420 Mass. 348 | Mass. | 1995
Lead Opinion
The defendant appeals from his conviction of criminal contempt and claims (1) that the trial judge’s charge to the jury omitted necessary instructions on the ele
On October 28, 1991, a Superior Court judge issued an amended permanent injunction enjoining the defendant and numerous other named individuals and organizations from engaging in certain activities at or near facilities that provide abortion counselling or services. The body of the injunction is set forth in the margin.
The defendant was arrested during a blockade of the Gynecare reproductive health clinic on Tremont Street in Boston on January 4, 1992. The blockade consisted of about thirty people, sitting directly in front of the clinic’s entrance, attached to each other by locks modified so as to make them difficult to cut. Other demonstrators were sitting on the sidewalk with their arms interlocked so as to surround the blockaders. Additionally, there was a large group of demonstrators standing around the blockade along with numerous spectators. About fifty police officers were dispatched to the clinic to remove the blockaders, handle the crowd, and keep Tremont Street clear for traffic.
. Two police detectives who were present at the scene of the blockade testified that they observed the defendant among the crowd of demonstrators, although he was not one of the persons directly blocking the clinic’s entrance. They observed the defendant speaking with other persons named in the injunction as well as known leaders of the group Operation Rescue, an organization named in the injunction. The defendant was observed gesturing to people and pointing to empty spots in the blockade as the police removed blockaders. These persons were observed trying to fill, pursuant to the defendant’s gestures, the gaps in the blockade created when the police removed other blockaders. One detective testified that he saw the defendant pulling a man by the sleeve toward the blockade area. The defendant was arrested after being chased by police down Tremont Street and was subsequently charged with violating the injunction.
1. Jury instructions. The defendant first argues that the jury instructions on aiding or abetting were incorrect in light of our discussion of clause (c) in Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert, denied, 115 S.
Planned Parenthood, supra, decided after the defendant’s trial, involved, inter alia, a constitutional challenge to clause (c) of the injunction. In response to the defendants’ argument that the clause was impermissibly vague and permitted a finding of guilt by association, we concluded that clause (c) was constitutionally sound. We stated that clause (c), “using the words ‘aiding or abetting,’ is modeled on traditional concepts of accessory liability which limit the scope of the injunction and identify those acts that are prohibited.” Id. at 481. We went on to state that, because the section is modeled on traditional concepts of accessory liability, it is clear that “[a]ny violator of the prohibition against aiding or abetting in clause (c) must share the mental state of the principal violator.” Id. We further stated that, “[b]ecause intentional conduct is the measure of a violation of . . . clauses (a) and (b) of the injunction, proof of a violation of the ‘aiding or abetting’ prohibition of clause (c) will require a showing of a defendant’s intention to assist intentional conduct violative of clause (a) or clause (b), or both.” Id.
The defendant claims that the trial judge’s instructions on aiding or abetting were insufficient in light of the Planned Parenthood opinion in that they did not instruct the jury that in order to find the defendant guilty they must first find that a person or persons intentionally violated clause (a) or (b) of the injunction and also that the defendant shared the mental state of those principal violators. We disagree.
“We . . . view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury.” Commonwealth v. Galford, 413 Mass. 364, 372 (1992), cert. denied, 506 U.S. 1065 (1993), quoting Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980). After a careful review of the judge’s charge, we conclude that the instructions were not erroneous. They were sufficient, when viewed in their entirety, properly to inform the
The judge instructed the jury that it was the Commonwealth’s burden to prove that a person or group engaged in one or more of the acts described in clause (a) or (b). The jury were also specifically told that in order to return a guilty verdict, they must find that the defendant intentionally violated the injunction and that he “shar[ed] the intent” of the principal violators. The judge charged that “[a]iding and abetting means to intentionally participate with another in the commission of an act as something the defendant wishes to bring about and seeks by his actions to make succeed.” He further instructed that the Commonwealth was required to prove that the defendant was present, aided or assisted in the actions or stood by, was willing and able to help if necessary, and “that the defendant did so while sharing the intent required to engage in the action.” The judge also instructed that aiding or abetting requires that the principal violator and the defendant “consciously act together before or during the action to bring it about” and that “in order to prove the defendant guilty, the Commonwealth [must] prove beyond a reasonable doubt that the defendant intentionally violated the order.”
