Commonwealth v. Johnson , 470 Mass. 300 ( 2014 )

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SJC-11660
COMMONWEALTH vs. WILLIAM P. JOHNSON
(and a companion case1).
Essex. September 3, 2014. - December 23, 2014.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Criminal Harassment. Constitutional Law, Freedom of speech and
press. Practice, Criminal, Required finding, Discovery,
Disclosure of evidence, Loss of evidence by prosecution,
Promise by prosecutor, Argument by prosecutor, Speedy
trial, Venue. Evidence, Authentication.
Complaints received and sworn to in the Lawrence Division
of the District Court Department on October 16, 2008.
Motions to dismiss were heard by Anthony P. Sullivan, J.,
Mark A. Sullivan, J., and James D. Barretto, J.; and the cases
were tried before Michael A. Uhlarik, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Robert S. Sinsheimer (Lisa A. Parlagreco & Ronald J. Ranta
with him) for William P. Johnson.
Valerie A. DePalma (Susan H. McNeil with her) for Gail M.
Johnson.
1
Commonwealth vs. Gail M. Johnson.
2
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
Daniel J. Lyne & Theodore J. Folkman, for Eugene Volokh,
amicus curiae, submitted a brief.
CORDY, J. This case concerns the constitutionality of the
criminal harassment statute, G. L. c. 265, § 43A (a), and its
application to acts of cyberharassment among others.
Specifically, we consider whether a pattern of harassing conduct
that includes both communications made directly to the targets
of the harassment and false communications made to third parties
through Internet postings solely for the purpose of encouraging
those parties also to engage in harassing conduct toward the
targets can be constitutionally proscribed by the statute. We
also consider whether, to the extent that this pattern of
conduct includes speech, that speech is protected by the First
Amendment to the United States Constitution or is unprotected
speech integral to the commission of the crime.
The defendants, William and Gail Johnson, were both
convicted of criminal harassment. William2 was also convicted of
making a false, or "frivolous," report of child abuse, G. L.
c. 119, § 51A (c). Among other things, the defendants' conduct
included posting information about the victims online along with
2
The defendants and the victims are both married couples.
Where appropriate the defendants and the victims are referred to
by their first names given the common last name between each
married couple.
3
false statements about items that the victims allegedly either
had for sale or were giving away, with the object of encouraging
unwitting third parties to repeatedly contact and harass the
victims at their home and on their telephone. The defendants
also anonymously sent hostile and ominous communications
directly to the victims.
William claims that the criminal harassment statute is
facially unconstitutional, arguing that it regulates protected
speech and does not provide sufficient notice of the type of
conduct that is proscribed. Additionally, both defendants argue
that the statute is unconstitutional as applied to their conduct
because they did not engage in "fighting words," an unprotected
category of speech that we held could be constitutionally
proscribed under the statute in Commonwealth v. Welch, 444 Mass.
80 (2005), abrogated on another ground by O'Brien v. Borowski,
461 Mass. 415 (2012).3 Further, both defendants contend that
their conduct did not meet the statutory requirements because
their actions were not actually directed at the victims and
there was inadequate evidence that their conduct caused any
serious alarm to the victims. We conclude that the Legislature
drafted a sufficiently specific statute that is not
unconstitutional on its face; that the defendants' conduct
3
We acknowledge the amicus brief submitted by Eugene
Volokh.
4
included speech that was not protected by the First Amendment,
but rather was integral to criminal conduct; and, accordingly,
that the statute is not unconstitutional as applied to the
defendants. We also conclude that the defendants' conduct as
established at trial met all of the statutory requirements for a
guilty verdict.
Background. We summarize the facts that the jury could
have found, reserving certain details for our analysis of the
issues raised on appeal. The victims, James "Jim" J. Lyons,
Jr., and his wife, Bernadette, have lived on the same street as
the defendants in Andover since around 2000. In 2003, the
defendants acquired a tract of land abutting the Lyonses'
property and intended to subdivide and develop it. The Lyonses,
along with other neighbors, objected to the proposed development
and years of litigation ensued between the parties. By 2008,
the relationship between the families had become strained and
communication between them was infrequent.
Gerald Colton, a childhood friend of the Johnsons, did not
know the Lyons family prior to 2008. Throughout the 1990s and
early 2000s, William hired Colton to work as a handyman on an
hourly basis and to identify lots for potential real estate
5
development. If William later developed a lot Colton had
identified, Colton would collect a finder's fee.4
In either late February or early March, 2008, William
telephoned Colton and enlisted him to play a series of "pranks"
on Jim. The ideas for these "pranks" were generated in several
ways: (1) William would directly instruct Colton or convey
ideas through Gail; (2) the Johnsons would provide information
about the Lyons family to Colton so that he could use this
information to harass them; or (3) the Johnsons would prompt
Colton to think of ideas.
Over the course of thirty-five days in late March and early
April, 2008, the defendants, directly and through Colton,
engaged in a series of acts directed at the Lyons family. The
Commonwealth alleged four separate acts of harassment in
addition to the false report of child abuse, and Colton was
called as its key witness at the trial.
