COMMONWEALTH v. LANGE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Thomas G. Lange, the defendant, appeals from his conviction of criminal harassment under G. L. c. 265, § 43A (a). On appeal, he argues that the Commonwealth presented insufficient evidence to support the conviction, that he was denied a right to a jury trial under the Sixth Amendment of the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, and that he was denied a right to counsel. We affirm.

Background.² Over a three-week period beginning August 2, 2016, the victim, a sixteen year old checkout clerk at a Market Basket grocery store, received twenty-five packages of twenty-nine books and video recordings addressed to her at her home address.³ All were sent anonymously apart from two packages that included a packing slip with the defendant's name. The content of the packages varied from science fiction books to romance novels and the film entitled “Sex, Lies, and Videotape.” Upon receiving the steady stream of mailings the victim became frightened and “barely slept,” and was worried she was being stalked or preyed upon for sexual assault. The victim did not recognize the name on the two packages that had packing slips, did not know the defendant, and had never spoken to him before.

On August 10, eight days after the victim started receiving the packages, the defendant, still unknown to her, lined up in the victim's checkout line at Market Basket. During his purchase the victim cordially inquired about his day, as she did for any customer, and the defendant responded that he was only interested in talking about “philosophy and religion” with her. As the conversation continued, he made a reference to the book entitled “The User Illusion,” which was one of the books the victim had received anonymously. Alarmed, the victim asked whether he had been sending her packages of books and movies, and if so, how many. The defendant admitted to sending the packages. He did not know how many he had sent, however, because they were ordered through “Amazon vendors.” The victim “firmly” asked him to stop sending the packages. Appearing to be offended, the defendant told her he would stop sending them. Following the conversation the victim was “very afraid” and she immediately informed her parents, a store manager, and a friend about the encounter. Over the next two and one-half weeks, the victim received nine more packages containing twelve more items.

Very concerned, the victim contacted the police in mid-August 2016, and returned to the police again after she received the two packages that included the defendant's name. The last package she received was on August 29, 2016. The defendant was subsequently charged in the District Court with criminal harassment under G. L. c. 265, § 43A (a).

The defendant's trial was held on August 3, 2017. Shortly before its onset, the defendant told the judge that he wished to proceed pro se and submitted an executed waiver of counsel form, which inadvertently carried his signature in the wrong field. Thereafter the judge and the defendant had an extended colloquy on the decision to proceed without counsel.⁴ The defendant also expressed to the judge that he wanted a jury trial. As a result, the judge spent a good deal of time explaining to the defendant the mechanics of a jury trial. Additionally, at the urging of the judge, the defendant accepted the assistance of standby counsel.

After a recess to allow the defendant to speak with standby counsel, the defendant changed course and submitted an executed form waiving his right to a jury trial. Again, the judge explained the difference between a jury and a bench trial, and asked whether the defendant's newly expressed desire to proceed with a bench trial remained. The defendant confirmed that it did. During the trial the defendant allowed standby counsel to cross-examine the victim, move for a required finding of not guilty, and deliver closing argument. The victim was the only witness that testified.

Discussion. 1. Sufficiency of the evidence. When considering an insufficient evidence claim, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt” (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Criminal harassment is the act of “willfully and maliciously engag[ing] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress.” G. L. c. 265, § 43A (a). Additionally, proving a “pattern of conduct or speech, or series of acts” requires three or more incidents of harassment. Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). See Commonwealth v. Welch, 444 Mass. 80, 89-90 (2005), overruled on another ground by O'Brien v. Borowski, 461 Mass. 415 (2012).

Viewing the record in the light most favorable to the Commonwealth, each of the elements of criminal harassment finds sufficient support. Because the defendant admitted to sending a bevy of anonymous content to the teenage victim's home address, the defendant's actions clearly targeted the victim and were intentional. The acts could also reasonably be deemed malicious, as the defendant did not justify or mitigate his behavior and a reasonably prudent person would have foreseen the emotional harm that resulted.⁵ See Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221 (2017); Commonwealth v. O'Neil, 67 Mass. App. Ct. 284, 293 (2006). Additionally, there were at least three instances where the packages or interactions with the defendant elicited a “level of severe emotional distress from the victim.” ⁶ O'Neil, supra at 294. Finally, the Commonwealth showed that the victim was seriously alarmed by the defendant's actions. She contacted the police twice, shared concerns with her parents and a store manager, and had difficulty sleeping because she feared she was being watched or stalked. Given the defendant's apparent fixation on the victim and the strange assortment of materials sent, the victim's fear was reasonable. See Commonwealth v. Paton, 63 Mass. App. Ct. 215, 221 (2005) (“A reasonable person would be greatly disturbed by, and fearful of, the defendant's menacing and unexpected [acts], which were material invasions of the victim's mental tranquility”). Viewing the evidence in the light most favorable to the Commonwealth, the Commonwealth carried its evidentiary burden.

