This post examines a rather unusual stalking case from the
Appeals Court of Massachusetts: Commonwealth
v. Cristino, 2017 WL 2989723 (2017). The court begins the opinion by
explaining that
[a]fter a jury trial, the defendant
was convicted of two counts of stalking pursuant to [Massachusetts General Laws 265 § 43(a). On appeal, he argues
that the evidence presented was insufficient to establish the requisite
elements of the offense, and that the judge's denial of his motion for a
required finding of not guilty was erroneous.
Commonwealth v.
Cristino, supra.
The Appeals Court goes on to explain how, and why, the
prosecution arose:
The victims of the defendant's alleged
stalking are the chief of police and deputy chief of police in Milford. The
evidence against the defendant came primarily from a series of Facebook posts
that he made, where he openly criticized the two heads of the police department
and accused them of corruption, drinking on the job, abusing alcohol, and
having improper relationships with local drug dealers and criminals. A total of
seventeen videos from Facebook were submitted in evidence after having been
posted to his private, personal page. There was also evidence of signs the defendant
posted on his property, which was on Milford's Main Street. The signs contained
derogatory statements about the chief and deputy chief. Finally, the chief of
police testified that he had observed the defendant following him in his car
while driving through the town.
The substance of the Facebook videos in
question varied from complaints about the chief and deputy chief, threats to
take them to court, accusations that they were regularly drinking at a local
restaurant and bar named Isabel's, and several videos depicting either the
chief's or the deputy chief's vehicles in the parking lot at Isabel's or parked
nearby. Mixed in throughout the videos are various statements which arguably,
if taken alone, could be considered to be threats. These include the defendant
saying he was going back to `old school’ in a video in which he criticized the
chief and deputy chief for spending time with criminals and stating that they,
and the town, were `bananas.’ In a separate video, while addressing `Chiefy
Weify,’ the defendant stated: `I'm not afraid of you. You're afraid of me, and
I would be too.’ In a broader sense, this video portrays the defendant
recording himself while accusing the chief and deputy chief of using drugs and
associating with drug dealers. Finally, when speaking to the unknown person who
removed a license plate from his vehicle, the defendant said, `I hope they
catch you. Better them catching you than me anyway, because I'd grab you by the
hair and keep you here or a couple of stomps on your face.’
Commonwealth v.
Cristino, supra. In another footnote, the court explains that the “defendant
surmises in this video that his license plate was stolen by the deputy chief's
child, but does not offer any basis for this accusation. Regardless, the deputy
chief's son is not a complainant in this matter.” Commonwealth v. Cristino, supra.
And in yet another footnote, the court explains that “[o]ne
sign read `Fuck you, chiefs of police”, while another “read `Milford police
chiefs, kings of Budweiser.’ Commonwealth
v. Cristino, supra. In another footnote, the court explains that “[t]he
record suggests that all accusations by the chief of the defendant following
him occurred on public roads and never at the chief's home.” Commonwealth v. Cristino, supra.
Getting back to the opinion, the Appeals Court goes on to
explain that to be
found guilty of stalking, it must be proven that a person `(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 intent to place the person in
imminent fear of death or bodily injury.’ Massachusetts General Law c. 265, §
43(a), as amended through St. 2010, c. 92, § 9. On appeal, the defendant argues
that there was insufficient evidence to prove: that his Facebook posts were `directed at’
either alleged victim; that he indicated an intent to physically threaten
either of the officers; that the officers' fear was reasonable; and that he
intended to communicate a threat of bodily injury. He further argues that
his Facebook posts
were constitutionally protected speech and that the judge erred in failing to
instruct the jury on `true threats.’
In denying the defendant's motion for a
required finding of not guilty, the judge ruled that `there was clear evidence
to establish that these were true threats rather than protected speech under the
First Amendment,’ and, therefore, there was sufficient evidence to allow a jury
to determine each element of the stalking statute was met.
