Commonwealth v. Alphas

• Decision Date: 07 July 1999
• Citation: 712 NE 2d 575,430 Mass. 8
• Parties: COMMONWEALTH v. JOHN SPEARE ALPHAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 8

712 NE 2d 575

COMMONWEALTH v. JOHN SPEARE ALPHAS.

Supreme Judicial Court of Massachusetts, Hampden.

March 4, 1999.

July 7, 1999.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

Abraham J. Mayers for the defendant.

Deborah Ahlstrom, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

After a jury trial, the defendant was convicted of four counts of stalking in violation of G. L. c. 265, § 43, a statute which proscribes two distinct types of stalking, stalking by harassment and stalking by following. On appeal, the defendant claims error in (1) the denial of his pretrial motion to dismiss; (2) certain jury instructions; (3) the exclusion of certain evidence; (4) the prosecutor's conduct of cross-examination; and (5) remarks made by the prosecutor during his closing argument. The defendant also contends his trial counsel was ineffective. We transferred this case from the Appeals Court on our own motion. We affirm both the denial of the motion to dismiss and the convictions.

1. Facts. The jury were warranted in finding the following facts. The defendant and the victim were married in April, 1988, and were separated in May, 1991. They had one child at the time of their divorce in May, 1992. The final divorce decree became absolute on August 10, 1992. In the judgment, the parties agreed the defendant would "not follow [the victim] or harass her at her home or her place of employment," and the judgment prohibited nonemergency verbal communication, specifically forbidding harassing telephone calls.¹

The defendant's violent and threatening behavior began even before the final divorce judgment was entered. Throughout 1992, he harassed the victim, expressing his displeasure with her involvement with her fiancé, and verbally abused her by referring to her by sexually explicit slurs. In June, 1992, the defendant arrived at her house to visit their child on a nonvisitation day. Sometime later, he scared the victim by following her home from work. In September, she saw the defendant with his girlfriend at a shopping mall, and they both followed her between stores. The next day, the victim observed the defendant driving back and forth in front of her home. In December, 1992, the defendant inexplicably appeared at two of their child's doctor's appointments.

The defendant's harassing behavior continued in 1993. In the spring, the victim and a coworker observed the defendant looking at her through her office window from across the street with binoculars. He did this at least four times. On another night, he followed her and a friend to two bars and then to her house, where he threatened to kill her. Another time he scared her by saying, "A single mother alone like this, with kids, strange things could happen." One day, after picking up their daughter, the defendant, while verbally harassing the victim, backed his vehicle onto her lawn, leaving tire tracks. He carried a gun with him to the visitation pickups, and told their child at least a dozen times in the victim's presence, "Somebody could get hurt."

The defendant's conduct became more threatening in 1994. In January, he again appeared unexpectedly at their child's doctor's office. The next day, he was abusive toward her on the telephone. In May, he verbally abused her once again, calling her a "bitch" and a "home wrecker." In June, the defendant twice warned her to "be careful" because "[y]ou never know what could happen to a single mother alone with two girls in the house." In early August, while the victim and her fiancé were shopping for engagement rings, she observed the defendant watching them through the store window. He then followed them after they left the store for approximately three miles. Twice in October he threatened her, once saying: "You'll get yours you bitch," and "You're going to get yours and I've had it with this shit." In November, the defendant again followed the victim and her family as they drove on the highway for several miles.

The defendant again followed and harassed the victim on several occasions in 1995. Five times between March and June, the defendant verbally abused the victim by telephoning her or confronting her at home or in the community. In three of these encounters, he threatened to kill her, stating once: "I'm going to kill you" and "You're going to see. I'm going to get you."

In May, the defendant was at their child's school when the victim picked up their child. He then followed her to a shopping mall. On Mother's Day, he followed the victim's family to church, entered the church during the service and stared at her, then, when the family left in an attempt to get away from him, he followed them to a restaurant. In late June, the defendant followed the victim and her family on the highway for at least twenty miles, driving behind and beside their car. They feared he was going to use his gun because he kept one hand hidden as he drove alongside them.