2. Right to counsel. The defendant next argues that his Sixth Amendment and art. 12 rights to counsel were violated, citing the failure of his initial court-appointed attorney to file a written motion to withdraw once the defendant elected to proceed pro se, a colloquy that failed to inform him of the seriousness of the charges or the disadvantages of self-representation, and his lack of signature on the written waiver of representation form.

The defendant's contentions are meritless. Certainly, “the defendant [must be] adequately aware of the seriousness of the charges, the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation” (quotations and citation omitted). Commonwealth v. Martin, 425 Mass. 718, 720 (1997). Here, the defendant told that judge from the outset that he intended to represent himself, and when offered another court-appointed attorney, explained that no prior attorney “has ever given [his] story any [credence] whatsoever” so he decided “that [he was] the best person to represent [himself].” See Commonwealth v. Chavis, 415 Mass. 703, 711 (1993) (whether to accept motion to discharge counsel on day of trial within trial judge's discretion). The judge's colloquy regarding the defendant's election to proceed pro se was not only sufficient but comprehensive; he pushed the defendant to recognize the significant burdens of pro se representation and encouraged him to accept the aid of standby counsel. The judge also informed the defendant that if convicted he faced a potential sentence of two and one-half years of incarceration in the house of correction. The defendant claims his waiver was unsigned and thus invalid, but the record shows that he in fact provided his signature, albeit in the “name of party” field of the waiver form.⁷ On this record we are satisfied that the defendant's right to counsel was never jeopardized nor violated by the proceedings.

3. Right to a jury trial. Last, the defendant challenges the validity of his executed jury waiver form because it was unsigned by trial counsel and because the jury waiver colloquy was deficient. We are not persuaded. There is no rigid format for a jury waiver colloquy. Ciummei v. Commonwealth, 378 Mass. 504, 509-510 (1979). “So long as a colloquy occurs, the sole focus of our review is whether the colloquy has provided an evidentiary record upon which the trial judge could find the waiver of a defendant was voluntary and intelligent.” Commonwealth v. Pavao, 423 Mass. 798, 802 (1996), quoting Commonwealth v. Abreu, 391 Mass. 777, 779 (1984).

In this posture standby counsel's signature has no bearing regarding the validity of a jury waiver submitted by the defendant. At the time the defendant's jury waiver was submitted, he was acting pro se and receiving the aid of standby counsel. See Commonwealth v. Leonardi, 76 Mass. App. Ct. 271, 275-276 (2010). We also see no issue with the judge's colloquy. The defendant was first carefully informed on how a jury trial worked, then later received instruction on the differences between a jury trial and a bench trial. The judge suggested that the defendant consult with standby counsel before making any waiver, which he did. There was no error.

Judgment affirmed.

FOOTNOTES

2.   We recite the facts presented to the jury in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

3.   The victim testified that “[a]t first [the packages] were arriving every other day or every two days, but quickly, within about a week, they started arriving every day. And it wasn't just one package. It was up to four or five packages a day.”

4.   When the judge asked the defendant if he was comfortable with the obligations of self-representation, the defendant told the judge that he had seen the television show entitled “Boston Legal.”

5.   Here, as in Commonwealth v. O'Neil, 67 Mass. App. Ct. 284 (2006), there seems to be an unwarranted and disturbing level of familiarity with the victim.

6.   The defendant argues that the Commonwealth failed to exclude the possibility that he purchased all of the materials with a single order. Because the number of orders placed is irrelevant, this argument is meritless. In O'Neil, 67 Mass. App. Ct. at 294, this court considered the number of instances where the victim suffered emotional distress rather than simply counting the letters sent by the defendant.

7.   Despite the defendant signing his name in the “name of party” field rather than the signature field, the weight of the evidence shows that his waiver was voluntarily, knowingly, and intelligently made. See Commonwealth v. Moran, 17 Mass. App. Ct. 200, 208 (1983).