Commonwealth v. Welch
| Decision Date | 25 April 2005 |
| Parties | COMMONWEALTH vs. VALERIE WELCH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Richard J. Fallon for the defendant. Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.
After a jury-waived trial in the District Court, the defendant, Valerie Welch, was convicted of criminal harassment pursuant to G. L. c. 265, § 43A, based on a series of homophobic statements she made over the course of more than one and one-half years to and about the complaining witnesses, Stephen Robichau and Frank Brienza.1 The Appeals Court affirmed the defendant's convictions in an unpublished memorandum and order pursuant to its rule 1:28. Commonwealth v. Welch, 61 Mass. App. Ct. 1008 (2004). We granted the defendant's application for further appellate review. She contends that (1) there was insufficient evidence to support her convictions under the criminal harassment statute; (2) the criminal harassment statute is unconstitutionally overbroad on its face because it criminalizes speech protected under the First and Fourteenth Amendments to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights; and (3) the statute, as applied to her, violates her rights under the First and Fourteenth Amendments and art. 16. Because we conclude that the defendant's conduct does not satisfy the elements of the statute, we reverse.2
Factual background. In reviewing the sufficiency of the evidence, we consider the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), quoting Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).
During the relevant period, the complainants Stephen Robichau and Frank Brienza lived together in an apartment on the third floor of a twelve-unit apartment building in Lynn, almost directly across the hall from the defendant. At the time of the incidents, Robichau and Brienza had been in an intimate relationship for over twenty years. At various times before (and possibly during) the alleged harassment, the defendant, Robichau, and Brienza enjoyed a friendly relationship, and the defendant was particularly social with Robichau. During the spring of 1999, the relationship became contentious when one of the men suspected the defendant of stealing jewelry from him. Shortly thereafter, the defendant made the first of a series of hateful and bigoted comments at or about Robichau and Brienza based on their sexual orientation. These comments (there is evidence of seven incidents in the record)3 formed the basis of two criminal complaints filed in Lynn District Court. One complaint alleged the criminal harassment of Brienza, and a second complaint alleged the criminal harassment of Robichau.4 We set forth the facts of the seven incidents in chronological order, noting that the first three incidents took place prior to the effective date of the criminal harassment statute, October 30, 2000. See note 1, supra.
The first incident occurred on May 31, 1999. While at home, Robichau and Brienza heard loud noises outside. The defendant, her former boy friend, and two other tenants were sitting in front of the apartment building drinking beer and conversing loudly. Robichau and Brienza stepped out onto their balcony and asked the group to quiet down and not to block the stairs. According to Brienza, the defendant called the plaintiffs "faggots" and "queers," and said, "Why don't you go back in the house, you fucking queers?" Robichau testified that the defendant said to him, "Shut up, you fucking fag." The two men telephoned the police, who came to the apartment and spoke to the defendant.
The second incident was on the following Saturday, again while both men were home. The defendant and her friend stood outside the apartment building, underneath Robichau and Brienza's bedroom window, looking up at them and yelling homophobic comments for about thirty minutes to one hour.5 Brienza testified that the defendant called him and Robichau "faggots," "queers," and "cock suckers," and yelled, "We'll get you," and "You will pay for this." Robichau recalled the defendant yelling "we hate queers." Again, the two men contacted the police, who apparently arrived after the defendant had stopped yelling.6
The third incident occurred a few months later at the end of October, 1999. When Brienza returned home from work and got out of his car in the parking lot beside the apartment building, the defendant yelled from her open window on the third floor, "The queer is home now, the fucking queer is home now."
In a fourth encounter in December, 2000 (the first incident to occur after the harassment statute became effective), the defendant was talking loudly with a gentleman in the hallway outside Robichau and Brienza's apartment. Robichau poked his head out his apartment door and asked the defendant to quiet down. The defendant turned to the gentleman and said,
The fifth incident, on January 24, 2001, occurred when both Robichau and Brienza were home. The men overheard two or more women talking in a "normal" tone outside the building below their window, mentioning "the queers up on the third floor." Brienza heard the defendant say, Robichau heard one of the individuals (not the defendant) state, In response, the defendant stated, "I'm on board," "We'll get rid of him." During the conversation, the defendant also used the slurs "fag," "queer," and "cock sucker."
During the sixth incident on January 26, 2001, Robichau was in his bedroom. He discovered the defendant outside, once again below his bedroom window, looking up at the window and screaming, "It's not my fault you like to take it up the ass." Robichau telephoned the police, who spoke to both parties.
In the seventh and final incident, which, the parties suggest, occurred the next day, Robichau was in his apartment when he heard the defendant yelling, The defendant was in her own apartment at the time she made these statements but was yelling loudly enough that Robichau thought she was "right outside [his] door." Robichau once again contacted the police.7
Robichau testified that the sum of the incidents made him "fearful," that he "is [a]goraphobic," and that "[t]he end result of this was it became nearly impossible for [him] to leave [his] apartment . . . ." The judge denied the defendant's motions for required findings of not guilty as to the harassment charges at the close of the Commonwealth's case and again at the close of all the evidence.8
Discussion. This court has not had the opportunity to consider the elements of the new criminal harassment statute, G. L. c. 265, § 43A. We first consider the nature and scope of the "pattern of conduct or series of acts" that constitutes criminal harassment. Id. We then consider the meaning of the statutory requirement that such conduct be "directed at a specific person," and whether harassing conduct that occurred prior to the effective date of the statute may be punishable. We apply the statute, as construed, to the defendant's conduct in the present case and conclude that there is insufficient evidence to convict. Finally, because the issue was thoroughly briefed and future application of the statute is likely to give rise to similar concerns, we discuss whether the statute, as interpreted today, is consonant with our Federal and State constitutional guarantees of free speech. See Commonwealth v. Gilfedder, 321 Mass. 335, 338 (1947). See also School Comm. of Springfield v. Board of Educ., 366 Mass. 315 (1974), cert. denied, 421 U.S. 947 (1975).
1. Statutory construction. We first consider whether hateful words, such as those employed by the defendant in this case, are criminalized by § 43A. We apply the general rule of statutory construction that a statute is to be interpreted "according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Commonwealth v. Galvin, 388 Mass. 326, 328 (1983), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513 (1975). Our starting point is therefore the plain language of the statute, see, e.g., Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985), but we also seek guidance from its legislative history, see Oxford v. Oxford Water Co., 391 Mass. 581, 587-588 (1984), quoting Commonwealth v. Welosky, 276 Mass. 398, 401-402 (1931), cert. denied, 284 U.S. 684 (1932), the language and construction of related statutes, see, e.g., Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 247 (1993), and the law of other jurisdictions, see, e.g., Commonwealth v. Melton, 436 Mass. 291, 296-297 (2002); Commonwealth v. Donovan, 395 Mass. 20, 29-30 (1985).
A. Harassing "conduct" or "acts." By its terms, the criminal harassment statute is applicable to a "knowing pattern of conduct or series of acts." However, the statute provides no definition of the terms "conduct" or "acts," nor does it indicate expressly whether such "conduct" or "acts" may include speech or statements, the "conduct" employed by the defendant in this case. ...
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