example, through an intermediary -- the
Commonwealth must prove beyond a reasonable doubt that the
defendant intended the threat to reach the victim. See id. at
29
Where a defendant has been charged with threatening to
commit a crime, see G. L. c. 275, § 2, based on an ambiguous
statement or writing, we have similarly analyzed the substance
of the communication as well as the surrounding context to
determine whether the communication expressed an intent to harm
the recipient and caused that person reasonable fear. See
Commonwealth v. Milo M., 433 Mass. 149, 154-155 (2001) (two
drawings depicting defendant pointing gun at his teacher
constituted expression of intent to harm teacher, where drawings
contained other references to violence and defendant presented
drawings to teacher in angry and defiant manner); Commonwealth
v. Sholley, 432 Mass. 721, 725-726 (2000), cert. denied, 532
U.S. 980 (2001) (defendant's rage at court system, recent
predictions of "war" and "bloodshed," angry tone, and position
only inches from prosecutor when pointing his finger in her face
and telling her to "watch out" permitted jury to conclude
statement intended as threat); Commonwealth v. Elliffe, 47 Mass.
App. Ct. 580, 582-583 (1999) (words "drop the charges," uttered
while defendant was physically assaulting and battering victim,
permitted jury to infer that if victim did not "drop the
charges," additional violence would follow).
24
283 (jury could have found that defendant intended his brother
to convey threat to victim). Compare Commonwealth v. Meier, 56
Mass. App. Ct. 278, 279-282 (2002) (defendant's letter to victim
indicating belief that victim was responsible for recent
collection efforts against defendant, combined with threatening
statement to collection attorney regarding victim, supported
inference that defendant intended statement to reach victim),
with Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 527-528
(2002) (where third party overheard putative threat, but there
was no evidence of defendant's intent that third party would
hear threat, jury could not infer intent to communicate threat
to target).
Applying these principles to the defendant's Facebook
profile page, although the victim testified that she was
terrified when she viewed the page, her subjective reaction is
not the crux of the inquiry. Rather, it is necessary to focus
on the content of the page in the context of the past and
present relationship between the defendant and the victim to
determine whether there was sufficient evidence of the
defendant's intent to threaten the victim and whether the
victim's fear was reasonable.
We begin by considering the photograph of the defendant
holding a gun. The photograph itself contains no evidence of
the defendant's intent to commit violence -- there is nothing
25
obviously menacing about his facial expression in the photograph
or the way in which he is depicted holding the gun across his
lap, nor is there a caption of any kind that might suggest the
photograph was intended to evoke violence. Contrast
Commonwealth v. Milo M., 433 Mass. 149, 154-155 (2001)
(threatening drawings portrayed violent acts directed at
defendant's teacher). Even considering the photograph in light
of the defendant's previous behavior around the victim involving
guns, although his past actions might imply an intent to use
guns to intimidate the victim, there was no evidence that the
defendant had ever used a gun for a violent purpose in her
presence, pointed a gun at her, or otherwise threatened physical
violence toward her.30 Moreover, because the photograph was
uploaded to the Facebook page in 2011, approximately three years
after the last time that the victim saw the defendant with a
gun, the relationship between the defendant's past behavior and
the photograph is tenuous, especially considering that, given
the defendant's status as a military veteran and apparently
long-standing interest in guns, he could have intended the
photograph to serve as an expressive statement regarding this
30
The victim did testify that the defendant raped and
committed an indecent assault and battery on her; however, the
jury apparently did not credit this testimony, because they
found the defendant not guilty of the charges stemming from
these incidents.
26
status and interest. Contrast Chou, 433 Mass. at 235-237
(threatening poster identified victim, contained sexually
aggressive language directed at her, and had no expressive
purpose other than to place victim in fear); Commonwealth v.
Sholley, 432 Mass. 721, 724, 726 (2000), cert. denied, 532 U.S.
980 (2001) (defendant's actions that contributed to finding
intent to threaten took place within two- to three-minute span).
Turning to the quotation on the page, "[m]ake no mistake of
my will to succeed in bringing you two idiots to justice," in
the circumstances of this case, it is reasonable to interpret
the "two idiots" as referring to the victim and Stephen. But
even if one reads the sentence in combination with the
photograph of the defendant, any particular violent message that
might be attributed to the defendant from the presence of these
two elements on the same page is speculative. Although the
photograph depicts the defendant holding a gun, nothing else
about that image suggests a clear intent to commit violence.