The first alleged act occurred on March 18, 2008, when
Colton posted from his computer an advertisement that appeared
on the Internet site "Craigslist." The advertisement provided
the Lyonses' home telephone number and address and stated that
4
Gerald Colton identified lots for William Johnson by
placing his initials next to vacant lots on the sheets of the
town of Andover's board of assessors. At trial, Colton admitted
that his initials appeared to be next to the lot that later
became the focus of litigation between the Johnsons and the
Lyonses, but suggested that the initials had been forged.
6
there were free golf carts available at this location on a
"first come, first serve" basis. The Lyonses did not own any
golf carts and had never used Craigslist. When Bernadette
arrived home at 2:30 P.M. that same day, there were strangers in
both her driveway and on the street near her home. These
individuals informed her about the advertisement and explained
that they were looking for golf carts. In total, about thirty
to forty people arrived at the Lyonses' house that afternoon,
causing Bernadette to be "scared" and "fearful."
When Jim arrived home later that evening, he telephoned the
police, as Bernadette was in a state of "uneasiness" and Jim
felt the incident was "really unusual" and "bizarre." Andover
police Sergeant Chad Cooper responded and advised Jim to contact
Craigslist to remove the advertisement and get the Internet
protocol address for the computer that posted it. In Sergeant
Cooper's presence, Jim received numerous telephone calls from
people inquiring about the golf carts. When William learned
that the Craigslist advertisement had been removed, he asked
Colton to "put it back up" and Colton complied. After
reposting, Colton testified that he and William "laughed" about
it and Colton said that he would post another advertisement.
The second alleged act occurred on March 19, when Colton
posted a different Craigslist advertisement, selling "my late
son's" motorcycle and directing interested parties to call Jim
7
on his cellular telephone after 10 P.M.5 Colton then told
William about the posting. That night, Jim received "non-stop"
telephone calls regarding the advertisement, approximately
twenty every ten minutes. Sergeant Cooper responded again.
These late night calls continued for months after the posting.
The third alleged act occurred one week later on March 26,
when Colton sent an electronic mail message (e-mail) to the
Lyonses from a fictitious account. The subject of the e-mail
read, "It's just a game for me," and the text stated, "Let The
Games Begin!" The e-mail contained Jim and Bernadette's
personal identifying information, including names, home
telephone number and address, social security numbers, e-mail
address, bank name and location, and Jim's date of birth and
cellular telephone number. At the bottom, the e-mail stated:
"Remember, if you aren't miserable, I aint happy! Let's Play."
Colton testified that Gail had sent him an e-mail with the
Lyonses' personal information.
The following evening, William arrived at Colton's home and
told Colton that he wanted to call and "turn [Jim] in." William
had a piece of paper with a hotline telephone number written on
it and proceeded to use Colton's home telephone to call the
Department of Children & Families (DCF) to file a false report
alleging child abuse by Jim. William later telephoned Colton to
5
Neither Jim nor Bernadette had a son who had passed away.
8
report that a police cruiser and another vehicle were at the
Lyonses' home.6
Investigator Carrie Riley of the DCF testified that an
after-hours "child abuse hotline" had received a call from
someone using fictitious information and reporting that Jim was
physically abusing his son. Riley and another investigator
arrived at the Lyonses' home at 10:30 P.M. and said they had to
examine their son. Jim testified that he and Bernadette were
"panicked" and "frightened," but that, acting on the advice of
their attorney, he awakened their son and permitted Riley to
inspect him. Riley examined his body for marks and bruises.
The DCF case was closed as the son denied any abuse and the
investigators found no signs of it.
The fourth alleged act occurred on April 3, 2008, when
Colton sent another anonymous e-mail to the Lyonses from another
fictitious e-mail account. The subject line was "Brian," and
the text read, "What have you done James? . . . or . . . Why
James? You stole the innocence of a young man." Shortly
thereafter, Jim received a letter by postal mail purportedly
sent from an individual named "Brian." Brian claimed to have
worked for Jim when he was fifteen years of age, accused Jim of
sexually molesting him as a teenager, and threatened to press
6
The jury were instructed that this alleged conduct was to
be considered only in connection with the false report charge
(G. L. c. 119, § 51A [c]) and not the harassment charge.
9
charges against him. Colton testified that William told Colton
that he had sent the letter.7 Even though the allegations were
false, reading the letter was "very tough" and "absolutely
alarmed [Jim]."
Throughout this entire time period, Colton consistently
kept in contact with both defendants, letting them know what he
was doing or had done to the Lyons family. William and Gail
acquiesced to Colton's conduct and encouraged him to do more.
Procedural history. Police traced the relevant Internet
activity back to Colton, who was charged on June 5, 2008, with
stalking and identity fraud. Colton spent seventeen days in
jail before posting bail. On August 14, 2008, Colton made a
statement taking responsibility for the Internet postings and e-
mails and implicating the defendants in the scheme.
