Commonwealth v. Bigelow

475 Mass. 554

59 N.E.3d 1105

COMMONWEALTH

v.Harvey J. BIGELOW.

SJC–11974.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 8, 2016.

Decided Sept. 27, 2016.

Diana Cowhey McDermott for the defendant.

David B. Mark, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.¹

BOTSFORD, J.

In 2013, the defendant Harvey Bigelow was convicted of two counts of criminal harassment under G.L. c. 265, § 43A (§ 43A ). The charges were based on five letters the defendant allegedly wrote and sent to Michael Costello and Susan Costello² in 2011, following a local election in the town of Rehoboth (town) in which Michael had been elected as a town selectman. We consider here the defendant's appeal from these convictions; his principal claim is that both convictions must be reversed because the letters consisted of political speech—expressions of dissatisfaction with Michael's performance as a selectman—that is constitutionally protected. We reverse the defendant's conviction of criminal harassment of Michael and order that count of the complaint dismissed; we vacate his conviction of criminal harassment of Susan, set aside the verdict, and remand for a new trial on the count of the complaint relating to Susan.

Background. In April, 2011, Michael was elected as a selectman of the town. Between May 9 and July 23, 2011, at approximately two-week intervals, the Costellos received five anonymous, type-written letters that were mailed to their home. The letters were addressed to both Costellos or to Susan, and all were authored by the defendant.³

The first letter, received around May 9, was sent to the Costellos in an envelope addressed to “Mr. and Mrs. Costello,” but the salutation in the letter itself mentioned only Michael. Although the letter included a variety of personal insults directed to and at Michael, in significant part it consisted of statements criticizing Michael's performance as a selectman, including, as its opening salvo, the following: “Michael Costello—The biggest fucking loser I have ever met. You should be utterly ashamed of yourself for even suggesting that anyone take you seriously as ‘chairman of the board of selectm[e]n.’ It won't be long before you crash and burn big time.”⁴ The letter ended as follows:

“This is how it will go down real soon—you will be arrested at town meeting, relieved of all your town positions, and ultimately be sent to prison as a[two] time loser convicted felon. I'm guessing maybe [ten] years this time if nothing else comes out. Sound good you fucking asshole. Can't wait to see you handle Monday night. We will all be staring at you!!!!!!!!!! This letter will be all over town by then as well as at selectmens' [sic ] meeting. You really fucked up this time Mikey boy.”⁵

The envelope of the second letter, sent on May 26, was addressed to Susan, but again the text of the letter itself appeared to be directed to Michael. The letter referred to Michael's “criminal mess” and stated that Michael “is indeed being investigated by not only the inspector general, but also by the Attorney General and the FBI”; that Michael “is guilty of fraud ... [and] screwed a nice old senior citizen ... out of his house by scamming the lottery”; and that he “was indeed convicted of stealing from Horner Millwork and sentenced to three years in prison plus probation and restitution ... we will have [the public record of his conviction] at Tuesday's meeting.” The letter exhorted Michael to “resign immediately or else. Or be put on administrative leave—pending investigation,” and later repeated, “resign immediately I suggest.” The letter added, “this is such a good letter I think I will send it around and post it at Vino's.”⁶

Attached to either the second or the third letter was a separate, handwritten note that stated:

“Mikey + Susan—

“Please forward your new address AFTER YOU MOVE. I know where you can buy a tent or maybe you have $245,000 to buy that house in our development.

“The Horner boys [and] the newsmen will be there Tues[day]. I wouldn't show up if I were you.

“A Concerned Citizen”

The third and fourth letters, respectively sent June 15 and sometime near or at the end of that month, were each sent in an envelope addressed to Susan and the salutation of each letter was also directed to her. The third letter began, “I am sure you are not surprised to receive another letter regarding the disgusting cheat you are married to.... [W]hat were you thinking getting tied up with such a scum bag.” Following another three paragraphs of derogatory comments about Michael and rhetorical questions asking how Susan could defend him, the letter ended with a suggestion that Susan would need to move out of her home: “Have you selected a new place to live? Maybe now would be a good time to preplan your future.... If I were you, I'd spend less time defending this worthless human being and more time worrying about yourself.”

