Com. v. Robicheau
| Decision Date | 13 September 1995 |
| Citation | 654 N.E.2d 1196,421 Mass. 176 |
| Parties | COMMONWEALTH v. James ROBICHEAU. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert M. Breen, Cambridge, for defendant.
John P. Zanini, Assistant District Attorney, for the Commonwealth.
On September 24, 1992, a jury of six sitting in the Dorchester Division of the District Court Department convicted the defendant, James Robicheau, of violating a protective order issued pursuant to G.L. c. 209A (1994 ed.). The jury acquitted him of a separate charge of threatening to commit a crime. See G.L. c. 275, § 2 (1994 ed.). He received a sentence of two and one-half years in a house of correction, with six months to be served and the remainder to be suspended. This sentence has been stayed pending appeal.
On appeal, the defendant claims that (1) the Commonwealth presented insufficient evidence that he violated G.L. c. 209A; (2) he was criminally sanctioned for statements that constituted speech protected by the First Amendment to the United States Constitution; (3) his right to due process was violated because the jury returned inconsistent verdicts; and (4) the trial judge failed to provide adequate jury instructions regarding the elements which must be proved in order to find a criminal violation of G.L. c. 209A. We affirm the conviction.
Based on the evidence presented at trial, the jury could have found the following facts.
On December 2, 1991, the victim obtained a protective order pursuant to G.L. c. 209A (209A order). The 209A order, which was effective until December 2, 1992, required the defendant to refrain from abusing the victim and to remain away from her residence. During the past four years, the victim had sought and obtained successive 209A orders against the defendant. 1 The 209A order at issue was a "renewal" of a previous order.
The defendant and the victim had been married since September 6, 1980. They had a minor child, of whom the victim had temporary custody pursuant to the 209A order. The defendant did not have visitation rights, but the victim permitted him regular visits.
On June 13, 1992, the defendant attended an awards ceremony at his son's school. The victim was also present. At the ceremony, the defendant and the victim discussed arrangements for the defendant's visit with the child that weekend. The victim told the defendant to return the child the next day to her mother's residence, which was the usual place for the child to be dropped off. 2
On the next day, June 14, 1992, the defendant returned the child to the victim's home instead of to her mother's residence. The victim was on the telephone with her mother when the defendant drove up to the victim's building. The victim resided on the top floor of a three-family house. The defendant parked his automobile directly in front of the house.
The victim laid the telephone down, went to her front window, and opened it. She yelled to the defendant that he was in violation of the 209A order, told him not to get out of the automobile, and threatened to call the police if he did.
Despite the victim's warning, the defendant left the automobile. He stood on the street, looked up to the victim's window, and started yelling at her. The defendant told the victim to "shut the f--- up" and that he would do exactly as he pleased. The defendant also "gave [her] the finger." He did not enter the victim's apartment or the three-family house. 3
The defendant then told his son to get back into his automobile, while the victim told him to come in quickly. Obeying his mother, the boy went inside. While the boy was climbing the stairs, the victim kept going from her apartment door to the window. The defendant then left, his tires squealing.
The victim picked up the telephone again, and spoke with her mother, who advised her to telephone the police. The victim testified that at this point, she was very scared and very upset. She wanted to telephone the police from somewhere else, because she was afraid that the defendant would return.
The victim attempted to telephone the defendant, thinking that she could leave her own residence if she knew he was home. After six or seven rings, the defendant did not answer the telephone. The victim then telephoned the defendant's sister, who lived in the same building as he did. The defendant's nephew answered. He went downstairs to check for the defendant, returned to the phone, and told the victim that the defendant was home. The victim told the nephew that she did not want to speak with the defendant.
The victim decided to go to her mother's residence. While she was leaving, the defendant telephoned her. The defendant told the victim that he was "sick of all of this" and that he was going to kill her. He stated that he was "not playing anymore," that he was coming back to the apartment, and that he "swore to God" he was going to kill her. The victim hung up. Believing that the defendant now intended to kill her, and afraid to leave her home, the victim telephoned the police.
The police went to the defendant's home and arrested him. After his arrest, the victim and a male companion went to the police station to meet with the bail bondsperson. Because of her anxiety over the defendant's possible release, she asked the bondsperson to set a high bail.
Five weeks earlier, another incident occurred in which the defendant returned his son to the victim's home instead of her mother's residence. During that incident, the victim had informed the defendant as he was walking up the stairs that he was in violation of the 209A order. She asked him to leave, which he did. 4
1. Sufficiency of the evidence. At the close of the Commonwealth's case, the defendant made an oral motion for required findings of not guilty, contending that the Commonwealth had not shown the elements necessary for a violation of G.L. c. 209A. The judge denied the motion. Afterwards, in instructing the jury, the judge submitted the charge of violation of G.L. c. 209A solely on the theory that the defendant violated the order to refrain from abusing the victim. 5 Therefore, we assume that the jury followed the judge's instruction and based their verdict on this theory of liability. See Commonwealth v. Foster, 411 Mass. 762, 766, 585 N.E.2d 331 (1992).
There were no allegations that the defendant physically harmed the victim, caused her to engage involuntarily in sexual relations, or attempted to do either. Therefore, any violation of the order to refrain from abuse must have been based on an allegation that the defendant placed the victim in fear of imminent serious physical harm. Commonwealth v. Gordon, 407 Mass. 340, 348-349, 553 N.E.2d 915 (1990). We have stated that this definition of abuse closely approximates the common law description of the crime of assault. Id. at 349, 553 N.E.2d 915.
In reviewing the denial of a motion for a required finding of not guilty, we determine whether, on the basis of the evidence viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). Therefore, we must determine whether a rational jury could have found that the actions and words of the defendant placed the victim in reasonable apprehension that physical force might be used against her.
In this case, the jury could have found that the defendant had parked his automobile in front of the victim's home, from which he had been enjoined by court order to remain away. Further, the jury could have found that, when he had previously come to the victim's residence, she had requested that he leave and informed him that his presence was in violation of the 209A order. The credible evidence was that on this occasion, when the victim made the same request, the defendant got out of his automobile, stood in the middle of the street in front of her residence, yelled obscene language, and made an obscene gesture. He also made an ambiguous statement that he would do exactly as he pleased. He then drove away with a loud, aggressive display. Soon thereafter, the defendant stated over the telephone that he would kill her. 6
This evidence was sufficient for a jury to find the essential elements of abuse beyond a reasonable doubt. The victim's relationship with the defendant was so tense that she had sought and obtained consecutive 209A orders against him. In light of this relationship and the other circumstances enumerated above, the jury were entitled to find that the defendant's belligerent words and conduct caused a reasonable apprehension in the victim that he intended to harm her.
In addition, the victim specifically testified that the defendant's conduct scared and upset her. She also testified that she feared he would carry through his stated intention to kill her. The victim's fear, although neither necessary nor determinative, is material in finding the defendant guilty. See Commonwealth v. Tarrant, 367 Mass. 411, 417 n. 5, 326 N.E.2d 710 (1975). In these circumstances, a jury were more than justified in finding beyond a reasonable doubt that the victim's fear was reasonable. Therefore, the motion for a required finding of not guilty was properly denied.
2. The defendant's First Amendment claim. The defendant contends that his conviction criminally sanctioned him for statements that constituted speech protected by the First Amendment. He specifically argues that his words did not amount to "fighting words," which may be constitutionally proscribed. Furthermore, he asserts that he had a constitutionally protected right to respond to the victim's statements.
The defendant's reasoning is misguided. He quotes our opinion in Commonwealth...
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