Commonwealth of Massachusetts v. Arickson Cruz

New Bedford, Massachusetts criminal defense lawyer represented the Defendant charged with making threats.

In 2018, the victim ended a five-year long dating relationship with the defendant. Following the breakup, the victim blocked the defendant's telephone calls on her cellular telephone and generally avoided communicating with him. Nevertheless, the defendant continued to send text messages to her. Occasionally, the defendant, who had lived with the victim during their relationship and had moved out following their breakup, parked nearby her home.



Approximately two years after the breakup, the defendant sent the victim two text messages. The first message was sent at 4:29 A.M.; the defendant stated, in part, "I wish u all die bitch I'm so hurt and it still hurt fuck u I hope u die bitch." In the second text message, sent approximately thirty minutes later, the defendant told the victim, "It hurts so much it hurts a lot oh."[2]



The following day, the victim and her band performed at a fundraiser at an adult day care center. After the performance, the defendant's two children, with whom the victim had become acquainted during her years-long relationship with the defendant, ran to her; she hugged them.



Later that afternoon, when the fundraiser ended, the defendant followed the victim as she walked towards her vehicle to leave. He was "screaming and yelling" at her.



Approximately two hours later, the defendant sent the text message that formed the basis for the prosecution's case that he violated the threatening to commit a crime statute. Specifically, the text message stated, "I swear to god if you touch my keys one more time I'll punch you in your fucking face Bitch, I'm not going to repeat myself again." The victim, who had not had occasion recently to touch the defendant's "keys," understood that the defendant was referring to his kids.



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As noted supra, true threats historically have not been protected by the First Amendment. See Commonwealth v. Sholley, 432 Mass. 721, 726 (2000), cert. denied, 532 U.S. 980 (2001), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995) ("[T]he First Amendment does not protect conduct that threatens another"). See also Counterman, 600 U.S. at 74, quoting Virginia v. Black, 538 U.S. 343, 359 (2003) ("'True threats' of violence is [an] historically unprotected category of communications"); Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984) (true threats, like "other types of potentially expressive activities that produce special harms distinct from their communicative impact, . . . [were] entitled to no constitutional protection"); National Ass'n for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982), quoting Samuels v. Mackell, 401 U.S. 66, 75 (1971) (Douglas, J., concurring) ("Certainly violence has no sanctuary in the First Amendment . . .").



True threats are "serious expression[s]" of the speaker's "intent to commit an act of unlawful violence." Black, 538 U.S. at 359. Whether words constitute a true threat is measured objectively, considering whether, in light of the attendant circumstances, the words justifiably caused the recipient to fear violence.[4] See Commonwealth v. Kerns, 449 Mass. 641, 653 n.18 (2007) . "Whether the speaker is aware of, and intends to convey, the threatening aspect of the message is not part of what makes a statement a threat . . . ." Counterman, 600 U.S. at 74, citing Elonis v. United States, 575 U.S. 723, 733 (2015) .



The Supreme Court recently concluded, however, that the First Amendment "shield[s] some true threats from liability." Counterman, 600 U.S. at 75 (discussing chilling effect that absence of mens rea element might engender). A true threat may be punished criminally only if the speaker had "some subjective understanding of the threatening nature of [the] statements." Id. at 69. Specifically, to convict a person for making a true threat, the State must prove that the person acted at least recklessly - that is, the person "is aware 'that others could regard his statements as' threatening violence and 'delivers them anyway.'" Id.. at 79, quoting Elonis, 575 U.S. at 746 (Alito, J., concurring in part and dissenting in part).



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CRIMINAL LAW. FIRST AMENDMENT AND TRUE THREATS. The case concerns an appeal of a conviction under Massachusetts' threatening to commit a crime statute, where the court had to determine if the jury instructions violated the First Amendment by failing to incorporate the subjective mens rea of recklessness, as established by the U.S. Supreme Court's decision in Counterman v. Colorado, which requires proof that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.



CRIMINAL PROCEDURE. JURY INSTRUCTIONS AND MENS REA. The court addressed whether the jury was improperly instructed by not including the mens rea requirement that the defendant was at least reckless regarding the threatening nature of his communication, which led to the vacating of the conviction and a remand for a new trial in line with the standards set forth in Counterman.



CONSTITUTIONAL LAW. OVERBREADTH OF STATUTES. The defendant's challenge against the Massachusetts statute on grounds of facial overbreadth was rejected by the court, which found that the statute can be narrowly construed to avoid overbreadth by requiring proof of at least reckless mens rea, thus ensuring it targets only unprotected speech.



CRIMINAL PROCEDURE. DOUBLE JEOPARDY AND RETRIAL. The court discussed whether principles of double jeopardy precluded a retrial after vacating the conviction under new legal standards, concluding that double jeopardy did not apply here as the evidence at the initial trial was found sufficient to establish the conviction under the redefined standards requiring proof of subjective recklessness.



Key Phrases Objective standard. First Amendment. True threats. Double jeopardy. Mens rea.

Based on the foregoing, the defendant's conviction is vacated, and the matter is remanded to the District Court for a new trial, if the Commonwealth chooses to pursue one.