Commonwealth v.
Cristino, supra.
The Appeals Court went on to explain that on
review of the judge's denial of the
defendant's motion for a required finding of not guilty, `we determine whether
the evidence offered by the Commonwealth, together with reasonable inferences
therefrom, when viewed in its light most favorable to the Commonwealth, was
sufficient to persuade a rational jury beyond a reasonable doubt of the
existence of every element of the crime charged.’ Commonwealth v. Campbell, 378 Mass. 680, 686 (1979). A
conviction may not `rest upon the piling of inference upon inference or
conjecture and speculation.’ Commonwealth v. Mandile,
403 Mass. 93, 94 (1988). `[I]t 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.' Ibid.,
quoting from Commonwealth v. Latimore,
378 Mass. 671, 677 (1979).
We conclude that the statements made by
the defendant that were the basis for his convictions were constitutionally
protected speech, and therefore could not be the basis for conviction. `[R]emarks
about a local public official constituted political speech and were at the core
of the speech that the First Amendment to the United States Constitution protects.’
Van Liew v. Stansfield, 474
Mass. 31, 38 (2016). See McIntyre v. Ohio
Elections Commn., 514 U.S. 334, 346 (1995), quoting from Roth v. United States, 354 U.S. 476, 484 (1957) (`Discussion of
public issues and debate on the qualifications of candidates are integral to
the operation of the system of government established by our Constitution. The
First Amendment affords the broadest protection to such political expression in
order 'to assure [the] unfettered interchange of ideas for the bringing about
of political and social changes desired by the people’). Although these types
of public accusations may be `vehement, caustic, and sometimes unpleasantly
sharp,’ New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964),
this form of political speech must remain `uninhibited, robust, and wide-open. Ibid.
Commonwealth v.
Cristino, supra.
The Appeals Court went on with its analysis of “true
threats” and the First Amendment:
`Nevertheless, “certain well-defined
and narrowly limited classes of speech,” do not receive constitutional protection,
including “true threats.”’ O'Brien v. Borowski,
461 Mass. 415, 422 (2012), quoting from Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 572(1942). See Watts v. United
States, 394 U.S. 705, 708 (1979); Virginia v. Black, 538 U.S. 343, 359 (2003). See
also United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (listing
`true threats’ as among `historic and traditional’ categories of unprotected
speech [citations omitted]). Comparing the definition of a true threat to the
threat component of the stalking statute, we conclude that any verbal or
written communication that qualifies as a threat as defined in the statute is
also a true threat, and therefore is not entitled to protection under the First Amendment. See Commonwealth v. Walters,
472 Mass. 680, 690-691 (2015).
`”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.. . . The speaker need not actually intend to carry out
the threat.’ Rather, a prohibition on true threats 'protect[s] individuals from
the fear of violence' and 'from the disruption that fear engenders,' in
addition to protecting people 'from the possibility that the threatened
violence will occur.”' Borowski, supra at 423, quoting from Virginia v. Black, supra at 359-360. This class of unprotected speech was developed `to
help distinguish between words that literally threaten but have an expressive
purpose such as political hyperbole, and words that are intended to place the
target of the threat in fear, whether the threat is veiled or explicit.’ Commonwealth v. Chou, 433
Mass. 229, 236 (2001). `The assessment whether the defendant made a threat is
not confined to a technical analysis of the precise words uttered. Rather, the
jury may consider the context in which the allegedly threatening statement was
made and all of the surrounding circumstances.’
Commonwealth v. Sholley,
432 Mass. 721, 725 (2000).
Commonwealth v.
Cristino, supra.
