COMMONWEALTH v. STEPHEN STONE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On August 5, 2022, following a probation violation hearing at which the defendant represented himself, a judge of the Superior Court found that the defendant violated the conditions of his probation by (1) leaving Massachusetts on multiple occasions without giving prior notice to the probation department, (2) failing to engage in mental health treatment, and (3) threatening a probation officer. As a result, the judge revoked the defendant's probation and imposed four concurrent terms of six-to-eight years in State prison. The defendant appeals, arguing that (1) the judge did not make a finding as to whether the defendant, at a minimum, made the threats against his probation officer recklessly, (2) the evidence presented was insufficient to show that the defendant had acted recklessly, and (3) his waiver of counsel was not knowing and voluntary.¹ We agree with the defendant that the judge was required to determine whether the defendant acted at least recklessly by “consciously disregard[ing] a substantial risk” that his statements “would be viewed as threatening violence and delivered [them] anyway.” Commonwealth v. Cruz, 495 Mass. 110, 115 (2024). See id. at 113 (“To convict a person for making a true threat, the State must prove that the person acted at least recklessly”). Accordingly, we remand so that the judge may make that determination and consider if any resentencing is warranted. See id. at 115. See also Commonwealth v. Durling, 407 Mass. 108, 111 (1990) (“If the judge determines that the defendant is in violation ․ [h]ow best to deal with the probationer is within the judge's discretion”).

Background. On September 21, 2018, the defendant was placed on probation for a term of seven years relating to, inter alia, four charges of witness intimidation in violation of G. L. c. 268, § 13B, each from separate cases.² As relevant here, the defendant's prior criminal conduct includes charging at a police officer seeking to extend a harassment prevention order against the defendant, assaulting two corrections officers, sending a threatening bloodstained letter to an assistant district attorney, and sending another letter to an assistant attorney general who prosecuted the defendant stating that he would be “coming to see you & put a bullet in your head.” In the same letter, the defendant threatened to blow up the United States Department of Justice “like the Oklahoma City Bombing.”

The defendant was subject to the general conditions of probation, including a requirement that he “obey all local, state, and federal laws and all court orders.” Additionally, the defendant's probation was originally subject to the general condition that he could not leave Massachusetts without express permission from his probation officer. However, after two probation violation hearings at which the defendant was found to have violated the conditions of his probation by failing to obtain permission before leaving Massachusetts, a judge amended the defendant's probation conditions to allow the defendant to travel to other New England States with prior notice to his probation officer.

The defendant's probation conditions were amended to add a requirement that the defendant submit a deoxyribonucleic acid (DNA) sample, have no contact with the victims of his crimes, submit to a mental health evaluation and treatment, and provide verification of that treatment to probation. On February 1, 2022, after the defendant made threatening comments to his first probation officer, the defendant's probation conditions were amended again to require that he continue with mental health services and have no avoidable contact with the first probation officer.

On March 28, 2022, the defendant's second probation officer issued a probation violation notice based on a February 24, 2022 charge in the Milford District Court for failure to stop for a police officer.³

The second probation officer was aware that the defendant had been reassigned to him from the first probation officer after the defendant had made “remarks pertaining to” wanting to kill himself at the first probation officer's home. On April 28, 2022, the second probation officer spoke with the defendant by telephone about the defendant's mental health treatment. After that telephone call, the defendant sent the second probation officer two text messages. The first message read:

“Why you stick me in jail in West Boylston? Do you really want me to sleep closer to your house in West Boylston? If you really want, I can park my truck there if you really want me to sleep so close. I don't do anything to bother you, so lay off with your damn attitude. I'm trying to live my life, be productive, make a better life for myself, and all you are trying to do is drag me back into the goddamn system. I'm in school, doing the right thing, trying to rehabilitate myself, and you keep coming at me with an attitude and seem like you're trying to stick me back in. I did five years in state prison. I don't and won't put up with your bullshit. I am going to request a different PO tomorrow.”