The wording of the charge, as demonstrated by the excerpts provided above, adequately communicated that both the principal violators and the defendant, as accessory, must have acted intentionally. See Commonwealth v. Galford, supra at 372; Commonwealth v. Sellon, supra. In their entirety, the judge’s instructions adequately informed the jury of all of the elements of accessory liability as set forth in Planned Parenthood, supra. See Commonwealth v. Sylvester, 400 Mass. 334, 339 n.6 (1987); Commonwealth v. Richards, 363 Mass. 299 (1973). In Planned Parenthood, supra at 481, we addressed a nearly identical First Amendment challenge and stated there that, “[t]he complete answer to the defendant [’s] claims is that clause (c), using the words ‘aiding or abetting’ is modeled on traditional concepts of ac
In addition to his argument that the judge’s instructions were inadequate under Planned Parenthood, supra, the defendant claims that the instructions given allowed the jury to find him guilty by association and for expression protected by the First Amendment.
2. Sufficiency of the evidence. The defendant next claims that the evidence presented by the prosecution was insufficient to sustain a conviction under clause (c) of the injunction and that therefore his motions for a required finding of not guilty should have been allowed.
We have stated that “a motion for a [required finding of not guilty] should be denied ‘if all the circumstances including inferences [that are not too remote according to the usual
To prove a violation of clause (c) of the injunction, the Commonwealth was required to introduce sufficient evidence from which the jury could find the defendant guilty of “directing, instructing, conspiring with and/or aiding or abetting directly or indirectly any person, persons, groups or organizations who engage in any of the acts described in [clauses] (a) and (b).” In order to prove that the defendant conspired with the blockaders, the Commonwealth had to provide sufficient evidence from which the jury could infer that the defendant and the blockaders had an agreement to violate the injunction. To prove that the defendant was guilty of aiding or abetting the blockaders, the Commonwealth had to introduce sufficient evidence that someone committed the prohibited act, and that the defendant intentionally assisted the principal in the commission of the crime while sharing the mental state required for that crime. See Planned Parenthood, supra at 481; Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973).
The Commonwealth presented the testimony of two police detectives who were present at the scene of the blockade and testified to the defendant’s behavior. The first detective, who knew the defendant to be the subject of the injunction and a frequent antiabortion demonstrator, testified that he observed the defendant speaking with three or four different people in
The second police detective who was also familiar with the defendant, observed the defendant speaking with Mary Schumacher, a known leader of Operation Rescue, an organization named in the injunction. The detective observed the defendant also speaking with other known antiabortion demonstrators. The detective saw the defendant speak to people and then observed those people join the blockade. He also observed the defendant point to a spot in the blockade while grasping a man by the sleeve and pulling him toward the blockade area. This man then became part of the blockade. A small portion of the detectives’ testimony was confirmed by a videotape of the blockade that was admitted at trial and shown to the jury. An employee of Gynecare who was trapped inside the clinic during the blockade was the only other witness at the defendant’s trial.
Based on the evidence presented at trial, we conclude that a rational trier of fact could properly draw the inference that the defendant directed, instructed, conspired with, aided, or abetted persons engaging in acts described in clause (a) or (b) of the injunction, namely, “blocking or in any way obstructing access ... to any facility in the Commonwealth which provides abortion counselling or services.” Such an inference would not be “too remote according to the usual
3. Admission of photographs. Finally, the defendant argues that it was error for the judge to admit in evidence numerous still photographs of the blockade because the photographs were irrelevant and prejudicial to the defense. The photographs are not in the record before this court. However, the photographs were taken from a videotape of the blockade which was also admitted in evidence and which is before us.
