Opinion
09-P-2281
12-12-2014
COMMONWEALTH v. DIANE O'BRIEN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The issues on appeal are whether the evidence was sufficient to support a conviction of criminal harassment and whether the conditions of probation are overbroad.,
The defendant also argues that it was error for the trial judge to deny her motion for recusal. The defendant, however, has not made a sufficient showing that the denial was an abuse of discretion. See Commonwealth v. Vasquez, 462 Mass. 827, 840 (2012) ("The judge's self-searching is entitled to deference, and there is nothing in the record to suggest he was prejudiced against" the defendant). See also Fogarty v. Commonwealth, 406 Mass. 103, 111 (1989); Commonwealth v. Adkinson, 442 Mass. 410, 415 (2004) ("To show that a judge abused his discretion by failing to recuse himself, a defendant ordinarily must show that the judge demonstrated a bias or prejudice arising from an extrajudicial source, and not from something learned from participation in the case").
The defendant also argues that her trial counsel provided ineffective assistance based upon a variety of different alleged errors. We have reviewed these arguments and determined that they lack merit.
Discussion. Sufficiency of the evidence. The defendant argues that there was insufficient evidence to support a conviction of criminal harassment because the speech and conduct supporting the conviction are constitutionally protected and, as a result, cannot be the basis of a conviction. The defendant is correct that the criminal harassment statute only reaches unprotected speech, including "fighting words" and "true threats." See O'Brien v. Borowski, 461 Mass. 415, 425 n.7 (2012). "[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 intent on the part of the speaker or actor to cause such fear." Id. at 425.
"Criminal harassment requires the Commonwealth to prove 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 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.'" Commonwealth v. Kulesa, 455 Mass. 447, 452 (2009), citing G. L. c. 265, § 43A(a).
The defendant argues that several of the communications she made to people other than the victim were not intended to target the victim and therefore are protected speech for which she cannot be punished. See Commonwealth v. Welch, 444 Mass. 80, 90 (2005) ("[T]he Commonwealth [must] establish . . . that the defendant intended to target the victim with the harassing conduct on at least three occasions"). We disagree with the defendant's contention. A threat can be intended to target an individual when it is directed to individuals who "the defendant should know will probably pass it on to the target." Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 406 (2009). Here, viewing the evidence in the light most favorable to the Commonwealth, as we must, it is a reasonable inference that the defendant should have known that her communication to courthouse staff members, where the victim served as a judge, and to his wife would be relayed to the victim because each communication referred to the victim, made serious allegations against him, and indicated or implied that there would be consequences. There was sufficient evidence that the defendant intended to direct these communications to the victim.
To determine if there is a threat, the "context in which the alleged threatening statement was made and all of the surrounding circumstances" are considered. Commonwealth v. Sholley, 432 Mass. 721, 725 (2000). O'Brien v. Borowski, 461 Mass. at 425. Here, the defendant, having no relationship to the victim aside from having a case in front of the victim in his capacity as a judge, called the victim's home on three occasions. Cf. Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 286, 294 (2006) (sending letters with "fabricated familiarity" with the victim, discussing protecting her after he leaves prison, and continuing contact after being told to stop would greatly alarm a reasonable person). Around the time of these telephone calls, the defendant came to the courtroom where the victim was sitting on several occasions and "star[ed]" at him without having any business before the court. Cf. Commonwealth v. McDonald, 462 Mass. 236, 244 (2012) (staring alone not proof of harassing conduct but could be considered harassing if combined with other evidence "from which the inference of a malevolent attitude could be drawn"). In the final call to the victim's home, the defendant alleged that the victim was responsible for the death of her son, stated that the victim and his wife do not know what it is like to lose a child, and then observed that the victim and his wife were becoming grandparents (that is, that their daughter was pregnant, which is something very few people knew at the time).
The defendant argues that being in the victim's courtroom was expressive conduct. This argument has no merit. The defendant staring at the victim was not likely to be understood as expressing her claimed message that the victim was "systematically unfair to a particular class of litigants." See Texas v. Johnson, 491 U.S. 397, 404 (1989), quoting from Spence v. Washington, 418 U.S. 405, 410-411 (1974) (for conduct to be protected by the First Amendment to the United States Constitution there must be a great likelihood that "the message would be understood by those who viewed it").
