Commonwealth v. Walters

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SJC-11799

COMMONWEALTH vs. MICHAEL WALTERS.

Bristol. May 4, 2015. - September 18, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.

Stalking. Criminal Harassment. Abuse Prevention. Perjury.
Social Media. Threatening. Evidence, Threat, Intent,
Photograph, Relevancy and materiality, Argument by
prosecutor, Disclosure of evidence. Constitutional Law,
Freedom of speech and press. Intent. Practice, Criminal,
Instructions to jury, Argument by prosecutor, Disclosure of
evidence, Impeachment by prior conviction. Due Process of
Law, Disclosure of evidence. Witness, Impeachment.

Indictments found and returned in the Superior Court
Department on March 28, 2011.

The cases were tried before E. Susan Garsh, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Ethan C. Stiles for the defendant.
David B. Mark, Assistant District Attorney (Shoshana Stern,
Assistant District Attorney, with him) for the Commonwealth.
The following submitted briefs for amici curiae:
Claire Laporte, Marco J. Quina, Rebecca M. Cazabon, Stephen
T. Bychowski, & Bendan T. Jarboe for Domestic & Sexual Violence
Council, Inc., & others.
 2

Helen Gerostathos Guyton, Sandra J. Badin, Lyzzette M.
Bullock, & John Nucci for Jane Doe Inc. & others.
Steven M. Freeman, Lauren A. Jones, & Melissa Garlick, of
New York, & Joseph Berman for Anti-Defamation League.
Kirsten V. Mayer, Kavitha A. Mecozzi, Jennifer S. Pantina,
Alexandra L. Roth, Matthew R. Segal, Jessie J. Rossman, & Mason
Kortz for American Liberties Union of Massachusetts.

BOTSFORD, J. This case raises the question whether a

posting to the Web site Facebook may constitute a threat within

the meaning of the stalking statute, G. L. c. 265, § 43 (a)

(§ 43 [a]). We conclude that although content posted to

Facebook may qualify as a threat as defined in the statute, in

this particular case, a reasonable jury could not have found

that the defendant's Facebook profile page constituted such a

threat. We therefore vacate the defendant's conviction of

stalking. The defendant's remaining convictions of criminal

harassment, criminal violation of a restraining order pursuant

to G. L. c. 209A, § 7 (two counts), and perjury (two counts) are

affirmed.1

1
We acknowledge the amicus briefs submitted by the Domestic
& Sexual Violence Council, Inc., Foley Hoag Domestic Violence
and Sexual Assault Prevention Project, Massachusetts Law Reform
Institute, Victim Rights Law Center, Community Legal Services
and Counseling Center, Greater Boston Legal Services, Domestic
Violence Institute at Northeastern University School of Law,
Family Advocacy Clinic of Suffolk University Law School, Justice
Center of Southeast Massachusetts, and Community Legal Aid; Jane
Doe Inc., the Women's Bar Association of Massachusetts, the
Women's Bar Foundation, the National Network to End Domestic
Violence, and the National Center for Victims of Crime; the
 3

Background. 1. Facts. Because the defendant challenges

the sufficiency of the evidence presented with respect to the

charges of stalking and criminal harassment, we summarize the

facts the jury could have found in the light most favorable to

the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671,

677 (1979). We reserve certain facts for further discussion in

connection with other issues raised.

The defendant met the victim,2 an elementary school teacher

in Rhode Island, in the late 1990s or early 2000s. They began

dating and later bought a house together in Rhode Island where

they lived for about three years. During that time, the

defendant asked the victim multiple times to marry him; she

initially refused but eventually agreed to become engaged.

However, they made no wedding plans and never married.

In May, 2006, the defendant and the victim jointly

purchased a new home in Seekonk, Massachusetts (Seekonk house).

The Seekonk house had four bedrooms and a finished basement, and

was located on one and one-half acres of land. There were two

sheds on the property as well as a driveway and a garage.

Anti-Defamation League; and the American Civil Liberties Union
of Massachusetts.
2
In accordance with G. L. c. 265, § 24C, we omit the
victim's name from this opinion.
 4

On July 4, 2007, the defendant and the victim had a

barbecue and invited members of each of their families.3 During

the party, the defendant became involved in a physical

altercation with the victim's son, who had been living with

them.4 The victim, seeing this, was concerned for her son's

safety, and shouted at the defendant to leave her son alone.

After the incident, the victim told the defendant that she could

no longer be involved with him romantically, and returned the

engagement ring he had given her. However, the victim continued

to live in the Seekonk house because she did not know where else

to go, her dog and all of her belongings were there, and her

personal finances were comingled with the defendant's.5

a. Pattern of harassment following the breakup. The

defendant refused to accept the breakup. Although around the

beginning of August, 2007, he agreed to sell the Seekonk house,

he repeatedly told the victim that there would be

"repercussions" if she left him, such as that he would take

3
By this point, the victim was generally unhappy in the
relationship with the defendant, at least in part as a result of
the defendant's attitude toward her friends and family and
controlling behavior.
4
The victim's daughter also lived at the Seekonk house for
at least a few months in 2007.
5
The victim's son moved out of the Seekonk house after the
incident on July 4, 2007, but her daughter continued living in
the house until September, 2007.
 5

their dog and she would never see it again. He also told her

that he was "keeping a file" on her, and would often go into

their computer room, say that he was "adding to the file," and

shut the door. In addition, the victim began to notice more

often that the defendant was appearing unexpectedly in places

outside the home that she went on her own, such as a craft store

and a work-related conference. The defendant also insisted on

accompanying the victim to a gymnasium, and when she told him

she did not want him to come, he would wait near or in her

vehicle when she came home from work. During this period, the

victim slept with a cellular telephone under her pillow, so that

she could make a call immediately if she had to, and to prevent

the defendant from gaining access to her telephone in order to

see to whom she had been talking.

The defendant told the victim that he had been a sniper in

the military, and he kept guns in the home. Prior to July 4,

2007, the victim rarely saw the defendant's guns, but after that

date, she began to see them more often. Sometimes, she saw the

defendant sitting on a stump in the backyard with a rifle. In

November, 2007, the victim came home and saw the defendant

cleaning a gun on the coffee table in the living room. At least

three times, the victim also heard the defendant say, "[O]ne

shot, one kill," although he did not say it directly to her.
 6

Seeing the defendant's guns made the victim feel scared and

threatened.

On Christmas Day, 2007, the victim went home briefly from

her father's house, where she had been spending the holiday, to

retrieve some forgotten presents. The defendant was sitting at

the coffee table with a gun, and there was another gun on the

stairs. The victim felt afraid; she retrieved the presents and

left without speaking to the defendant. When she returned home

later that evening, the defendant yelled at her for not having

spent Christmas with him. The victim said that she was leaving,

ran out of the house, and drove less than one mile to a corner

store, where she sat in her automobile and telephoned her

father. While on the telephone, she saw the defendant pull up

near her in his truck. She tried to lock her vehicle's doors,

but the defendant jumped into her vehicle and tried to wrestle

her telephone away while shouting and cursing at her. Another

vehicle pulled up next to her's; the defendant got out and

seemed to drive away. When the victim ultimately drove home to

the Seekonk house, she discovered that she had been locked out.