The Johnsons were charged on October 16, 2008, in Lawrence
District Court with making a false report of child abuse (G. L.
c. 119, § 51A [c]); identity fraud (G. L. c. 266, § 37E);
conspiracy (G. L. c. 274, § 7); and criminal harassment (G. L.
c. 265, § 43A [a]). Colton entered into a written plea
7
On cross-examination, Colton acknowledged that, in a 2008
statement, he told police that William showed him a copy of this
letter in person while meeting with him somewhere near the
Andover office of the Internal Revenue Service, and that, in a
2010 statement, he stated that William had called him and read
aloud a "sick letter" that he had already sent to Jim.
10
agreement with the Commonwealth in exchange for his testimony
against the Johnsons.
During pretrial proceedings, the defendants filed motions
to dismiss, asserting that (1) the Commonwealth failed to
provide discovery; (2) there was no probable cause that the
defendants had committed any crime; (3) the destruction of
evidence caused by the Commonwealth warranted dismissal; (4) the
defendants' right to a speedy trial was violated; (5) venue for
the charge of making a false report was improper; and (6) there
was prosecutorial misconduct. All of these motions were denied.
At the close of the Commonwealth's case, the Johnsons moved
for required findings of not guilty on all of the charges. The
judge entered a finding of not guilty on the charge of identity
fraud, but denied the defendants' motion in all other respects.
The judge also denied the defendants' motion at the close of all
of the evidence. The charge of conspiracy was dismissed at the
Commonwealth's request.
On December 1, 2011, a jury convicted the defendants of
criminal harassment and convicted William of making a false
report of child abuse. On the harassment charge, William was
sentenced to two and one-half years in the house of correction,
eighteen months to be served with the balance suspended until
December 1, 2014, with probation conditions; on the charge of
making a false report of child abuse, he was fined $1,000. Gail
11
was sentenced to two years in the house of correction, six
months to be served with the balance suspended until December 1,
2014, with probation conditions, and fined $1,000. We
transferred the defendants' appeal to this court on our own
motion.
Discussion. On appeal, the defendants make multiple claims
of error regarding the Commonwealth's compliance with discovery
rules, alleged prosecutorial misconduct, choice of venue,
evidentiary rulings at trial, the sufficiency of the evidence,
statements made in closing argument, and the right to a speedy
trial. We conclude that the judge's rulings were correct and
these claims are without merit.
We begin, however, with a discussion of the defendants'
challenges to the constitutionality of G. L. c. 265, § 43A (a)
(§ 43A [a]), both facial8 and as applied to them. Such
constitutional challenges are questions of law that we review de
novo. Commonwealth v. Martin, 467 Mass. 291, 301 (2014).
A criminal conviction under § 43A (a) requires proof that
"(1) the defendant engaged in a knowing pattern of conduct or
speech, or series of acts, on at least three separate occasions;
(2) the defendant intended to target the victim with the
harassing conduct or speech, or series of acts, on each
occasion; (3) the conduct or speech, or series of acts, were of
8
Only William raises a facial claim on appeal.
12
such a nature that they seriously alarmed the victim; (4) the
conduct or speech, or series of acts, were of such a nature that
they would cause a reasonable person to suffer substantial
emotional distress; and (5) the defendant committed the conduct
or speech, or series of acts, 'willfully and maliciously'"
(citations omitted). Commonwealth v. McDonald, 462 Mass. 236,
240 (2012).
Although this court has previously construed the criminal
harassment statute, it has not yet considered its application to
the type of conduct at issue here. An analysis of whether the
defendants' actions amounted to criminal harassment necessarily
includes the consideration whether their conduct satisfied the
statutory requirements and whether they engaged in
constitutionally protected speech.
1. Facial challenge. William argues that § 43A (a) is
both unconstitutionally overbroad and vague. He contends that
the statute is dangerously susceptible of application to
constitutionally protected speech and is so vague that it leaves
the public uncertain as to the conduct it prohibits. His
challenge fails on two accounts.
First, the claim is raised for the first time on appeal,
and consequently is waived. See Commonwealth v. Dockham, 405
Mass. 618, 632-633 (1989). Although, as the defendant notes in
his reply brief, we are nevertheless not prevented from
13
considering his claim, we "rarely exercise[]" this power and
only do so in instances where a "serious and obvious" mistake
poses a "substantial risk of a miscarriage of justice."
Commonwealth v. Oakes, 407 Mass. 92, 94-95 (1990).
Second, the challenge fails because the statute is neither
overbroad nor vague. William bears the burden of showing "'from
the text of [the law] and from actual fact' . . . that
substantial overbreadth exists" (citation omitted). Virginia v.
Hicks, 539 U.S. 113, 122 (2003). As an initial matter,
§ 43A (a) is a statute directed at a course of conduct, rather
than speech, "and the conduct it proscribes is 'not necessarily
associated with speech'" (citation omitted). United States v.
Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (considering similar
statute). In particular, § 43A (a) specifically criminalizes "a
knowing pattern of conduct or series of acts . . . directed at
a specific person, which seriously alarms that person and would
cause a reasonable person to suffer substantial emotional
distress" (emphases added). As the United States Court of
Appeals for the Ninth Circuit held in United States v. Osinger,
753 F.3d 939, 944 (9th Cir. 2014), when considering a similar
statute, because § 43A (a) "proscribes harassing and
intimidating conduct, the statute is not facially invalid under
the First Amendment."
14
Further, as the statute requires both malicious intent on
behalf of the perpetrator and substantial harm to the victim,
"it is difficult to imagine what constitutionally-protected
speech would fall under these statutory prohibitions." Id.,
citing Petrovic, 701 F.3d at 856. Contrary to William's claim,
the statutory elements such as "seriously alarms" "are not
esoteric or complicated terms devoid of common understanding."
Osinger, supra at 945. Rather, these elements are similar to
those that have led courts in other jurisdictions to uphold
their criminal harassment statutes as constitutionally
permissible. See, e.g., State v. Brown, 207 Ariz. 231 (Ariz.
Ct. App. 2004); Bouters v. State, 659 So. 2d 235 (Fla.), cert.
denied, 516 U.S. 894 (1995).
Together the component parts of the statute provide
adequate notice and safeguards to prevent its application to
protected speech. Contrary to William's claim that the statute
leaves it to the hearer of the speech to determine what conduct
is criminal, the Commonwealth must prove that a defendant knew
he or she was engaged in a pattern of conduct that intentionally
targeted a victim for the purpose of harassment with acts of
such a nature that they would cause a reasonable person to
suffer substantial emotional distress. This scienter
requirement undermines William's claim that he could be liable
under § 43A (a) if his actions were accidental and that putative
15
harassers are at the mercy of a hearer's sensitivities.
Moreover, William has offered no meaningful evidence to show
that the statute has a real and substantial deterrent on
protected speech or that it actually denies fair notice of what
conduct is proscribed. The required elements are clearly
delineated such that § 43A (a) leaves no putative harassers
wondering what is prohibited. Accordingly, William's facial
challenge to § 43A (a) fails.
2. As-applied challenge. The defendants' as-applied
constitutional challenge also fails because the conduct in
question was not protected speech, but rather a hybrid of
conduct and speech integral to the commission of a crime.
Accordingly, § 43A (a), as applied to the defendants, does not
implicate constitutionally protected speech rights.
"[I]t has never been deemed an abridgment of freedom of
speech or press to make a course of conduct illegal merely
because the conduct was in part initiated, evidenced, or carried
out by means of language, either spoken, written, or printed."
United States v. Sayer, 748 F.3d 425, 433 (1st Cir. 2014),
quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502
(1949). The defendants do not claim that creating fictitious
Internet postings and sending a letter falsely accusing someone
of a crime constitute legal conduct. Their conduct served
solely to harass the Lyonses by luring numerous strangers and
16
prompting incessant late-night telephone calls to their home by
way of false representations, by overtly and aggressively
threatening to misuse their personal identifying information,
and by falsely accusing Jim of a serious crime. Where the sole
purpose of the defendants' speech was to further their endeavor
to intentionally harass the Lyonses, such speech is not
protected by the First Amendment. "The [F]irst [A]mendment does
not provide a defense to a criminal charge simply because the
actor uses words to carry out his illegal purpose." United
States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982).
In this respect, we are guided by the reasoning of the
United States Supreme Court and several circuit courts of the
United States Court of Appeals. In Giboney, 336 U.S. at 498,
cited with approval in United States v. Stevens, 559 U.S. 460,
468-469 (2010), the United States Supreme Court held that speech
or writing used as an integral part of conduct in violation of a
valid criminal statute is not protected by the First Amendment.
Following the holding in Giboney, in Sayer, the United States
Court of Appeals for the First Circuit held that the defendant's
posting of fictitious Craigslist advertisements to induce
anonymous third parties seeking casual sexual encounters to
harass the victim amounted to unprotected speech integral to the
criminal conduct proscribed by the Federal cyberstalking
17
statute, 18 U.S.C. § 2261A (2012 & Supp. I 2013).9 748 F.3d at
433-434.
Similarly, in Petrovic, 701 F.3d at 854-856, the United
States Court of Appeals for the Eighth Circuit concluded that
§ 2261A was properly applied to a defendant who created a Web
site with links to images of the victim nude or engaged in sex
acts with him, where the sole purpose of the communications was
to carry out the defendant's threats to harass and humiliate the
victim if she ended their sexual relationship. As integral to
the commission of the crime of cyberstalking, the defendant's
communication, although speech, fell outside the purview of the
First Amendment.
