COMMONWEALTH v. CRUZ (2024)

True threats -- serious expressions conveying that an author means to commit an act of unlawful violence against the recipient -- generally fall outside the aegis of the First Amendment to the United States Constitution. Whether words comprise a true threat is measured by an objective standard that turns on what the words reasonably convey to the recipient in light of the circumstances of their issuance. Nonetheless, the author's subjective mental state is relevant where, as here, the State seeks to punish the author. In particular, the United States Supreme Court recently determined in Counterman v. Colorado, 600 U.S. 66, 69, 143 S.Ct. 2106, 216 L.Ed.2d 775 (2023), that the First Amendment requires the State to show that the author “consciously disregarded a substantial risk that his communications would be viewed as threatening violence” before it may punish him for conveying a true threat.

The jury in the present matter, which was tried prior to Counterman, were not instructed that, in order to convict the defendant, Arickson Cruz, for making a true threat, they needed to find beyond a reasonable doubt that he acted with the required mens rea; accordingly, his conviction violates the First Amendment. Further concluding that G. L. c. 275, § 2 (threatening to commit a crime statute), survives the defendant's facial challenge, and that the prohibition against double jeopardy does not preclude a retrial in the present circumstances, we vacate the defendant's conviction and remand for a new trial.

1. Background. a. Facts.¹ In 2018, the victim ended a five-year long dating relationship with the defendant. Following the breakup, the victim blocked the defendant's telephone calls on her cellular telephone and generally avoided communicating with him. Nevertheless, the defendant continued to send text messages to her. Occasionally, the defendant, who had lived with the victim during their relationship and had moved out following their breakup, parked nearby her home.

Approximately two years after the breakup, the defendant sent the victim two text messages. The first message was sent at 4:29 A.M.; the defendant stated, in part, “I wish u all die bitch I'm so hurt and it still hurt fuck u I hope u die bitch.” In the second text message, sent approximately thirty minutes later, the defendant told the victim, “It hurts so much it hurts a lot oh.”²

The following day, the victim and her band performed at a fundraiser at an adult day care center. After the performance, the defendant's two children, with whom the victim had become acquainted during her years-long relationship with the defendant, ran to her; she hugged them.

Later that afternoon, when the fundraiser ended, the defendant followed the victim as she walked towards her vehicle to leave. He was “screaming and yelling” at her.

Approximately two hours later, the defendant sent the text message that formed the basis for the prosecution's case that he violated the threatening to commit a crime statute. Specifically, the text message stated, “I swear to god if you touch my keys one more time I'll punch you in your fucking face Bitch, I'm not going to repeat myself again.” The victim, who had not had occasion recently to touch the defendant's “keys,” understood that the defendant was referring to his kids.

b. Procedural history. Following a jury trial, the defendant was convicted of violating the threatening to commit a crime statute. After his conviction, but while his appeal was pending, the Supreme Court's decision in Counterman, 600 U.S. 66, 143 S.Ct. 2106 (2023), issued. The Appeals Court affirmed his conviction in an unpublished decision.³ See Commonwealth v. Cruz, 103 Mass. App. Ct. 1121, 2024 WL 339821 (2024). The defendant sought further appellate review, which we granted.

2. Discussion. a. Mens rea and true threats. As noted supra, true threats historically have not been protected by the First Amendment. See Commonwealth v. Sholley, 432 Mass. 721, 726, 739 N.E.2d 236 (2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1621, 149 L.Ed.2d 484 (2001), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183, 654 N.E.2d 1196 (1995) (“[T]he First Amendment does not protect conduct that threatens another”). See also Counterman, 600 U.S. at 74, 143 S.Ct. 2106, quoting Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (“ ‘True threats’ of violence is [an] historically unprotected category of communications”); Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (true threats, like “other types of potentially expressive activities that produce special harms distinct from their communicative impact, ․ [were] entitled to no constitutional protection”); National Ass'n for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886, 916, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), quoting Samuels v. Mackell, 401 U.S. 66, 75, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (Douglas, J., concurring) (“Certainly violence has no sanctuary in the First Amendment ․”).