She then telephoned the police, who escorted her into her house

to get some of her belongings; she spent that night at her

father's home. Two days later, on December 27, 2007, the victim

obtained an abuse prevention order pursuant to G. L. c. 209A

(restraining order), requiring the defendant immediately to
 7

leave and stay away from the Seekonk house, and to remain at

least one hundred yards away from her. The restraining order

was served on the defendant, the defendant left the house, and

the victim moved back in.

The defendant had a construction business and kept

equipment related to this business on the Seekonk property.

This equipment included a number of large items, including a

trailer and an excavator. In order for the defendant to access

his equipment, on December 31, 2007, at the defendant's request

and with the victim's assent, a District Court judge modified

the restraining order to allow the defendant "access to the

garage area between 7:45 A.M. and 4:00 P.M.[,] Monday through

Friday."6

Around December, 2007, the victim began dating a sergeant

in a Rhode Island police department whom we shall call

"Stephen."7 The victim and Stephen had been friends for

approximately four years prior to that point, but the

relationship did not become romantic until then. Nevertheless,

from July 4, 2007, onward, the defendant frequently accused the

victim of having an affair with Stephen. On the evening of

6
The restraining order remained in effect, with other
modifications to be discussed infra, until April 9, 2009.
7
The victim married Stephen in November, 2008.
 8

January 14, 2008, the victim and Stephen were sitting in the

victim's father's house, when the victim saw the defendant in

her father's front yard. The victim and Stephen got into a

vehicle and drove away from the house looking for him. When

they caught up to him, Stephen and the defendant shouted at each

other, and the defendant accused Stephen of "tagging" the victim

for years.

In February, 2008, the victim came home one day and

discovered that the defendant's excavator, which previously had

been parked on land to the right of the Seekonk house, had been

moved so that it was now blocking access to one of the two

sheds, and the victim was unable to move it. Around the same

time, she also discovered that the doors to the other shed had

been screwed and hammered shut, which had never been the case

before.8 Around the end of February, the victim found the

defendant's trailer at the end of her driveway. The trailer was

blocking the entrance to the driveway, and was inoperable. For

a time, she could still access the garage by driving to another

part of the property and then across the lawn.9 However, shortly

8
The first shed contained some of the victim's gardening
tools and other items, while the second shed contained the
house's recycling bins.
9
Before the trailer was left in the driveway, the Seekonk
property had cement blocks on either side of the driveway, as
well as a row of taller blocks along the front of the property.
 9

after the trailer began blocking the driveway, several boulders

that were too large to have been placed by hand appeared on the

property, preventing her access to the garage even by driving

across the lawn.10 A sign that read "Michael J. Walters Inc.,

General Excavation Contracting," and that had never been on the

property before, also appeared. After that, around March, 2008,

the victim found another piece of the defendant's heavy

equipment in the garage, blocking the space where she would

normally park her vehicle. Throughout this time, the

restraining order remained in effect.

On another night in March, 2008, the victim discovered that

the light bulbs had been removed from all of the lights on the

outside of the Seekonk house. There were no other lights

illuminating the path from the driveway to the door of the

house, nor were there any streetlights, causing the area to be

dark at night and stress for the victim. The defendant admitted

to a Seekonk police officer that he had unscrewed the light

bulbs because the lights were being left on twenty-four hours

These blocks prevented the victim from simply driving around the
side of the trailer and back onto the driveway.
10
The defendant's placement of these boulders on the
Seekonk property was the basis for one of the two convictions of
violating the restraining order.
 10

per day, the electricity bill was still in his name, and he did

not want to have to pay for unnecessary electricity.11,12

A real estate agent had created a page on a Web site,

called Zillow, to advertise that the Seekonk house was for sale.

The victim visited the page and discovered that the defendant

had posted a copy of her affidavit in support of her request for

the restraining order, but the affidavit contained additional

information that she had not included in the original, such as

that the victim had "mixed thyroid medication and wine." The

affidavit was posted immediately after the victim obtained the

restraining order, in December, 2007. In the months that

followed, the victim saw other posts on Zillow that disparaged

her or Stephen.13 Other posts referenced subject matter that the

11
The defendant's removal of the light bulbs from the
exterior of the house was the subject of the other restraining
order violation.
12
From December 27, 2007, until approximately June, 2008,
the victim was not receiving mail at the Seekonk house,
including household bills. At least some of these bills
remained in the defendant's name; however, the victim attempted
to have the bills changed to her name. She also contacted the
post office regarding the problem with her mail but received no
explanation for it and eventually arranged to have her mail
delivered to her father's house.
13
For example, at least one post referred to her as an
"adulteress," and another suggested that she had "[b]ipolar
[e]pisodes." Another post referred to observations that
Stephen's vehicle had been driven across the lawn and parked in
the garage at the Seekonk house multiple times over the weekend
 11

victim and Stephen had discussed in private electronic mail

messages (e-mails) to one another.14 The defendant had access to

the Zillow page and admitted to having made the posts.15

Although the posts do not indicate the date that they were

uploaded to the Web site, they appear to have been posted no

later than April 6, 2008.

On March 4, 2008, following a hearing at which the

defendant did not appear, a District Court judge reinstated in

its entirety the original restraining order requiring the

defendant to leave and stay away from the Seekonk house. On

March 10, the victim and Stephen went to the court for a follow-

up hearing regarding the order. As they pulled into the court

parking lot, the defendant got out of a large vehicle with a

camera in his hand. Other people also got out of the vehicle,

including a woman named Cynthia Dugas and two of the defendant's

sons. The defendant handed the camera to one of his sons, who

of February 29 to March 2, 2008, and suggested that art was
missing from the home.
14
The victim had not shared her electronic mail (e-mail)
password with the defendant or otherwise permitted him to access
her e-mail account.
15
There also were several posts pertaining to the victim or
to Stephen on another Web site, called MySpace, which is used
for social networking. See Commonwealth v. Williams, 456 Mass.
857, 867 (2010). The last of these posts that were admitted as
evidence at trial were posted no later than April 2, 2008.
 12

began to chase the vehicle that the victim and Stephen were in.16

The victim was so nervous during this incident that she

initially did not get out of her vehicle at the court, but

instead drove away from the location. Ultimately, however, a

hearing was held that day at which both the victim and the

defendant appeared. The restraining order was extended until

April 10, 2008, and the defendant was given five days to pick up

his construction equipment, but was not permitted to enter the

house.

Around the same time,17 the defendant arranged for Dugas to

view the inside of the house, supposedly so that Dugas could

determine whether it was handicap-accessible and would be

suitable to purchase for her mother, who was ill. The defendant

drove Dugas to the property and waited for her while she was

inside.

On June 6, 2008, the defendant was granted seven business

days, beginning on June 9, to enter the Seekonk house, in the

presence of police, in order to remove his personal possessions.

