Com. v. Power

• Decision Date: 18 May 1995
• Citation: 420 Mass. 410,650 N.E.2d 87
• Parties: , 23 Media L. Rep. 2006 COMMONWEALTH v. Katherine A. POWER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 87

650 N.E.2d 87

420 Mass. 410, 23 Media L. Rep. 2006

COMMONWEALTH v. Katherine A. POWER.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 6, 1994.

Decided May 18, 1995.

Joseph L. Kociubes (Mark W. Batten, Peter J. Mancusi & Sarah R. Wunsch, with him) for defendant.

John P. Zanini, Asst. Dist. Atty. (Katherine E. McMahon, Asst. Dist. Atty., with him) for Com.

Abbe Smith, for Criminal Justice Institute, amicus curiae, submitted a brief.

Melvin Spaeth, Darryl W. Jackson, Laura J. Hines, Ruth Ann M. Nicastri & Charles W. Scarborough, Washington, DC, & Robert S. Mueller, III, & Peter A. Spaeth, for

The National Victim Center, amicus curiae, submitted a brief.

Wayne C. Paquette, amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Chief Justice.

The defendant pleaded guilty to two indictments charging her with armed robbery and to so much of a murder indictment as charged manslaughter. The defendant now seeks to appeal from the portion of her sentence which places her on probation for twenty years with a special condition that she not profit from the sale of her story to the news media. ¹ The defendant requests that we vacate the special condition on the grounds (1) that it violates her right to freedom of expression under the First Amendment to the United States Constitution ² since it imposes an unconstitutional prior restraint on content-based speech, (2) that it unconstitutionally places the defendant in jeopardy for the actions of third persons, and (3) that it is unconstitutionally vague in violation of her due process rights. We granted the defendant's application for direct appellate review.

The facts giving rise to this appeal can be stated briefly. On September 23, 1970, five individuals, including the defendant, robbed the State Street Bank and Trust Company at the intersection of Western Avenue and Everett Street in the Brighton section of Boston. While three of her accomplices entered the bank, the defendant sat several blocks away in the "switch car," ready to drive the three from the scene once the robbery was completed. The fifth accomplice, William Gilday, sat in an automobile across the street from the bank as a lookout. Gilday was armed with a fully loaded Thompson submachine gun.

The silent alarms inside the bank were triggered several minutes after the robbers entered the bank and Boston Police Officers Walter Schroeder and Frank Callahan responded to the scene. The robbers had left the bank and headed for the "switch car" before the officers arrived, but Gilday maintained his position as lookout. When Officer Schroeder attempted to enter the front door of the bank he was shot in the back by Gilday. Officer Schroeder succumbed to his wounds and died the following day.

Three of the robbers were arrested shortly after the crimes, and the fourth was apprehended in 1975. The defendant, however, managed to evade law enforcement authorities and eventually settled in Oregon under an assumed name.

On September 15, 1993, in the glare of national news media attention, the defendant surrendered to Massachusetts authorities after twenty-three years as a fugitive from justice. Represented by counsel, the defendant pleaded guilty to two indictments charging armed robbery and to so much of a murder indictment charging manslaughter. The pleas were accepted after a full and complete colloquy by the judge with the defendant and her counsel. The prosecution recommended a sentence of from eight to twelve years. The judge accepted the recommendation with respect to the manslaughter charge and one of the armed robbery charges, ordering the defendant to serve the terms concurrently. He exceeded the recommendation, however, with respect to the second armed robbery charge and sentenced the defendant to twenty-years' probation, to begin immediately. The written probation contract includes the following special condition:

"You, your assignees and your representatives acting on your authority are prohibited from directly or indirectly engaging in any profit or benefit generating activity relating to the publication of facts or circumstances pertaining to your involvement in the criminal acts for which you stand convicted (including contracting with any person, firm, corporation, partnership, association or other legal entity with respect to the commission and/or reenactment of your crimes, by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentations, live entertainment of any kind, or from the expression of your thoughts, feelings, opinions or emotions regarding such crime). This prohibition includes those events undertaken and experienced by you while avoiding apprehension from the authorities. Any action taken by you whether by way of execution of power of attorney, creation of corporate entities or like action to avoid compliance with this condition of probation will be considered a violation of probation conditions."

The judge gave the defendant the opportunity to withdraw her guilty pleas as the sentence exceeded the recommendation of the prosecution. She declined. After consultation with counsel, she agreed to the special condition in open court and, shortly thereafter, affixed her signature to the written contract of probation.

