COMMONWEALTH v. Christopher KOSTAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the District Court, the defendant, Christopher Kostas, was convicted of criminal harassment. See G. L. c. 265, § 43A (a). On appeal, the defendant claims several errors related to the victim's allegedly improper invocation of her Fifth Amendment to the United States Constitution privilege against self-incrimination at trial. He also argues that the judge erred in declining to instruct the jury on the definition of “fighting words,” that the judge's denial of his request to include special questions on the verdict slip was error, and that the evidence was insufficient to support his conviction. We affirm.
1. Fifth Amendment privilege. a. Assertion of privilege on cross-examination. During cross-examination, defense counsel confronted the victim with statements that she made under oath while seeking a harassment prevention order. Those statements concerned whether the victim previously denied that she had a relationship with the defendant beyond that of “pretty good work friends,” contradicting her testimony on direct examination at trial that the two had been involved in a consensual physical relationship for several years. The judge appointed counsel for the victim and held an in camera hearing pursuant to Commonwealth v. Martin, 423 Mass. 496 (1996) (Martin hearing), to determine whether she had a valid Fifth Amendment privilege.2 Following that hearing, the judge permitted the victim to invoke her Fifth Amendment privilege on a question-by-question basis for the remainder of her testimony.3 The victim proceeded to do so on ten occasions. On appeal, the defendant contends that nine of those invocations of privilege were improper and, as a result, his confrontation rights under the Sixth Amendment to the United States Constitution and article 12 of the Declaration of Rights of the Massachusetts Constitution were violated.
Because the defendant did not move to compel answers to the questions at issue, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Sueiras, 72 Mass. App. Ct. 439, 446 (2008). The substantial risk standard requires us to review the evidence and the case as a whole to “determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ ” Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005).
As the Commonwealth concedes, and we agree, the majority of the questions related to issues beyond the scope of the victim's Fifth Amendment privilege. We turn then to the effect on the defendant's constitutional right to cross-examine the victim. See Commonwealth v. Turner, 393 Mass. 685, 690 (1985), quoting United States v. Farnsworth, 729 F.2d 1158, 1162 (8th Cir. 1984) (“A defendant's confrontation rights have not been violated ‘unless the limitation on the cross-examination could reasonably be expected to have a substantial effect on the jury's decision’ ”).
The defendant's theory at trial was that he reasonably believed his contact with the victim was appropriate because he was unaware the victim no longer wanted to continue their relationship and, relatedly, that his account should be credited over hers.4 The questions at issue pertained to whether all of the defendant's touching of the victim was consensual, whether the victim was misleading when she previously did not characterize the relationship as an affair, whether the defendant explicitly told the victim he blamed her for his termination, and whether she found the defendant's e-mails threatening. While the defendant casts these topics as directly related to the crime charged, the questions posed sought to undercut the victim's credibility by highlighting perceived inconsistencies in her testimony at various proceedings. To that end, the defendant here “received the beneficial effect” of having the victim invoke the Fifth Amendment in front of the jury when questioned about her prior statements.5 Turner, 393 Mass. at 691. Cf. Commonwealth v. Phoenix, 409 Mass. 408, 429 (1991) (“Although it may have been improper for the judge to permit [the witness] to claim the privilege in front of the jury, ․ the ruling certainly did not prejudice the defendant. Hence, experienced trial counsel did not object”). During cross-examination, the victim also admitted that she previously lied under oath when she said she did not have a “relationship” with the defendant.6
Moreover, notwithstanding the victim's invocation of privilege in certain instances, these issues were the subject of thorough cross-examination and, thus, any testimony elicited would have been cumulative or repetitive.7 Some issues probed, such as whether the relationship between the victim and the defendant was an “affair” rather than “friends with benefits,” also were collateral. See Turner, 393 Mass. at 690-692 (no substantial likelihood of miscarriage of justice where defense barred by witnesses’ assertion of Fifth Amendment privilege from eliciting collateral and cumulative testimony). In viewing the entire record, we are not left with a serious doubt whether the result of the trial might have been different had the victim not been permitted to invoke her Fifth Amendment privilege.8
b. Failure to strike testimony. The defendant argues, in the alternative, that the trial judge erred in denying his motion to strike the entirety of the victim's testimony based on her invocation of her Fifth Amendment privilege and in denying his related motion for reconsideration. We review for prejudicial error and discern no error because, as discussed above, the testimony that the defendant was barred from eliciting was merely collateral, cumulative, or repetitive. See Commonwealth v. Funches, 379 Mass. 283, 293 (1979) (“If the witness's testimony would merely have been collateral or cumulative, the direct testimony need not be struck”).9
c. Lack of curative instruction. The defendant contends that the trial judge erred in failing to provide a curative instruction to explain the victim's invocation of her privilege under the “Fifth.” Because the defendant twice requested such an instruction, we review for prejudicial error. See Commonwealth v. Kelly, 470 Mass. 682, 687 (2015).