True threats are “serious expression[s]” of the speaker's “intent to commit an act of unlawful violence.” Black, 538 U.S. at 359, 123 S.Ct. 1536. Whether words constitute a true threat is measured objectively, considering whether, in light of the attendant circumstances, the words justifiably caused the recipient to fear violence.⁴ See Commonwealth v. Kerns, 449 Mass. 641, 653 n.18, 871 N.E.2d 433 (2007). “Whether the speaker is aware of, and intends to convey, the threatening aspect of the message is not part of what makes a statement a threat ․” Counterman, 600 U.S. at 74, 143 S.Ct. 2106, citing Elonis v. United States, 575 U.S. 723, 733, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015).

The Supreme Court recently concluded, however, that the First Amendment “shield[s] some true threats from liability.” Counterman, 600 U.S. at 75, 143 S.Ct. 2106 (discussing chilling effect that absence of mens rea element might engender). A true threat may be punished criminally only if the speaker had “some subjective understanding of the threatening nature of [the] statements.” Id. at 69, 143 S.Ct. 2106. Specifically, to 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.’ ” Id. at 79, 143 S.Ct. 2106, quoting Elonis, 575 U.S. at 746, 135 S.Ct. 2001 (Alito, J., concurring in part and dissenting in part).

b. Jury instructions. Here, the jury were not instructed that they were required to find that the defendant acted with the mens rea necessary to convict him. As the law required before Counterman, the jury were instructed only that,

“In order to prove the defendant guilty of [threatening to commit a crime], the Commonwealth must prove four things beyond a reasonable doubt: First, that the defendant expressed an intent to injure a person or property of another now or in the future; Second, that the defendant intended that his threat be conveyed to a particular person; Third, that the injury that was threatened, if carried out, would constitute a crime; and Fourth, that the defendant made the threat under circumstances which could reasonably have caused the person to whom it was conveyed to fear that the defendant had both the intention and the ability to carry out the threat.”

Contrary to the Commonwealth's argument, these instructions did not require the jury to find that the defendant was aware that others could regard his statement as threatening violence and delivered it anyway.⁵ See Counterman, 600 U.S. at 79, 143 S.Ct. 2106. Accordingly, his conviction violates the First Amendment and must be vacated. See id. at 69, 143 S.Ct. 2106.

c. Overbreadth. The defendant contends that the threatening to commit a crime statute is facially overbroad.

“In determining whether a statute is facially overbroad, we look not only to the language of the statute but to any limiting construction we have grafted on that language in interpreting the statute.” O'Brien v. Borowski, 461 Mass. 415, 422, 961 N.E.2d 547 (2012), citing Commonwealth v. A Juvenile, 368 Mass. 580, 585, 334 N.E.2d 617 (1975). “And we have not hesitated to construe statutory language narrowly to avoid constitutional overbreadth, especially where we discern a legislative intent that the statute prohibit only constitutionally unprotected speech.” O'Brien, supra, citing Commonwealth v. Welch, 444 Mass. 80, 99, 100 n.16, 825 N.E.2d 1005 (2005). See Commonwealth v. Templeman, 376 Mass. 533, 538, 381 N.E.2d 1300 (1978).

The threatening to commit a crime statute provides:

“If complaint is made to any such court or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant” (emphasis added).

G. L. c. 275, § 2. We previously have concluded that the Legislature intended this statute to reach only “cases of ‘true threats’ that would not qualify as protected speech.” Sholley, 432 Mass. at 727, 739 N.E.2d 236 (defining elements to prevent “conviction based on protected speech”). Consistent with that determination, and in order to “effectuate the legislative intent” to criminalize only unprotected speech,⁶ we construe the statute to require that the Commonwealth prove beyond a reasonable doubt, inter alia, that the defendant acted with at least a mens rea of recklessness -- that is, that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence and delivered it anyway.⁷ See Counterman, 600 U.S. at 69, 143 S.Ct. 2106. Accordingly, we conclude that the threatening to commit a crime statute is not overbroad.

d. Double jeopardy. The defendant also maintains that the evidence at his trial was legally insufficient to permit a jury to conclude beyond a reasonable doubt that he possessed the mens rea required by the First Amendment, and that double jeopardy therefore precludes a retrial. We disagree.