The next message read: “Like I said, I'm out here doing the right thing. You keep pushing, aching to put me back in prison. Maybe I should go in front of your house and protest against your prejudice and attitude you've been since you've been on my case.” The second probation officer stated that he was scared by the text messages because “Mr. Stone has a lengthy record in which he has assaulted people. He also has mental health concerns that have -- are not being addressed at that time. And so I felt that it placed me and my family in jeopardy.” The second probation officer was also concerned that the defendant was aware that he lived in West Boylston, because the second probation officer had never disclosed to the defendant where he lived.

On April 29, 2022, the second probation officer filed a motion to amend the probation violation notice by adding four additional violations: (1) “Probation Supervision Fees in arrears;” (2) “Leaving the State multiple dates without informing Probation Department;” (3) “Failure to engage in Mental Health Treatment;” and (4) “Threatening Probation Officer.”

On June 9, 2022, at the request of defense counsel, the judge continued the probation violation surrender hearing (the surrender hearing) and ordered the defendant to be examined to determine his competency to stand trial pursuant to G. L. c. 123, § 15 (a). On July 7, 2022, a second judge committed the defendant to Bridgewater State Hospital for a criminal responsibility evaluation, pursuant to G. L. c. 123, § 15 (b). On July 27, 2022, a third judge (competency judge) held a competency hearing, found the defendant to be competent, granted his motion to represent himself, and appointed his former attorney as standby counsel.

Following a surrender hearing on August 5, 2022, the judge found that the defendant violated the conditions of his probation by “leaving the state [on] multiple dates without informing Probation” and “fail[ing] to engage in mental health treatment.” The judge also made the following findings regarding whether the defendant threatened the second probation officer:

“I found [the second probation officer] credible in regards to his perception of there being a threat. I find anyone in the position of [the second probation officer], knowing what he knew, a reasonable person in his position, would have been threatened by the text messages; in particular, the text messages on April 28 and April 29, which were entered into evidence. So I find that the Defendant did threaten the probation officer as alleged in paragraph four of the -- of the violations of probation.”

The judge concluded that the defendant “violated his probation” on three grounds.⁴ As a result, the judge revoked the defendant's probation and imposed four concurrent six-to-eight-year State prison sentences. The judge explicitly noted that, “[g]iven the Defendant's extensive history on probation, I find that he's not a candidate for probation.”

Discussion. 1. Threatening to commit a crime. “A judge's decision to revoke probation involves a two-part inquiry: the judge must determine first whether the probationer willfully has violated a condition of probation and, second, if such a violation is found by a preponderance of the evidence, whether the violation warrants revocation of probation.” Commonwealth v. Jarrett, 491 Mass. 437, 440 (2023). “The court reviews a determination to revoke probation for an abuse of discretion.” Id.

a. The defendant's mens rea. “A true threat may be punished criminally only if the speaker had ‘some subjective understanding of the threatening nature of [the] statements.’ ” Cruz, 495 Mass. at 113, quoting Counterman v. Colorado, 600 U.S. 66, 69 (2023). “[T]o convict a person for making a true threat, the State must prove that the person acted at least recklessly - - that is, the person ‘is aware that others could regard his statements as threatening violence and delivers them anyway.’ ” Cruz, supra, quoting Counterman, supra at 79. In Cruz, 495 Mass. at 111, the defendant was tried prior to the United States Supreme Court's decision in Counterman, but the Supreme Judicial Court nevertheless vacated the defendant's conviction and remanded the case for a new trial.

The defendant contends that the judge did not consider the defendant's mens rea after finding that the defendant threatened his probation officer, as Counterman now requires. Considering the judge's findings, we do not know whether the judge considered the defendant's mens rea. However, we agree that Counterman, 600 U.S. at 75, requires that the judge make a finding on the defendant's mens rea, and he did not.

