Com. v. Kerns, SJC-09859.
| Decision Date | 09 August 2007 |
| Docket Number | SJC-09859. |
| Parties | COMMONWEALTH v. Tobin V. KERNS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Daniel F. Conley, District Attorney for the Suffolk District, & John P. Zanini & Kristin Lomard O'Donnell, Assistant District Attorneys, for the District Attorney for the Suffolk District & others, amici curiae, submitted a brief.
Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, & CORDY, JJ.
The defendant, indicted as a youthful offender, is on trial before a judge in the Brockton Division of the Juvenile Court Department, sitting without a jury, on charges of threatening to use deadly weapons, G.L. c. 269, § 14(b); and conspiracy to commit mass murder, G.L. c. 274, § 7.1 The charges arose out of allegations that the defendant, and others, planned to execute a terrorist-type attack on students, teachers, resource officers, and administrators at Marshfield High School (high school). The evidence at the trial has been completed, closing arguments made, and the judge has taken the case under advisement pending a decision by this court. The issues (here by way of the Commonwealth's appeal from a judgment in the county court) concern whether the Commonwealth properly sought relief from a single justice of this court under G.L. c. 211, § 3, from midtrial statements made by the judge about the law that he would apply to the communication element of the charge of threatening to use deadly weapons, G.L. c. 269, § 14(b)2; and whether a conviction under that statute requires proof that the defendant, directly or indirectly, communicated the threat to a potential victim of the threatened crime. We conclude that relief under G.L. c. 211, § 3, was available to the Commonwealth, and that the communication element of G.L. c. 269, § 14(b), may be proved by evidence that the threat was communicated to any person (other than a coconspirator or coventurer), and the communication need not be made to an intended target or potential victim.
We summarize the Commonwealth's evidence relevant to the charge of G.L. c. 269, § 14(b) (), and the events concerning its petition under G.L. c. 211, § 3.
a. During the month of December, 2003, a junior at the high school, Joseph Nee, asked a schoolmate and longtime friend, Daniel K. Farley, "Wouldn't it be funny if I shot up [the high school]?" Three weeks later, Nee mentioned the idea again to Farley, asking, "Would you be interested in shooting up [the high school] with me?" The defendant, who was a sophomore at the high school, was present at the time, but said nothing. A few weeks later, Nee reasserted to Farley and the defendant that he wanted to shoot up the school. This time, the defendant indicated that he might be interested in such a plan. Over the next few months, Nee (who was seventeen or eighteen years of age), Farley (who was sixteen or seventeen years of age), the defendant (who turned sixteen years old in April, 2004), and another schoolmate, Joseph Sullivan (who was fifteen years old), frequently discussed the specifics of a plan whereby the four friends would enter the high school building around dismissal time, armed with automatic and semiautomatic weapons, explosives, and homemade napalm. They planned to line the halls with napalm and padlock the exit doors with bicycle locks to prevent any person from escaping. The four then planned to shoot, and in some cases torture, specific individuals whom they had preselected as targets (the principal, two assistant principals, a physical education teacher, a resource officer, and several male athletes). Nee and the defendant also spoke about using explosives to blow up two gasoline stations in Marshfield, simultaneously, thereby diverting attention of law enforcement authorities and affording them more time at the high school until the police arrived. The plan was to take place on April 15, 2005.3 Farley and Sullivan considered Nee to be the originator of the plan,4 and Nee referred to the plan as his "baby." The defendant contributed ideas for "tactical maneuvers" such as "rigging" explosives. The four called themselves the "Natural Born Killers" or "NBK."5
From time to time during the spring of 2004, the four attempted, with minimal success, to make working pipe bombs, napalm, and explosives. Nee cracked open fireworks in order to collect gunpowder to be used for making pipe bombs, and the defendant once filled a plastic container of gasoline with bits of styrofoam to reproduce an inflammable substance similar to napalm. The defendant wanted Nee to obtain guns, and Nee assured the others that he knew where they could be purchased. The four conducted extensive Internet research on the availability and types of weapons, especially handguns and semiautomatic firearms. The defendant showed Farley and Sullivan video footage of the Columbine killings on the computer in his father's office at his home. Although Nee, on at least two occasions, tried to obtain firearms from other students at the high school, none of the four ever acquired an actual firearm. Nee, Farley, Sullivan, and the defendant practiced shooting, however, at various times using Nee's BB gun, and targeted parts of a tree pretending it to be a human form. The defendant warned that anyone who exposed the plan to others would have his "tongue cut out of his head."