Around the same time, the defendant made telephone calls to the State trooper investigating the phone calls to the victim's house, and to the chief probation officer, making allegations concerning the victim. In the call to the chief probation officer, the defendant indicated that "people were going to pay" but would not get hurt. The defendant also came to court and appeared to be very angry and told a Probate Court staff member that the victim needed to be punished. In this context, a rational jury could infer that the second and the third telephone calls to the victim's home, the phone call to the chief probation officer, and statements to the Probate Court staff member were true threats. In addition, the defendant coming to the courtroom and staring at the victim in this context was harassing conduct. As a result, even if some of the conduct and speech presented at trial was protected by the United States Constitution, there was sufficient evidence that the defendant intended to target the victim with harassing conduct and unprotected speech on at least three occasions.
"[I]ncidents of harassment that consist of more than pure speech should [not] be exempted from punishment merely because they are accompanied by protected speech" or other constitutionally protected activities. See Commonwealth v. Welch, 444 Mass. 80, 99 n.15 (2005).
P robation conditions. The defendant argues that two of the conditions attached to her probation are unconstitutional. "Judges are permitted significant latitude in imposing conditions of probation, . . . and '[a] probation condition is not necessarily invalid simply because it affects a probationer's ability to exercise constitutionally protected rights.' . . . 'A probation condition that infringes on constitutional rights must, however, be "reasonably related" to the goals of sentencing and probation.'" Commonwealth v. Rousseau, 465 Mass. 372, 389-390 (2013). See Commonwealth v. Power, 420 Mass. 410, 414 (1995). "The principal goals of probation are rehabilitation of the defendant and protection of the public." Commonwealth v. LaPointe, 435 Mass. 455, 459 (2001). "In cases where a condition touches on constitutional rights, the goals of probation 'are best served if the conditions of probation are tailored to address the particular characteristics of the defendant and the crime.'" Ibid., quoting from Commonwealth v. Pike, 428 Mass. 393, 403 (1998).
Here, one of the conditions of probation requires the defendant to stay away from all courthouses in Massachusetts, including Federal courthouses., The crime was directed at the victim and his family and partially perpetrated at the Cambridge Probate Court. There is no evidence in the record before us that the defendant showed a propensity to disrupt court proceedings or criminally harass judges generally., This condition is not reasonably related to protecting the public. It prohibits the defendant from filing pleadings in any new matter and from attending a court session in any Federal or State courthouse in Massachusetts. See Boston Herald, Inc. v. Superior Court Dept. of Trial Court, 421 Mass. 502, 505-507 (1995) (describing the public's right to access judicial proceedings). This condition is overbroad.
This condition (condition number 7) states: "The defendant shall stay away from all Courthouses in the State of Massachusetts unless the defendant has a hearing requiring her appearance. The defendant shall have the right to enter a Courthouse for the purpose of meeting with the Court Clinic, Probation Department or filing pleadings in pending matters." This condition is in addition to condition (number 8) that the defendant "not enter any Courtroom where [the victim] is sitting."
In the initial hearing concerning the conditions, the judge clarified that the condition applies to Federal courthouses, and the judge noted that "if people have a problem with my order, either . . . it's overly broad or if something comes up, you can always come back and see me. But right now I'm going to put limits, severe limits on her access to the Court."
The Commonwealth seems to suggest that public protection includes protecting court staff from receiving pleadings that are confusing. That argument lacks merit; protecting administrative time is not the same as protecting the public and cannot justify this broad probation condition.
Neither party provided this court with the transcript of the full sentencing hearing, which was supposed to be conducted after a psychological evaluation. We were provided the transcript of the hearing in which these conditions were initially imposed pending sentencing.
The second contested condition of probation is similarly overbroad. Unlike the contested condition in Commonwealth v. Power, 420 Mass. 410, 411, 415-419 (1995), cert. denied, 516 U.S. 1042 (1996), the probation condition here is a content based restriction that implicates pure speech. Here, some restrictions on the defendant's speech concerning the victim are clearly warranted to protect the public, and the victim specifically, in this case. However, this condition limits the defendant's speech even in the most private of settings, including with her own close friends and family. The Commonwealth has not articulated any compelling reason this broad condition was needed in this case.
This condition states: "Without leave of the Court, the defendant may not make any oral or written communications concerning [the victim] or his family unless the communication is made to her attorney, is made to a mental health provider, Probation or the Court Clinic."
At the initial hearing concerning conditions, there was no discussion of this condition or the justification behind imposing this type of restriction on all speech concerning the victim.
Conclusion. Conditions of probation 6 and 7 are vacated. We remand the matter to the District Court for a determination whether more narrow conditions should be imposed in their place or in the alternative written findings explaining how the psychological evaluation, which we were not provided, makes these broad conditions reasonably related to a goal of probation. In all other respects the judgment and the order denying the motion for a new trial are affirmed.
Indeed, we have no transcript or any record of the sentencing hearing.
So ordered.
By the Court (Trainor, Sullivan & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 12, 2014.