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Appeals Court of Massachusetts.



Decided: April 21, 2021

By the Court (Green, C.J., Neyman & Grant, JJ.1),


While attending the criminal trial of his brother-in-law on charges of sexually assaulting the victim, the defendant learned identifying information about the victim. After the defendant's brother-in-law was found guilty, but before he was sentenced, the defendant utilized that information to locate the victim on Facebook and he sent her a message. The message read: “U fuck my bro life up u lied in court what kind of peace [sic] of shit are you stop spread ing [sic] your legs.” As a result of that message, the defendant was charged by complaint with witness intimidation in violation of G. L. c. 268, § 13B. The defendant brought a motion to dismiss the complaint for lack of probable cause and, after a nonevidentiary hearing, a District Court judge allowed the defendant's motion. For the reasons that follow, we vacate the order dismissing the complaint and remand the case for further proceedings in the District Court.

We review de novo a judge's decision to allow a motion to dismiss a complaint for lack of probable cause. See Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013). In reviewing a motion to dismiss a complaint, we must decide whether the complaint application contains “sufficient evidence to establish the identity of the accused ․ and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). “[A] motion to dismiss a criminal complaint ․ is decided from the four corners of the complaint application, without evidentiary hearing,” Commonwealth v. Bell, 83 Mass. App. Ct. 61, 62 (2013), viewing the evidence presented in the application and the reasonable inferences therefrom in the light most favorable to the Commonwealth. See Commonwealth v. Rex, 469 Mass. 36, 41 (2014).

The ground upon which the motion judge based her decision is not clear from the record before us. However, to the extent that the decision was based on a determination that the defendant's conduct was not proscribed by the statutory elements of G. L. c. 268, § 13B, the ruling was in error. In pertinent part, G. L. c. 268, § 13B (b) provides:

“Whoever willfully, either directly or indirectly: (i) threatens, attempts or causes physical, emotional or economic injury or property damage to; ․ or (iii) misleads, intimidates or harasses another person who is a: (A) witness or potential witness; ․ with the intent to or with reckless disregard for the fact that it may; (1) impede, obstruct, delay, prevent or otherwise interfere with: a criminal investigation at any stage, a grand jury proceeding, a dangerousness hearing, a motion hearing, a trial or other criminal proceeding of any type or a parole hearing, parole violation proceeding or probation violation proceeding; ․ or (2) punish, harm or otherwise retaliate against any such person described in this section for such person or such person's family member's participation in any of the proceedings described in this section ․”

When viewed in the light most favorable to the Commonwealth, the defendant's conduct was intimidating and undertaken with the intent to impede or interfere with a proceeding. The defendant sent a message that could reasonably be inferred to contain threatening or harassing statements, especially considering the sexually explicit language he used. See Commonwealth v. Peace Chou, 433 Mass. 229, 234 (2001) (“Sexually explicit language, when directed at particular individuals in settings in which such communications are inappropriate and likely to cause severe distress, may be inherently threatening”). Moreover, the defendant sent the message to the victim on the same day as his brother-in-law's conviction, but before sentencing, when she would have the opportunity to present a victim impact statement, G. L. c. 258B, § 3 (p). That supports an inference of his intent to interfere with, or deter, the victim's further participation during the sentencing phase. See Bell, 83 Mass. App. Ct. at 64 (finding that “the defendant's intent was a fairly obvious inference” given that defendant threatened victim after he was found guilty, but before sentencing). “A judge considering a motion to dismiss should not confuse the question of probable cause to arrest with questions more properly resolved by the fact finder at trial,” id., and at this stage the Commonwealth had met its necessary burden of demonstrating probable cause that the defendant violated G. L. c. 268, § 13B.

The defendant in fact directs no argument on appeal to the suggestion that his Facebook posting does not fall within the conduct proscribed by the statutory language. Instead, he argues solely that the statute cannot permissibly criminalize constitutionally protected speech. In making that argument, the defendant does not lodge a facial challenge, based on a showing that the statute imposes a substantial burden on protected speech. See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998). Instead, he challenges the statute as applied to his speech in this case, contending that the statute must be construed to avoid infringement on constitutionally protected speech.