Furthermore, like the photograph, the word "justice" is amenable
to a reasonable, nonviolent interpretation, namely, that the
defendant intended to pursue whatever legal means might be
available to right wrongs he perceived the victim and Stephen
had inflicted on him. See note 21, supra.
Finally, the Commonwealth asserted during oral argument
that, given the limited total number of items on the defendant's
27
Facebook profile page, the combined presence of (1) the
photograph of the defendant with a gun, (2) the quotation about
justice, (3) the reference to Rihanna,31 and (4) the reference to
the "Governors [sic] Task Force on Police Corruption,"32
suggested that the page could have had little meaning except to
project the appearance of a threat against the victim and
Stephen. We agree that the page as a whole could have come
across as vaguely ominous or disturbing. However, because no
evidence was introduced at trial regarding the defendant's
opinion of or even knowledge about Rihanna, or about whether the
defendant did or did not participate in a task force on police
corruption, we question whether it is reasonable to ascribe to
these items the meaning that the Commonwealth suggests, and to
then infer that the defendant in fact created and intended to
use the page to place the victim in imminent fear of bodily
31
Rihanna is a well-known singer and is a survivor of
domestic violence, a fact that at least some members of the jury
may have known. See Sisario, Stormy Relationship, Forgiving
Followers, N.Y. Times, Apr. 28, 2013. In addition, it appears
that the copy of the Facebook page that was submitted to the
jury as an exhibit contained a handwritten note that identified
Rihanna as a survivor of domestic violence. The defendant did
not object to admission of the copy of the page as an exhibit,
and he does not raise the handwritten note as an issue on
appeal.
32
The Commonwealth argued that the reference to the
defendant's participation in a task force on police corruption
should be interpreted as invoking the defendant's history of
filing complaints against Stephen with the police department.
28
harm. Ultimately, based on the trial record, we conclude that
the evidence of the defendant's intent concerning the creation
of the Facebook profile was insufficient with respect both to
whether the page constituted a threat within the scope of
§ 43 (a) (2), and to the reasonableness of the victim's fear.33
There is no question that new technology has created
increasing opportunities for stalkers to monitor, harass, and
instill fear in their victims, including through use of Web
sites. See Fraser, Olsen, Lee, Southworth, & Tucker, The New
33
We comment briefly on whether there was sufficient
evidence that the defendant intended to communicate the contents
of this page to the victim. No evidence was presented at trial
that the defendant had used the Internet to harass or disparage
the victim from April, 2008, to January 13, 2011; that either
the victim or Stephen previously had communicated with the
defendant via Facebook or viewed his page; or that the defendant
and the victim had an overlapping network of Facebook "friends,"
such that information the defendant posted to his own Facebook
page would have been visible to the victim's friends. At the
same time, however, the page apparently was accessible to the
public, and there was substantial evidence that the defendant
had used other Web sites, namely, Zillow and MySpace, to
disparage the victim in the past. We do not need to decide this
issue regarding intent to communicate in the present case. But
given the relative ease with which material on the Internet can
be broadcast to a wide audience, including not only to the
victim but also to the victim's family, friends, coworkers, and
acquaintances, the factors just mentioned -- whether the threat
was conveyed in a public or private Internet space, whether the
victim or others in his or her social circle was likely to see
the threat, and whether the victim and the defendant had
communicated online before -- will likely be important in future
cases involving alleged Internet-based threats.
29
Age of Stalking: Technological Implications for Stalking, 61
Juv. & Fam. Ct. J. 39, 41, 46-48 (Fall 2010) (discussing uses of
Internet to cause physical harm, threaten, or post damaging
information about a victim). Where a defendant has posted a
threat to a Facebook page that meets the requirements of
§ 43 (a) (2), and has engaged in a series of acts or pattern of
conduct described in § 43 (a) (1), the fact that the threat
appears on the Internet is not a barrier to prosecution for
stalking. See G. L. c. 265, § 43 (a) (2) ("conduct, acts, or
threats" related to stalking may be accomplished by means of
electronic communication, including Internet communications).