The speech here, much as the speech at issue in Giboney,
Sayer, and Petrovic, was also "integral to criminal conduct,"
serving only to implement the defendants' purpose to harass and
cause substantial emotional distress to the Lyonses in violation
9
Section 2261A(2) of 18 U.S.C. (2012 & Supp. I 2013)
defines cyberstalking, in relevant part, as follows: "Whoever -
- with the intent to kill, injure, harass, intimidate, or place
under surveillance with intent to kill, injure, harass, or
intimidate another person, uses the mail, any interactive
computer service or electronic communication service or
electronic communication system of interstate commerce, or any
other facility of interstate or foreign commerce to engage in a
course of conduct that . . . causes, attempts to cause, or would
be reasonably expected to cause substantial emotional distress
to . . . [that person], [an immediate family member of that
person] or [a spouse or intimate partner of that person], shall
be punished as provided in [§] 2261(b) of this title" (emphases
added).
18
of § 43A (a).10 The defendants point to no lawful purpose of
their "communications" that would take them outside of the
exception delineated in Giboney. To the extent that any of the
harassing contacts were composed of words, they were used "so
close in time and purpose to a substantive evil as to become
part of the ultimate crime itself." United States v. Freeman,
761 F.2d 549, 552 (9th Cir. 1985), cert. denied, 476 U.S. 1120
(1986). In such instances, "where speech becomes an integral
part of the crime, a First Amendment defense is foreclosed."
Id. While the content of the speech in question certainly
affected the Lyonses, much of the alarming impact was the
product of the frightening number, frequency, and type of
harassing contacts with which the defendants bombarded the
Lyonses. In these circumstances, the application of § 43A (a)
to the defendants fully withstands constitutional scrutiny.11
10
The Commonwealth also argues that the speech here is
"speech that unjustifiably invades privacy." We agree with the
defendants, however, that there is no criminal invasion of
privacy statute in Massachusetts. This ultimately proves
irrelevant given our holding that the speech at issue falls
under another category of speech not subject to First Amendment
protection.
11
We disagree with the defendants' contention that their
conviction for criminal harassment rests solely on incidents of
pure speech. In Commonwealth v. Welch, 444 Mass. 80, 86-87
(2005), we noted that courts have long recognized that speech
and conduct "frequently overlap and may be incapable of precise
differentiation" and that "the criminal harassment statute was
intended to proscribe harassing conduct encompassing 'speech.'"
It is apparent that cyberharassment will consistently involve a
19
Nonetheless, the defendants attempt to argue that they are
entitled to a required finding of not guilty on the criminal
harassment charge because none of their speech constituted
"fighting words," which they contend was the only form of speech
punishable at the time of the offense under our interpretation
of the statute in Welch. See generally 444 Mass. at 93-100.
This argument is meritless. While the focus of our decision in
Welch was centered on the "fighting words" doctrine, we
expressly noted that "[a]ny attempt to punish an individual for
speech not encompassed within the 'fighting words' doctrine (or
within any other constitutionally unprotected category of
speech) would of course offend our Federal and State
Constitutions" (emphasis added). Id. at 99. These well-defined
and limited categories of speech "are not protected because they
are 'no essential part of any exposition of ideas, and are of
such slight social value as a step to truth' that whatever
meager benefit that may be derived from them is 'clearly
outweighed' by the dangers they pose." Borowski, 461 Mass. at
422, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572
hybrid of speech and conduct. There is content within the
communications, but the very act of using the Internet as a
medium through which to communicate implicates conduct. In
Welch, supra at 99 n.15, we did "not suggest that incidents of
harassment that consist of more than pure speech should be
exempted from punishment." Here, the conduct and speech
together "constituted a single and integrated" course of action
in violation of a valid law. See Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 498 (1949).
20
(1942). Speech integral to criminal conduct is one such long-
standing category that is constitutionally unprotected, directly
applicable to the defendants' conduct here, and permissibly
proscribed by § 43A (a).12 Accordingly, the denial of the
defendants' motion for a required finding of not guilty on the
basis that they engaged in protected First Amendment activity
was not error.
3. Sufficiency of evidence. The defendants contend that
there was insufficient evidence of their joint venture to
criminally harass the victims, arguing that both the "directed
at" and "seriously alarms" prongs of the statute were not met.
In reviewing the sufficiency of the evidence, we consider the
facts in the light most favorable to the Commonwealth, see
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and
determine whether any rational trier of fact could have found
beyond a reasonable doubt all of the statutory elements.
12
To the extent that the defendants read our holding in
O'Brien v. Borowski, 461 Mass. 415 (2012), to establish the
principle that no constitutionally unprotected category of
speech can be proscribed under G. L. c. 265, § 43A (a), unless
we have explicitly articulated so in a previous case, they are
misguided. We broadened the scope of our § 43A (a) analysis to
expressly include true threats in Borowski only because we had
specifically stated that the true threats exception did not
apply in the § 43A (a) context in Welch, 444 Mass. at 94 n.14.
Consequently, clarification was needed in Borowski that is not
needed for other unprotected categories of speech that have
never been explicitly exempted from the application of § 43A
(a).