It is well settled that evidence which has a “rational tendency to prove an issue in the case,” Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting Commonwealth v. Chretien, 383 Mass. 123, 136 (1981), and renders “the desired inference more probable than it would have been without [the evidence]” is relevant, and therefore admissible. Commonwealth v. Fayerweather, supra, quoting Commonwealth v. Copeland, 375 Mass. 438, 443 (1978). Relevant evidence may, however, be excluded if the court finds that its probative value is outweighed by the prejudicial effect it may have on the jury. Commonwealth v. Lewin (No. 2), 407 Mass. 629, 631 (1990), and cases cited. The determination whether relevant evidence is prejudicial and thus inadmissible is within the judge’s discretion and not reversible on appeal in the absence of “palpable error.” Id., quoting Commonwealth v. Young, 382 Mass. 448, 462-463 (1981).
The defendant argues he was unduly prejudiced by the admission of the photographs because they permitted the jury to find the defendant guilty by association with the blockaders. There was no error in the judge’s decision to admit the photographs. The judge properly could have determined that any potential risk of prejudice to the defendant was outweighed by the photographs’ high probative value. We see no reason to disturb that finding.
Judgment affirmed.
“The defendants ... are permanently enjoined, individually and collectively, from:
“(a) trespassing on, blocking or in any way obstructing access (either ingress or egress) to any facility in the Commonwealth which provides abortion counselling or services; or
“(b) physically restraining or obstructing or committing any acts of force or violence against persons entering, leaving, working at or seeking to obtain services from any facility in the Commonwealth which provides abortion counselling or services; or
“(c) directing, instructing, conspiring with and/or aiding or abetting directly or indirectly any person, persons, groups or organizations who engage in any of the acts described in paragraphs (a) and (b) above.”
The injunction stated that a violation of its order would constitute a criminal offense. This injunction, in its preliminary form, its permanent form, and as it stands now, has been at issue before this court on prior occasions. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert, denied, 115 S. Ct. 188 (1994); Commonwealth v. Cotter, 415 Mass. 183 (1993); Commonwealth v. Brogan, 415 Mass. 169 (1993); Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701 (1990).
The parties stipulated at trial that the injunction was in effect on the day of the defendant’s arrest and that the defendant had actual notice of the injunction.
The defendant points particularly to the portion of the charge in which the judge defined “directing” and “instructing,” two words which appear in clause (c). The defendant claims that these instructions “make it unlawful to provide guidance, advice, information, and encouragement in the context of a demonstration” and therefore violate the First Amendment right to free expression. We disagree. The judge did not act improperly in defining words used in the injunction. Further, clause (c) has been held to be constitutional. What is forbidden by clause (c) is not free expression but the aiding and abetting of persons engaged in the illegal acts proscribed by clauses (a) and (b).
The United States Supreme Court, in Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516 (1994), addressed a clause of an injunction similar to the one at issue here. The Court concluded that, “petitioners are not enjoined from associating with others or from joining with them to express a particular viewpoint. The freedom of association protected by the First Amendment does not extend to joining with others for the purpose of depriving third parties of their lawful rights.” Id. at 2530. Our decision in Planned Parenthood, is in accord with this reasoning, as is our decision in the instant case.
The defendant did not call any witnesses.
Curiously, the defendant does not argue that it was error to admit the videotape from which the photographs originated. However, even if he had, the same reasoning we apply here in concluding that the still photographs were properly admitted would apply equally to the videotape.
Dissenting Opinion
(dissenting, with whom Lynch, J., joins). Because I do not agree that there was sufficient evidence to permit a rational juror to find beyond a reasonable doubt that the defendant violated clause (c) of the injunction, and because the jury instructions defining the key terms of the injunction allowed the jury to convict the defendant for both constitutionally protected and unprotected activities, I dissent.
1. Sufficiency of the evidence. The majority affirms the denial of the defendant’s motion for a required finding of not guilty because it concludes that “a rational trier of fact could properly draw the inference that the defendant directed, instructed, conspired with, aided or abetted persons engaging in acts described in clause (a) or (b) of the injunction.” Ante
In reviewing the denial of a motion for a required finding of not guilty, we consider whether the evidence, taken in the light most favorable to the Commonwealth, is sufficient to permit the jury to infer the existence of the essential elements of the crime charged. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). To sustain the denial of such a motion, “it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt” (emphasis added). Id. at 677-678.