To be sure, the judge explicitly credited the second probation officer's claim that he had perceived a threat and found that a reasonable person in the second probation officer's position would have been threatened by the defendant's messages. Through no fault of the judge, the judge's subsidiary findings as to whether the defendant threatened the second probation officer end there. These findings were consistent with the legal standard applicable before Counterman, which, as noted supra, had not been decided at the time of the defendant's final surrendering hearing. See Cruz, 495 Mass. at 116. However, the Supreme Judicial Court recognized in Cruz that, without instructing the jury that they “needed to find beyond a reasonable doubt that he acted with the required mens rea,” a defendant's pre-Counterman conviction for threatening to commit a crime violated the First Amendment to the United States Constitution and must be vacated. Cruz, 495 Mass. at 111. Likewise, here, consistent with the law at the time of the surrender hearing, the judge did not make findings as to whether the defendant “consciously disregarded a substantial risk that the communication would be viewed as threatening violence and delivered it anyway.”⁵ Id. at 115. Accordingly, we remand the case so that the judge may consider that issue.

The Commonwealth argues that the judge “acted well within [his] discretion in concluding that the defendant committed witness intimidation,” and Counterman does not apply to witness intimidation in violation of G. L. c. 268, § 13B. The argument is unavailing. To begin, the defendant was not notified that one of his violations included witness intimidation or that he committed a new offense. Instead, the judge found that “the Defendant did threaten the probation officer as alleged in paragraph four ․ of the violations of probation.”

Indeed, the Commonwealth's “motion to amend surrender hearing” includes “threatening probation officer” as the fourth alleged violation, while making no mention of witness intimidation. Therefore, it is clear that the Commonwealth cannot rely on a claim that the defendant's probation violation was, in fact, for intimidating a witness, where the defendant did not receive notice for such a violation. See Commonwealth v. Faulkner, 418 Mass. 352, 360 (1994) (“a defendant is entitled, among other things, to written notice of the claimed violations of probation”). It is of no moment that, while the defendant was cross-examining the second probation officer, the second probation officer stated that “[t]he violation was intimidation of a witness.” “Notice must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare [is] afforded.” See Faulkner, 418 Mass. at 360.

b. Sufficiency of the evidence. In reviewing a decision finding that a defendant violated the conditions of their probation, we “must determine ‘whether the record discloses sufficient reliable evidence to warrant the findings by the judge[, by a preponderance of the evidence,] that [the probationer] had violated the specified conditions of his [or her] probation.’ ” Jarrett, 491 Mass. at 440, quoting Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).

The defendant contends that reversal is required because the evidence was insufficient to conclude that the defendant's text messages to the second probation officer were made with at least a reckless mens rea. The defendant emphasizes that his text messages were protected conduct as a “protest,” and he intended to request a new probation officer. We disagree.

As described supra, the defendant has a documented history of threatening others with violence and, in August 2016 and June 2017, attacked two corrections officers. Indeed, the defendant sent the two text messages to the second probation officer less than three months after his probation conditions were amended to include no contact with his preceding probation officer. In light of the defendant's known history of threatening others, the evidence was sufficient to warrant a finding by the judge, who was familiar with the defendant and his criminal history, that the defendant “was aware that others could regard his statement as threatening violence and delivered it anyway.” See Cruz, 495 Mass. at 114.

2. Right to counsel. “[A] criminal defendant's waiver of the right to counsel must be made knowingly and intelligently, with ‘adequate[ ] aware[ness] of [(1)] the seriousness of the charges, [(2)] the magnitude of [the] undertaking, [(3)] the availability of advisory counsel, and [(4)] the disadvantages of self-representation.’ ” Commonwealth v. Barros, 494 Mass. 100, 100-101 (2024), quoting Commonwealth v. Martin, 425 Mass. 718, 720 (1997). However, “[w]here there is a bona fide doubt as to the defendant's competency to waive counsel as a result of a history of mental illness, the judge should conduct a separate inquiry on that issue,” the scope of which is determined by the circumstances at hand. Commonwealth v. Johnson, 80 Mass. App. Ct. 505, 511-512 (2011).