21
a. "Directed at" prong. Section 43A (a) requires that the
Commonwealth prove three or more predicate acts of harassment
that were "directed at a specific person." See McDonald, 462
Mass. at 240. The defendants argue that the Craigslist postings
(two of the four acts supporting the harassment charge) were not
directed at the victims, but were merely directed at the general
public.
This argument is without merit. As a factual matter, the
jury clearly could have concluded that the "directed at" prong
was met. While the defendants' methods were indirect, the false
information in the Craigslist postings was intended solely to
ensure that the victims were harassed as a consequence by
unwitting third parties contacting them at all hours of the
night by telephone and showing up at their home. Essentially,
the "sole immediate object" of the false advertisements was to
create a marketplace for the guaranteed harassment of the
victims. See Giboney, 336 U.S. at 498.
The defendants cite to Welch for the contention that
statements made to a third party are not speech directed at a
specific person. 444 Mass. at 92-93 (shouting abusive epithets
in one's apartment and speaking in normal tone of voice to third
party outside does not satisfy requirements of § 43A [a]). The
defendants' acts in the instant case are appreciably different
than those at issue in Welch. The Craigslist postings were the
22
equivalent of the defendants recruiting others to harass the
victims and the victims alone. The causation link is satisfied.
The defendants cannot launder their harassment of the Lyons
family through the Internet to escape liability.
b. "Seriously alarms" prong. Section 43A (a) also
requires the Commonwealth to prove that the acts of alleged
harassment "seriously alarm[ed]" the victims. The serious alarm
required under § 43A (a) is a "demanding, subjective element of
harm" that must be satisfied by a victim's testimony rather than
conjecture. Commonwealth v. Braica, 68 Mass. App. Ct. 244, 247
(2007). The defendants argue that (1) the Commonwealth offered
insufficient proof that the victims were seriously alarmed, and
(2) the victims did not experience serious alarm separately for
each act, as required, rather than cumulatively as the result of
the pattern of harassing acts. We disagree with both
contentions.
First, the Lyonses' subjective feelings of fear and anxiety
were actual (not hypothetical), significant, and well documented
at trial. As a general matter, Jim and Bernadette testified
that they felt "bombarded," "attacked," and "very frightened"
throughout the ordeal. Jim described the thirty-five-day
"odyssey" in which the defendants would "torture [them],"
stating that he was concerned about the safety of his family and
himself: "The[y] attacked my business. They attacked my
23
family. And they tried to take my kids away from me."
Bernadette described the situation as "very traumatic," stating
that her family was in a "siege mentality where [e]very day
something was happening so [they] got afraid." The Lyonses were
sufficiently alarmed to call the police "right away" after the
very first harassing act. Jim testified that the second act
"stepped it up a notch" and made him feel "[t]errible," and that
the correspondence that he received alleging sexual molestation
was "very tough" and "absolutely alarmed" him. The police took
notice of and corroborated Jim's testimony that the defendants'
conduct took a substantial emotional toll on him.
The Lyonses' testimony of feeling frightened, tortured, and
attacked more than meets the "seriously alarms" standard. The
victims testified to an abundance of distressing and alarming
conduct that amounted to a serious invasion of their emotional
tranquility. Unlike the victims in Commonwealth v. Kessler, 442
Mass. 770, 773-774 (2004), who offered no proof that they were
"actually 'alarmed or shocked,'" but rather just "offended" by
the defendant's indecent exposure, the Lyonses testified to
having a level of fear and anxiety similar to the victims in
Commonwealth v. Robinson, 444 Mass. 102, 105, 108 (2005)
(serious alarm requirement met where, as result of harassment,
victim felt vulnerable, son's grades dropped due to nervousness,
and family felt constantly under surveillance). See
24
Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 294 (2006)
(defendant's letters and telephone calls seriously alarmed
victim who felt "concern[ed]" and "very scared," and asked State
officials for assistance). Here, the Lyons family did not
merely experience uneasiness associated with day-to-day living,
but rather, as the ominous and hostile acts perpetrated by the
defendants continued to escalate, the totality of the situation
evoked the type of "serious negative emotional experience"
required under the statute. Kessler, supra at 774.
As for whether serious alarm must be shown for each
individual act or may be measured cumulatively, we conclude that
the statute's wording ties the requirement to the over-all
pattern of conduct. The statutory language of § 43A (a)
requires that the "pattern of conduct" or "series of acts"
"seriously alarms." As a general rule of statutory
construction, "words importing the plural number may include the
singular." G. L. c. 4, § 6, Fourth. Accordingly, "acts" might
refer to a single act as well as multiple acts. However, the
rules of grammar and proper subject-verb agreement instruct a
reading of "alarms" to modify the singular noun of one "pattern"
or one "series," rather than the noun "acts."13 The evidence at
13
Other States have also held that in similar criminal
statutes where the actus reus of the crime is defined as a
"series of acts," each act need not induce fear. See, e.g.,
25
trial was sufficient to support the verdict rendered by the
jury.