Cf. Elonis v. United States, 135 S. Ct. 2001, 2016-2017 (2015)
(Alito, J., concurring in part and dissenting in part) (applying
"true threats" exception to First Amendment to violent
statements made on social media that are pointedly directed at
victims, whether made recklessly or with intent to threaten);
Commonwealth v. Johnson, 470 Mass. 300, 312-313 (2014) (where
defendants used Web site to recruit others to harass victims,
defendants could not "launder their harassment of the [victims]
through the Internet to escape liability" for criminal
harassment under G. L. c. 265, § 43A). Here, however, there was
30
insufficient evidence that the defendant intended to make such a
threat, and thus his conviction of stalking cannot stand.34,35
34
Because the Commonwealth failed to present sufficient
evidence to prove that the defendant threatened the victim
within the meaning of § 43 (a) (2), ordinarily, we would next
consider whether the stalking conviction could be reduced to
criminal harassment. See O'Brien v. Borowski, 461 Mass. at 420
n.5 (criminal harassment, as defined in G. L. c. 265, § 43A [a],
is a lesser included offense of criminal stalking); Commonwealth
v. Kulesa, 455 Mass. 447, 451 n.6 (2009), citing Welch, 444
Mass. at 87, 88 (criminal harassment is "closely related" to
criminal stalking, "employing nearly identical language but
eliminating the threat requirement"). However, we also agree
with the defendant that there was insufficient evidence to
support all the specific acts on which the Commonwealth relied
to prove the "pattern of conduct or series of acts" component of
the stalking charge, which, like criminal harassment, requires
proof of three or more incidents to support a conviction. See
Welch, supra at 89-90; Commonwealth v. Kwiatkowski, 418 Mass.
543, 548 (1994). See also G. L. c. 265, § 43 (a) (1); G. L.
c. 265, § 43A (a). In particular, under the judge's
instructions, the jury were permitted to consider, as one of the
incidents of stalking, whether the defendant (and not one of his
sons, see note 16, supra) "approached" the victim with a camera
outside of court; the testimony, however, was only that the
defendant "got out of the car, the vehicle, and he had a camera
in his hand," not that he approached the victim. Because there
was insufficient evidence of this act, and we have no way of
knowing whether or not the jury relied on this act in finding
the defendant guilty of stalking, the defendant's stalking
conviction cannot be reduced to criminal harassment and must
instead be set aside. See Commonwealth v. Vizcarrondo, 427
Mass. 392, 398 (1998), S.C., 431 Mass. 360 (2000).
In addition, because we are affirming the defendant's
conviction of criminal harassment, and the acts that supported
the criminal harassment conviction were part of the same over-
all "pattern of conduct" that supported the stalking charge, we
have concerns that reducing the defendant's stalking conviction
to a second conviction of criminal harassment -- or allowing the
defendant to be retried on a second charge of criminal
harassment based on the acts that supported the stalking charge
in this trial -- would violate double jeopardy principles.
31
2. Criminal harassment. The defendant challenges the
sufficiency of the evidence presented in support of his criminal
harassment charge. Criminal harassment is defined as "willfully
and maliciously engag[ing] in a knowing pattern of conduct or
series of acts over a period of time directed at a specific
person, which seriously alarms that person and would cause a
reasonable person to suffer substantial emotional
distress." See G. L. c. 265, § 43A (a). As with stalking, for
a defendant to be convicted of criminal harassment, the
Commonwealth must prove that the defendant engaged in at least
three harassing incidents directed at the victim. See
Commonwealth v. Welch, 444 Mass. 80, 89 (2005), abrogated on
another ground by O'Brien v. Borowski, 461 Mass. at 425 & n.7.
See also G. L. c. 265, § 43 (a) (1); G. L. c. 265, § 43A (a).
In her instructions to the jury on criminal harassment, the
judge identified four alleged acts that the jury could consider
in determining whether the defendant's conduct met the
requirements for that offense: (1) bringing Cynthia Dugas to
35
The defendant also challenged the ability of
Massachusetts courts to exercise jurisdiction over him for
purposes of the stalking charge, because by the time the victim
and Stephen viewed the defendant's Facebook profile, they were
living in Rhode Island, and they viewed the Facebook page there.
The defendant appears to have been living in Rhode Island at
that time as well. Given our conclusion, we do not address the
jurisdictional issue.