The defendant argues that the inquiry into his competency was inadequate where there was a “bona fide doubt” as to his ability to make an informed decision to proceed with counsel, and the defendant's behavior evinced mental health problems that should have prompted inquiry into whether his waiver of counsel was knowing and voluntary. We are not persuaded.

To begin, the competency judge conducted a full colloquy regarding the seriousness of the defendant's charges, the magnitude of the undertaking when one represents themselves, the fact that his attorney could continue as standby counsel (as his attorney ultimately did), and the disadvantages and challenges of self-representation. See Barros, 494 Mass. at 100-101.

The competency judge found that the defendant “[did] not have a mental condition such that he lacks the capacity to understand the nature and object of the proceedings against him, or to consult with an attorney if he wanted to.” Additionally, the competency judge noted that she had read a July 26, 2022 Bridgewater State Hospital competency evaluation, which concluded that the defendant understood the nature of the proceeding and was competent to stand trial.

The defendant's conduct at his competency hearing and during the surrender hearing demonstrated his competency to represent himself with standby counsel. At the competency hearing, the defendant assured the competency judge that he was “more than competent” and asked about the procedure for calling witnesses and how to present information in court records at the surrender hearing. At the surrender hearing, the defendant challenged whether his conduct met the elements of threatening to commit a crime. On cross-examination of the second probation officer, the defendant challenged the second probation officer's claim that he found the text messages threatening, and the defendant argued that his text messages were protected speech.

The defendant highlights the fact that he wept during his direct examination of his first witness and that, prior to the direct examination of his second witness, the defendant stated, “I kind of really am not super prepared,” and, “It's been overwhelming.” However, the defendant understandably became emotional while examining a witness about the defendant's December 2021 suicide attempt. And the defendant said he was not prepared shortly after asking the judge, “if I want you to read something at the end and say I miss it, is that something I can just have you read,” attempting to ensure that the judge would consider evidence if the defendant failed to highlight it during the hearing. We conclude that these events do not raise bona fide doubts about the defendant's competency. See Johnson, 80 Mass. App. Ct. at 511-512 (only requiring judge to conduct separate hearing “[w]here there is a bona fide doubt as to the defendant's competency”).

Conclusion. On the order revoking the defendant's probation and imposing the sentence, the sentence and so much of the order that finds the defendant violated his probation by making threats against his probation officer are vacated; the remaining findings of violation are affirmed. We remand the case for proceedings consistent with this decision so that the judge may find whether the defendant “consciously disregarded a substantial risk that the communication would be viewed as threatening violence and delivered it anyway,” Cruz, 495 Mass. at 115, and for resentencing if warranted. See Commonwealth v. King, 96 Mass. App. Ct. 703, 712-713 (2019).

So ordered.

FOOTNOTES

1.   The defendant conceded that he otherwise violated the conditions of his probation by leaving Massachusetts without giving prior notice to the probation department and failing to engage in mental health treatment. To be clear, any one violation alone was sufficient to revoke the defendant's probation. Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010) (“for a defendant, any condition of probation poses the risk that its violation may result in the revocation of probation and the end of his conditional release from imprisonment”).

2.   As part of this sentence, the defendant was incarcerated for other charges until his release on July 2, 2020.

3.   The judge declined to consider this charge at the August 5, 2022 final probation surrender hearing because “it predated a prior violation with a prior admission and a prior reprobation.”

4.   Any one of the three grounds was sufficient to revoke the defendant's probation. See Commonwealth v. Goodwin, 458 Mass. 11, 15 (2010).

5.   Although we assume that the judge correctly instructed himself on the law, see Commonwealth v. Healey, 452 Mass. 510, 514 (2008), the judge is not clairvoyant and we cannot assume that the judge instructed himself on the required mens rea where Counterman “announced for the first time that the First Amendment requires proof that the defendant acted, at the least, recklessly.” Cruz, 495 Mass. at 115-116.