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15-P-653 Appeals Court
COMMONWEALTH vs. JOHN ECKER.
No. 15-P-653.
Hampden. June 5, 2017. - September 13, 2017.
Present: Sullivan, Henry, & Shin, JJ.
Practice, Criminal, Motion to suppress, Instructions to jury.
Constitutional Law, Imprisonment, Freedom of speech and
press. Malice. Criminal Harassment. Harassment
Prevention. Stalking. Attempt.
Indictments found and returned in the Superior Court
Department on March 5, 2014.
A pretrial motion to suppress evidence was heard by Mary-
Lou Rup, J.; a motion for reconsideration was considered by C.
Jeffrey Kinder, J., and the cases were tried before him.
Deborah Bates Riordan for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
SHIN, J. A Superior Court jury convicted the defendant of
stalking, two counts of criminal harassment, and attempt to
2
commit a crime (violation of a harassment prevention order).1 On
appeal the defendant argues that (1) the motion judge should
have suppressed evidence of a letter that he wrote from prison
because the letter was seized in violation of his rights under
the First Amendment to the United States Constitution, (2) the
trial judge gave an erroneous jury instruction on the definition
of "malicious" conduct, as it pertains to stalking and criminal
harassment, and (3) the evidence was insufficient to prove that
the defendant was guilty of those offenses. We affirm.
Background. The convictions at issue arose from
interactions that the defendant had with two victims. We
summarize the facts relating to each victim in turn, viewing the
evidence and the reasonable inferences therefrom in the light
most favorable to the Commonwealth. See Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979).
Victim 1 -- Miranda.2 In May of 2013, Miranda interviewed
and hired the defendant for a position at Burger King. The
following day, the defendant returned to see Miranda, claiming
to have questions about company policy. Miranda spoke to him
for a couple of minutes.
1
The jury also convicted the defendant of intimidating a
witness and seven counts of violating a harassment prevention
order. He does not challenge those convictions on appeal.
2
A pseudonym. The defendant was convicted of criminal
harassment with respect to this victim.
3
The defendant returned the next day looking for Miranda,
but she was not working. The defendant then asked another
employee for Miranda's phone number and schedule. When the
employee would not give him that information, he requested that
she call Miranda for him, which she declined to do. Later the
same week, the defendant called Miranda at work and asked to set
up a time to go over the employee manual and company policy.
Although Miranda directed him to speak with the owner instead
and gave him the main office number, he showed up again the next
day looking for her.
Two days later, Miranda received a letter from the
defendant on her home fax machine, which was connected to her
home phone line. She thereafter received the same letter by
mail at her home address. The defendant began the letter by
stating, "It's your CIA boyfriend and hopefully your future
husband." He then stated, "The most important issue that we
need to clarify is the relationship between you and I. From the
first meeting on, our attraction to each other was well defined
indeed. You can't hide something like that and we need to
address it immediately." The defendant told Miranda that he had
sent her text messages asking her to marry him and that he
needed to see her "to discuss this matter and clearly define
[their] relationship." He also stated that, because the
company's policy prohibited them from dating, one of them needed
4
to be reassigned so that they could "continue with the
relationship."
Miranda was "terrified" that the defendant knew her home
address and phone number and "was afraid that he[] [was] going
to show up at [her] house." She applied for and obtained a
harassment prevention order against the defendant, after which
he ceased contact with her.
Victim 2 -- Caren.3 The summer of the same year, the
defendant began focusing on Caren, who often walked by his house
on her way to visit her grandmother. Caren was then sixteen
years old, while the defendant was around fifty-three years old.
The defendant would routinely stare at Caren and call out,
"[H]ey baby," "[H]ey beautiful," and "[H]ey sexy" to her. He
also yelled at her from across the street to come inside his
house for tea.
One day in August of 2013, an envelope addressed to Caren
arrived in the mail at her grandmother's house. It contained
the defendant's business card with three questions written on
the back: "Do you need a ride? Would you like to go to lunch,
the Big E, the movies? Would you like me to take you shopping
at Macy's?" Caren's mother called the defendant, asked him to
leave Caren alone, and hung up the phone. The defendant called
3
A pseudonym. The defendant was convicted of both stalking
and criminal harassment with respect to this victim.
5
back and asked for permission to date Caren, to which her mother
replied, "Absolutely not. She's sixteen years old." The
defendant responded that he had not done anything illegal, then
paused and stated, "As of yet." After another pause, he stated,
"I don't plan on it." Caren's mother "panicked" and applied for
and obtained a harassment prevention order for herself and Caren
against the defendant.
Thereafter, the defendant began sending letters to Caren.4
In the first letter, the defendant asked for "another chance,"
writing, "I will care for you, suck your toes and everything
else until death do us part. Your indentured servant's
husband's tongue awaiting your command." Over the following
weeks, the defendant sent Caren several more letters, in which
he declared his love for her, said that he had granted her
durable power of attorney so that she could be in charge of his
financial affairs, and suggested that they consider moving to
Canada to "start a life together." In another letter the
defendant shared details about his convictions for attempted
murder and for being a felon in possession of a firearm, spoke
of a "sexually explicit" letter he had sent to a woman whom he
referred to as his "French-American CIA soulmate," and stated
that he once had visions of that woman being "trapped and beaten
4
The defendant also called Caren's home eight times between
October 19 and November 5, 2013.