Any curative instruction necessarily would have included an explanation that the jury were not permitted to draw any inferences for the prosecution or the defense based on the victim's assertion of her Fifth Amendment privilege. See Commonwealth v. Gagnon, 408 Mass. 185, 197-198 (1990), S.C. 430 Mass. 348 (1999). At the very least, the victim's invocation of privilege here did not bolster the prosecution's case and may well have led the jury to draw a negative inference as to her credibility. See id. at 197, quoting State v. Corrales, 138 Ariz. 583, 590 (1983) (“It has long been recognized that jurors tend to view a witness’ invocation of the privilege as a ‘clear confession of crime’ ”). Therefore, the fact that the jury were not instructed in the manner described could only have benefited, and did not prejudice the defendant.10
2. Failure to define “fighting words.” The defendant contends that the judge erred in failing to instruct the jury on the legal definition of “fighting words.” Because the issue was preserved, we review for prejudicial error. See Kelly, 470 Mass. at 687.
Where, as here, the harassing conduct included behavior beyond speech, an instruction on the definition of “fighting words” or other constitutionally unprotected forms of speech reached by the statute was not required.11 See Commonwealth v. Bigelow, 475 Mass. 554, 572 (2016) (where criminal harassment complaint based solely on incidents of pure speech, “jury are to be instructed on the unprotected character of speech that they must find the Commonwealth to have proved beyond a reasonable doubt”). See also Commonwealth v. Braica, 68 Mass. App. Ct. 244, 246 (2007) (“ ‘acts’ [within criminal harassment statute] may include harassing statements as well as harassing conduct, so long as ‘constitutionally protected speech’ is not punished” [citation omitted]). Notably, the Commonwealth presented evidence that the victim observed the defendant drive slowly by her house on one occasion, and that the victim twice saw the defendant outside of her child's day care. To the extent that the defendant contends that the prosecution improperly relied on the content of the defendant's e-mails, that testimony was permissible. While the content of the e-mails did not amount to constitutionally unprotected “fighting words,” the frequency and nature of the defendant's e-mails and the victim's responses thereto were relevant, particularly given that the defendant continued to e-mail the victim after she told him to stop. See Commonwealth v. Walters, 472 Mass. 680, 698-699 (2015), S.C., 479 Mass. 277 (2018) (given location and timing of defendant's placement of commercial sign on lawn of house he owned with victim, “the jury reasonably could have inferred that the purpose of the sign was to harass the victim and to remind her of the defendant's presence, rather than to engage in [constitutionally protected] commercial speech”). Therefore, the trial judge did not err or abuse his discretion in declining to provide the requested instruction.
3. Verdict slip. The defendant contends that the judge erred in denying his motion to amend the verdict slip to require the jury, if they found the defendant guilty, to “indicate the three (or more) incidents that the jury unanimously agreed were qualifying incidents of harassment.” We review for prejudicial error. See Kelly, 470 Mass. at 687.
Pursuant to Mass. R. Crim. P. 27 (c), 378 Mass. 897 (1979), a judge may submit special questions to the jury. “ ‘Special questions’ involve a general verdict from the jury coupled with an answer or answers to written interrogatories on one or more issues of fact, the decision of which is essential to the verdict.” Commonwealth v. Licciardi, 387 Mass. 670, 675 (1982). Special questions are rarely used in criminal trials and the decision whether to include them on the verdict slip is typically left to the discretion of the judge. See Commonwealth v. Loya, 484 Mass. 98, 105 (2020).
Special questions on the verdict slip were not required here because the Commonwealth did not pursue multiple theories of the offense at the trial.12 See id. at 105-106, and cases cited (“We have required special questions only where they are necessary to ensure that, should a jury convict a defendant of an offense, they are unanimous as to the theory of that offense”). As the jury instructions properly reflect, the offense of criminal harassment requires proof of a “pattern of conduct which includes ․ a minimum of three incidents of harassment.” See Bigelow, 475 Mass. at 561 (elements of criminal harassment). Although the Commonwealth presented evidence of more than three incidents, these alternative methods of establishing the requisite pattern of conduct are not distinct theories of how the offense was committed. See Commonwealth v. Arias, 78 Mass. App. Ct. 429, 433 (2010). Therefore, the trial judge did not abuse his discretion in denying the defendant's request for special questions.
4. Sufficiency of the evidence. The defendant challenges the sufficiency of the evidence supporting his conviction. In reviewing the denial of the defendant's motion for a required finding of not guilty made both at the close of the Commonwealth's case and at the close of all the evidence, “we consider ‘whether the evidence, in its light most favorable to the Commonwealth, ․ is sufficient ․ to permit the jury to infer the existence of the essential elements of the crime charged.’ ” Commonwealth v. Semedo, 456 Mass. 1, 7 (2010), quoting Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979).
