COMMONWEALTH VS. HARVEY J. BIGELOW.
Bristol. January 8, 2016. - September 27, 2016.
Supreme Judicial Court of Massachusetts
475 Mass. 554 (2016)
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.1
Criminal Harassment. Constitutional Law, Freedom of speech and press. Practice, Criminal, Argument by prosecutor.
At the trial of a complaint charging criminal harassment, the evidence was not sufficient to support the defendant‘s conviction with regard to one victim, where that victim was an elected official and the letters qualifying as the harassing conduct primarily discussed issues of public concern, thereby falling within the category of constitutionally protected speech at the core of the First Amendment to the United States Constitution; and where the evidence was insufficient to persuade a reasonable fact finder that that victim was seriously alarmed by the receipt of the letters. [561-565]
At the trial of a complaint charging criminal harassment of a victim who was the wife of an elected official, the evidence was sufficient to permit a reasonable fact finder to conclude that three of five letters that the defendant sent were directed to the wife, that the speech contained in those letters qualified as true threats, and that the anonymity of the letter sender (at the time of their being sent) increased the letters’ potential to instill in the wife a fear of future harm, including physical harm, being visited on her in her home; however, this court vacated the defendant‘s conviction and remanded the matter for a new trial, where the judge‘s instructions to the jury did not inform them that where the complaint is based on incidents of pure speech, they must find that the defendant‘s challenged speech constituted a true threat and therefore was constitutionally unprotected speech. [565-572] DUFFLY, J., dissenting, with whom SPINA and HINES, JJ., joined.
Discussion of elements of a prosecutor‘s closing argument that might arise at the retrial of a criminal complaint. [573]
COMPLAINT received and sworn to in the Taunton Division of the District Court Department on November 18, 2011.
The case was tried before Gregory L. Phillips, J.
Diana Cowhey McDermott for the defendant.
David B. Mark, Assistant District Attorney, for the Commonwealth.
BOTSFORD, J. In 2013, the defendant Harvey Bigelow was convicted of two counts of criminal harassment under
Background. In April, 2011, Michael was elected as a selectman of the town. Between May 9 and July 23, 2011, at approximately two-week intervals, the Costellos received five anonymous, typewritten letters that were mailed to their home. The letters were addressed to both Costellos or to Susan, and all were authored by the defendant.3
The first letter, received around May 9, was sent to the Costellos in an envelope addressed to “Mr. and Mrs. Costello,” but the salutation in the letter itself mentioned only Michael. Although the letter included a variety of personal insults directed to and at Michael, in significant part it consisted of statements criticizing Michael‘s performance as a selectman, including, as its opening salvo, the following: “Michael Costello - The biggest fucking loser I have ever met. You should be utterly ashamed
“This is how it will go down real soon - you will be arrested at town meeting, relieved of all your town positions, and ultimately be sent to prison as a [two] time loser convicted felon. I‘m guessing maybe [ten] years this time if nothing else comes out. Sound good you fucking asshole. Can‘t wait to see you handle Monday night. We will all be staring at you!!!!!!!!!! This letter will be all over town by then as well as at selectmens’ [sic] meeting. You really fucked up this time Mikey boy.”5
The envelope of the second letter, sent on May 26, was addressed to Susan, but again the text of the letter itself appeared to be directed to Michael. The letter referred to Michael‘s “criminal mess” and stated that Michael “is indeed being investigated by not only the inspector general, but also by the Attorney General and the FBI“; that Michael “is guilty of fraud . . . [and] screwed a nice old senior citizen . . . out of his house by scamming the lottery“; and that he “was indeed convicted of stealing from Horner Millwork and sentenced to three years in prison plus probation and restitution . . . we will have [the public record of his conviction] at Tuesday‘s meeting.” The letter exhorted Michael to “resign immediately or else. Or be put on administrative leave pending investigation,” and later repeated, “resign immediately I suggest.” The letter added, “[T]his is such a good letter I think I will send it around and post it at Vino‘s.”6
Attached to either the second or the third letter was a separate, handwritten note that stated:
“Mikey + Susan -
“Please forward your new address AFTER YOU MOVE. I know where you can buy a tent or maybe you have $245,000 to buy that house in our development.
“The Horner boys [and] the newsmen will be there Tues[day]. I wouldn‘t show up if I were you.
