Opinion
20-P-1348
06-30-2022
COMMONWEALTH v. ADAM M. WALKER.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury-waived trial, a judge of the Superior Court found the defendant guilty on two counts of stalking. He now appeals, arguing that (1) his lengthy pretrial detention based on dangerousness violated his due process rights and (2) that the communications leading to his stalking convictions were protected by the First Amendment to the United States Constitution and by art. 16 of the Massachusetts Declaration of Rights, rendering the evidence against him insufficient. For the reasons that follow, we affirm.
The judge found the defendant not guilty on one count of witness intimidation.
Background.
We recount the relevant facts as the trial judge could have found them, reserving certain details for later discussion. The victims of the defendant's stalking are his former court-appointed attorney, who represented him in a 2014 criminal trial, and the prosecuting assistant district attorney in that matter. The defendant was convicted in the underlying case and several months later began to send his former counsel a series of threatening e-mails. At first, according to his defense counsel, the e-mails were "completely neutral" requesting certain information and assistance. However, the emails soon became "hostile[,] . . . irate, threatening, [and] disordered." Their substance varied from expressions of frustration with counsel's performance, threats to report counsel to the Board of Bar Examiners, links to various heavy metal songs with titles including "How I Could Just Kill a Man," to cryptic statements like, "You got a problem, you gotta do the metaphorical equivalent [of] shooting it in the fucking head"; "I'm not an orthodontist . . . . I'm not into pulling teeth. So don't make me, okay?"; "I have nothing better to do than put you in the dirt"; and "people are going to confuse you with a Christmas tree instead of a Christmas card, [because] you're going to get light up." Counsel testified that these emails caused him to become concerned for his safety. Soon thereafter, the defendant contacted his second victim via a string of Facebook messages. The tenor of these messages was similar to those sent to his former counsel. The defendant expressed his dissatisfaction with the verdict, noting that it cost him his job as a paramedic, and alleged that the victim committed prosecutorial misconduct. The messages also included lyrics and links to heavy metal songs, including "For Whom the Bell Tolls" and "Kill 'Em All," as well as cryptic statements like "Hades himself can't save you"; "you're so stupid that you haven't realized you are already dead"; "I'm going to drill it in that stupid fuckin limited brain [of] yours. Until I understand you understand just how fuckin stupid your failure is"; and "you're off to never never land. While I stay awake and rip your poetry of lies and deceit into orderly recognition." The second victim, too, testified that he felt threatened by the messages, explaining that he became alarmed, took measures to secure his home, and contacted the authorities.
The defendant mistakenly believed that counsel was responsible for sending his file and filing a Mass. R. Crim. P. 29, appearing in 474 Mass. 1503 (2016), motion to revise or revoke his sentence; he became aggravated when counsel did not either.
The defendant sent approximately thirty messages over the course of a few weeks.
A grand jury returned indictments against the defendant for stalking. At his arraignment on the charges in September of 2016, the Commonwealth moved for a dangerousness hearing under G. L. c. 276, § 58A. A judge of the Superior Court subsequently found by clear and convincing evidence that the defendant posed "a substantial danger to the community" and to both victims individually. The judge further found that "no conditions of release would ensure the safety of [the victims] from [the] defendant." Consequently, the defendant was held without bail until the time of his trial in June of 2019.
In addition to the stalking counts, he was also indicted for two counts of witness intimidation.
The defendant was originally released on his own recognizance for the charges related to the first victim in the Worcester Division of the District Court Department. However, his bail was later revoked on those charges, and he also was held without bail on the charges related to the second victim in the Milford Division of the District Court Department in July of 2016. Following the return of the indictments against the defendant in September of 2016, the Commonwealth moved for a dangerousness hearing at his arraignment on all of the charges in the Worcester Superior Court.
Discussion.
1. Pretrial detention.
The defendant first challenges the length of his pretrial detention under G. L. c. 276, § 58A, and Mass. R. Crim. P. 36 (b) (2), 378 Mass. 909 (1979).
General Laws c. 276, § 58A, sets out a regime for the pretrial detention of defendants who represent a danger to society. The version of G. L. c. 276, § 58A (3), in effect at the time of the defendant's dangerousness hearing provided that a person detained under the statute "shall be brought to a trial as soon as reasonably possible, but in absence of good cause, the person so held shall not be detained for a period exceeding 120 days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36 (b) (2)."
It provides in relevant part that:
"The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use or threatened use of physical force against the person of another or any other felony that, by its nature, involves a substantial risk that physical force against the person of another may result."G. L. c. 276, § 58A
The statute was later amended to allow for a detention period of 180 days in the Superior Court. See St. 2018, c. 69, § amending G. L. c. 276, § 58A
One pertinent period of excludable delay under rule 36 (b) is the "delay resulting from hearings on pretrial motions." Mass. R. Crim. P. 36 (b) (2) (A) (v), 378 Mass. 909 (1979).