Rooted in the Fifth Amendment to the United States Constitution and in our common law, “the prohibition against double jeopardy generally precludes retrial if the Commonwealth presented insufficient evidence at the original trial to support the defendant's conviction.” Commonwealth v. Guardado, 493 Mass. 1, 5, 220 N.E.3d 102 (2023), cert. denied, ––– U.S. ––––, 144 S. Ct. 2683, ––– L.Ed.2d –––– (2024). The prohibition protects defendants against the possibility that “prosecutors could treat trials as dress rehearsals until they secure the convictions they seek.” Currier v. Virginia, 585 U.S. 493, 498, 138 S.Ct. 2144, 201 L.Ed.2d 650 (2018). Where the evidence presented at a first trial does not support a finding of “the essential elements of the crime beyond a reasonable doubt,” the prohibition against double jeopardy generally precludes a retrial. Commonwealth v. Brown, 479 Mass. 600, 608, 611, 97 N.E.3d 349 (2018). In short, the prohibition against double jeopardy precludes the Commonwealth from “getting a second bite at the proverbial apple” (citation omitted). Guardado, supra.

In this case, the defendant's trial took place before the Supreme Court's decision in Counterman, which announced for the first time that the First Amendment requires proof that the defendant acted, at the least, recklessly. See United States v. Dodson, U.S. Ct. App., No. 22-3998, slip op. at 11, 2024 WL 712494 (6th Cir. Feb. 21, 2024) (noting Counterman “newly instituted [a] recklessness standard” for true threat liability). Prior to the Supreme Court's decision, it was established that true threats as a category were not protected by the First Amendment; a true threat was measured by an objective standard and could be punished thereby. See Counterman, 600 U.S. at 72-73, 143 S.Ct. 2106 (“we decide today” that true threat prosecutions require proof of at least mens rea of recklessness); Sholley, 432 Mass. at 727, 739 N.E.2d 236 (true threat offense did not include subjective element).

Following Counterman, however, some true threats will be protected. This is a change in the law. Counterman, 600 U.S. at 72, 143 S.Ct. 2106 (acknowledging law prior to Court's decision that “[t]rue threats of violence, everyone agrees, lie outside the bounds of the First Amendment's protection”). Thus, at the time of trial, the Commonwealth had no reason to introduce evidence of the defendant's state of mind to establish his culpability for sending a true threat or to insist that the jury be instructed to include the mens rea requirement. See Guardado, 493 Mass. at 6-7, 220 N.E.3d 102 (unforeseen change in jurisprudence of Second Amendment to United States Constitution following trial for firearm violation did not preclude retrial to permit Commonwealth to meet its burden of establishing licensure element).

Moreover, as a general matter, when we vacate a conviction, double jeopardy precludes a retrial only where the evidence at the first trial was insufficient to establish an essential element of the crime. See Guardado, 493 Mass. at 5, 220 N.E.3d 102, citing Commonwealth v. Bolling, 462 Mass. 440, 453, 969 N.E.2d 640 (2012). Here, although the defendant was tried prior to the Court's decision in Counterman, the evidence was sufficient to allow a rational jury to find beyond a reasonable doubt that he had the requisite mens rea.

