Commonwealth v. Walters, 37 N.E.3d 980

Background

Defendant and victim (former romantic partners) lived together in Seekonk, MA; after breakup (2007) victim obtained a G. L. c. 209A restraining order requiring defendant to leave and stay away from the house.
Over 2007–2008 the defendant engaged in repeated acts at the Seekonk property while the order was in effect: placing heavy equipment and boulders to block access, screwing shut shed doors, removing exterior light bulbs, leaving the water off and human waste in toilets, and removing appliances/furniture; he also posted disparaging material about the victim on Zillow and MySpace.
In January 2011 a Facebook profile for the defendant was viewed by the victim and her partner: it displayed a photo of him holding a rifle and a quotation, “Make no mistake of my will to succeed in bringing you two idiots to justice.”
The defendant was indicted for stalking (G. L. c. 265, § 43(a)), criminal harassment (G. L. c. 265, § 43A), two counts of violating the restraining order (G. L. c. 209A, § 7), and two counts of perjury; a jury convicted on all counts except rape/indecent assault charges.
The SJC reviewed whether the Facebook content could qualify as a statutory “threat” (and thus support stalking), whether the Commonwealth proved the pattern-of-conduct elements for stalking/harassment, and several trial- and due-process-related claims.
Holding summary: stalking conviction vacated for insufficient evidence that the Facebook profile was a § 43(a)(2) threat; convictions for criminal harassment, two restraining-order violations, and one perjury conviction affirmed; one perjury conviction also affirmed.

Issues

Issue	Commonwealth's Argument	Walters' Argument	Held
Whether defendant's Facebook profile (photo with gun + quotation) constituted a "threat" under G. L. c. 265, § 43(a)(2) and thus a "true threat" outside First Amendment protection	The profile communicated a threat aimed at victim and her partner and, in context of prior harassment and weapons conduct, satisfied the statutory threat element	The page was ambiguous, temporally remote from prior conduct, and protected speech; insufficient proof of intent to place victim in imminent fear	Vacated stalking conviction: insufficient evidence that the Facebook page was a § 43(a)(2) threat or that defendant intended to communicate a threat to victim
Whether the Commonwealth proved the "pattern of conduct/series of acts" element for criminal harassment (three or more incidents)	Past acts (equipment placement, boulders, removing lights, bringing accomplice Cynthia Dugas to view house, removing appliances, posting disparaging material) cumulatively alarmed the victim	Some individual acts were innocuous or explained by legitimate purposes (e.g., business sign, property access)	Affirmed criminal harassment conviction: jury reasonably found multiple harassing incidents and that their cumulative effect seriously alarmed the victim
Whether defendant violated the restraining order when permitted limited access to garage during specified hours (and whether trial instructions were proper)	Permitted garage access did not authorize other intrusions; placing boulders/removing light bulbs interfered with stay-away terms	The modification converted the order during those hours so defendant could not have violated it; jury instruction mischaracterized acts	Affirmed convictions for two restraining-order violations: natural reading of modification allowed access only for garage purposes; instructions appropriate
Whether prosecutorial errors (misstated testimony in closing; delayed disclosure of victim's e‑mails/journal entries) and evidentiary rulings warranted a new trial	Misstatements and delayed disclosure occurred but did not create a substantial risk of miscarriage of justice; e‑mails were mostly inculpatory and defense cross‑examined witness on them	Misstatement improperly bolstered victim; delayed production of e‑mails denied exculpatory material and prejudiced defense	No new trial: misstatement harmless in context; delayed disclosure not shown to be materially exculpatory and defense had opportunity to cross‑examine

Key Cases Cited

R.A.V. v. St. Paul, 505 U.S. 377 (content‑based speech restrictions are presumptively invalid)
Virginia v. Black, 538 U.S. 343 (true threats are unprotected speech; definition and rationale)
Watts v. United States, 394 U.S. 705 (context can render violent rhetoric constitutionally protected political hyperbole)
O'Brien v. Borowski, 461 Mass. 415 (Massachusetts discussion of unprotected speech categories and true threats)
Commonwealth v. Matsos, 421 Mass. 391 (threat element requires intent to place victim in imminent fear and reasonableness of fear)
Commonwealth v. Chou, 433 Mass. 229 (contextual analysis of words/actions may support finding of threat)
Commonwealth v. Robicheau, 421 Mass. 176 (verbal threats placing victim in reasonable apprehension of imminent serious harm are not First Amendment protected)
Commonwealth v. Latimore, 378 Mass. 671 (standard for reviewing sufficiency of evidence)