16
The jury were instructed that they were to consider only
the defendant's actions in relation to this incident, and not
the actions of the defendant's sons.
17
Although the record is unclear as to whether Cynthia
Dugas viewed the inside of the Seekonk house before or after
March 4, 2008, when the original restraining order was
reinstated in its entirety, her testimony suggests that she
viewed the property at some point close to this date.
 13

The defendant made at least three trips to the property to do

this. On June 10, police observed a woman who was with the

defendant taking pillows and blankets from the house that

appeared to have been just removed from a bed; they were not in

a box or otherwise packed. On June 11, the defendant removed

other belongings, including a television and chairs. Finally,

on June 17, police observed the defendant entering and leaving

the house five to eight times, and eventually removing large

pieces of furniture and appliances. When the victim returned

home that day, she discovered that the refrigerator, stove, and

bed had been removed, and the water for the whole house had been

shut off. Urine and feces had been left in the toilets, which

could not be flushed because the water was off. When the water

was turned on, water began shooting out of a pipe where the

refrigerator had been, requiring the victim to turn it off again

until that problem could be fixed. There was also food from the

refrigerator placed in the sink and on the counters, items on

the floor, and no towels with which to clean up the mess.18

Shortly thereafter, the victim moved out of the Seekonk

house. Accordingly, in November, 2008, the restraining order

was again modified to allow the defendant to return to the

18
Within approximately one month, the refrigerator and the
stove were left in the victim's attorney's parking lot.
 14

property. On April 9, 2009, the order was vacated because the

victim had moved to Rhode Island.

b. Defendant's Facebook profile. No evidence was admitted

regarding the defendant's conduct toward the victim from June,

2008, until January, 2011. On January 13, 2011, Stephen,

against whom the defendant previously had filed a number of

complaints with the police department where he worked, learned

that the defendant had sent e-mails to a member of the city

council asking that Stephen be investigated. This made Stephen

concerned that the defendant might resume posting material

related to the victim on Web sites, so Stephen searched for and

viewed the defendant's Facebook profile.19 The profile page

featured a photograph of the defendant, seated in a room, with a

19
Facebook is also a social networking Web site. See
Commonwealth v. Purdy, 459 Mass. 442, 450 (2011); In re Zynga
Privacy Litig., 750 F.3d 1098, 1100 (9th Cir. 2014). The site
allows members to "develop personalized web profiles to interact
and share information with other members." Lane v. Facebook,
Inc., 696 F.3d 811, 816 (9th Cir. 2012), cert. denied sub nom.
Marek v. Lane, 134 S. Ct. 8 (2013). "The type of information
members share varies considerably, and it can include news
headlines, photographs, videos, personal stories, and activity
updates. Members generally publish information they want to
share to their personal profile, and the information is thereby
broadcasted to the members' online 'friends' (i.e., other
members in their online network)." Id. "Users can make their
profiles available to the public generally, or limit access to
specified categories of family, friends, and acquaintances." In
re Zynga Privacy Litig., supra at 1101. The defendant's
Facebook profile was apparently public, because Stephen was able
to view it after searching for it.
 15

slight smile on his face, holding a large gun across his lap.

On a separate part of the page, next to an information box

marked "Favorite Quotations," was the following statement:

"Make no mistake of my will to succeed in bringing you two

idiots to justice." The page also indicated that the defendant

was a committee member of the "Governors [sic] Task Force on

Police Corruption" and included images of the singer Rihanna and

of a St. Louis Rams helmet. The photograph of the defendant

holding a gun appeared to have been uploaded to the page on

January 13, the same day that Stephen searched for and found the

page,20 but it was unclear when the other items were added. When

the victim saw the Facebook page, it made her feel terrified.21

2. Procedural history. On March 28, 2011, a grand jury

indicted the defendant for stalking, in violation of § 43 (a);

criminal harassment, in violation of G. L. c. 265, § 43A;

criminal violation of an order pursuant to G. L. c. 209A, § 7

(two counts); and perjury, in violation of G. L. c. 268, § 1

20
The trial record is ambiguous as to the specific year
that the photograph was added to the defendant's Facebook page.
However, the Commonwealth asserted at oral argument that the
evidence suggested the photograph was uploaded on January 13,
2011, and the defendant agreed.
21
In early 2011, the defendant filed civil lawsuits in
Rhode Island, one against the victim and one against Stephen.
 16

(two counts).22 The charges of stalking, criminal harassment,

and violations of the restraining order identified the victim as

the sole target of these crimes.

The defendant was tried before a jury in 2012. At the

close of the Commonwealth's case-in-chief, the defendant moved

for a required finding of not guilty on all charges except one

of the charges of violating the restraining order; these motions

were denied. The jury convicted him of the stalking, criminal

harassment, restraining order violations, and perjury charges.

The defendant appealed. We transferred the appeal to this court

on our own motion.23

Discussion. 1. Stalking. A person is guilty of stalking

if he or she " (1) 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 or

annoys that person and would cause a reasonable person to suffer

substantial emotional distress, and (2) makes a threat with the

intent to place the person in imminent fear of death or bodily

injury"; the conduct, acts, or threats may be accomplished by

22
The defendant also was indicted for rape and indecent
assault and battery of the victim. The jury found him not
guilty of these charges.
23
The defendant represented himself at trial, with the
assistance of stand-by counsel. On appeal, he is represented by
counsel.
 17

means of electronic communication.24 G. L. c. 265, § 43 (a).

The defendant challenges the sufficiency of the evidence

presented with respect to both the "threat" and "pattern of

conduct or series of acts" components of stalking. We focus on

the threat component.

The Commonwealth contends that the defendant's Facebook

page containing the photograph of himself holding a gun, and, in

a space labeled "[f]avorite [q]uotations," the words, "Make no

mistake of my will to succeed in bringing you two idiots to

justice," satisfied the threat element set out in § 43 (a) (2).25

24
General Laws c. 265, § 43 (a), as amended through St.
2010, c. 92, § 9 (§ 43 [a]), provides in relevant part:

"Whoever (1) 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 or
annoys that person and would cause a reasonable person to
suffer substantial emotional distress, and (2) makes a
threat with the intent to place the person in imminent fear
of death or bodily injury, shall be guilty of the crime of
stalking and shall be punished . . . . The conduct, acts
or threats described in this subsection shall include, but
not be limited to, conduct, acts or threats conducted by
mail or by use of a telephonic or telecommunication device
or electronic communication device including, but not
limited to, any device that transfers signs, signals,
writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photo-electronic or photo-optical system,
including, but not limited to, electronic mail, internet
communications, instant messages or facsimile
communications."
25
During the trial, the jury were instructed to consider
only the Facebook profile page in determining whether the
 18

The defendant disagrees, arguing that because the Facebook page

was ambiguous and temporally remote from the alleged harassment,

the First Amendment to the United States Constitution dictates

that the page could not qualify as a "threat" under

§ 43 (a) (2), but was instead protected speech. We agree with

the defendant's contention that there was insufficient evidence

for a rational jury to find that the defendant made such a

threat. See Latimore, 378 Mass. at 677-678.

We begin with the requirements of the First Amendment.26

Generally speaking, laws that proscribe speech based on its

content are presumptively invalid. R.A.V. v. St. Paul, 505 U.S.