The evidence included that, despite the passage of nearly two years since the victim ended their relationship, the defendant remained upset about the breakup. He knew where the victim lived; despite the victim's efforts to block communications with the defendant, he continued to send her text messages and occasionally to park his vehicle near her home. In the pre-dawn hours of the day prior to the true threat at issue, he had sent the victim two text messages. In the first one, he stated “I hope u die bitch”; and in the second, sent just one-half hour later, he expressed desperation. A couple of hours prior to the true threat at issue, the defendant had followed the victim as she left the fundraiser, “screaming and yelling” at her as she moved towards her vehicle. Then, in the text message at issue, he explicitly threated violence against the victim, stating, “I'll punch you in your fucking face Bitch.” In that same text message, he warned, “I'm not going to repeat myself again.” Viewed in the light most favorable to the Commonwealth, a properly instructed jury could have found beyond a reasonable doubt that the defendant consciously disregarded a substantial risk that his text message would be viewed as threatening violence and delivered it anyway. In these circumstances, double jeopardy does not prevent the Commonwealth from retrying the defendant.

3. Conclusion. Based on the foregoing, the defendant's conviction is vacated, and the matter is remanded to the District Court for a new trial, if the Commonwealth chooses to pursue one.

So ordered.

Appendix.

Threat to Commit Crime

The defendant is charged with having threatened to commit a crime against the person or property of another. Threatening [a person with a crime against his or her person or property] [a person by threatening a crime against someone else or their property] is itself a crime.

In order to prove the defendant guilty of this offense, the Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant expressed an intent to injure a person, or property of another, now or in the future;

Second: That the defendant intended that the threat be conveyed to a particular person;

Third: That the injury that was threatened, if carried out, would constitute a crime;

Fourth: That the defendant made the threat under circumstances which could reasonably have caused the person to whom it was conveyed to fear that the defendant had both the intention and the ability to carry out the threat; and

Fifth: That the defendant was aware of or consciously disregarded a substantial risk that the communication would be viewed as threatening violence. This element requires that the defendant was aware that others could regard his statement as threatening violence and yet the defendant delivered it anyway.

FOOTNOTES

1.   Because the defendant contends that principles of double jeopardy preclude a retrial on the ground that the evidence was insufficient to establish the required mens rea under Counterman, 600 U.S. at 69, 82, 143 S.Ct. 2106, we recite the facts the jury could have found in the light most favorable to the Commonwealth. See Commonwealth v. Fitzpatrick, 463 Mass. 581, 582, 977 N.E.2d 505 (2012), citing Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

2.   The trial judge gave a limiting instruction that the jury could consider these two text messages solely in weighing whether the circumstances on the following day were such that the victim could reasonably have feared “the defendant had both the intention and the ability to carry out the threat” in the text message at issue. See discussion, infra.

3.   The Supreme Court's decision was not raised below.

4.   The term “true” in “true threats” distinguishes jests, hyperbole, and other statements that, in context, do not convey a real possibility that violence will follow. See Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam); Commonwealth v. Chou, 433 Mass. 229, 236, 741 N.E.2d 17 (2001) (“The term ‘true threat’ has been adopted 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”).

5.   The Commonwealth places particular weight on the second requirement in the jury instructions, which concerns whether the defendant intended his message to reach the victim. The intent to deliver a statement to a particular person is, of course, different from a subjective understanding of its threatening nature. See United States v. Dodson, U.S. Ct. App., No. 22-3998, slip op. at 11, 2024 WL 712494 (6th Cir. Feb. 21, 2024) (noting difference between “knowingly commit[ting] the actus reus -- sending the threatening messages -- rather than by accident or mistake” and Counterman requirement “that the defendant be aware in some way of the threatening nature of his communications”).

6.   Contrary to the defendant's contention, construing a statute to avoid unconstitutional overbreadth does not require “the ‘quintessentially legislative work’ of rewriting State law” where, as here, there is no indication of a legislative intent to prohibit constitutionally protected speech. Ramirez v. Commonwealth, 479 Mass. 331, 339, 94 N.E.3d 809 (2018), quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). See O'Brien, 461 Mass. at 422, 961 N.E.2d 547.

7.   We also take this opportunity to provisionally revise the model jury instructions for this offense as set forth in an Appendix to this opinion.

WENDLANDT, J.