“A Concerned Citizen”
The third and fourth letters, respectively sent June 15 and sometime near or at the end of that month, were each sent in an envelope addressed to Susan, and the salutation of each letter was also directed to her. The third letter began, “I am sure you are not surprised to receive another letter regarding the disgusting cheat you are married to. . . . [W]hat were you thinking getting tied up with such a scum bag.” Following another three paragraphs of derogatory comments about Michael and rhetorical questions asking how Susan could defend him, the letter ended with a suggestion that Susan would need to move out of her home: “Have you selected a new place to live? Maybe now would be a good time to preplan your future. . . . If I were you, I‘d spend less time defending this worthless human being and more time worrying about yourself.”
The fourth letter enclosed a copy of a page from a newspaper containing a critical letter to the editor written by a retired attorney about Michael‘s “abuses” and the fact that Michael was being investigated by the Attorney General and other State authorities; across the copy was a handwritten comment stating, “Suzie - Preview of Coming Attractions” (emphasis in original). The fourth letter itself stated, “The authorities will continue to hound [Michael] until you and he can‘t stand it anymore. Maybe you will have to live like Whitey Bulger frequenting plastic surgeons to have any hope of a peaceful lifestyle. The only difference is Whitey has unlimited funds and you don‘t.”
The envelope containing the fifth letter was addressed to “Susan ‘The Maid’ Costello” and was sent July 23. The salutation of the letter itself was addressed to “Lorraine,” but handwritten across the top was a message stating, “Hey Sue - why don‘t you come to the meeting on Mon.” The letter asked if Lorraine was “screwing” Michael, and stated that “[w]ord about town is that he is screwing the assistant town clerk or treasurer, or maybe both. There are pictures being circulated that prove it.” The letter then
After receiving and opening the first letter, Michael brought it to the police. Thereafter, the police began an investigation and Michael delivered all five letters to the police department, receiving back copies of the letters from the police a few days later. Both Costellos read all five letters, either at the time they arrived by mail at their home or at a later point when the police provided the copies. Michael testified at trial that he “felt like [his] character was run through mud and . . . it was [not] fair” and that he suffered a “bad” emotional reaction, principally because of the effect on his wife: he “felt bad that [his] wife had to go through a situation like this because [he] was [aspiring] to be a selectman.” Susan testified that she “was hysterical,” and that she “couldn‘t stop crying, couldn‘t sleep,” was “afraid to live in” her own home, and “afraid to be alone.” She further testified the letters were “affecting [her] whole life” and she was “ready to move” by the time she received the fifth letter because she was “scared out of [her] mind” to be living in the town and specifically at their house.
On November 18, 2011, a two-count complaint issued out of the District Court charging the defendant with criminal harassment in violation of
Discussion. 1. Protected speech and § 43A. The criminal harassment statute punishes “whoever 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 that person and would cause a reasonable person to suffer substantial
“[Section] 43A is a statute directed at a course of conduct, rather than speech,” Commonwealth v. Johnson, 470 Mass. 300, 308 (2014), but unquestionably, the statute reaches speech, treating speech as a form of conduct. See Commonwealth v. Welch, 444 Mass. 80, 87-89 (2005). On various occasions, this court has grappled with the application of
2. Sufficiency of the evidence. a. Complaint concerning Michael. A conviction under
The defendant‘s argument is that even if at least three of the five letters sent to Michael might qualify as separate acts constituting “a knowing pattern of conduct or speech” (first element), these acts cannot be prosecuted as criminal harassment and subject to criminal punishment because the essence of the conduct was speech and, in particular, constitutionally protected political speech. As to Michael, we agree. That is, when those letters that were arguably “directed at” (see
In considering the First Amendment‘s protective reach, “critical” to the examination is the context and content of the speech at issue. See Federal Communications Comm‘n v. Pacifica Found., 438 U.S. 726, 744 (1978). It is true that the letters were sent to Michael at his home, a location where the homeowner‘s privacy is itself entitled to constitutional protection. Cf. Rowan v. United States Post Office Dep‘t, 397 U.S. 728, 736, 738 (1970). Cf. also Cohen v. California, 403 U.S. 15, 21 (1971) (“[T]his Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from
Conceding that the letters contain protected political speech, the Commonwealth urges that, as in Johnson, the defendant‘s speech was integral to a larger course of harassing conduct directed at Michael that caused Michael serious and reasonable alarm. The argument fails. With respect to the issue of integrated speech and conduct, this case is very different from Johnson. The facts before the court in Johnson, 470 Mass. at 303-305, demonstrated that the defendants used their speech intentionally to initiate and carry out a plan of harassment of the victims through
There is a second, independent, reason for rejecting the Commonwealth‘s argument in support of Michael‘s conviction: the evidence presented at trial was insufficient to persuade a rational fact finder that Michael was himself “seriously alarmed” by the receipt of the letters, one of the elements of the crime that the Commonwealth was obligated to prove. Michael testified that he felt it was “unfair” that his “character was really run through the mud,” but recognized his election as selectman opened him up to some criticism, and that the emotional distress he experienced by receipt of the letters was “mostly [his] wife[,] because of her - the way it impacted her.” He stated that he “felt bad that [his] wife had to go through a situation like this” because he aspired to be a selectman; “[i]t affected [him] very much because . . . [he] was putting her through this.” He did not identify any specific emotional consequences or impacts he suffered directly as a consequence of his receipt of the letters.