Due process places limits on that pretrial detention, however. Mushwaalakbar v. Commonwealth, 487 Mass. 627, 632 (2021). See United States v. Salerno, 481 U.S. 739, 747 (1987). "[A]t some point, pretrial detention under a valid regulatory scheme may 'become excessively prolonged, and therefore punitive,' resulting in a [constitutional] violation." Mushwaalakbar, supra at 633, quoting Salerno, supra at 747 n.4. Yet, "[w]here that point is will differ in every case," and as a result, "judges must assess the permissible length of detention on a case by case basis." Mushwaalakbar, supra.
The defendant does not challenge the calculations of excludable time conducted below under Mass. R. Crim. P. 36 (b) (2) to his case. Instead, the gravamen of his claim is that the application of rule 36 to § 58A resulted in an excessively long period of restraint without reconsideration of the continuing need to deny bail. To this, he argues that he had a "due process right either to be admitted to bail, or to a judicial determination after a reasonable time that he was sufficiently dangerous to justify his continued detention without bail." He further contends that in the context of pretrial detention, Mass. R. Crim. P. 36 (b) (2) impermissibly operates to leverage a defendant's right to a speedy trial against his right to prepare a defense.
We discern no due process violation in the circumstances in this case. As an initial matter, we note that the defendant caused a sizable portion of the pretrial delay because of his inability to cooperate with five different attorneys, four of whom successfully moved to withdraw from the case. Another significant portion of the delay stemmed from various motions the defendant filed in pursuit of his defense, including a successful motion for a change of venue. But in doing so, the defendant was not forced to choose between his right to a speedy trial and his right to build a case. Instead, the defendant had two additional avenues of relief at his disposal, neither of which required him to reach the 120-day mark under § 58A.First, the defendant could have availed himself of § 58A (4), which the Supreme Judicial Court has deemed an "appropriate way for defendants to raise due process concerns" and which allows a defendant to file a motion for reconsideration of the original detention order "where there has been a material change in circumstances." Mushwaalakbar, 487 Mass. at 634. Relevant here, the Court has recognized that "[a] substantial delay in the commencement of trial" may constitute a material change. Id., quoting Commonwealth v. Lougee, 485 Mass. 70, 81 (2020). Second, the defendant could have filed a petition under G. L. c. 211, § 3, seeking relief from a single justice of the Supreme Judicial Court. See David v. Commonwealth, 489 Mass. 1001, 1002 (2022). The defendant did file a c. 211, § 3 petition in March of 2019, but in it, he raised over seventy unrelated claims, effectively burying the issue of his detention and preventing meaningful review. Because the defendant had multiple opportunities to seek individualized review of his detention order without the constraint of the 120-day period and did not adequately do so, and because much of the excludable time under rule 36 was incurred of his own volition for reasons independent of legitimate trial preparation, there was no violation of due process.
These withdrawals created excludable periods running from the attorney's motion to withdraw to the appearance of new counsel.
Very little of the delay can be ascribed to the Commonwealth or the courts in this case.
The motion for a change of venue created a period of excludable delay from November 9, 2016, to January 26, 2017.
The defendant filed numerous motions seeking review and reconsideration of his bail. Those filings, however, focused on computations of time under Mass. R. Crim. P. 36 (b) (2) and not on his entitlement to a new determination of dangerousness.
General Laws c. 276, § 58A (4), states that:
"The hearing may be reopened by the judge, at any time before trial, or upon a motion of the commonwealth or the person detained if the judge finds that: (i) information exists that was not known at the time of the hearing or that there has been a change in circumstances and (ii) that such information or change in circumstances has a material bearing on the issue of whether there are conditions of release that will reasonably assure the safety of any other person or the community."
The relevant portion of the petition stated: "Did the Commonwealth, Worcester District Court, and Milford District Court, abuse its discretion or other clear error of law by holding Adam Walker, dangerous for 120 days without bail in both courts, (over 1,000 days now)."
2. Sufficiency of the evidence. The defendant also challenges the sufficiency of the evidence supporting his convictions of stalking. We review the evidence and the reasonable inferences therefrom in the light most favorable to the Commonwealth under the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). A person is guilty under the stalking statute if:
"he or she '(1) 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 or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury."Commonwealth v. Walters, 472 Mass. 680, 689 (2015), quoting G. L. c. 265, § 43 (a). Additionally, "to establish the pattern or series required by the statute, the Commonwealth must prove the defendant committed three or more separate incidents of the proscribed behavior." Commonwealth v. Cullen, 79 Mass.App.Ct. 618, 620 (2011).
The verbal or written communications that qualify as a threat under the stalking statute are deemed true threats, not entitled to protection under the First Amendment and art. 16. Walters, 472 Mass. at 691-692. The defendant focuses his sufficiency challenge here on the statute's threat element, claiming that his messages did not constitute true threats.
