Commonwealth v. Bigelow
Decision Date | 27 September 2016 |
Docket Number | SJC–11974. |
Citation | 59 N.E.3d 1105,475 Mass. 554 |
Parties | COMMONWEALTH v. Harvey J. BIGELOW. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
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
, 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: 4 The letter ended as follows:
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 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:
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, 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:
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,
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 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.
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