Criminal – Witness intimidation – Facebook

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Where a defendant was charged with witness intimidation based on a Facebook message he sent to the victim of a sexual assault that the defendant’s brother-in-law was convicted of committing, an order dismissing the criminal complaint must be vacated because the commonwealth met its burden of demonstrating probable cause that the defendant violated G.L.c. 268, section13B.

“While attending the criminal trial of his brother-in-law on charges of sexually assaulting the victim, the defendant learned identifying information about the victim. After the defendant’s brother-in-law was found guilty, but before he was sentenced, the defendant utilized that information to locate the victim on Facebook and he sent her a message. …

“The ground upon which the motion judge based her decision is not clear from the record before us. However, to the extent that the decision was based on a determination that the defendant’s conduct was not proscribed by the statutory elements of G.L.c. 268, section13B, the ruling was in error. …

“When viewed in the light most favorable to the Commonwealth, the defendant’s conduct was intimidating and undertaken with the intent to impede or interfere with a proceeding. The defendant sent a message that could reasonably be inferred to contain threatening or harassing statements, especially considering the sexually explicit language he used. … Moreover, the defendant sent the message to the victim on the same day as his brother-in-law’s conviction, but before sentencing, when she would have the opportunity to present a victim impact statement, G.L.c. 258B, section3(p). That supports an inference of his intent to interfere with, or deter, the victim’s further participation during the sentencing phase. … ‘A judge considering a motion to dismiss should not confuse the question of probable cause to arrest with questions more properly resolved by the fact finder at trial,’ … and at this stage the Commonwealth had met its necessary burden of demonstrating probable cause that the defendant violated G.L.c. 268, section13B.

“The defendant in fact directs no argument on appeal to the suggestion that his Facebook posting does not fall within the conduct proscribed by the statutory language. Instead, he argues solely that the statute cannot permissibly criminalize constitutionally protected speech. In making that argument, the defendant does not lodge a facial challenge, based on a showing that the statute imposes a substantial burden on protected speech. … Instead, he challenges the statute as applied to his speech in this case, contending that the statute must be construed to avoid infringement on constitutionally protected speech.

“… However, in the posture of the case before us, on a motion to dismiss, the defendant’s argument would require us to conclude that his words were indisputably entitled to constitutional protection, based on the four corners of the criminal complaint alone. The record before us is insufficient to support that conclusion. …

“… In our view, it is premature to conclude that the Commonwealth’s case, presented at trial, could not provide sufficient context necessary to portray the defendant’s Facebook post as a ‘true threat’ falling outside the bounds of constitutionally protected speech.

“Moreover, even if the defendant’s speech, considered in context, was not a true threat, the defendant’s argument ignores the wide array of circumstances in which the government may permissibly regulate otherwise protected speech, so long as it can demonstrate that the regulation is narrowly tailored to achieve a compelling government interest. …

“In rejecting constitutional challenges to statutes similar to G.L.c. 268, section13B, other states have consistently emphasized the compelling State interest in protecting witnesses from intimidation, harassment, and threats of physical violence. … The purpose of G.L.c. 268, section13B, is to protect ‘witnesses from being bullied or harried so that they do not become reluctant to testify or to give truthful evidence in investigatory or judicial proceedings.’ Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). Neither the parties nor the motion judge have addressed whether G.L.c. 268, section13B, is narrowly tailored to further this substantial State interest, and the record before us does not foreclose the possibility that the Commonwealth could make such a showing at trial. In our view, the question whether the defendant’s Facebook posting is entitled to constitutional protection, foreclosing criminal prosecution under the witness intimidation statute, is better left for evaluation on a more fully developed factual record, at the close of the Commonwealth’s case on a motion for a required finding of not guilty. …”

Commonwealth v. Frazier (Lawyers Weekly No. 81-054-21) (8 pages) (Docket No. 20-P-268) (April 21, 2021).

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