We begin with the recognition that judges are permitted great latitude in sentencing as long as the sentence imposed is within the limits provided by the statute under which the defendant is convicted. Commonwealth v. Goodwin, 414 Mass. 88, 92, 605 N.E.2d 827 (1993). Commonwealth v. Burke, 392 Mass. 688, 694, 467 N.E.2d 846 (1984). The defendant was placed on probation for her second conviction of armed robbery, an offense punishable by life imprisonment. G.L. c. 265, § 17 (1992 ed.). Thus, the sentence did not exceed the limits of the applicable statute. In addition, G.L. c. 276, § 87 (1992 ed.), which permits the imposition of probation, states that a trial court "may place on probation ... any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper ... after a finding or verdict of guilty" (emphasis supplied). G.L. c. 276, § 87. The conditions of probation "may include, but shall not be limited to, participation by said person in specified rehabilitative programs or performance by said person of specified community service work" (emphasis supplied). G.L. c. 276, § 87A (1992 ed.).

It has been held generally that a condition of probation is enforceable, even if it affects a "preferred" right, where the condition is primarily designed to meet, i.e., "reasonably related" to, the goals of sentencing and of probation. See, e.g., United States v. Clark, 918 F.2d 843, 847-848 (9th Cir.1990); United States v. Tolla, 781 F.2d 29, 32-34 (2d Cir.1986), and cases cited; United States v. Lowe, 654 F.2d 562, 567 (9th Cir.1981); State v. Graham, 33 Conn.App. 432, 446-448, 636 A.2d 852 (1994); State v. McGill, 114 N.C.App. 479, 483-484, 442 S.E.2d 166 (1994); Commonwealth v. Koren, 435 Pa.Super. 499, 506, 646 A.2d 1205 (1994); State v. Matheny, 884 S.W.2d 480, 483 (Tenn.Crim.App.1994); State v. Mace, 154 Vt. 430, 436, 578 A.2d 104 (1990); State v. Miller, 175 Wis.2d 204, 208, 499 N.W.2d 215 (1993); Leyba v. State, 882 P.2d 863, 865 (Wyo.1994). See also Cepulonis v. Commonwealth, 384 Mass. 495, 499, 427 N.E.2d 17 (1981).

In general, when imposing a sentence, the judge should consider several goals: punishment, deterrence, protection of the public, and rehabilitation. Commonwealth v. Goodwin, supra at 92, 605 N.E.2d 827. The primary goals of a probationary sentence are rehabilitation of the probationer and protection of the public. Commonwealth v. LaFrance, 402 Mass. 789, 795, 525 N.E.2d 379 (1988), quoting State v. Griffin, 131 Wis.2d 41, 65, 388 N.W.2d 535 (1986) (Abrahamson, J., dissenting). United States v. Tolla, supra [420 Mass. 415] at 33. Other recognized goals of probation include punishment, deterrence, and retribution. United States v. Tonry, 605 F.2d 144, 148 (5th Cir.1979) (condition of probation upheld as long as "reasonably related to rehabilitation of the probationer, protection of the public against other offenses during its term, deterrence of future misconduct by the probationer or general deterrence of others, condign punishment, or some combination of these objectives"). "A probation condition is not necessarily invalid simply because it affects a probationer's ability to exercise constitutionally protected rights." Id. at 150. Conditions of probation that affect First Amendment rights have been upheld. Tonry, supra at 151, and cases cited. See Tolla, supra at 33-34; Clark, supra. Courts recognize the reasonableness of imposing probation as an alternative to other forms of punishment, e.g., incarceration, in appropriate cases. "Indeed, it is a rare sentence, whether or not jail is a part of it, that does not in fact involve all of these objectives--punishment, deterrence, protection of the public, rehabilitation and restitution." United States v. Tolla, supra at 35. With these general principles in mind, we address each of the defendant's arguments.

The defendant argues that the special condition quoted amounts to a prior restraint on content-based speech in violation of her First Amendment rights. We disagree.

We agree that, because the condition places a financial disincentive on the defendant based on the content of her speech, it does implicate her First Amendment rights. Simon & Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105, 115, 112 S.Ct. 501, 508, 116 L.Ed.2d 476 (1991). However, the condition allows the defendant to speak on any subject, including her crimes, whenever, and through whatever medium she desires. Her arguments to the contrary are unpersuasive. The condition merely prohibits the defendant from profiting financially from speech about her crime or...