6
and stabbed in the vagina." The defendant explained that he was
sharing this information with Caren because she "need[ed] to
know and be aware of who [she is] sharing a bed with along with
any potential safety risks involved."
Discussion. 1. Motion to suppress. While the defendant
was in pretrial detention at the Hampden County house of
correction (HCHC), the Springfield police department notified
HCHC officials that he was sending letters to Caren in violation
of the harassment prevention order that was then in place.
HCHC's written policies, a copy of which was provided to the
defendant, authorized the inspection of inmates' outgoing
nonprivileged correspondence when "such action is necessary to
maintain security or order in the facility or protect the
physical safety of an individual." The policies also authorized
disapproval of outgoing correspondence "the contents of which
fall as a whole or in significant part" into certain categories,
including "[c]riminal activity or plans for criminal activity."
Pursuant to these policies, prison officials began inspecting
the defendant's outgoing nonprivileged mail and confiscated any
letters directed to or regarding Caren.
The defendant moved to suppress evidence of the confiscated
letters, claiming a violation of his First Amendment rights.
The judge denied the motion, concluding that prison officials
properly monitored the defendant's mail based on "specific
7
information that the defendant was violating an active
antiharassment order" and to "investigat[e] if the defendant was
engaging in such criminal activity and [to] prevent[] the
defendant from committing such conduct." On appeal the
defendant challenges the judge's ruling with respect to only one
letter, which he addressed to a flower shop, requesting that
flowers, gifts, and a card be sent to Caren.5 In reviewing this
challenge, "we accept the judge's subsidiary findings of fact
absent clear error but 'conduct an independent review of h[er]
ultimate findings and conclusions of law.'" Commonwealth v.
Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v.
Jimenez, 438 Mass. 213, 218 (2002).
Although "prison inmates retain certain constitutional
rights," those rights are necessarily limited by "[t]he fact of
confinement as well as the legitimate goals and policies of the
penal institution." Cacicio v. Secretary of Pub. Safety, 422
Mass. 764, 770 n.10 (1996), quoting from Bell v. Wolfish, 441
U.S. 520, 545-547 (1979). Thus, a policy authorizing censorship
of inmate mail does not run afoul of the First Amendment so long
as it is "reasonably related to legitimate penological
interests." Commonwealth v. Jessup, 471 Mass. 121, 130-131
(2015), quoting from Turner v. Safley, 482 U.S. 78, 89 (1987).
5
This letter was the basis of the defendant's conviction
for attempting to commit a crime.
8
Here, the defendant does not argue that the HCHC policies
are unconstitutional on their face. Instead, he challenges the
policies as applied, claiming that his letter could not be
seized without a warrant because it did not threaten the
security of the facility or the physical safety of any person.
We disagree. Inspecting the defendant's mail to prevent him
from violating an active harassment prevention order was
reasonably related to the legitimate penological interests of
maintaining order and preventing commission of a crime. See Van
den Bosch v. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011),
quoting from Turner, 482 U.S. at 89 ("Prison officials may . . .
impose restrictions on prisoner correspondence if those
restrictions are 'reasonably related to legitimate penological
interests,'" including "crime deterrence"). See also O'Keefe v.
Van Boening, 82 F.3d 322, 326 (9th Cir. 1996) ("[T]he prevention
of criminal activity and the maintenance of prison security are
legitimate penological interests which justify the regulation of
both incoming and outgoing prisoner mail").6 See generally
Jessup, 471 Mass. at 131-133. Moreover, we reject the
defendant's contention that it was arbitrary and capricious for
HCHC officials to open all of his nonprivileged mail, rather
than limiting their inspection to letters addressed to Caren.
6
For someone who has been convicted of a crime, "prisoner
rehabilitation" would be another legitimate penological
interest. Van den Bosch, 658 F.3d at 785.
9
It was reasonable to presume that the defendant might try to
contact Caren through third parties, especially given that
HCHC's assistant superintendent expressly warned the defendant
to stop communicating with Caren and her mother. The motion to
suppress the letter to the flower shop was therefore properly
denied.
2. Jury instruction. The crimes of criminal harassment
and stalking both require proof that the defendant engaged in
"malicious" conduct.7 Relying on the model jury instruction, the
trial judge instructed the jury as follows: "An act is done
maliciously if it's done intentionally and without justification
or mitigation, and any reasonably prudent person would have
foreseen the actual harm that resulted." See Instructions 6.640
and 6.680 of the Criminal Model Jury Instructions for Use in the
District Court (2011). The defendant argues that, under
Commonwealth v. McDonald, 462 Mass. 236, 242 (2012), the judge
should have instead instructed that whether an act is malicious
depends on the defendant's subjective state of mind and requires
7
Specifically, the criminal harassment statute requires
proof that the defendant "willfully and maliciously engage[d] in
a knowing pattern of conduct or series of acts over a period of
time directed at a specific person, which seriously alarm[ed]
that person and would cause a reasonable person to suffer
substantial emotional distress." G. L. c. 265, § 43A(a), as
amended by St. 2010, c. 92, § 10. The stalking statute requires
substantially the same proof and requires further that the
defendant "ma[de] a threat with the intent to place the person
in imminent fear of death or bodily injury." G. L. c. 265,
§ 43(a), as appearing in St. 2014, c. 284, § 85.