377, 382 (1992). Nevertheless, "certain well-defined and

narrowly limited classes of speech," O'Brien v. Borowski, 461

Mass. 415, 422 (2012), quoting Chaplinsky v. New Hampshire, 315

U.S. 568, 571, 572 (1942), do not receive constitutional

protection, including "true threats." O'Brien v. Borowski,

supra. See Virginia v. Black, 538 U.S. 343, 359 (2003); Watts

defendant had made a "threat" against the victim under
§ 43 (a) (2).
26
Both the First Amendment to the United States
Constitution and art. 16 of the Massachusetts Declaration of
Rights, as amended by art. 77 of the Amendments to the
Massachusetts Constitution, generally protect speech from
government regulation. See O'Brien v. Borowski, 461 Mass. 415,
422 (2012). Neither party suggests that a separate analysis of
this issue is necessary under each of these constitutional
provisions.
 19

v. United States, 394 U.S. 705, 708 (1969). See also United

States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (plurality

opinion) (listing "true threats" as among "historic and

traditional" categories of unprotected speech [citations

omitted]).

The United States Supreme Court has defined "true

threats" as

"those statements where the speaker means to communicate a
serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of
individuals. . . . The speaker need not actually intend to
carry out the threat. Rather, a prohibition on true
threats 'protect[s] individuals from the fear of violence'
and 'from the disruption that fear engenders,' in addition
to protecting people 'from the possibility that the
threatened violence will occur.'" (Citation omitted.)

Black, 538 U.S. at 359-360, quoting R.A.V. v. St. Paul, 505 U.S.

at 388. A "true threat" need not take the form of an explicit

statement that the speaker intends to cause imminent, physical

harm to the victim, but may comprise "words or actions that --

taking into account the context in which they arise -- cause the

victim to fear such harm now or in the future." O'Brien v.

Borowski, 461 Mass. at 425. See Black, supra at 362-363 (State

may prohibit cross burnings committed with intent to

intimidate); Commonwealth v. Chou, 433 Mass. 229, 234-235 (2001)

("sexually explicit and aggressive language" targeting

individual victim may constitute threat absent explicit

statement of intention to harm victim as long as circumstances
 20

reasonably support victim's fearful response); Commonwealth v.

Robicheau, 421 Mass. 176, 179, 182-183 (1995) (defendant's

verbal threats not protected under First Amendment).

Conversely, speech that has an expressive purpose other than to

instill fear in another may be explicitly threatening, but may

nevertheless fail to rise to the level of a true threat. Watts,

394 U.S. at 706, 708 (statement at political rally was, given

its context, "political hyperbole" and not "true threat"); Chou,

supra at 237.

Comparing the definition of "true threat" to the threat

component of the stalking statute, we conclude that any verbal

or written communication that qualifies as a threat as defined

in the statute is also a "true threat," and therefore is not

entitled to protection under the First Amendment.27 To convict a

defendant of stalking, the Commonwealth must show that he or she

27
Other categories of unprotected speech may encompass acts
of speech that are punished under the other component of
stalking, namely, the "pattern of conduct or series of acts"
directed at another. G. L. c. 265, § 43 (a) (1). See
Commonwealth v. Welch, 444 Mass. 80, 87-88, 98-99 (2005),
abrogated on another ground by O'Brien v. Borowski, 461 Mass. at
425 & n.7 (criminal harassment statute, G. L. c. 265, § 43A, is
"closely related" to criminal stalking statute; where harassment
includes "fighting words" not protected by First Amendment,
statute may penalize this conduct). See also Commonwealth v.
Johnson, 470 Mass. 300, 310 (2014) (where defendant's speech was
"integral to criminal conduct" of harassing and causing
substantial emotional distress to victims, speech could be
penalized as criminal harassment in violation of G. L. c. 265,
§ 43A [a] [citation omitted]).
 21

"[made] a threat with the intent to place the [stalking target]

in imminent fear of death or bodily injury." G. L. c. 265,

§ 43 (a) (2). Thus, like "true threats," see Black, 538 U.S. at

359-360, the threat component of the stalking statute

specifically targets communications by the defendant that are

aimed at placing the victim in fear of physical violence,

whether or not the defendant actually intends to commit the

threatened act of violence. See Commonwealth v. Matsos, 421

Mass. 391, 395 (1995) (to prove threat in furtherance of

stalking, "Commonwealth need not prove that the defendant

actually intended to harm the victim . . . [;] it need only

prove that the defendant's threats were reasonably calculated to

place the victim in imminent fear of bodily injury" [citation

omitted]). See also Commonwealth v. Gupta, 84 Mass. App. Ct.

682, 687 (2014) (stalking statute "aims to protect victims of

stalking from fear itself, and not merely ultimate physical

harm"). In addition, the threat component of stalking has been

likened to assault, see Matsos, supra at 394-395; clearly,

speech that constitutes an assault or that similarly threatens

another does not enjoy First Amendment protection. See

Robicheau, 421 Mass. at 183 (denying First Amendment protection

to verbal threats that placed victim in "reasonable apprehension

of imminent serious physical harm").
 22

As with an assault, for a defendant to make a threat that

meets the requirements of § 43 (a) (2), both the defendant must

intend to place the victim in immediate fear that physical harm

is likely to occur and the victim's fear must be reasonable.28

See Matsos, 421 Mass. at 394-395. See also Commonwealth v.

Gorassi, 432 Mass. 244, 248 (2000) (to commit assault, defendant

must engage in "objectively menacing" conduct with intent to

place victim in fear [citation omitted]). The reasonableness of

the victim's fear depends in part on "the actions and words of

the defendant in light of the attendant circumstances" (citation

omitted). Matsos, supra at 395. See Gupta, 84 Mass. App. Ct.

at 684, 688 (victim's "imminent fear" based on defendant's long-

distance telephone calls reasonable in light of defendant's

"mobility, history of abusive conduct, motivation," and

knowledge of victim's whereabouts). Similarly, "[i]ntent is a

factual matter that may be proved by circumstantial

28
We note that the threat element of the crime of stalking
differs from the common-law crime of assault in one important
respect: unlike assault, which requires that the defendant act
"with the intent to put the victim in fear of immediate bodily
harm," Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000), for a
threat to meet the requirements of the stalking statute, it need
not necessarily cause the victim to fear that physical harm will
come to him or her immediately. See Commonwealth v. Gupta, 84
Mass. App. Ct. 682, 685, 686-687 (2014) (observing that G. L.
c. 265, § 43 [a] [2], requires threat that places victim in
"imminent fear of death or bodily injury," rather than in fear
of "imminent death or bodily injury," and that prior cases have
been consistent with this reading).
 23

evidence."29 Commonwealth v. LaPerle, 19 Mass. App. Ct. 424, 427

(1985), quoting Commonwealth v. Ellis, 356 Mass. 574, 578-579

(1970).

