Commonwealth v. Filos

649 N.E.2d 1085, 420 Mass. 348, 1995 Mass. LEXIS 223

• Court: Massachusetts Supreme Judicial Court
• Decided: May 16, 1995
• Status: Published

Opinions

Liacos, C.J.

The defendant appeals from his conviction of criminal contempt and claims (1) that the trial judge’s charge to the jury omitted necessary instructions on the element of intent and that the instructions given allowed the jury to convict the defendant for conduct protected by the First Amendment to the United States Constitution, (2) that the Commonwealth introduced insufficient evidence and therefore the defendant’s motions for a required finding of not guilty were improperly denied, and (3) that the judge erroneously admitted in evidence photographs which were both irrelevant and prejudicial to the defendant’s case. We transferred the appeal to this court on our own motion. We affirm.

On October 28, 1991, a Superior Court judge issued an amended permanent injunction enjoining the defendant and numerous other named individuals and organizations from engaging in certain activities at or near facilities that provide abortion counselling or services. The body of the injunction is set forth in the margin.¹ The defendant’s prosecution for criminal contempt was based on a violation of clause (c), which prohibits “directing, instructing, conspiring with and/ or aiding or abetting directly or indirectly any person, persons, groups or organizations who engage in any of the acts described in paragraphs (a) and (b).”²

The defendant was arrested during a blockade of the Gynecare reproductive health clinic on Tremont Street in Boston on January 4, 1992. The blockade consisted of about thirty people, sitting directly in front of the clinic’s entrance, attached to each other by locks modified so as to make them difficult to cut. Other demonstrators were sitting on the sidewalk with their arms interlocked so as to surround the blockaders. Additionally, there was a large group of demonstrators standing around the blockade along with numerous spectators. About fifty police officers were dispatched to the clinic to remove the blockaders, handle the crowd, and keep Tremont Street clear for traffic.

. Two police detectives who were present at the scene of the blockade testified that they observed the defendant among the crowd of demonstrators, although he was not one of the persons directly blocking the clinic’s entrance. They observed the defendant speaking with other persons named in the injunction as well as known leaders of the group Operation Rescue, an organization named in the injunction. The defendant was observed gesturing to people and pointing to empty spots in the blockade as the police removed blockaders. These persons were observed trying to fill, pursuant to the defendant’s gestures, the gaps in the blockade created when the police removed other blockaders. One detective testified that he saw the defendant pulling a man by the sleeve toward the blockade area. The defendant was arrested after being chased by police down Tremont Street and was subsequently charged with violating the injunction.

1. Jury instructions. The defendant first argues that the jury instructions on aiding or abetting were incorrect in light of our discussion of clause (c) in Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert, denied, 115 S. (1994) (hereinafter Planned Parenthood), and that the instructions given allowed the jury to find the defendant guilty by association and for expression protected by the First Amendment.

Planned Parenthood, supra, decided after the defendant’s trial, involved, inter alia, a constitutional challenge to clause (c) of the injunction. In response to the defendants’ argument that the clause was impermissibly vague and permitted a finding of guilt by association, we concluded that clause (c) was constitutionally sound. We stated that clause (c), “using the words ‘aiding or abetting,’ is modeled on traditional concepts of accessory liability which limit the scope of the injunction and identify those acts that are prohibited.” Id. at 481. We went on to state that, because the section is modeled on traditional concepts of accessory liability, it is clear that “[a]ny violator of the prohibition against aiding or abetting in clause (c) must share the mental state of the principal violator.” Id. We further stated that, “[b]ecause intentional conduct is the measure of a violation of . . . clauses (a) and (b) of the injunction, proof of a violation of the ‘aiding or abetting’ prohibition of clause (c) will require a showing of a defendant’s intention to assist intentional conduct violative of clause (a) or clause (b), or both.” Id.

The defendant claims that the trial judge’s instructions on aiding or abetting were insufficient in light of the Planned Parenthood opinion in that they did not instruct the jury that in order to find the defendant guilty they must first find that a person or persons intentionally violated clause (a) or (b) of the injunction and also that the defendant shared the mental state of those principal violators. We disagree.

“We . . . view the charge in its entirety since the adequacy of instructions must be determined in light of their over-all impact on the jury.” Commonwealth v. Galford, 413 Mass. 364, 372 (1992), cert. denied, 506 U.S. 1065 (1993), quoting Commonwealth v. Sellon, 380 Mass. 220, 231-232 (1980). After a careful review of the judge’s charge, we conclude that the instructions were not erroneous. They were sufficient, when viewed in their entirety, properly to inform the jury of the applicable law with regard to the element of intent necessary for a finding that the defendant aided or abetted in violation of clause (c).