The defendant used a scanner to listen to her telephone calls and bragged about this to a friend. Beginning in June, 1995, the defendant also videotaped his encounters with the victim.

2. The defendant's motion to dismiss. Prior to trial, the defendant moved to dismiss two counts, those for stalking by harassment in violation of a court order and for following in violation of a court order, because there was no order in effect against him when he was alleged to have committed the acts. He claimed that he could not be guilty under G. L. c. 265, § 43 (b), without violating one of the orders listed in the statute.² The District Court judge denied the defendant's motion because he concluded that the stay-away order in the divorce judgment was the equivalent of a G. L. c. 208, § 18, order, and violation of it satisfied § 43 (b). We largely agree with the judge, and conclude that it was not error to deny the defendant's motion.

The defendant was in violation of an order that was part of the divorce judgment. As discussed in a recent case, see Champagne v. Champagne, 429 Mass. 324, 326 (1999), this order was entered pursuant to the Probate and Family Court's authority under G. L. c. 208, § 18, which provides, in part, that "the [Probate and Family Court] may make such further order as it deems necessary to protect either party or their children, to preserve the peace or to carry out the purposes of this section relative to restraint on personal liberty." By doing what he agreed not to do, the defendant violated § 18, one of the enumerated orders that supports a conviction of stalking in violation of a court order under § 43 (b).³

3. Jury instructions on stalking. Under G. L. c. 265, § 43 (a), inserted by St. 1992, c. 31, one who "willfully, maliciously, and repeatedly follows or harasses another person and who makes a threat with the intent to place that person in imminent fear of death or serious bodily injury shall be guilty of the crime of stalking." The statute addresses both stalking by harassment and stalking by following.⁴

In Commonwealth v. Kwiatkowski, 418 Mass. 543 (1994), we concluded that the portion of the stalking statute that addressed harassing conduct was unconstitutionally vague because it did not "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Id. at 547, quoting Opinion of the Justices, 378 Mass. 822, 826 (1979). The specific problem was ambiguity in the word "repeatedly" within the definition of harassment, which confused whether a violation required one series of acts alone or multiple patterns of conduct. See id. at 546. We interpreted the statute in a manner that resolved any ambiguity, and concluded that the new definition was to be applied after the date the opinion was released, August 3, 1994.⁵ Because the statute contemplates two different types of stalking, we noted that the prospective definition we announced in Kwiatkowski applied only to stalking by harassment, not to stalking by following. See id. at 546 ("To be guilty under the `harassment' aspect, as opposed to the `following' aspect ...") and id. at 547 (addressing only "the portion of the stalking statute concerning harassing conduct").

(a) Stalking by harassment. The defendant claims the judge

erred by not instructing the jury that he could not be convicted of stalking by harassment or of stalking by harassment in violation of a court order, for acts committed prior to August 4, 1994. We agree with the defendant that the judge should so have instructed the jury, and that his convictions for stalking by harassment and for stalking by harassment in violation of a court order could only be based on offenses committed after August 3, 1994. See id. at 547. Because the defendant did not object to the jury instructions, we must determine whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Delaney, 425 Mass. 587, 595-596 (1997), cert. denied, 522 U.S. 1058 (1998), and cases cited; Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

We take this opportunity to address the standard of review applicable to unpreserved trial errors in cases other than capital cases on direct appeal, the so-called Freeman standard, which recently has been the subject of comment in our courts. See, e.g., Commonwealth v. Eason, 43 Mass. App. Ct. 114 (1997),S.C., 427 Mass. 595 (1998). An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not "materially influence[]" the guilty verdict. Commonwealth v. Freeman, supra at 564. In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted⁶), the nature of the error, whether the error is "sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error," Commonwealth v. Miranda, 22 Mass....