On separate occasions during the spring of 2004, Nee and the defendant approached two other friends, Kyle Kimmett and Timothy Courchene, and discussed with them (at separate times) the specifics of their plan.6 Kimmett testified that he twice was asked to join the NBK, and participate in the plan, during the 2003-2004 school year. Kimmett understood the defendant to be the plan's leader. Nee and the defendant told him that they planned to cause chaos in the school and wanted to recruit Kimmett to act in the role of "enforcer." Kimmett informed Nee and the defendant that he did not want any part of the plan. He testified that, at the time, he thought that they could not be serious and that the plan was a "stupid little high school drama."
Courchene testified that Nee and the defendant described to him what would happen at the high school on April 15, 2005, and showed him a list of specific people who would be among those killed. The list shown to Courchene included the principal, an assistant principal, the school resource officers, and several seniors whom Nee did not like. Nee told Courchene that, if he wanted to take part in the plan, he should "lay low," "be good," and "do what you have to do," so that "nobody suspects anything." Courchene told Nee and Farley that he did not want anything to do with the plan. Nee warned Courchene: "If any rats were to form, then they would have their tongues cut out." The other three repeated that sentiment to Courchene. Courchene testified that he was "freaked out" and "scared" by what had been said.
In May, 2004, Nee moved out of his home (because of conflict with his father) and lived for one month at the defendant's home. In the beginning of June, the defendant was admitted to a psychiatric hospital.7 On his release, the defendant appeared different: he had a new hairstyle (no longer sporting a shaved head) and wore clothes of a lighter color (rather than black). Farley had no contact at all with the defendant over the summer of 2004. Nee expressed to Sullivan his concern whether the defendant still wanted to participate in the plan.
On September 16, 2004,8 Nee, Farley, and Sullivan met with two high school resource officers and two Marshfield police officers and told them about the plan. In describing the plan, the three admitted some involvement, but Nee (who did most of the speaking) ascribed responsibility for the plan's design, and the method of its execution, to the defendant. The defendant was arrested the following day,9 and Marshfield police officers, with a warrant and with his father's consent, conducted a search of the defendant's home. During the search, the police seized, among other things, PVC piping and a notebook containing a list of weapons (in the defendant's handwriting), pictures and information on weapons and explosives, and two hand-drawn maps of the high school. A computer seized from the room in which Nee had slept while living at the defendant's home (which was next door to the defendant's bedroom) contained materials relating to the Columbine shootings, video files and information on weapons and explosives, and downloaded text from "The Anarchist's Cookbook."10
The defendant was indicted on October 25, 2004, as a youthful offender on charges of promotion of anarchy; threatening to use deadly weapons; and conspiracy (with Nee) to commit mass murder. The case proceeded to a trial, which began on October 16, 2006.
b. At the close of the Commonwealth's evidence, the judge entered a required finding of not guilty on the charge of promotion of anarchy, and denied the defendant's motions for required findings on the charges of conspiracy and threatening to use deadly weapons. During a conference on the merits of the motions, the Commonwealth and the defendant expressed differing views on the proper interpretation of the communication element of the offense of threatening to use deadly weapons. The defendant's position was (and is) that a conviction under the statute requires proof that the threat was communicated to a targeted individual, or intended victim, of the alleged plot. The Commonwealth, on the other hand, argues...
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