32
the Seekonk house and waiting for her "while she viewed the
residence with the purpose of having her check the contents of
the home and check up on [the victim]"; (2) placing a sign on
the Seekonk house lawn; (3) turning off the water and defecating
and urinating in the toilets; and (4) leaving firearms around
the house and cleaning them in the victim's presence in an
intimidating manner.36 The defendant challenges the sufficiency
of the evidence of the first two of these incidents. His
challenge fails.
With respect to the sign that was placed on the Seekonk
house lawn, the defendant argues that he was entitled, under the
First Amendment, to advertise his construction business on his
property. See Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (First
Amendment protection of commercial speech). The general
principle he states is correct, but here, the defendant placed
the sign alongside one of the cement blocks that was on the
property, so that it also impeded vehicle access.37 Based on the
36
The jury were instructed to consider a different eight of
the defendant's other alleged acts of harassment directed toward
the victim as part of the stalking charge.
37
The defendant argues that the sign was "small" and did
not block the victim's access to the property or could have been
moved. However, the victim testified that it did impede her
access, and we evaluate the sufficiency of the evidence in the
light most favorable to the Commonwealth.
33
location of the sign and the fact that it never had been
displayed on the property before, the jury reasonably could have
inferred that the purpose of the sign was to harass the victim
and to remind her of the defendant's presence, rather than to
engage in commercial speech. See Johnson, 470 Mass. at 309
(where sole purpose of defendants' speech was to harass victims,
speech was not protected by First Amendment).
With respect to the alleged act of harassment involving
Dugas, the defendant argues that there was no evidence he
brought Dugas to the Seekonk house for the purpose of having her
check on the victim. Although there was no express testimony on
this point, considering the evidence in the light most favorable
to the Commonwealth, the jury reasonably could have inferred
from the testimony of Dugas, the victim, and Stephen that
Dugas's purpose was to make observations not just of the house
but of the victim's presence in it. Dugas accompanied the
defendant during other incidents in which the defendant or one
of his sons harassed the victim or interfered with her enjoyment
of the Seekonk house.38 The jury reasonably could infer based on
38
Dugas was with the defendant outside the District Court
on March 10, 2008, when one of the defendant's sons chased the
victim with a camera; was with him when he removed the light
bulbs from the outside of the Seekonk house; and later helped
the defendant remove the refrigerator and stove from the house.
The victim and Stephen also saw Dugas one night driving back and
34
these incidents that Dugas knew the defendant was trying to
monitor and harass the victim, and was assisting him in doing
so. As for Dugas's visit to the Seekonk house in particular,
Dugas's testimony that she was thinking of buying the house for
her disabled, sick mother was at best improbable given that the
house was large and had at least one staircase, and that Dugas's
mother eventually went to live in a nursing home. In these
circumstances, the jury reasonably could have inferred that the
defendant brought her to view the inside as a way of
investigating the contents of the home and what the victim was
doing there while the restraining order barred the defendant
himself from entering.
Although these two incidents, taken alone, might seem
somewhat innocuous, the Commonwealth was required to prove only
that the cumulative effect of the defendant's pattern of conduct
"seriously alarm[ed]" the victim, not that each individual
incident was alarming. See Johnson, 470 Mass. at 314.
Moreover, the victim testified that seeing the defendant's
firearms around their house made her feel "afraid" and
"threatened," and that the mess the defendant left when he
forth in front of the victim's father's house, and eventually
parking in front of the home. Dugas's explanation of what she
was doing there on that occasion -- looking for the father of an
arborist she needed to hire to trim a tree in her yard -- was
implausible, given, among other reasons, that it was evening and
already getting dark outside.
35
turned off the water and left urine and feces in the toilets was
part of the "most horrible time in [her] life" and was "very,
very stressful." A reasonable jury could have found on this
record that the defendant committed each incident alleged in
support of the criminal harassment charge, as well as that the
combined effect of these acts seriously alarmed the victim.
3. Violations of the restraining order. The defendant
also challenges his two convictions of violating the restraining
order. He argues that during the period when the order was
modified to permit the defendant "access to the garage area
between 7:45 A.M. and 4:00 P.M.[,] Monday through Friday only,"
the order ceased to be a true order to vacate and stay away
during those hours and, therefore, violation of the order at
those times was not a criminal offense. See Commonwealth v.