We are sensitive to the fact that, because the defendant's conduct implicates protected speech, we must undertake a de novo review to ensure that the complaint “[has] not encroached upon expression protected by the First Amendment.” Rex, 469 Mass. at 41. However, in the posture of the case before us, on a motion to dismiss, the defendant's argument would require us to conclude that his words were indisputably entitled to constitutional protection, based on the four corners of the criminal complaint alone. The record before us is insufficient to support that conclusion.

The defendant correctly observes that only “ ‘certain well-defined and narrowly limited classes of speech’ ․ may be constitutionally prohibited.” Commonwealth v. Welch, 444 Mass. 80, 94 (2005), quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). “[T]rue threat[s]” are one such category, consisting “not only [of] direct threats of imminent physical harm, but [of] 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 an intent on the part of the speaker or actor to cause such fear.” Commonwealth v. Bigelow, 475 Mass. 554, 567 (2016), quoting O'Brien v. Borowski, 461 Mass. 415, 424-425 (2012).

The defendant's contention that his message was unequivocally not a true threat, however, fails to acknowledge that, “[i]n considering the First Amendment's protective reach, ‘critical’ to the examination is the context ․ of the speech at issue.” Bigelow, 475 Mass. at 562, citing Federal Communications Comm'n v. Pacifica Found., 438 U.S. 726, 744 (1978). See Peace Chou, 433 Mass. at 234 (“Moreover, language properly may be understood and treated as a threat even in the absence of an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response”). We consider the scant record before us to be inadequate to support a conclusion, as a matter of law, that the defendant's conduct was not a true threat. To the contrary, “[i]n the usual case, whether a communication constitutes a threat or a true threat is a matter to be decided by the trier of fact.” Bigelow, supra at 567, quoting United States v. Stock, 728 F.3d 287, 298 (3d Cir. 2013). See United States v. Clemens, 738 F.3d 1, 13 (1st Cir. 2013) (collecting cases holding same). In our view, it is premature to conclude that the Commonwealth's case, presented at trial, could not provide sufficient context necessary to portray the defendant's Facebook post as a “true threat” falling outside the bounds of constitutionally protected speech.

Moreover, even if the defendant's speech, considered in context, was not a true threat, the defendant's argument ignores the wide array of circumstances in which the government may permissibly regulate otherwise protected speech, so long as it can demonstrate that the regulation is narrowly tailored to achieve a compelling government interest. See, e.g., Commonwealth v. Disler, 451 Mass. 216, 225 (2008) (upholding the child enticement statute, although it incidentally impinged on First Amendment freedoms, because it furthered a compelling State interest).

In rejecting constitutional challenges to statutes similar to G. L. c. 268, § 13B, other states have consistently emphasized the compelling State interest in protecting witnesses from intimidation, harassment, and threats of physical violence. See, e.g., State v. Crescenzi, 224 N.J. Super. 142, 148 (1988) (“[T]he statute furthers the important governmental interest of preventing intimidation of, and interference with, potential witnesses or informers in criminal matters and easily meets the test of weighing the importance of this exercise of speech against the gravity and probability of harm therefrom”). See also State v. Kilgus, 125 N.H. 739, 745 (1984), citing Coulten v. Kentucky, 407 U.S. 104, 111 (1972) (“The United States Supreme Court has held that when an individual's interest in expression is ‘minuscule’ compared to the public interest protected by a statute prohibiting the expression, then that expression or conduct is not immune under the first amendment”). The purpose of G. L. c. 268, § 13B, is to protect “witnesses from being bullied or harried so that they do not become reluctant to testify or to give truthful evidence in investigatory or judicial proceedings.” Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). Neither the parties nor the motion judge have addressed whether G. L. c. 268, § 13B, is narrowly tailored to further this substantial State interest, and the record before us does not foreclose the possibility that the Commonwealth could make such a showing at trial. In our view, the question whether the defendant's Facebook posting is entitled to constitutional protection, foreclosing criminal prosecution under the witness intimidation statute, is better left for evaluation on a more fully developed factual record, at the close of the Commonwealth's case on a motion for a required finding of not guilty. Cf. Commonwealth v. Figueroa, 83 Mass. App. Ct. 251, 266 (2013).

The order dismissing the complaint is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.

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