The fourth letter enclosed a copy of a page from a newspaper containing a critical letter to the editor written by a retired attorney about Michael's “abuses” and the fact that Michael was being investigated by the Attorney General and other State authorities; across the copy was a handwritten comment stating, “Suzie—Preview of Coming Attractions ” (emphasis in original). The fourth letter itself stated, “[t]he authorities will continue to hound [Michael] until you and he can't stand it anymore. Maybe you will have to live like Whitey Bulger frequenting plastic surgeons to have any hope of a peaceful lifestyle. The only difference is Whitey has unlimited funds and you don't.”

The envelope containing the fifth letter was addressed to “Susan ‘The Maid’ Costello” and was sent July 23. The salutation of the letter itself was addressed to “Lorraine,” but handwritten across the top was a message stating, “Hey Sue—why don't you come to the meeting on Mon.” The letter asked if Lorraine was “screwing” Michael, and stated that “[w]ord about town is that he is screwing the assistant town clerk or treasurer, or maybe both. There are pictures being circulated that prove it.” The letter then asked if Lorraine knew that Michael had undertaken a series of criminal acts, including stealing, and forging checks, and further that he “forged title to his wife's car[,] set fire to his wife[']s house with her in it[,] [and] screwed the cleaning lady then married her.”⁷

After receiving and opening the first letter, Michael brought it to the police. Thereafter, the police began an investigation and Michael delivered all five letters to the police department, receiving back copies of the letters from the police a few days later. Both Costellos read all five letters, either at the time they arrived by mail at their home or at a later point when the police provided the copies. Michael testified at trial that he “felt like [his] character was run through mud and ... it was [not] fair” and that he suffered a “bad” emotional reaction, principally because of the effect on his wife: he “felt bad that [his] wife had to go through a situation like this because [he] was [aspiring] to be a selectman.” Susan testified that she “was hysterical,” and that she “couldn't stop crying, couldn't sleep,” was “afraid to live in” her own home, and “afraid to be alone.” She further testified the letters were “affecting [her] whole life” and she was “ready to move” by the time she received the fifth letter because she was “scared out of [her] mind” to be living in the town and specifically at their house.

On November 18, 2011, a two-count complaint issued out of the District Court charging the defendant with criminal harassment in violation of § 43A. The first count named Michael and the second count named Susan as the person at whom the alleged acts of harassment were directed. The defendant filed a motion to dismiss that was denied by a District Court judge. Trial took place in August, 2013, and the jury found the defendant guilty on both counts.⁸ He was sentenced to one year of supervised probation, and as conditions of probation, was ordered to stay away from Susan and to write a letter of apology to the Costellos, with the letter to be published in three local newspapers. The defendant filed a timely appeal and we transferred this case on our own motion.

Discussion. 1. Protected speech and § 43A. The criminal harassment statute punishes “whoever willfully and maliciously engages 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.”⁹ G.L. c. 265, § 43A (a ). The statute specifies that conduct or acts qualifying as criminal harassment under its terms “shall include, but not be limited to, conduct or acts conducted by mail.” Id.

“[Section] 43A is a statute directed at a course of conduct, rather than speech,” Commonwealth v. Johnson, 470 Mass. 300, 308, 21 N.E.3d 937 (2014), but unquestionably, the statute reaches speech, treating speech as a form of conduct. See Commonwealth v. Welch, 444 Mass. 80, 87–89, 825 N.E.2d 1005 (2005). On various occasions, this court has grappled with the application of § 43A and its relationship to the First Amendment to the United States Constitution where speech is involved. See Welch, supra at 93–100, 825 N.E.2d 1005. See also Johnson, supra at 307–312, 21 N.E.3d 937. Cf. O'Brien v. Borowski, 461 Mass. 415, 420–421, 425 & n. 7, 961 N.E.2d 547 (2012) (discussing § 43A in case involving civil harassment statute, G.L. c. 258E). In Welch, supra, where the defendant's criminal harassment convictions were based solely on incidents of pure speech, id. at 92 & n. 13, 825 N.E.2d 1005, the court reviewed § 43A and its legislative history, and concluded that in “carefully crafting” § 43A, the Legislature “intended the statute be applied solely to constitutionally unprotected speech.” Welch, supra at 99, 825...