Finase, 435 Mass. 310, 313-314 (2001) (G. L. c. 209A, § 7,
criminalizes only three kinds of violations of an order:
failures to vacate, to refrain from abusing plaintiff, or to
have no contact with plaintiff or her minor child).39 This
argument, however, ignores the most natural reading of the
order, which is that the defendant remained obligated to vacate
39
General laws c. 209A, § 7, has been amended several times
since the decision in Commonwealth v. Finase, 435 Mass. 310(2001). See G. L. c. 209A, § 7, amended by St. 2002, c. 184,
§§ 113-114; St. 2003, c. 26, § 448; St. 2006, c. 418, § 1; and
St. 2014, c. 260, §§ 14, 15. However, Finase, supra at 313-314,
accurately described the offense in 2007 and 2008.
36
and stay away from the Seekonk house, with the exception that he
was permitted to access the garage during the hours provided.
The fact that the defendant needed to drive or walk up the
driveway to reach the garage does not change the import of the
order, which is properly understood to mean that the defendant
was allowed to traverse the driveway to access the garage, but
not otherwise to interfere with the property in ways that were
not related to gaining such access. Cf. Commonwealth v. Silva,
431 Mass. 194, 198-199 (2000) (incidental contact required in
order to effectuate father's right to speak to children by
telephone did not permit father to violate terms of protective
order by using abusive and threatening language toward father's
former wife).
The defendant further argues that the trial judge committed
error in her jury charge by equating the defendant's acts of
placing the boulders on the Seekonk property and removing the
light bulbs from outside of the house with violations of the
restraining order.40 We disagree. Given that the defendant was
40
The judge instructed the jury that in order to find the
defendant guilty of the restraining order violations, they were
required to find: (1) that a court had issued a restraining
order requiring the defendant to vacate and stay away from the
Seekonk property, "except as may have been permitted by the
court in the order"; (2) that the order was in effect on the
date of the alleged violation; (3) that the defendant knew that
the pertinent terms of the order were in effect; and (4) that
the defendant "violated the stay away order by removing light
37
charged with two violations of a restraining order based on two
specific acts, the judge's instructions were a practical and
appropriate way of communicating the two charges to the jury.
Considering the instruction as a whole, the judge's references
to removing the light bulbs and placing the boulders did not
inherently equate these actions with violations of the order,
but brought home to the jury that to find the defendant guilty,
they had to conclude (among other things) that the defendant
"violated the stay away order" by taking those actions. There
was no error.
4. Perjury. On June 20, 2008, a hearing was held at the
Taunton Division of the District Court Department regarding the
restraining order. The judge began the hearing by asking what
items were taken from the Seekonk house when the defendant was
given seven business days to remove his property from the
premises. In response to allegations that the items taken
included linen, towels, pillows, a refrigerator, a gas stove,
and the victim's bed, the defendant stated,
"Your Honor, you are being lied to like you wouldn't
believe. Everything that is being mentioned to you right
now I have witnessed the fact that that didn't occur
because I stayed in the garage while other people went into
the home and got these items."
bulbs from the perimeter" of the Seekonk property (first
indictment) or "by placing boulders on the property" (second
indictment).
38
Later at the hearing, the defendant said,
"Everything that she has mentioned that was taken is a lie,
everything is a lie. I have got photographs. I have sent
people in in front of me to see what was in the house. The
house was stripped bare of every possible item that was in
the home, stripped bare. The only thing left in the house
when I got there was a television set and a bedroom set
which . . ." (sentence interrupted).
These comments formed the basis for the defendant's second
perjury conviction. He challenges this conviction on the
grounds that these statements were immaterial and that, taken in
context, they were not false. We disagree.
"The crime of perjury in a judicial proceeding occurs
whenever one 'willfully swears or affirms falsely in a matter
material to the issue or point in question.'" Commonwealth v.
Geromini, 357 Mass. 61, 63 (1970), quoting G. L. c. 268, § 1.