Michael‘s experience of being upset or distressed by his wife‘s experience does not qualify as the “serious[] alarm[ ]” or “substantial emotional distress” required by
In sum, in light of the generous constitutional protections afforded to political speech by the First Amendment (as well as art. 16 of the Massachusetts Declaration of Rights), and the lack of evidence of serious alarm on Michael‘s part, we conclude that the evidence was not sufficient to support the defendant‘s conviction of criminal harassment of Michael.16
b. Complaint concerning Susan. We turn to the sufficiency of the evidence as to Susan.
Three of the defendant‘s five letters were specifically directed at or targeted Susan: the third, fourth, and fifth.17 Susan was married to Michael, but she was not a selectman, did not hold any political office, and had not run for election. We do not agree with the defendant‘s suggestion that being married to a public office holder makes one in effect his or her alter ego. The defendant‘s speech directed at Susan, fairly considered, was not an expression of political views about a public official but rather a series of offensive personal comments about her and her husband Michael. But the fact that the speech may not be categorically protected as
It is clear that the defendant‘s letters addressed to Susan do not contain “fighting words,” the category of unprotected speech that Welch primarily discussed.18 In addition, for the reasons we have previously stated, we disagree with the Commonwealth that this case is like Johnson, and that the defendant‘s speech contained in the letters directed at Susan was sufficiently intertwined with conduct to be treated as unprotected. Contrast Johnson, 470 Mass. at 309-311. Nor is there any suggestion that the letters contain other possible categories of unprotected speech such as words that incite violence, obscenity, defamation,19 or fraudulent speech. See, e.g., United States v. Stevens, 559 U.S. 460, 468-469 (2010), and cases cited. “True threats,” however, are different. True threats represent a category of unprotected speech that our cases have noted is relevant to criminal harassment as defined and proscribed by
“[a] true threat does not require an explicit statement of an intention to harm the victim as long as circumstances support the victim‘s fearful or apprehensive response. . . . Nor does a true threat threaten imminent harm; sexually explicit or aggressive language directed at and received by an identified victim may be threatening, notwithstanding the lack of evidence that the threat will be immediately followed by actual violence or the use of physical force. . . .
“[T]he ‘true threat’ doctrine applies not only to direct threats of imminent physical harm, but to 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 and evince an intent on the part of the speaker or actor to cause such fear” (quotations and citations omitted).
O‘Brien, supra at 424-425.20 See Commonwealth v. Chou, 433 Mass. 229, 236 (2001) (true threats include “words that are intended to place the target of the threat in fear, whether the threat is veiled or explicit“).
We conclude that, viewed in context, a jury reasonably could conclude that the defendant‘s speech directed at Susan that was contained in each of the last three letters qualified as true threats. That is, because - in contrast to the speech directed at Michael - we cannot conclude as a matter of law that the speech directed at Susan that was contained in these three letters qualified as protected speech, it becomes a question for the fact finder to determine whether the speech was unprotected speech. Cf. United States v. Stock, 728 F.3d 287, 298 (3d Cir. 2013) (“In the usual case, whether a communication constitutes a threat or a true threat is a matter to be decided by the trier of fact. . . . It is not unprecedented for a court to conclude that a communication does not legally qualify as a threat or true threat. . . . [A] court may properly dismiss an indictment as a matter of law if it concludes that no reasonable jury could find that the alleged communication consti-
These three letters contained vulgar and hateful insults and comments that in their choice of language and their repetitive nature were disturbing, reflecting what could be found to be an obsessive interest in private matters relating to Susan - especially her marital relationship. But more to the point, some of the specific comments in the letters, such as Susan‘s possible future need to have plastic surgery to change her appearance as a self-protective measure, her current need to move out of their home, provocative warnings to Susan about attending town meetings, and the reference to Michael having burned the home of his first wife with her in it, by themselves could be found to qualify as expressing a danger to Susan‘s personal safety, especially in her home.