4. Pretrial motions. In three joint motions before the
trial court, the defendants unsuccessfully asked for the case to
be dismissed, alleging prosecutorial errors that caused undue
delay and prejudice. Specifically, they contended that
dismissal was appropriate based on the Commonwealth's "loss" of
Colton's telephone records and the Commonwealth's delayed
disclosure of (1) promises, rewards, and inducements made to
Colton in exchange for his cooperation; (2) Colton's statements
regarding the location of the DCF call; and (3) a diary that
Colton kept.
While the Commonwealth has a duty to disclose all material,
exculpatory evidence in its possession, see Brady v. Maryland,
373 U.S. 83, 87 (1963); Commonwealth v. Tucceri, 412 Mass. 401,
404-405 (1992), we agree with the motion judge that the
Commonwealth did not withhold any such evidence here and that
delays in disclosure did not result in prejudice.
Colton's telephone records were potentially significant to
the case because they could corroborate (or not) that a call was
made from his telephone to the DCF hotline falsely reporting
child abuse, and was not made from William's telephone. In
Cook v. State, 36 P.3d 710, 721 (Alaska Ct. App. 2001); People
v. Payton, 161 Misc. 2d 170, 173-176 (N.Y. Crim. Ct. 1994).
26
November, 2009, the Commonwealth subpoenaed these records from
Verizon and was notified that Colton's correct telephone service
provider was Comcast. However, it was not until June of 2010
that the prosecutor attempted to obtain Colton's records from
Comcast. By then, the subpoenaed records were no longer
available as they were outside the company's retention period.
The defendants argue that this "loss" of records was prejudicial
to their defense strategy. We agree that the Commonwealth could
have and should have attempted to obtain Colton's telephone
records earlier, but, ultimately, these records would not have
provided any exculpatory information and their "loss" was not
prejudicial. The Commonwealth had already disclosed the DCF
hotline records to the defendants, which identified the
telephone number of the caller as Colton's, thus establishing
that a call was made to DCF from Colton's telephone number, not
William's, precisely what Colton's telephone records would have
established. Further, the defendants had considerable
opportunity and bases for cross-examining Colton even without
his telephone records, "'effectively' remov[ing]" any prejudice
(citation omitted). Commonwealth v. Molina, 454 Mass. 232, 236-
237 (2009).
Regarding promises, rewards, and inducements, well before
trial, the prosecutor acknowledged Colton's preliminary
discussions with the government. Once an agreement was
27
formalized on September 22, 2010, the prosecutor properly
disclosed its terms and filed a discovery packet including all
of the Commonwealth's documents. See Commonwealth v. Burgos,
462 Mass. 53, 62-63, cert. denied, 133 S. Ct. 796 (2012)
(prosecutor informed defendant before trial of formalized
cooperation agreements). Until the agreement was formalized,
Colton received no promises, rewards, or inducements that the
Commonwealth was obligated to disclose.
With respect to the Commonwealth's delayed disclosure of a
later statement Colton made about the DCF call, we disagree with
the defendants that this statement was a critical change in his
story. In his initial statement to the police, Colton did not
provide specific information about the location from which the
DCF telephone call was made, and, later, Colton asserted that
William had made the call from Colton's home telephone. The
defendants had adequate notice of this assertion in the
Commonwealth's bill of particulars, a supplemental police
report, and Colton's follow-up interview report. The
information was provided long before trial, permitting ample
time for the defense to weave it into its over-all strategy and
counsel's cross-examination of Colton. See Commonwealth v.
Baldwin, 385 Mass. 165, 175 (1982) ("disclosure was sufficiently
timely to allow the defendant 'to make effective use of the
28
evidence in preparing and presenting his case'" [citation
omitted]).
Regarding the alleged delay in disclosing Colton's diary,
the prosecutor promptly disclosed it to the defendants on
learning of its existence in May, 2011, again, well before
trial. This provided the defendants with a sufficient
opportunity to investigate its contents and conduct a meaningful
cross-examination of Colton.
Finally, the defendants' due process rights were adequately
protected given the defendants' unhampered ability to
extensively cross-examine Colton and the jury's instruction to
carefully weigh his testimony. The defendants have not
demonstrated that any delays in receiving information
legitimately prejudiced their opportunity to effectively prepare
their defense.
5. Venue. During pretrial proceedings and prior to jury
empanelment, William moved for dismissal of the charge of making
a false report of child abuse, asserting lack of jurisdiction
and improper venue under G. L. c. 277 § 57A.14 He argued that
since the telephone call to DCF (located in Suffolk County) was
made from Colton's home (in Middlesex County), the charge should
14
As only William was convicted of making a false report,
Gail does not raise this argument on appeal.
29
have been tried in either Suffolk or Middlesex County. The
motion was denied.
Article 13 of the Massachusetts Declaration of Rights
grants the Legislature "discretion . . . to establish venue
requirements for criminal trials," Opinion of the Justices, 372
Mass. 883, 897 (1977), but acknowledges "that fairness to a
defendant normally requires that the defendant not be
transported far away for trial but rather be tried where there
is access to witnesses and evidence for the defense."