Finally, although communication of a threat to its intended

victim is not expressly required under § 43 (a) (2), we agree

with the Appeals Court that evidence of the defendant's intent

to communicate the threat through direct or indirect means is

necessary. See Commonwealth v. Hughes, 59 Mass. App. Ct. 280,

281-282 (2003). Where communication of the threat is

indirect -- for example, through an intermediary -- the

Commonwealth must prove beyond a reasonable doubt that the

defendant intended the threat to reach the victim. See id. at

29
Where a defendant has been charged with threatening to
commit a crime, see G. L. c. 275, § 2, based on an ambiguous
statement or writing, we have similarly analyzed the substance
of the communication as well as the surrounding context to
determine whether the communication expressed an intent to harm
the recipient and caused that person reasonable fear. See
Commonwealth v. Milo M., 433 Mass. 149, 154-155 (2001) (two
drawings depicting defendant pointing gun at his teacher
constituted expression of intent to harm teacher, where drawings
contained other references to violence and defendant presented
drawings to teacher in angry and defiant manner); Commonwealth
v. Sholley, 432 Mass. 721, 725-726 (2000), cert. denied, 532
U.S. 980 (2001) (defendant's rage at court system, recent
predictions of "war" and "bloodshed," angry tone, and position
only inches from prosecutor when pointing his finger in her face
and telling her to "watch out" permitted jury to conclude
statement intended as threat); Commonwealth v. Elliffe, 47 Mass.
App. Ct. 580, 582-583 (1999) (words "drop the charges," uttered
while defendant was physically assaulting and battering victim,
permitted jury to infer that if victim did not "drop the
charges," additional violence would follow).
 24

283 (jury could have found that defendant intended his brother

to convey threat to victim). Compare Commonwealth v. Meier, 56

Mass. App. Ct. 278, 279-282 (2002) (defendant's letter to victim

indicating belief that victim was responsible for recent

collection efforts against defendant, combined with threatening

statement to collection attorney regarding victim, supported

inference that defendant intended statement to reach victim),

with Commonwealth v. Troy T., 54 Mass. App. Ct. 520, 527-528

(2002) (where third party overheard putative threat, but there

was no evidence of defendant's intent that third party would

hear threat, jury could not infer intent to communicate threat

to target).

Applying these principles to the defendant's Facebook

profile page, although the victim testified that she was

terrified when she viewed the page, her subjective reaction is

not the crux of the inquiry. Rather, it is necessary to focus

on the content of the page in the context of the past and

present relationship between the defendant and the victim to

determine whether there was sufficient evidence of the

defendant's intent to threaten the victim and whether the

victim's fear was reasonable.

We begin by considering the photograph of the defendant

holding a gun. The photograph itself contains no evidence of

the defendant's intent to commit violence -- there is nothing
 25

obviously menacing about his facial expression in the photograph

or the way in which he is depicted holding the gun across his

lap, nor is there a caption of any kind that might suggest the

photograph was intended to evoke violence. Contrast

Commonwealth v. Milo M., 433 Mass. 149, 154-155 (2001)

(threatening drawings portrayed violent acts directed at

defendant's teacher). Even considering the photograph in light

of the defendant's previous behavior around the victim involving

guns, although his past actions might imply an intent to use

guns to intimidate the victim, there was no evidence that the

defendant had ever used a gun for a violent purpose in her

presence, pointed a gun at her, or otherwise threatened physical

violence toward her.30 Moreover, because the photograph was

uploaded to the Facebook page in 2011, approximately three years

after the last time that the victim saw the defendant with a

gun, the relationship between the defendant's past behavior and

the photograph is tenuous, especially considering that, given

the defendant's status as a military veteran and apparently

long-standing interest in guns, he could have intended the

photograph to serve as an expressive statement regarding this

30
The victim did testify that the defendant raped and
committed an indecent assault and battery on her; however, the
jury apparently did not credit this testimony, because they
found the defendant not guilty of the charges stemming from
these incidents.
 26

status and interest. Contrast Chou, 433 Mass. at 235-237

(threatening poster identified victim, contained sexually

aggressive language directed at her, and had no expressive

purpose other than to place victim in fear); Commonwealth v.

Sholley, 432 Mass. 721, 724, 726 (2000), cert. denied, 532 U.S.

980 (2001) (defendant's actions that contributed to finding

intent to threaten took place within two- to three-minute span).

Turning to the quotation on the page, "[m]ake no mistake of

my will to succeed in bringing you two idiots to justice," in

the circumstances of this case, it is reasonable to interpret

the "two idiots" as referring to the victim and Stephen. But

even if one reads the sentence in combination with the

photograph of the defendant, any particular violent message that

might be attributed to the defendant from the presence of these

two elements on the same page is speculative. Although the

photograph depicts the defendant holding a gun, nothing else

about that image suggests a clear intent to commit violence.

Furthermore, like the photograph, the word "justice" is amenable

to a reasonable, nonviolent interpretation, namely, that the

defendant intended to pursue whatever legal means might be

available to right wrongs he perceived the victim and Stephen

had inflicted on him. See note 21, supra.

Finally, the Commonwealth asserted during oral argument

that, given the limited total number of items on the defendant's
 27

Facebook profile page, the combined presence of (1) the

photograph of the defendant with a gun, (2) the quotation about

justice, (3) the reference to Rihanna,31 and (4) the reference to

the "Governors [sic] Task Force on Police Corruption,"32

suggested that the page could have had little meaning except to

project the appearance of a threat against the victim and

Stephen. We agree that the page as a whole could have come

across as vaguely ominous or disturbing. However, because no

evidence was introduced at trial regarding the defendant's

opinion of or even knowledge about Rihanna, or about whether the

defendant did or did not participate in a task force on police

corruption, we question whether it is reasonable to ascribe to

these items the meaning that the Commonwealth suggests, and to

then infer that the defendant in fact created and intended to

use the page to place the victim in imminent fear of bodily

31
Rihanna is a well-known singer and is a survivor of
domestic violence, a fact that at least some members of the jury
may have known. See Sisario, Stormy Relationship, Forgiving
Followers, N.Y. Times, Apr. 28, 2013. In addition, it appears
that the copy of the Facebook page that was submitted to the
jury as an exhibit contained a handwritten note that identified
Rihanna as a survivor of domestic violence. The defendant did
not object to admission of the copy of the page as an exhibit,
and he does not raise the handwritten note as an issue on
appeal.
32
The Commonwealth argued that the reference to the
defendant's participation in a task force on police corruption
should be interpreted as invoking the defendant's history of
filing complaints against Stephen with the police department.
 28

harm. Ultimately, based on the trial record, we conclude that

the evidence of the defendant's intent concerning the creation

of the Facebook profile was insufficient with respect both to

whether the page constituted a threat within the scope of

§ 43 (a) (2), and to the reasonableness of the victim's fear.33

There is no question that new technology has created

increasing opportunities for stalkers to monitor, harass, and

instill fear in their victims, including through use of Web

sites. See Fraser, Olsen, Lee, Southworth, & Tucker, The New

33
We comment briefly on whether there was sufficient
evidence that the defendant intended to communicate the contents
of this page to the victim. No evidence was presented at trial
that the defendant had used the Internet to harass or disparage
the victim from April, 2008, to January 13, 2011; that either
the victim or Stephen previously had communicated with the
defendant via Facebook or viewed his page; or that the defendant
and the victim had an overlapping network of Facebook "friends,"
such that information the defendant posted to his own Facebook
page would have been visible to the victim's friends. At the
same time, however, the page apparently was accessible to the
public, and there was substantial evidence that the defendant
had used other Web sites, namely, Zillow and MySpace, to
disparage the victim in the past. We do not need to decide this
issue regarding intent to communicate in the present case. But
given the relative ease with which material on the Internet can
be broadcast to a wide audience, including not only to the
victim but also to the victim's family, friends, coworkers, and
acquaintances, the factors just mentioned -- whether the threat
was conveyed in a public or private Internet space, whether the
victim or others in his or her social circle was likely to see
the threat, and whether the victim and the defendant had
communicated online before -- will likely be important in future
cases involving alleged Internet-based threats.
 29

Age of Stalking: Technological Implications for Stalking, 61

Juv. & Fam. Ct. J. 39, 41, 46-48 (Fall 2010) (discussing uses of

Internet to cause physical harm, threaten, or post damaging

information about a victim). Where a defendant has posted a

threat to a Facebook page that meets the requirements of

§ 43 (a) (2), and has engaged in a series of acts or pattern of

conduct described in § 43 (a) (1), the fact that the threat

appears on the Internet is not a barrier to prosecution for

stalking. See G. L. c. 265, § 43 (a) (2) ("conduct, acts, or

threats" related to stalking may be accomplished by means of

electronic communication, including Internet communications).