Furthermore, the text of the letters must be viewed contextually. From Susan‘s perspective these letters were three out of a total of five letters written to her by a person who refused to identify himself or herself except as a “concerned citizen,” and were sent at regular, two- to three-week intervals over two months - ceasing, it can be inferred, only after the defendant‘s son effectively revealed his father‘s identity. The anonymity of the letters made evaluation of the sender‘s intent impossible and, therefore, could be found to have greatly increased the letters’ potential to instill in Susan a fear of future harm, including physical harm, being visited on her in her home.21
As part of the contextual analysis, an individual‘s right “to be let alone” in her home is relevant. Cf. Rowan v. United States Post Office Dep‘t, 397 U.S. at 736, 738 (“But the right of every person ‘to be let alone’ must be placed in the scales with the right to communicate. . . . We therefore categorically reject the argument that a [mail order] vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. . . . That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives otherwise“). Cf. also People v. Shack, 86 N.Y.2d 529, 536 (1995) (“The Rowan analysis may be extended to [New York‘s telephone harassment statute]“). Not
Susan testified (and the jury could credit) that the defendant‘s acts of sending the series of anonymous letters made Susan feel no longer physically safe in her own home to the point that she wanted to move away. See United States v. Bellrichard, 994 F.2d 1318, 1321 (8th Cir. 1993) (“As a general proposition, correspondence of this sort delivered to a person at home or at work is somewhat more likely to be taken by the recipient as a threat than is an oral statement made at a public gathering, which was the situation in Watts [v. United States, 394 U.S. 705 (1969)]“). The repetitive mailing of anonymous letters to Susan‘s home - indicating, obviously, that the sender knew where she lived - could reasonably be found by a jury as supporting and indeed amplifying the message of threat to Susan‘s personal safety that the three letters contained. See Hrycenko v. Commonwealth, 459 Mass. 503, 504, 511 (2011) (letter sent to judge‘s home “made it clear . . . that [the defendant] knew where [the judge] lived” and showed intent to intimidate judge). See also United States v. Mabie, 663 F.3d 322, 327, 331 (8th Cir. 2011), cert. denied, 133 S. Ct. 107 (2012) (letters sent to prosecutors’ unlisted home addresses constituted true threats). Cf. Commonwealth v. O‘Neil, 67 Mass. App. Ct. 284, 285-286, 294 (2006) (affirming conviction of criminal harassment where defendant mailed five letters from jail to victim at her home and two more to her family; although letters contained no explicit threats, they “presumed a familiarity with the victim” who had never socially interacted with defendant, and had “obsessive tone,” establishing over-all threatening effect; no issue concerning First Amendment raised in case).22,23
At trial, the judge instructed the jury on the elements of criminal harassment in accordance with Instruction 6.640 of the Criminal Model Jury Instructions for Use in the District Court (rev. 2013).25 These instructions did not explain that the “conduct or series of acts,”
The prosecutor‘s statements asking the jury to use their common sense clearly was not improper. Cf. Opinion of the Justices, 360 Mass. 877, 880 (1971), quoting Williams v. Florida, 399 U.S. 78, 100 (1970) (“[T]he essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation . . . [which] results from that group‘s determination of guilt or innocence“). However, we agree that the suggestion to the jurors to evaluate their feelings would have been better left unsaid. Application of a reasonable person standard, as is called for in assessing the issue of “substantial emotional distress,” calls for an objective assessment to be made, but the exhortation to the jurors to evaluate their individual feelings suggests instead that a subjective assessment would be appropriate, or at least poses a risk that the jurors might substitute their individual, subjective reactions to the letters for a collective and objective assessment.
Conclusion. The defendant‘s conviction on count 1 of the complaint, relating to Michael Costello, is reversed, and the complaint is to be dismissed. The defendant‘s conviction on count 2 of the complaint, relating to Susan Costello, is vacated and the verdict set aside, and the case is remanded to the District Court for a new trial consistent with this opinion.
So ordered.