The judge instructed the jury that it was the Commonwealth’s burden to prove that a person or group engaged in one or more of the acts described in clause (a) or (b). The jury were also specifically told that in order to return a guilty verdict, they must find that the defendant intentionally violated the injunction and that he “shar[ed] the intent” of the principal violators. The judge charged that “[a]iding and abetting means to intentionally participate with another in the commission of an act as something the defendant wishes to bring about and seeks by his actions to make succeed.” He further instructed that the Commonwealth was required to prove that the defendant was present, aided or assisted in the actions or stood by, was willing and able to help if necessary, and “that the defendant did so while sharing the intent required to engage in the action.” The judge also instructed that aiding or abetting requires that the principal violator and the defendant “consciously act together before or during the action to bring it about” and that “in order to prove the defendant guilty, the Commonwealth [must] prove beyond a reasonable doubt that the defendant intentionally violated the order.”

The wording of the charge, as demonstrated by the excerpts provided above, adequately communicated that both the principal violators and the defendant, as accessory, must have acted intentionally. See Commonwealth v. Galford, supra at 372; Commonwealth v. Sellon, supra. In their entirety, the judge’s instructions adequately informed the jury of all of the elements of accessory liability as set forth in Planned Parenthood, supra. See Commonwealth v. Sylvester, 400 Mass. 334, 339 n.6 (1987); Commonwealth v. Richards, 363 Mass. 299 (1973). In Planned Parenthood, supra at 481, we addressed a nearly identical First Amendment challenge and stated there that, “[t]he complete answer to the defendant [’s] claims is that clause (c), using the words ‘aiding or abetting’ is modeled on traditional concepts of accessory liability which limit the scope of the injunction and identify those acts that are prohibited.”

In addition to his argument that the judge’s instructions were inadequate under Planned Parenthood, supra, the defendant claims that the instructions given allowed the jury to find him guilty by association and for expression protected by the First Amendment.³ This claim is without merit. With regard to the issue of guilt by association, the judge carefully instructed the jury that “[e]ven if you find the defendant associated with persons who committed the subject act, that does not justify the inference, in and of itself . . . that the defendant participated in the commission of the act. . . . Our law does not permit a finding of guilt by association.” There was no error.⁴

2. Sufficiency of the evidence. The defendant next claims that the evidence presented by the prosecution was insufficient to sustain a conviction under clause (c) of the injunction and that therefore his motions for a required finding of not guilty should have been allowed.

We have stated that “a motion for a [required finding of not guilty] should be denied ‘if all the circumstances including inferences [that are not too remote according to the usual course of events] are of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.’ ” Commonwealth v. Latimore, 378 Mass. 671, 676 (1979), quoting Commonwealth v. Cooper, 264 Mass. 368, 373 (1928). “[The] question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, supra at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). After viewing the evidence presented by the prosecution in this case under the Latimore standard, we conclude that the defendant’s motions were properly denied.

To prove a violation of clause (c) of the injunction, the Commonwealth was required to introduce sufficient evidence from which the jury could find the defendant guilty of “directing, instructing, conspiring with and/or aiding or abetting directly or indirectly any person, persons, groups or organizations who engage in any of the acts described in [clauses] (a) and (b).” In order to prove that the defendant conspired with the blockaders, the Commonwealth had to provide sufficient evidence from which the jury could infer that the defendant and the blockaders had an agreement to violate the injunction. To prove that the defendant was guilty of aiding or abetting the blockaders, the Commonwealth had to introduce sufficient evidence that someone committed the prohibited act, and that the defendant intentionally assisted the principal in the commission of the crime while sharing the mental state required for that crime. See Planned Parenthood, supra at 481; Commonwealth v. Richards, 363 Mass. 299, 307-308 (1973).

The Commonwealth presented the testimony of two police detectives who were present at the scene of the blockade and testified to the defendant’s behavior. The first detective, who knew the defendant to be the subject of the injunction and a frequent antiabortion demonstrator, testified that he observed the defendant speaking with three or four different people in the crowd of demonstrators and that he saw the defendant pointing to spots in the blockade that were vacant because the police had removed blockaders. The detective testified that after speaking with the defendant, some of the persons then dropped to their knees and crawled in to join the blockade. The detective witnessed a similar scenario some time later, the only difference being that the individuals to whom the defendant spoke were prevented by the police from joining the blockade. This detective also testified that he also saw the defendant speaking with the individual who later produced the keys to the locks connecting the blockaders.

The second police detective who was also familiar with the defendant, observed the defendant speaking with Mary Schumacher, a known leader of Operation Rescue, an organization named in the injunction. The detective observed the defendant also speaking with other known antiabortion demonstrators. The detective saw the defendant speak to people and then observed those people join the blockade. He also observed the defendant point to a spot in the blockade while grasping a man by the sleeve and pulling him toward the blockade area. This man then became part of the blockade. A small portion of the detectives’ testimony was confirmed by a videotape of the blockade that was admitted at trial and shown to the jury. An employee of Gynecare who was trapped inside the clinic during the blockade was the only other witness at the defendant’s trial.⁵ She testified to the existence of the blockade but provided no testimony concerning the defendant’s actions.