Cf. Elonis v. United States, 135 S. Ct. 2001, 2016-2017 (2015)

(Alito, J., concurring in part and dissenting in part) (applying

"true threats" exception to First Amendment to violent

statements made on social media that are pointedly directed at

victims, whether made recklessly or with intent to threaten);

Commonwealth v. Johnson, 470 Mass. 300, 312-313 (2014) (where

defendants used Web site to recruit others to harass victims,

defendants could not "launder their harassment of the [victims]

through the Internet to escape liability" for criminal

harassment under G. L. c. 265, § 43A). Here, however, there was
 30

insufficient evidence that the defendant intended to make such a

threat, and thus his conviction of stalking cannot stand.34,35

34
Because the Commonwealth failed to present sufficient
evidence to prove that the defendant threatened the victim
within the meaning of § 43 (a) (2), ordinarily, we would next
consider whether the stalking conviction could be reduced to
criminal harassment. See O'Brien v. Borowski, 461 Mass. at 420
n.5 (criminal harassment, as defined in G. L. c. 265, § 43A [a],
is a lesser included offense of criminal stalking); Commonwealth
v. Kulesa, 455 Mass. 447, 451 n.6 (2009), citing Welch, 444
Mass. at 87, 88 (criminal harassment is "closely related" to
criminal stalking, "employing nearly identical language but
eliminating the threat requirement"). However, we also agree
with the defendant that there was insufficient evidence to
support all the specific acts on which the Commonwealth relied
to prove the "pattern of conduct or series of acts" component of
the stalking charge, which, like criminal harassment, requires
proof of three or more incidents to support a conviction. See
Welch, supra at 89-90; Commonwealth v. Kwiatkowski, 418 Mass.
543, 548 (1994). See also G. L. c. 265, § 43 (a) (1); G. L.
c. 265, § 43A (a). In particular, under the judge's
instructions, the jury were permitted to consider, as one of the
incidents of stalking, whether the defendant (and not one of his
sons, see note 16, supra) "approached" the victim with a camera
outside of court; the testimony, however, was only that the
defendant "got out of the car, the vehicle, and he had a camera
in his hand," not that he approached the victim. Because there
was insufficient evidence of this act, and we have no way of
knowing whether or not the jury relied on this act in finding
the defendant guilty of stalking, the defendant's stalking
conviction cannot be reduced to criminal harassment and must
instead be set aside. See Commonwealth v. Vizcarrondo, 427
Mass. 392, 398 (1998), S.C., 431 Mass. 360 (2000).

In addition, because we are affirming the defendant's
conviction of criminal harassment, and the acts that supported
the criminal harassment conviction were part of the same over-
all "pattern of conduct" that supported the stalking charge, we
have concerns that reducing the defendant's stalking conviction
to a second conviction of criminal harassment -- or allowing the
defendant to be retried on a second charge of criminal
harassment based on the acts that supported the stalking charge
in this trial -- would violate double jeopardy principles.
 31

2. Criminal harassment. The defendant challenges the

sufficiency of the evidence presented in support of his criminal

harassment charge. Criminal harassment is defined as "willfully

and maliciously engag[ing] 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." See G. L. c. 265, § 43A (a). As with stalking, for

a defendant to be convicted of criminal harassment, the

Commonwealth must prove that the defendant engaged in at least

three harassing incidents directed at the victim. See

Commonwealth v. Welch, 444 Mass. 80, 89 (2005), abrogated on

another ground by O'Brien v. Borowski, 461 Mass. at 425 & n.7.

See also G. L. c. 265, § 43 (a) (1); G. L. c. 265, § 43A (a).

In her instructions to the jury on criminal harassment, the

judge identified four alleged acts that the jury could consider

in determining whether the defendant's conduct met the

requirements for that offense: (1) bringing Cynthia Dugas to

35
The defendant also challenged the ability of
Massachusetts courts to exercise jurisdiction over him for
purposes of the stalking charge, because by the time the victim
and Stephen viewed the defendant's Facebook profile, they were
living in Rhode Island, and they viewed the Facebook page there.
The defendant appears to have been living in Rhode Island at
that time as well. Given our conclusion, we do not address the
jurisdictional issue.
 32

the Seekonk house and waiting for her "while she viewed the

residence with the purpose of having her check the contents of

the home and check up on [the victim]"; (2) placing a sign on

the Seekonk house lawn; (3) turning off the water and defecating

and urinating in the toilets; and (4) leaving firearms around

the house and cleaning them in the victim's presence in an

intimidating manner.36 The defendant challenges the sufficiency

of the evidence of the first two of these incidents. His

challenge fails.

With respect to the sign that was placed on the Seekonk

house lawn, the defendant argues that he was entitled, under the

First Amendment, to advertise his construction business on his

property. See Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (First

Amendment protection of commercial speech). The general

principle he states is correct, but here, the defendant placed

the sign alongside one of the cement blocks that was on the

property, so that it also impeded vehicle access.37 Based on the

36
The jury were instructed to consider a different eight of
the defendant's other alleged acts of harassment directed toward
the victim as part of the stalking charge.
37
The defendant argues that the sign was "small" and did
not block the victim's access to the property or could have been
moved. However, the victim testified that it did impede her
access, and we evaluate the sufficiency of the evidence in the
light most favorable to the Commonwealth.
 33

location of the sign and the fact that it never had been

displayed on the property before, the jury reasonably could have

inferred that the purpose of the sign was to harass the victim

and to remind her of the defendant's presence, rather than to

engage in commercial speech. See Johnson, 470 Mass. at 309

(where sole purpose of defendants' speech was to harass victims,

speech was not protected by First Amendment).

With respect to the alleged act of harassment involving

Dugas, the defendant argues that there was no evidence he

brought Dugas to the Seekonk house for the purpose of having her

check on the victim. Although there was no express testimony on

this point, considering the evidence in the light most favorable

to the Commonwealth, the jury reasonably could have inferred

from the testimony of Dugas, the victim, and Stephen that

Dugas's purpose was to make observations not just of the house

but of the victim's presence in it. Dugas accompanied the

defendant during other incidents in which the defendant or one

of his sons harassed the victim or interfered with her enjoyment

of the Seekonk house.38 The jury reasonably could infer based on

38
Dugas was with the defendant outside the District Court
on March 10, 2008, when one of the defendant's sons chased the
victim with a camera; was with him when he removed the light
bulbs from the outside of the Seekonk house; and later helped
the defendant remove the refrigerator and stove from the house.
The victim and Stephen also saw Dugas one night driving back and
 34

these incidents that Dugas knew the defendant was trying to

monitor and harass the victim, and was assisting him in doing

so. As for Dugas's visit to the Seekonk house in particular,

Dugas's testimony that she was thinking of buying the house for

her disabled, sick mother was at best improbable given that the

house was large and had at least one staircase, and that Dugas's

mother eventually went to live in a nursing home. In these

circumstances, the jury reasonably could have inferred that the

defendant brought her to view the inside as a way of

investigating the contents of the home and what the victim was

doing there while the restraining order barred the defendant

himself from entering.