To support its contention that there was sufficient evidence to sustain the defendant’s conviction, the Commonwealth relies on the following evidence: the defendant was present at the demonstration; he associated with “known leaders of Operation Rescue” and “known antiabortion demonstrators”; he spoke with several persons who subsequently joined the blockade; and he gestured during the course of the demonstration. Ante at 350, 354-355. Much of this evidence, however, was not probative on the issue whether the defendant violated the injunction, and would not permit a rational trier of fact to infer that the defendant directed, instructed, conspired with, aided, or abetted persons engaging in acts described in clause (a) or (b) of the injunction.
First, the mere fact that the defendant was present at the demonstration does not justify the inference that the defendant assisted others in violating the injunction.
The Commonwealth also relies on evidence that the defendant spoke with several persons who joined the blockade after having spoken with him. The Commonwealth offered no evidence, however, as to the content of these conversations, and none of these individuals was arrested or charged with violating the injunction. Even if the jury could have found that the defendant associated with persons who subsequently joined the blockade, this alone does not justify an inference that he assisted in the commission of the crime. Post hoc, non ergo propter hoc. See Commonwealth v. Perry, 357 Mass. 149, 151 (1970); Commonwealth v. Fancy, 349 Mass. 196, 200 (1965). “A contrary holding would be tantamount to introducing into our law a doctrine of guilty by association . . . .” Id. See also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 (1982) (“[t]he right to associate does not lose all constitutional protection merely because some members of the group may have participated in conduct . . . that itself is not protected”).
Thus, we are left with the core evidence on which the Commonwealth primarily relies: the fact that the defendant made gestures which police interpreted as “directing” others
In the context of a political demonstration, we must carefully balance the rights of persons seeking abortions with the rights of persons protesting against laws which they believe are morally wrong. Unfortunately, today’s decision will undeniably chill the free expression of lawful protesters by sending a clear message that even the most commonplace actions during the course of a demonstration may suffice to sustain a conviction for criminal contempt. Lawful protesters will be deterred from participating in peaceful demonstrations for fear that seemingly innocuous actions may be misconstrued as violative of clause (c) of the injunction. On this record, the evidence is insufficient as a matter of law.
2. Jury instructions. Even assuming that there was no error in the denial of the defendant’s motion for a required finding of not guilty, the defendant’s conviction still should be reversed. The jury instructions defining key terms of the injunction, such as “directing,” “instructing,” and “aiding or abetting,” were so broad that the jury could have convicted the defendant for constitutionally protected activities.
The judge’s instruction defining “aiding or abetting” further contributed to the likelihood that the jury would convict the defendant for protected activities. The judge informed the jury that the assistance required for “aiding or abetting” “may take the form of . . . encouraging the other person to engage in the act.” Numerous activities could have been construed by the jury as “encouraging” other persons to engage in the blockade. Protected activities such as singing, chanting, picketing, or merely showing up in support of those who chose to further their cause through civil disobedience, could have fallen within the instruction’s proscriptions.
The Supreme Court of the United States has consistently held that, where the instructions and evidence indicate the possibility that a defendant was convicted for constitutionally protected activities, that conviction must be reversed. Stromberg v. California, 283 U.S. 359, 369 (1931). “If,
Similarly, in Thomas v. Collins, 323 U.S. 516, 518 (1945), a labor organizer was adjudged in contempt for violating a restraining order which prohibited him from soliciting new union members without first obtaining an organizer’s card as required by a Texas statute. The order adjudging the defendant in contempt was based both on a speech expressing a general invitation to a group of nonunion workers, which the Court held to be constitutionally protected speech, as well as on the solicitation of a single individual. Id. at 528-529. Because the record showed that the judgment rested both on the defendant’s protected and unprotected conduct, the Court declined to adopt the State’s argument that the judgment could be sustained on the basis of the individual solicitation alone. Id. at 528. “The judgment. . . must be affirmed as to both or as to neither.” Id. at 529.