Commonwealth v. Brogan, 415 Mass. 169, 174 (1993). Since the
statute at issue, G. L. c. 119, § 51A (c), does not include a
venue provision, the question of venue here "is one of common
law within any limitation that art. 13 may impose." Brogan,
supra at 173.
The defendant has made no showing that the trial in Essex
County "was in any way prejudicial to [his] defences on the
merits, or otherwise disadvantageous to [him]." Commonwealth v.
Libby, 358 Mass. 617, 620 n.2 (1971). It is not as though the
crime is unrelated to Essex County: William lived in Essex
County, as did the victims, and the child abuse investigation
became fully manifested there. William has not demonstrated
that he was "unduly hampered by being required to appear" in
30
Essex County. Commonwealth v. Adelson, 40 Mass. App. Ct. 585,
589 (1996).15
6. E-mail authentication. The defendants moved in limine
on the first day of trial to exclude e-mail correspondence
between Gail and Colton, arguing that the circumstances were
insufficient to permit authentication or confirm Gail's identity
as the sender. During voir dire on the issue, Colton testified
that the defendants shared a joint e-mail account with which he
had exchanged many friendly e-mails for nearly a decade.
Regarding the proposed evidence, Colton testified that he
understood these e-mails to be from Gail, on William's behalf,
as they were sent after William had enlisted Colton in the
scheme, were signed using Gail's typical signature, and
referenced Colton's responses to inquiries about the harassment
scheme.16 The judge ruled that the preponderance of the evidence
authenticated the e-mails and laid a foundation for their
admissibility. We agree.
15
As we are not reversing William's harassment conviction,
there is no need to address his related argument that any
"prejudicial spillover" from evidence introduced in support of
that charge would require a new trial on the false report
charge.
16
These inquiries included references to Craigslist
postings, a telephone conversation between Colton and Gail, the
Lyonses' personal identifying information, and "Mr. Meany,"
which Colton understood to be Gail's way of referencing Jim.
31
"Evidence may be authenticated by direct or circumstantial
evidence, including its '[a]ppearance, contents, substance,
internal patterns, or other distinctive characteristics.'"
Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011), quoting
Mass. G. Evid. § 901(b)(4) (2013). The voir dire of Colton
presented sufficient evidence that some of the e-mails sent to
Colton were authored by Gail given the long-standing
relationship between Colton and the defendants, the defendants'
prior use of the e-mail address at the time of the scheme, and
the referencing of the harassing acts in the e-mails.17
7. Closing argument. In summarizing the evidence for the
jury, the prosecutor stated: "Now, how in the world can the
Johnsons explain to you why . . . ." William argues on appeal
that this statement could be interpreted as a comment on the
defendants' failure to take the stand. Viewed in context, the
prosecutor's rhetorical question was merely an attempt to
illustrate the point that the defendants' conduct could not be
reconciled with their defense. It was a "fair, unemotional
response to defense counsel's argument," grounded in both the
17
These electronic mail messages (e-mails) (in addition to
telephone conversations between Gail and Colton) were also
sufficient to establish that Gail knowingly participated in the
harassing conduct with the same malicious intent as her husband.
Accordingly, the evidence of Gail's involvement as a joint
venturer in the scheme was sufficient to survive a motion for a
required finding of not guilty. The judge's ruling to this
effect was not in error.
32
evidence and its reasonable inferences. See Commonwealth v.
Duguay, 430 Mass. 397, 404 (1999). There was no improper burden
shifting.
Additionally, William contends that the prosecutor argued
facts not in evidence in two instances, amounting to reversible
error. Specifically, the prosecutor mistakenly stated that
people came to the Lyonses' home in response to the motorcycle
advertisement (they only had telephoned), and that the Lyonses
received the letter alleging sexual molestation before rather
than following the e-mail sent by "Brian."18 The prosecutor's
two misstatements of fact did not result in a substantial risk
of a miscarriage of justice. The facts were many and varied,
and none of the misstatements "went to the heart of the case."
Commonwealth v. Coren, 437 Mass. 723, 731 (2002). Further, the
judge properly instructed the jury that closing arguments are
not evidence. Consequently, reversal is not required.
8. Speedy trial claim. Approximately two years after the
defendants were charged, they moved for a dismissal pursuant to
Mass. R. Crim. P. 36, as amended, 422 Mass. 1503 (1996), due to
speedy trial violations. The motion judge acted well within his
discretion in declining to accept defense counsels' unsworn
18
While it remains unclear from the record whether the
"Brian" letter or e-mail arrived at the Lyonses first, we
acknowledge there is a chance the prosecutor might have confused
the sequence of events.
33
representations regarding various continuances, and in denying
the motion. We agree with the motion judge that the defendants
did not undertake a proper rule 36 calculus or sufficiently
develop their argument, leaving the court unable to adequately
assess their claim. Accordingly, it is waived.
Judgments affirmed.