The question whether a statement is false is subjective, "i.e.,
what the defendant in good faith and in fact did mean," and it
is up to the jury to determine what the defendant meant when a
statement alleged to be false is open to multiple
interpretations. Geromini, supra at 64. Materiality with
respect to perjury "means relevance in the sense that the answer
might tend in reasonable degree to affect some aspect or result
of the inquiry," Commonwealth v. Borans, 379 Mass. 117, 135
(1979), quoting Commonwealth v. Cerveny, 373 Mass. 345, 352
39
(1977), and is also a question of fact for the jury to decide.
Commonwealth v. McDuffee, 379 Mass. 353, 365 (1979).
The jury in this case easily could have found that the
defendant denied removing a refrigerator, linen, towels, a
pillow, a gas stove, and a bed from the house, and that this
statement was both false and material to the judge's inquiry at
the June 20, 2008, hearing. On the materiality question, it is
clear that the judge's focus at the start of the hearing was on
the items the victim claimed the defendant had taken from the
house, and that the defendant's statements were in response to
the victim's allegations. Regarding the falsity of the
defendant's statements, although the defendant did, at first,
say that he waited in the garage while other people went into
the home "and got these items," the second statement that
"[e]verything that she has mentioned that was taken is a lie,
everything is a lie" and that the house was "stripped bare of
every possible item that was in the home" is most naturally
interpreted as clarifying that the defendant denied having taken
any of the items alleged.41 The jury could have found that this
41
We reject the defendant's suggestion that the second
statement refers only to the victim's allegation that the
defendant took her winter shoes. The defendant's use of the
language, "[e]verything that she has mentioned that was taken is
a lie, everything is a lie," and "the house was stripped bare,"
are more reasonably interpreted as a denial that he took any of
the items mentioned, rather than one specific item.
40
denial was a false statement in light of the testimony that the
defendant and his companions removed the refrigerator, the
stove, pillows, blankets, and a bed.42 We therefore affirm the
defendant's second perjury conviction.
5. Prosecutorial errors. The defendant also claims that
the prosecutors committed two errors that warrant a new trial:
(1) referring to a fact not in evidence during closing argument,
and (2) failing to disclose potentially exculpatory evidence
prior to trial. Although we agree that these were errors, a new
trial is not warranted.
a. Reference to fact not in evidence. "In closing
argument, a prosecutor may not 'misstate the evidence or refer
to facts not in evidence.'" Commonwealth v. Joyner, 467 Mass.
176, 188-189 (2014), quoting Commonwealth v. Lewis, 465 Mass.
119, 129 (2013). See Mass. G. Evid. § 1113(b)(3)(A) (2015).
One of the prosecutors said during closing argument that the
police officer who was present on the last day that the
defendant removed property from the house had testified to
having seen that the water was shut off and that someone had
42
The defendant also challenges his conviction on the
grounds that because his second statement was cut off, he was
not given a full opportunity to explain his position as to which
items he took from the home. However, we conclude that the
defendant’s words before he was cut off are sufficiently
unambiguous that additional explanation is unnecessary in order
to understand his meaning.
41
defecated in the toilets. The defendant correctly asserts that
the police officer did not testify to this; instead, all he said
regarding the condition in which the defendant left the house
was that the garage and the front door were left open. Because
the defendant did not object to this statement during trial, "we
review to determine whether any error created a substantial risk
of a miscarriage of justice." Joyner, supra at 188.
The prosecutor's statement clearly attributed testimony to
the officer that he did not say and was therefore improper.
However, "[r]emarks made during closing arguments are considered
in the context of the whole argument, the evidence admitted at
trial, and the judge's instructions to the jury." Commonwealth
v. Gonzalez, 465 Mass. 672, 680 (2013), quoting Commonwealth v.
Whitman, 453 Mass. 331, 343 (2009). Here, the judge instructed
the jury both before and after closing arguments that the
arguments of counsel are not evidence, and that, if either party
referred to facts not in evidence during closing, the jury
should disregard them. The jury are presumed to have followed
these instructions. Gonzalez, supra at 681. In addition,
although the offending remark did tend to corroborate the
victim's testimony regarding a particularly unpleasant fact, the
comment was relatively brief, the prosecutor did not belabor the
point, and other aspects of the victim's testimony, such as the
removal of the refrigerator and the stove from the house, were
42
corroborated. The prosecutor's misstatement was not so
significant that it created a substantial risk of a miscarriage
of justice.