Many of the defendant's messages do not or may not rise to the level of a true threat. We focus only on the messages, described above, that do.
True threats "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." O'Brien v. Borowski, 461 Mass. 415, 423 (2012), quoting Virginia v. Black, 538 U.S. 343, 359-360 (2003). The speaker need not actually intend to act on the threat. O'Brien, supra. Moreover, "[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 response or apprehensive response.'" Id. at 424, quoting Commonwealth v. Chou, 433 Mass. 229, 234 (2001). Thus, the doctrine covers both "direct threats of imminent physical harm" and "words or actions that -- taking into account the context in which they arise -cause the victim to fear [imminent physical] harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." O'Brien, supra at 425.
"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." Commonwealth v. Bigelow, 475 Mass. 554, 567 (2016), quoting United States v. Stock, 728 F.3d 287, 298 (3d Cir. 2013).
The defendant initially contends that his messages were insufficient to show an intent to physically threaten his victims. Viewing the evidence in the light most favorable to the Commonwealth, several factors lead us to agree with the Superior Court judge that the defendant possessed the requisite state of mind. First, we consider the context in which the defendant wrote the messages - out of anger over his criminal conviction that deprived him of his liberty and livelihood. See Walters, 472 Mass. at 694 (necessary to focus on content of message "in the context of the past and present relationship between the defendant and the victim to determine whether there was sufficient evidence of the defendant's intent to threaten the victim"); Chou, 433 Mass. at 237 ("defendant's language had no expressive purpose but was instead, intended to 'get back' at the victim by placing her in fear"). Second, we consider the overtly violent nature of his statements, which he directed at specific individuals, and many of which referenced their deaths or specific and unconditional acts of violence the defendant might perpetrate against them. See Cullen, 79 Mass.App.Ct. at 621 (series of mailings were "sufficiently focused on [the victim], and sufficiently explicit in the threatening nature of their message" for jury to infer threat intended to put victim in fear). Contrast Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam) (threat to shoot President did not constitute true threat in part because of its conditional nature). And finally, we consider the volume of the messages, which served to "amplify[] the message of threat." Commonwealth v. Bigelow, 475 Mass. 554, 569 (2016) . In light of the foregoing, the victims were entitled to "protect[ion] . . . from the fear of violence and from the disruption that fear engenders, in addition to protect[ion] . . . from the possibility that the threatened violence will occur" (quotations omitted). O'Brien, 461 Mass. at 423, quoting Black, 538 U.S. at 360. The defendant also claims that his statements served an independent expressive purpose as statements to public officials about matters of public concern. Walters, 472 Mass. At 691 ("speech that has an expressive purpose other than to instill fear in another may be explicitly threatening, but may nevertheless fail to rise to the level of a true threat"). In support of this proposition, he relies on Commonwealth v. Bigelow, 475 Mass. 554 (2016). There, the Supreme Judicial Court concluded that messages sent to a public official fell within the ambit of First Amendment protection because their "central thrust" was to criticize his qualifications and performance as a selectman in the town -- matters of public concern. Id. at 562. As the Court explained, "[w]here matters of public concern are the focus - that is 'any matter of political, social, or other concern to the community' -- the First Amendment protections are often more rigorous than when matters of private significance are at issue" (citation omitted). Id.
Such as his statements to his former counsel about pulling teeth, putting him in the dirt, or lighting him up like a Christmas tree and his statements to the former prosecuting attorney that even Hades could not save him, that he was already dead, and that he was off to "never never land."
Bigelow does not govern the result in this case. Even if we concluded that the victims, a prosecutor and a defense attorney, qualified as public officials, the defendant's messages did not address matters of public concern. Instead, they focused on perceived errors in an individual criminal prosecution without reference to broader issues of community significance. See Chou, 433 Mass. at 236 (purpose of true threat is to "cause injury rather than to add to, or comment on, the public discourse"); A.S.R. v. A.K.A., 92 Mass.App.Ct. 270, 279 (2017) (communications did not "express political speech directed to the public at large"). Contrast Van Liew v. Stansfield, 474 Mass. 31, 38 (2016) (public accusations by individual with history of political involvement that official seeking reelection was "corrupt and a liar" were protected political speech).
Finally, we reject the defendant's suggestion that his messages, which "consistently use[d] images, allusions, and quotations," served the separate expressive purposes of threatening the victim's careers and airing his grievances with their performance as attorneys. The contents of his messages belie this assertion, as his references to death and violence do not serve either claimed objective, and instead suggest an intent to retaliate against the victims by causing them to fear for their safety. See Chou, 433 Mass. at 237; Commonwealth v. Moran, 387 Mass. 644, 647 (1982) ("Criminal intent generally can be proved only by inferences from facts, and those inferences need only be reasonable").
Judgments affirmed.
The panelists are listed in order of seniority.