Although these two incidents, taken alone, might seem

somewhat innocuous, the Commonwealth was required to prove only

that the cumulative effect of the defendant's pattern of conduct

"seriously alarm[ed]" the victim, not that each individual

incident was alarming. See Johnson, 470 Mass. at 314.

Moreover, the victim testified that seeing the defendant's

firearms around their house made her feel "afraid" and

"threatened," and that the mess the defendant left when he

forth in front of the victim's father's house, and eventually
parking in front of the home. Dugas's explanation of what she
was doing there on that occasion -- looking for the father of an
arborist she needed to hire to trim a tree in her yard -- was
implausible, given, among other reasons, that it was evening and
already getting dark outside.
 35

turned off the water and left urine and feces in the toilets was

part of the "most horrible time in [her] life" and was "very,

very stressful." A reasonable jury could have found on this

record that the defendant committed each incident alleged in

support of the criminal harassment charge, as well as that the

combined effect of these acts seriously alarmed the victim.

3. Violations of the restraining order. The defendant

also challenges his two convictions of violating the restraining

order. He argues that during the period when the order was

modified to permit the defendant "access to the garage area

between 7:45 A.M. and 4:00 P.M.[,] Monday through Friday only,"

the order ceased to be a true order to vacate and stay away

during those hours and, therefore, violation of the order at

those times was not a criminal offense. See Commonwealth v.

Finase, 435 Mass. 310, 313-314 (2001) (G. L. c. 209A, § 7,

criminalizes only three kinds of violations of an order:

failures to vacate, to refrain from abusing plaintiff, or to

have no contact with plaintiff or her minor child).39 This

argument, however, ignores the most natural reading of the

order, which is that the defendant remained obligated to vacate

39
General laws c. 209A, § 7, has been amended several times
since the decision in Commonwealth v. Finase, 435 Mass. 310
(2001). See G. L. c. 209A, § 7, amended by St. 2002, c. 184,
§§ 113-114; St. 2003, c. 26, § 448; St. 2006, c. 418, § 1; and
St. 2014, c. 260, §§ 14, 15. However, Finase, supra at 313-314,
accurately described the offense in 2007 and 2008.
 36

and stay away from the Seekonk house, with the exception that he

was permitted to access the garage during the hours provided.

The fact that the defendant needed to drive or walk up the

driveway to reach the garage does not change the import of the

order, which is properly understood to mean that the defendant

was allowed to traverse the driveway to access the garage, but

not otherwise to interfere with the property in ways that were

not related to gaining such access. Cf. Commonwealth v. Silva,

431 Mass. 194, 198-199 (2000) (incidental contact required in

order to effectuate father's right to speak to children by

telephone did not permit father to violate terms of protective

order by using abusive and threatening language toward father's

former wife).

The defendant further argues that the trial judge committed

error in her jury charge by equating the defendant's acts of

placing the boulders on the Seekonk property and removing the

light bulbs from outside of the house with violations of the

restraining order.40 We disagree. Given that the defendant was

40
The judge instructed the jury that in order to find the
defendant guilty of the restraining order violations, they were
required to find: (1) that a court had issued a restraining
order requiring the defendant to vacate and stay away from the
Seekonk property, "except as may have been permitted by the
court in the order"; (2) that the order was in effect on the
date of the alleged violation; (3) that the defendant knew that
the pertinent terms of the order were in effect; and (4) that
the defendant "violated the stay away order by removing light
 37

charged with two violations of a restraining order based on two

specific acts, the judge's instructions were a practical and

appropriate way of communicating the two charges to the jury.

Considering the instruction as a whole, the judge's references

to removing the light bulbs and placing the boulders did not

inherently equate these actions with violations of the order,

but brought home to the jury that to find the defendant guilty,

they had to conclude (among other things) that the defendant

"violated the stay away order" by taking those actions. There

was no error.

4. Perjury. On June 20, 2008, a hearing was held at the

Taunton Division of the District Court Department regarding the

restraining order. The judge began the hearing by asking what

items were taken from the Seekonk house when the defendant was

given seven business days to remove his property from the

premises. In response to allegations that the items taken

included linen, towels, pillows, a refrigerator, a gas stove,

and the victim's bed, the defendant stated,

"Your Honor, you are being lied to like you wouldn't
believe. Everything that is being mentioned to you right
now I have witnessed the fact that that didn't occur
because I stayed in the garage while other people went into
the home and got these items."

bulbs from the perimeter" of the Seekonk property (first
indictment) or "by placing boulders on the property" (second
indictment).
 38

Later at the hearing, the defendant said,

"Everything that she has mentioned that was taken is a lie,
everything is a lie. I have got photographs. I have sent
people in in front of me to see what was in the house. The
house was stripped bare of every possible item that was in
the home, stripped bare. The only thing left in the house
when I got there was a television set and a bedroom set
which . . ." (sentence interrupted).

These comments formed the basis for the defendant's second

perjury conviction. He challenges this conviction on the

grounds that these statements were immaterial and that, taken in

context, they were not false. We disagree.

"The crime of perjury in a judicial proceeding occurs

whenever one 'willfully swears or affirms falsely in a matter

material to the issue or point in question.'" Commonwealth v.

Geromini, 357 Mass. 61, 63 (1970), quoting G. L. c. 268, § 1.

The question whether a statement is false is subjective, "i.e.,

what the defendant in good faith and in fact did mean," and it

is up to the jury to determine what the defendant meant when a

statement alleged to be false is open to multiple

interpretations. Geromini, supra at 64. Materiality with

respect to perjury "means relevance in the sense that the answer

might tend in reasonable degree to affect some aspect or result

of the inquiry," Commonwealth v. Borans, 379 Mass. 117, 135

(1979), quoting Commonwealth v. Cerveny, 373 Mass. 345, 352
 39

(1977), and is also a question of fact for the jury to decide.

Commonwealth v. McDuffee, 379 Mass. 353, 365 (1979).

The jury in this case easily could have found that the

defendant denied removing a refrigerator, linen, towels, a

pillow, a gas stove, and a bed from the house, and that this

statement was both false and material to the judge's inquiry at

the June 20, 2008, hearing. On the materiality question, it is

clear that the judge's focus at the start of the hearing was on

the items the victim claimed the defendant had taken from the

house, and that the defendant's statements were in response to

the victim's allegations. Regarding the falsity of the

defendant's statements, although the defendant did, at first,

say that he waited in the garage while other people went into

the home "and got these items," the second statement that

"[e]verything that she has mentioned that was taken is a lie,

everything is a lie" and that the house was "stripped bare of

every possible item that was in the home" is most naturally

interpreted as clarifying that the defendant denied having taken

any of the items alleged.41 The jury could have found that this

41
We reject the defendant's suggestion that the second
statement refers only to the victim's allegation that the
defendant took her winter shoes. The defendant's use of the
language, "[e]verything that she has mentioned that was taken is
a lie, everything is a lie," and "the house was stripped bare,"
are more reasonably interpreted as a denial that he took any of
the items mentioned, rather than one specific item.
 40

denial was a false statement in light of the testimony that the

defendant and his companions removed the refrigerator, the

stove, pillows, blankets, and a bed.42 We therefore affirm the

defendant's second perjury conviction.