10
proof of specific intent to harm the victim. Because the
defendant preserved this issue for appeal, we review for
prejudicial error. See Commonwealth v. Allen, 474 Mass. 162,
168 (2016).
We discern no error in the judge's instruction. In
Commonwealth v. Paton, 63 Mass. App. Ct. 215, 219 (2005), we
specifically rejected the argument that a defendant must have
"act[ed] out of 'cruelty, hostility, or revenge'" to be guilty
of criminal harassment. Instead, concluding that "[w]e need not
be confined to only those particular states of mind," we defined
a malicious act to include an "intentional, wrongful act
performed against another without legal justification or
excuse." Ibid., quoting from Black's Law Dictionary 977 (8th
ed. 2004).
Likewise, in Commonwealth v. O'Neil, 67 Mass. App. Ct. 284,
293 (2006), we concluded that "the statute's requirement of
malice" is satisfied where the defendant's "conduct was
intentional and without justification or mitigation, and any
reasonably prudent person would have foreseen the actual harm
that resulted." As in Paton, we rejected an invitation to
define malice to "include the element of hatred, spite, grudge,
or ill will," holding that criminal harassment does not require
proof of specific intent. Id. at 291-292. "The malice
required," we reiterated, "is not a feeling of ill-will toward
11
the person threatened, but the wilful doing of the act with the
illegal intent." Id. at 292, quoting from Commonwealth v.
Buckley, 148 Mass. 27, 28 (1888).
The defendant does not dispute that the judge's instruction
comported with Paton and O'Neil but claims that McDonald changed
existing law. In support, he relies on the following quotation
from a parenthetical in McDonald: "malicious acts are 'done
with an evil disposition, a wrong and unlawful motive or
purpose; the wilful doing of an injurious act without lawful
excuse.'" 462 Mass. at 242, quoting from Paton, 63 Mass. App.
Ct. at 219. But this parenthetical quotation does not have the
import that the defendant gives it. The defendant disregards
the latter part of the quotation -- defining a malicious act as
"the wilful doing of an injurious act without lawful excuse" --
which, as he acknowledged at oral argument, conveys essentially
the same message as the judge's instruction. Furthermore,
McDonald takes the quotation from Paton, which, again, rejected
a definition of malice that would require proof of specific
intent. McDonald also cites O'Neil with approval in the same
paragraph. See ibid.
In short, we see nothing in McDonald that overrules or
calls into doubt our decisions in Paton and O'Neil. As the
judge's instruction was consistent with Paton and O'Neil, there
was no error.
12
3. Sufficiency of the evidence. The defendant's
sufficiency challenge is limited to the element of malice. We
review the evidence in the light most favorable to the
Commonwealth to determine whether "any rational trier of fact
could have found [that] . . . element[] of the crime beyond a
reasonable doubt." Latimore, 378 Mass. at 677.
The defendant mainly argues that there was no evidence that
he harbored ill will towards the victims. As discussed above,
however, ill will is not required to prove stalking or criminal
harassment. Although the defendant also claims that the
evidence was insufficient to prove malice under the instruction
as given, he provides no reasoning in support, other than
conclusory assertions that his actions were "innocuous" and not
"malicious."
In any event, we conclude that the evidence was sufficient
for a rational jury to find that the defendant acted
maliciously. With respect to Miranda, after meeting her once in
a professional setting, the defendant persisted in contacting
her, located her home phone number and address, and then sent
her a letter claiming to be her "CIA boyfriend" and discussing
an imaginary romantic relationship between them. With respect
to sixteen year old Caren, the defendant committed numerous acts
that the jury could have found to be malicious, including
sending her letters in which he addressed her as his romantic
13
and sexual partner, gave details about his criminal history,
suggested leaving the country together, and described violent
fantasies of a woman being beaten and stabbed. The defendant's
conduct was intentional and without justification or mitigation,
and we are satisfied that a reasonably prudent person would have
foreseen that both victims would have been harmed by his
behavior. See O'Neil, 67 Mass. App. Ct. at 293. Thus, viewed
in the light most favorable to the Commonwealth, the evidence
was sufficient to support the defendant's convictions for
stalking and criminal harassment. See Paton, 63 Mass. App. Ct.
at 220 ("defendant's staring at the victim in the bar without
speaking and then unexpectedly appearing in proximity to her in
other places had an ominous, menacing, even sinister quality"
and "constitute[d] legally malicious conduct"); O'Neil, 67 Mass.
App. Ct. at 291, 293 (defendant acted maliciously by sending
victim numerous letters that presumed a relationship between
them where none existed).
Judgments affirmed.