DUFFLY, J. (dissenting, with whom Spina and Hines, JJ., join). I
I write separately because I do not agree with the court‘s conclusion that the defendant‘s conviction as to Michael‘s wife, Susan Costello, based on speech in letters directed to her, is supported under the court‘s prior, long-standing definition of what constitutes a “true threat.” See Virginia v. Black, 538 U.S. 343, 359-360 (2003). The court maintains that its decision to expand the reach of the types of speech that now will be labeled unprotected “true threats” “comports with the general intent of the First Amendment to the United States Constitution to bar the government from infringing on the freedom of speech, one of the fundamental personal rights and liberties.” Ante at note 12. In reality, however, the court today removes large quantities of heretofore protected speech from any constitutional protection. Rather than expanding the definition of what constitutes a true threat, as the court does today, I would instead consider whether the defendant‘s speech, even if protected, may still subject him to conviction under
Until now, “true threats” have been defined as being limited to “those cases where the defendant expresses an intention to inflict a crime on another, has the ability to carry out that
The court‘s expansion of what heretofore have been “well-
The court does not explain the nature of the threatened crime it sees reflected in the letters sent to the Costellos, or in those sections of the letters it deems directed particularly at Susan, and does not state whether the threat is a threat to cause physical harm to Michael or to Susan.3 Nor, despite its efforts to distinguish specific portions of the letters as directed at one or the other, does it explain how statements in a letter addressed to a husband and wife, in their home, are protected political speech as to him, while, as to her, the statements constitute constitutionally unprotected speech that leaves the defendant subject to criminal liability not only under
The court sees a statement in the fourth letter, addressed to Susan and accompanied by a newspaper article about the Attorney General‘s investigation of Michael and his “abuses,” as potentially a true threat to her.5 See ante at 557, 567-568. Applying the court‘s analysis, however, it would appear equally likely to be a potential threat to Michael, intended to be communicated through Susan. Similarly, the fifth letter, addressed to “Lorraine,” in an envelope addressed to “Susan ‘The Maid’ Costello,” also contained comments about Michael‘s performance as a selectman that might be viewed as a threat under the court‘s analysis, and that seemingly were intended to be communicated to him.6 In addition, both the first and second letters stated that the defendant intended their content to be distributed publically.7 See Commonwealth v. Walters, 472 Mass. 680, 693
The result of the court‘s decision today - under which the same language, in an anonymous letter directed at an individual in the privacy of his or her home, may be political speech that is accorded the highest constitutional protection, or unprotected speech, depending on whether the reader holds an elected office - will be “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their [own] personal predilections” (citation omitted).8 Commonwealth v. Williams, 395 Mass. 302, 304 (1985).9 Based on this expansive view of a “true threat,” no reasonable person would be able to ascertain the nature of the prohibited conduct to be avoided so as not to be subject to criminal liability. Conduct that is so broad and vague that it is not readily discernable cannot constitutionally support a criminal conviction.
A conclusion that the speech at issue here is constitutionally protected, however, need not, in my view, preclude prosecution of the defendant under
Although the court‘s decision in Commonwealth v. Welch, 444 Mass. 80, 98-100 (2005), commented that it would “no[t] hesitat[e]” to interpret the language of
The Legislature enacted
A conviction under
Given this, there is no need to pursue the path the court chooses today, by stretching the meaning of “true threat” far beyond common understanding, removing broad swaths of speech from constitutional protection and imposing potential criminal liability on statements that might, in another‘s eyes, seem merely rude and offensive.
Notes
“You are not even close to being capable in any way to be a selectman, never mind a floor sweeper. Totally not capable to do the job. . . . The tide is turning against you in town and people are talking about you negatively. . . . I hear that a group of people will be at all future town meeting[s] to stare you down, talk ou[t] of turn, criticize - just like you used to do. Look for the big shit eatin[g] grins.”
Compare, for example, the court‘s statement in Commonwealth v. Walters, 472 Mass. 680, 695-696 (2015), regarding what may constitute a “true threat” within the meaning of the First Amendment to the United States Constitution, in reviewing a conviction under the stalking statute,“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 [her boy friend]. 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 [her boy friend] had inflicted on him. . . .
“Finally, the Commonwealth asserted during oral argument that, given the limited total number of items on the defendant‘s 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 [a well-known singer and survivor of domestic violence], and (4) the reference to the ‘Governors . . . Task Force on Police Corruption,’ suggested that the page could have had little meaning except to project the appearance of a threat against the victim and [her boy friend]. 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 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
“In order to prove the Defendant guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt.
“First, that the Defendant engaged in a known pattern of conduct or speech or series of acts on at least three separate occasions;
“Second, that the Defendant intended to target [Count I] Michael Costello and Count II, Susan Costello with a harassing conduct or speech or series of acts on each occasion;
“Third, that the conduct or speech or series of acts were such in nature that they seriously alarmed, Count I, Michael Costello, Count II, Susan Costello;
“Fourth, that the conduct or speech or series of acts was of such nature that they would cause a reasonable person to suffer substantial emotional distress[;] and . . .
“Five, that the Defendant committed the conduct or speech or series of acts willfully and maliciously.
“To satisfy the first element of the offense, the Commonwealth must prove the pattern of conduct, which includes a minimum of three incidents of harassment. . . .”