In Street and Thomas, the judgments rested, in part, on the fact that the defendant had been found guilty based on expressive activity protected by the First Amendment. Likewise, in the present case, the jury could have convicted the defendant based on protected conduct which occurred during the course of a lawful demonstration. There was evidence that the defendant had spoken with several individuals who subsequently joined the blockade. Evidence of these conversations could have supported impermissibly a finding that the defendant “conveyed information” to those who violated the
3. Conclusion. Although I do not suggest that those who violated the injunction should escape proper contempt proceedings, instructions that allow a jury to convict an individual for lawfully and peacefully demonstrating against a particular cause reach too far. Whatever the particular contours of this injunction were intended to be, the instructions defining the terms of the injunction clearly crossed the line and allowed the jury to convict the defendant based on activities which are protected by the First Amendment. As applied, the injunction not only infringes on the defendant’s First Amendment rights, but also chills the free speech of peaceful protesters in the future. I dissent.
Although the defendant was present at the demonstration, at no point did he participate in the blockade. On the contrary, the evidence clearly showed that the defendant remained on the sidelines, lawfully demonstrating with a group of supporters who sang and carried signs.
The majority dismisses this claim by pointing out that clause (c) of the injunction has been held to be constitutional. Ante at 351, 353 n.3. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert. denied, 115 S. Ct. 188 (1994). Even if the injunction on its face is constitutional, the instructions defining the proper scope of the injunction still may deprive the defendant of his constitutional rights.
The majority also states that “[t]he judge did not act improperly in defining words used in the injunction.” Ante at 353 n.3. This response also
Finally, the majority cites to Madsen v. Women’s Health Ctr., Inc., 114 S. Ct. 2516 (1994), to support its contention that the United States Supreme Court upheld a clause in an injunction which was similar to clause (c). Ante at 353 n.4. Although the injunction at issue in the Madsen case had a clause that prohibited the defendant from “encouraging, inciting, or securing other persons to commit any of the prohibited acts,” id. at 2522, the Court did not consider the constitutionality of this clause. Id. at 2526 n.5. What the Court did consider was a portion of the injunction which prohibited individuals “acting in concert” with those named in the injunction from (1) inhibiting or impeding the ingress or egress of persons into the clinics; and (2) congregating, picketing, or patrolling within thirty-six feet of the property line of the clinic. Id. at 2522, 2530.
It is not enough that some of the language in the instruction properly defined the scope of the injunction. When sanctionable “conduct occurs in the context of constitutionally protected activity . . . ‘precision of regulation’ is demanded.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982), quoting NAACP v. Button, 371 U.S. 415, 438 (1963).
The judge told the jury that “instructing” means “to convey information, to direct, to order, to tell what to do.”
“[T]he mere abstract teaching ... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” Noto v. United States, 367 U.S. 290, 297-298 (1961). “A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation
Similarly, in defining the term “directing” the judge instructed the jury that the defendant would be in violation of the injunction if he “suggested” that others engage in the prohibited activity. This instruction, without further elucidation, also runs afoul of constitutional requirements. See Brandenburg v. Ohio, supra at 447-448.
This instruction also allowed the jury to convict the defendant for “conveying information” without regard to whether the defendant specifically intended to assist individuals in violating the injunction. To punish association with a group having both legal and illegal aims, there must be clear proof that a defendant specifically intended to accomplish the aims of the organization by unlawful means. See Noto v. United States, supra at 299. “[Tjhis intent must be judged ‘according to the strictest law,’ for ‘otherwise there is a danger that one in sympathy with the legitimate aims of such an organization, but not specifically intending to accomplish them by resort to [unlawful means], might be punished for his adherence to lawful and constitutionally protected purposes, because of other and unprotected purposes which he does not necessarily share.” NAACP v. Claiborne Hardware Co., supra at 919, quoting Noto v. United States, supra at 299-300.