Ample evidence was presented to support the defendant's conviction of criminal harassment.13 The Commonwealth presented evidence that in response to the defendant's July 2016 e-mails, the victim told the defendant not to send e-mails to her personal account and, if he needed a job reference, to contact her via e-mail on her work account. In October 2016, the victim observed the defendant drive by her house -- where he had never previously been invited -- at a “very slow, constant pace.” Three days later, the defendant sent several e-mails to the victim's work account, including three that were sent after the victim explained to the defendant that she no longer wanted to receive e-mails from him. The following day, the managing director of the company, who was the victim's current and the defendant's former boss, sent the defendant an e-mail indicating that he should no longer contact any employees at the company by e-mail and that any communication regarding the defendant's employment transition or exit from the company should be directed to him or the company's office manager. Thereafter, in November 2016, the defendant followed the victim from her workplace to her child's day care one evening and, the following morning, the defendant again was outside the day care, leading the victim to call 911. A recording of the 911 call was played for the jury, and the victim, the office manager at the victim's work, and the victim's boss all provided testimony relevant to the victim's mental state following the incidents and measures taken by her and her workplace as a result.
While the defendant now argues the evidence was insufficient to support findings that he acted willfully and maliciously on at least three separate occasions; the victim suffered substantial emotional distress; a reasonable person would have experienced substantial emotional distress under similar circumstances; and the defendant could have foreseen the harm caused, his argument would require us to draw inferences in his favor and to disregard the role of the jury as fact finder. We are not permitted to do so. See, e.g., Arias, 78 Mass. App. Ct. at 435 (“to indulge this argument, we would have to view the evidence in the light least favorable to the Commonwealth, which, of course, we cannot do”); Commonwealth v. Plouffe, 52 Mass. App. Ct. 543, 545 (2001) (“it is for the fact finder alone to determine what weight will be accorded the evidence”). For the reasons described, we see no basis to set aside the defendant's conviction.14
2. The Martin hearing was held midtrial. Despite the trial judge's instruction that that portion of the recording be marked impounded, it appears it was not marked as such and the complete trial transcript, including the Martin hearing, was filed with this court, not subject to impoundment, as part of the record on appeal. Thereafter, the defendant moved for access to that portion of the transcript and the Commonwealth did not oppose. The trial judge allowed the motion.
3. Based on our review of the record, we reject the defendant's argument that the victim was permitted to make a “blanket assertion” of privilege.
4. The defendant testified at trial.
5. After the victim invoked her privilege in one instance, defense counsel stated, “You take the Fifth because you're about to lie.” In another instance, defense counsel stated, “And yet you can't keep your stories straight. You're telling this Court markedly different things than you've told prior courts in previous proceedings; haven't you?”
6. Defense counsel emphasized this point following the Martin hearing:Q.: “Now, right before the break, I think I had asked you if you had lied previously and you said yes; right?”A.: “Yes, I did say that.”Q.: “Okay. And again, that was under oath.”A.: “Right.”When defense counsel again asked whether the victim lied under oath, the trial judge sustained the prosecutor's objection, finding that the question had been asked and answered “[a]ctually twice, not once.”
7. In various instances, defense counsel elicited testimony from the victim that: she viewed one incident of physical touching, observed by her boss, as unwelcome because she was in her office with the door open, even though she answered in the affirmative on direct examination when asked whether “all” of the defendant's physical contact was consensual; she previously stated under oath that she and the defendant were “pretty good work friends,” but also answered in the negative when asked if she had a “relationship” with him; she previously stated under oath, “My feeling is that he blames me for being fired,” even though she testified at trial that the defendant explicitly told her such; and she initially did not view the defendant's e-mails as threatening, but, when viewed cumulatively, she did.
8. For the same reasons, we conclude that even if the victim waived her Fifth Amendment privilege by admitting that she previously lied under oath, no substantial risk of a miscarriage of justice resulted.
9. The trial judge properly distinguished the facts of Funches, explaining that the invocation of privilege here related to a “quasi collateral, quasi tangential issue.” In Funches, the “essence of the defense” was that the defendants went to the victim's door to purchase drugs and not as decoys to allow the assailants to push their way into the apartment. Funches, 379 Mass. at 293. There, the chief prosecution witness's direct testimony was struck after he invoked his Fifth Amendment privilege on cross-examination when asked whether the defendants informed him of the purpose for their visit, which related to the “crucial sequence of events at the door.” Id.
10. For the same reasons, we reject the defendant's argument that he was somehow prejudiced by the judge's assurance during cross-examination that he would provide a curative instruction.
11. The judge instructed the jury that the statute “only reaches fighting words if speech alone ․ if speech alone is the basis for the criminal harassment charge.”
12. While the defendant likens his request to one for an instruction on specific unanimity, he never requested such an instruction and, therefore, we need not pass on the issue whether one would be required had he requested it. Cf. Commonwealth v. Julien, 59 Mass. App. Ct. 679, 686 (2003) (“when a defendant does not request a specific unanimity instruction or timely objects to its absence, ‘no substantial risk of a miscarriage of justice’ exists where ‘the evidence satisfies each element of the statute and is sufficient to defeat a motion for a required finding of not guilty’ ” [citation omitted]).
13. The Commonwealth was required to prove:“(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.”Bigelow, 475 Mass. at 561, quoting Commonwealth v. Johnson, 470 Mass. 300, 307 (2014).
14. We also reject the defendant's argument that the cumulative effect of the alleged errors warrants reversal.
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