Based on the evidence presented at trial, we conclude that a rational trier of fact could properly draw the inference that the defendant directed, instructed, conspired with, aided, or abetted persons engaging in acts described in clause (a) or (b) of the injunction, namely, “blocking or in any way obstructing access ... to any facility in the Commonwealth which provides abortion counselling or services.” Such an inference would not be “too remote according to the usual course of events.” The defendant was observed behaving in a manner that would indicate that he had conspired with the blockaders or, at the very least, was an accessory to their blocking the clinic’s entrance. “A jury may find a crime proved beyond a reasonable doubt even though the inference of guilt from the facts established is not inescapable or necessary.” Commonwealth v. Gagnon, 408 Mass. 185, 200-201 (1990). The defendant’s motion for a required finding of not guilty was therefore correctly denied.

3. Admission of photographs. Finally, the defendant argues that it was error for the judge to admit in evidence numerous still photographs of the blockade because the photographs were irrelevant and prejudicial to the defense. The photographs are not in the record before this court. However, the photographs were taken from a videotape of the blockade which was also admitted in evidence and which is before us.⁶

It is well settled that evidence which has a “rational tendency to prove an issue in the case,” Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting Commonwealth v. Chretien, 383 Mass. 123, 136 (1981), and renders “the desired inference more probable than it would have been without [the evidence]” is relevant, and therefore admissible. Commonwealth v. Fayerweather, supra, quoting Commonwealth v. Copeland, 375 Mass. 438, 443 (1978). Relevant evidence may, however, be excluded if the court finds that its probative value is outweighed by the prejudicial effect it may have on the jury. Commonwealth v. Lewin (No. 2), 407 Mass. 629, 631 (1990), and cases cited. The determination whether relevant evidence is prejudicial and thus inadmissible is within the judge’s discretion and not reversible on appeal in the absence of “palpable error.” Id., quoting Commonwealth v. Young, 382 Mass. 448, 462-463 (1981).

After viewing the videotape from which the still photographs were taken, we think there is no question that photographs of the blockade were relevant to the prosecution’s case. In order to prove a violation of clause (c) of the injunction, the prosecution was required first to show that a person or persons committed the acts prohibited by clause (a) or (b) of the injunction. See note 1, supra. The videotape depicts a large group of persons blocking access to a facility, Gynecare, which provides abortion services and counselling. The videotape also shows that the defendant was present at that blockade.

The defendant argues he was unduly prejudiced by the admission of the photographs because they permitted the jury to find the defendant guilty by association with the blockaders. There was no error in the judge’s decision to admit the photographs. The judge properly could have determined that any potential risk of prejudice to the defendant was outweighed by the photographs’ high probative value. We see no reason to disturb that finding.

Judgment affirmed.

1 “The defendants ... are permanently enjoined, individually and collectively, from:

“(a) trespassing on, blocking or in any way obstructing access (either ingress or egress) to any facility in the Commonwealth which provides abortion counselling or services; or

“(b) physically restraining or obstructing or committing any acts of force or violence against persons entering, leaving, working at or seeking to obtain services from any facility in the Commonwealth which provides abortion counselling or services; or

“(c) directing, instructing, conspiring with and/or aiding or abetting directly or indirectly any person, persons, groups or organizations who engage in any of the acts described in paragraphs (a) and (b) above.”

The injunction stated that a violation of its order would constitute a criminal offense. This injunction, in its preliminary form, its permanent form, and as it stands now, has been at issue before this court on prior occasions. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, cert, denied, 115 S. Ct. 188 (1994); Commonwealth v. Cotter, 415 Mass. 183 (1993); Commonwealth v. Brogan, 415 Mass. 169 (1993); Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701 (1990).

2 The parties stipulated at trial that the injunction was in effect on the day of the defendant’s arrest and that the defendant had actual notice of the injunction.

3 The defendant points particularly to the portion of the charge in which the judge defined “directing” and “instructing,” two words which appear in clause (c). The defendant claims that these instructions “make it unlawful to provide guidance, advice, information, and encouragement in the context of a demonstration” and therefore violate the First Amendment right to free expression. We disagree. The judge did not act improperly in defining words used in the injunction. Further, clause (c) has been held to be constitutional. What is forbidden by clause (c) is not free expression but the aiding and abetting of persons engaged in the illegal acts proscribed by clauses (a) and (b).

4 The United States Supreme Court, in Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516 (1994), addressed a clause of an injunction similar to the one at issue here. The Court concluded that, “petitioners are not enjoined from associating with others or from joining with them to express a particular viewpoint. The freedom of association protected by the First Amendment does not extend to joining with others for the purpose of depriving third parties of their lawful rights.” Id. at 2530. Our decision in Planned Parenthood, is in accord with this reasoning, as is our decision in the instant case.

5 The defendant did not call any witnesses.

6 Curiously, the defendant does not argue that it was error to admit the videotape from which the photographs originated. However, even if he had, the same reasoning we apply here in concluding that the still photographs were properly admitted would apply equally to the videotape.