5. Prosecutorial errors. The defendant also claims that

the prosecutors committed two errors that warrant a new trial:

(1) referring to a fact not in evidence during closing argument,

and (2) failing to disclose potentially exculpatory evidence

prior to trial. Although we agree that these were errors, a new

trial is not warranted.

a. Reference to fact not in evidence. "In closing

argument, a prosecutor may not 'misstate the evidence or refer

to facts not in evidence.'" Commonwealth v. Joyner, 467 Mass.

176, 188-189 (2014), quoting Commonwealth v. Lewis, 465 Mass.

119, 129 (2013). See Mass. G. Evid. § 1113(b)(3)(A) (2015).

One of the prosecutors said during closing argument that the

police officer who was present on the last day that the

defendant removed property from the house had testified to

having seen that the water was shut off and that someone had

42
The defendant also challenges his conviction on the
grounds that because his second statement was cut off, he was
not given a full opportunity to explain his position as to which
items he took from the home. However, we conclude that the
defendant’s words before he was cut off are sufficiently
unambiguous that additional explanation is unnecessary in order
to understand his meaning.
 41

defecated in the toilets. The defendant correctly asserts that

the police officer did not testify to this; instead, all he said

regarding the condition in which the defendant left the house

was that the garage and the front door were left open. Because

the defendant did not object to this statement during trial, "we

review to determine whether any error created a substantial risk

of a miscarriage of justice." Joyner, supra at 188.

The prosecutor's statement clearly attributed testimony to

the officer that he did not say and was therefore improper.

However, "[r]emarks made during closing arguments are considered

in the context of the whole argument, the evidence admitted at

trial, and the judge's instructions to the jury." Commonwealth

v. Gonzalez, 465 Mass. 672, 680 (2013), quoting Commonwealth v.

Whitman, 453 Mass. 331, 343 (2009). Here, the judge instructed

the jury both before and after closing arguments that the

arguments of counsel are not evidence, and that, if either party

referred to facts not in evidence during closing, the jury

should disregard them. The jury are presumed to have followed

these instructions. Gonzalez, supra at 681. In addition,

although the offending remark did tend to corroborate the

victim's testimony regarding a particularly unpleasant fact, the

comment was relatively brief, the prosecutor did not belabor the

point, and other aspects of the victim's testimony, such as the

removal of the refrigerator and the stove from the house, were
 42

corroborated. The prosecutor's misstatement was not so

significant that it created a substantial risk of a miscarriage

of justice.

b. Disclosure of potentially exculpatory evidence. Prior

to trial, the defendant moved for discovery of "[a]ny and all

inconsistent statements made by the complainant or any other

witness for the Commonwealth," as well as other exculpatory

evidence. The motion was allowed in part, with the caveat that

the form in which the Commonwealth disclosed the information was

left to the Commonwealth's discretion. On the fourth day of

trial, during the defendant's cross-examination of the victim,

she testified that she had created a journal in which she wrote

down some of the things that had happened to her, and that she

had given the journal to an investigator on the staff of the

district attorney. The defendant immediately requested a copy

of the journal.43 After contacting the investigator, the

prosecutors concluded that the victim had never given the

Commonwealth any physical journal but that the victim had shared

with the investigator via e-mail parts of what the victim had

written in her journal. Later that day, while the victim was

still on the witness stand, the Commonwealth gave the defendant

43
The defendant also requested a mistrial. The judge did
not rule on the motion.
 43

two pages of e-mail communications from the victim to the

investigator, which the victim confirmed were part of her

journal. That same day, the defendant also stated that he had

received in the mail, the day before, a packet of materials from

an anonymous source containing e-mails between the victim, the

investigator, and an assistant district attorney who was not one

of the prosecutors trying the case.44 When the prosecutors

reviewed those materials, they asserted that the substance of

what was contained in those e-mails had already been provided to

the defendant by way of a police report, grand jury minutes, or

otherwise. The judge permitted the defendant to cross-examine

the victim on both the fourth and fifth days of trial (a Friday

and a Monday) concerning the e-mails.

The defendant now argues that the Commonwealth's delayed

disclosure of the e-mails containing the victim's journal

entries and other writings about the alleged incidents violated

his right to due process by denying him exculpatory evidence

until the middle of trial. See Commonwealth v. Daniels, 445

Mass. 392, 401 (2005), quoting Commonwealth v. Tucceri, 412

Mass. 401, 404–405, (1992) ("Due process of law requires that

the government disclose to a criminal defendant favorable

44
The source of this packet of materials was not determined
during the course of the trial and is not provided in the
record.
 44

evidence in its possession that could materially aid the defense

against the pending charges"). Although we have concerns

regarding the timing and manner of disclosure of the e-mails,

any error here does not warrant a new trial, because an

examination of e-mails reveals that they are substantially more

inculpatory than exculpatory. See Commonwealth v. Healy, 438

Mass. 672, 679 (2003) (claim of failure to disclose exculpatory

evidence requires proof "that the evidence was, in fact,

exculpatory"). While some specific dates and details referenced

in the e-mails may have conflicted with parts of the victim's

testimony, and therefore may have had some minimal impeachment

value, in general, the e-mails corroborate the victim's account

of the defendant's treatment of her after July 4, 2007,

including her accusations of rape, of which the defendant was

found not guilty. Furthermore, the defendant had time to and

did incorporate questions regarding the e-mails into his

extensive cross-examination of the victim. The defendant

therefore is not entitled to a new trial as a result of the

delayed disclosure of the e-mails.45

45
The defendant also briefly mentions a number of other
alleged instances of prosecutorial delay. These alleged
instances, if they in fact involved delay, do not entitle the
defendant to relief.
 45

6. Impeachment of Commonwealth's witness without proof of

conviction. The defendant argues that the trial judge committed

error by declining to allow him to impeach the credibility of

one of the Commonwealth's witnesses with evidence of her

criminal conviction but without a certified copy of the

conviction. There was no error. "In order to impeach a witness

by a criminal conviction, the conviction must be proved by a

court record or a certified copy." Commonwealth v. Puleio, 394

Mass. 101, 104 (1985). See G. L. c. 233, § 21; Mass. G. Evid.

§ 609 (2015). The defendant's status as a self-represented

litigant (with standby counsel) did not exempt him from being

required to comply with governing statutes and our procedural

rules. See Mains v. Commonwealth, 433 Mass. 30, 35 (2000),

quoting Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985)

(procedural "rules bind a pro se litigant as they bind other

litigants").

Conclusion. The defendant's conviction of stalking is

vacated. His convictions of criminal harassment, violation of

an order issued pursuant to G. L. c. 209A, and perjury are

affirmed. The case is remanded to the Superior Court for

resentencing consistent with this opinion.

So ordered.