b. Disclosure of potentially exculpatory evidence. Prior
to trial, the defendant moved for discovery of "[a]ny and all
inconsistent statements made by the complainant or any other
witness for the Commonwealth," as well as other exculpatory
evidence. The motion was allowed in part, with the caveat that
the form in which the Commonwealth disclosed the information was
left to the Commonwealth's discretion. On the fourth day of
trial, during the defendant's cross-examination of the victim,
she testified that she had created a journal in which she wrote
down some of the things that had happened to her, and that she
had given the journal to an investigator on the staff of the
district attorney. The defendant immediately requested a copy
of the journal.43 After contacting the investigator, the
prosecutors concluded that the victim had never given the
Commonwealth any physical journal but that the victim had shared
with the investigator via e-mail parts of what the victim had
written in her journal. Later that day, while the victim was
still on the witness stand, the Commonwealth gave the defendant
43
The defendant also requested a mistrial. The judge did
not rule on the motion.
43
two pages of e-mail communications from the victim to the
investigator, which the victim confirmed were part of her
journal. That same day, the defendant also stated that he had
received in the mail, the day before, a packet of materials from
an anonymous source containing e-mails between the victim, the
investigator, and an assistant district attorney who was not one
of the prosecutors trying the case.44 When the prosecutors
reviewed those materials, they asserted that the substance of
what was contained in those e-mails had already been provided to
the defendant by way of a police report, grand jury minutes, or
otherwise. The judge permitted the defendant to cross-examine
the victim on both the fourth and fifth days of trial (a Friday
and a Monday) concerning the e-mails.
The defendant now argues that the Commonwealth's delayed
disclosure of the e-mails containing the victim's journal
entries and other writings about the alleged incidents violated
his right to due process by denying him exculpatory evidence
until the middle of trial. See Commonwealth v. Daniels, 445
Mass. 392, 401 (2005), quoting Commonwealth v. Tucceri, 412
Mass. 401, 404–405, (1992) ("Due process of law requires that
the government disclose to a criminal defendant favorable
44
The source of this packet of materials was not determined
during the course of the trial and is not provided in the
record.
44
evidence in its possession that could materially aid the defense
against the pending charges"). Although we have concerns
regarding the timing and manner of disclosure of the e-mails,
any error here does not warrant a new trial, because an
examination of e-mails reveals that they are substantially more
inculpatory than exculpatory. See Commonwealth v. Healy, 438
Mass. 672, 679 (2003) (claim of failure to disclose exculpatory
evidence requires proof "that the evidence was, in fact,
exculpatory"). While some specific dates and details referenced
in the e-mails may have conflicted with parts of the victim's
testimony, and therefore may have had some minimal impeachment
value, in general, the e-mails corroborate the victim's account
of the defendant's treatment of her after July 4, 2007,
including her accusations of rape, of which the defendant was
found not guilty. Furthermore, the defendant had time to and
did incorporate questions regarding the e-mails into his
extensive cross-examination of the victim. The defendant
therefore is not entitled to a new trial as a result of the
delayed disclosure of the e-mails.45
45
The defendant also briefly mentions a number of other
alleged instances of prosecutorial delay. These alleged
instances, if they in fact involved delay, do not entitle the
defendant to relief.
45
6. Impeachment of Commonwealth's witness without proof of
conviction. The defendant argues that the trial judge committed
error by declining to allow him to impeach the credibility of
one of the Commonwealth's witnesses with evidence of her
criminal conviction but without a certified copy of the
conviction. There was no error. "In order to impeach a witness
by a criminal conviction, the conviction must be proved by a
court record or a certified copy." Commonwealth v. Puleio, 394
Mass. 101, 104 (1985). See G. L. c. 233, § 21; Mass. G. Evid.
§ 609 (2015). The defendant's status as a self-represented
litigant (with standby counsel) did not exempt him from being
required to comply with governing statutes and our procedural
rules. See Mains v. Commonwealth, 433 Mass. 30, 35 (2000),
quoting Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985)
(procedural "rules bind a pro se litigant as they bind other
litigants").
Conclusion. The defendant's conviction of stalking is
vacated. His convictions of criminal harassment, violation of
an order issued pursuant to G. L. c. 209A, and perjury are
affirmed. The case is remanded to the Superior Court for
resentencing consistent with this opinion.
So ordered.