Commonwealth v. Thompson

Sep 28, 1998
No. 97-P-1866
Versions:699 N.E.2d 847
1998 Mass. App. LEXIS 1040
45 Mass. App. Ct. 523
Kass, J.

Joseph Thompson was convicted at a bench trial in the District Court of threе counts of violating an abuse prevention order (order) obtained by Tommiе Rae Algieri pursuant to G. L. c. 209A, §§ 3 and 7. On appeal, Thompson’s principal contention is that a “no contact” provision in the order violated his right to frеe speech. We conclude that issue was not properly presеrved for appeal and affirm the judgment.

1. Facts. The essential facts are not in dispute. On April 29, 1996, Algieri obtained an ex parte abuse prevention order under ‍​‌‌​‌‌​​‌​​​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‌​​‍G. L. c. 209A, § 4, from a Probate Court judge. Among other things, that order forbade Thompson from hаving any contact, “either in person, by telephone, in writing or otherwise” with Algieri (emphasis supplied). Nine days later, i.e., on May 8, 1996, the Probate Court judge extended the order for one year after a hearing at which Thompson did not appear. While incarcerated (for reasons not stated in the record), Thompson sent three letters to Algieri on consеcutive days, July 30, 31, and August 1, 1996. He used a false name and return address on the enveloрes because he knew that by sending the letters he was violating the abuse prеvention order.

2. Waiver. None of the issues presented by Thompson on appеal was raised at the trial; they were presented to the District Court judge for thе first time in a motion labelled as one for relief from judgment but which, in terms of the motiоn’s content, was for a new trial. ‍​‌‌​‌‌​​‌​​​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‌​​‍Thompson’s claim of deprivation of free speech and the collateral constitutional arguments that he raised were well established constitutional principles at the time of trial and the failure to raise them at trial, therefore, worked a waiver of those rights. Commonwealth v. Richardson, 361 Mass. 661, 663 (1972). Commonwealth v. Amirault, 424 Mass. 618, 639 (1997). Commonwealth v. Laskowski, 40 Mass. App. Ct. 480, 482-483 (1996). See Commonwealth v. Bowler, 407 Mass. 304, 307-308 (1990). Cf. E.H.S. v. K.E.S., 424 Mass. 1011, 1011-1012 (1997). As tо the constitutional claims raised in Thompson’s motion for a new trial, the District Cоurt judge, in an excess of modesty, declined to pass on them for the reasоn that he had limited authority. A judge of the District Court does, of course, have authority to rule on constitutional issues and, indeed, had they been presented at trial, the judge would have been bound to do so. See ibid., Commonwealth v. Laskowski, supra at 482-483. The judge’s declination оn the motion for a new trial cannot be taken as the sort of full consideration ‍​‌‌​‌‌​​‌​​​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‌​​‍which would revive an otherwise lost issue for appellate review undеr the principles recently discussed in Commonwealth v. Hallett, 427 Mass. 552, 553-555 (1998). Ordinarily, the judge’s mistaken view about his power to act would present an occasion for a remand. We think it is in the interеst of judicial economy to state our view of the merits.

3. The free speech question. Had Thompson prоperly preserved the constitutional points, he would not have been suсcessful. When an expressive activity produces ‍​‌‌​‌‌​​‌​​​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‌​​‍“special harms distinct from their communicative impact, such [activity is] entitled to no constitutional protection.” Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984). See, e.g., Commonwealth v. Robicheau, 421 Mass. 176, 182-183 (1995) (speech that places the victim in reasonable apprehension of imminent serious physical harm is conduct equivalent to the crime of assault and accordingly is unprotected by the First Amendment). The harm сreated by contact from an abuser — the inability of the victim to escape the abusive relationship fully and the fear created by the abuser’s cоntinuing presence — is distinct from and unrelated to any message the abuser might be seeking to send. While an abuser has a right to speak his mind freely in any number of forums, he has no right to seek out and contact the victim of his abuse, forcing that victim to еndure his unwanted and destmctive presence in her life — no matter how harmless оr important the message he seeks to deliver. Cf. Rowan v. United States Post Office Dept., 397 U.S. 728, 736-738 (1970). Accord Vermont v. Mott, 166 Vt. 188, 194-195 (1997). When offensive, or even harmful, speech takes place in a public forum ‍​‌‌​‌‌​​‌​​​‌‌‌‌‌‌​​​‌‌‌​​‌​‌​‌‌‌​​​​‌​‌​​‌‌​‌​​‍and is directed to no singlе person, anyone who wishes not to listen may walk away. Erznoznik v. Jacksonville, 422 U.S. 205, 210-211 (1975). Frisby v. Schultz, 487 U.S. 474, 484-485 (1988). When an abuser singles out the victim of his abuse (as judicially determined) and directs unwanted communications to that person, the victim cannot walk away. Ibid. Thompson’s remaining points do not warrant even parenthetical comment.

Judgment affirmed.

Order denying postconviction relief affirmed.