The court then explained that
[w]e compare the present case to two
recent decisions by the Supreme Judicial Court. In Walters, supra at
694-697, the court vacated a stalking conviction stemming from a
defendant's Facebook page
for insufficient evidence. The defendant in Walters
was convicted of
stalking his former girl friend, who had begun dating another man. Immediately
following their breakup, the defendant made multiple references about his guns
to the victim in veiled apparent threats. See id.
at 683. The defendant's conviction was based on his Facebook profile page posted
several years after they broke up, which the victim was shown by her boy
friend. The defendant's main profile picture showed him with a large gun across
his lap. Elsewhere on his profile page the defendant wrote a quotation: `Make
no mistake of my will to succeed in bringing you two idiots to justice.’ The
Supreme Judicial Court held that the evidence of the defendant's intent was
insufficient because `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.’ Id. at
695.
The defendant in Commonwealth v. Bigelow, 475
Mass. 554, 555 (2016), was convicted of two counts of criminal harassment after
sending five letters to a town selectman and his wife. The letters were sent
anonymously and were riddled with personal insults and vulgarities, but the
crux of the letters was criticism aimed at the selectman's ability to perform
his job as a public official. In determining that there was insufficient
evidence to support the defendant's conviction as it related to his actions
against the selectman, the Supreme Judicial Court noted that his position as a
government official impacted the reach of the defendant's First Amendment
protections. `Because these letters were directed at an elected political
official and primarily discuss issues of public concern -- [the selectman]'s
qualifications for and performance as a selectman -- the letters fall within
the category of constitutionally protected political speech at the core of the
First Amendment.’ Id. at 562. `Where
matters of public concern are the focus -- that is, “any matter of political,
social, or other concern to community” -- the First Amendment protections are
often more rigorous than when matters of private significance are at issue.’ Ibid., quoting from Snyder v. Phelps, 562 U.S.443, 453 (2011). Accordingly, since `the essence of the conduct was speech, and
in particular, constitutionally protected speech,’ there was insufficient
evidence to support his criminal harassment conviction as it related to the
selectman. Id. at 561.
Commonwealth v.
Cristino, supra.
The Appeals Court then began the process of announcing its
analysis of the issues in this case and its ruling on them:
Here, we conclude that the judge erred
in qualifying the defendant's Facebook posts as `true threats,’ and therefore
unprotected speech. True threats include 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 such [imminent physical] harm now
or in the future.’ Van Liew, 474
Mass. at 37, quoting from O'Brien,
461 Mass. at 425. Having reviewed the Facebook postings that were the grounds
for the defendant's convictions and having considered the context of the
videos, we conclude that they did not constitute threats of the kinds of
unlawful acts of violence that render speech unprotected. See O'Brien, supra at 423.
Rather, the defendant's posts `primarily
discuss issues of public concern,’ as they are clearly directed at exposing
what the defendant considered to be shortcomings in the chief's and deputy
chief's ability to properly perform their public positions. See Bigelow, supra at 562. In
accusing the chief and deputy chief of drinking on the job, spending time with
known local criminals, and generally being corrupt, the defendant's videos were
obviously attacking their capacity to effectively serve as police officers.
Statements taken individually after being parsed from the videos as a whole --
such as the chief's testimony that he took the defendant's statement that he
was going back to `old school’ to mean the defendant was going to physically
assault him -- are too remote and speculative to support a determination that
the speech was unprotected. See Walters,
472 Mass. at 695. As such, the judge erred in determining that the defendant's
speech in the videos constituted `true threats.’
The Supreme Judicial Court has held
that `any verbal or written communication that qualifies as a threat as defined
in the statute is also a 'true threat,' and therefore is not entitled to protection
under the First Amendment.’ Walters, supra at
691. Accordingly, as we have already concluded that the evidence introduced by
the Commonwealth did not rise to the level of a true threat, the threat
component of the stalking statute cannot be met. The judge's denial of the
defendant's motion for a required finding of not guilty was therefore
erroneous, as the defendant's speech was protected by the First Amendment and
an essential element of the charged offense is not supported by the evidence.
Judgments reversed.
Verdicts set aside.
Judgments for defendant.
Commonwealth v.
Cristino, supra.
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