NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-277
COMMONWEALTH
vs.
GREGORY OSTIGUY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2018, the defendant was indicted on two counts of
threatening to commit a crime, G. L. c. 275, § 2, and two counts
of intimidation of a witness, G. L. c. 268, § 13B. All four
indictments stemmed from statements the defendant made in
voicemail messages to the two victims, each of whom was or had
previously been the defendant's supervising probation officer.
The defendant was convicted of all four offenses after a jury
trial in the Superior Court, and he filed a timely notice of
appeal from those convictions. Because, as to the indictments
for threatening to commit a crime, the jury were not given the
guidance required under Counterman v. Colorado, 600 U.S. 66, 79
(2023), we vacate the judgments on the defendant's threats convictions and set aside the jury's verdicts on those
indictments; otherwise, we affirm.
Background. The defendant's appeal includes a challenge to
the sufficiency of the evidence supporting his convictions.
Thus, we briefly summarize the facts in the light most favorable
to the Commonwealth, see Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), reserving certain details for later discussion.
In July 2018, the defendant was subject to supervised
pretrial conditions of release in the District Court, which
included restrictions on his ability to have contact with his
pet dog. He was supervised by a probation officer who knew him
and with whom he had previously had a good working relationship.
On July 30, 2018, the probation officer was unexpectedly
called into the courtroom to attend a hearing on the defendant's
efforts to regain possession of his dog. The hearing did not go
as the defendant hoped, and he became frustrated. The defendant
described himself as "pissed off," made statements in open court
about his ability to carry out "biological warfare" and use
"explosives," and then abruptly left the building.
Later that day, the defendant left voicemail messages for
his probation officer and the assistant chief probation officer
in the same court. The message to the probation officer was,
"You're very good. So you're hoping you have a place to come to work to. Ha. And you know I can take care of it.
2 And just like jail, you want to try to do a song. As big as you are, I'm not worried. But I do respect unemployment. It's a decent gesture, I can grant you, for stealing my dog. Thank you. Thank you very much."
In his message to the assistant chief, the defendant said,
"I'm giving you a head's up, Dave,[1] about biological warfare. Not everything has to be flash and bang, or armor-piercing, or shot through a bow. Or chemically induced. [You] people do not understand the field you are shitting on, and I'm going to tell you. You've been warned. Biological warfare is nothing. It is easy, in my book. . . . My life is counterterrorism training."
Both the probation officer and the assistant chief viewed
the defendant's messages as threats and were fearful as a
result. They reported the defendant's messages to the police
and the court, and the defendant was ultimately arrested,
indicted, and convicted, as we have noted.
Discussion. 1. Counterman issues. a. Clairvoyance
exception. In Counterman, 600 U.S. at 72-73, -- a case decided
while the defendant's appeal was pending -- the United States
Supreme Court held that where an individual is criminally
charged for making "true threats," the prosecution must prove
that the defendant acted with at least reckless disregard for
the threatening nature of the speech to avoid impermissibly
chilling the speaker's First Amendment rights. Although here,
1 The assistant chief had previously supervised the defendant as a probation officer, and his family and the defendant's family knew each other personally.
3 the defendant did not raise a First Amendment objection to the
jury instructions given at his trial, we agree with the
defendant that the theory "was not sufficiently developed at the
time of trial . . . to afford [him] a genuine opportunity to
raise his claim," Commonwealth v. Guardado, 491 Mass. 666, 686,
S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024),
quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984),
and that the "clairvoyance exception" to our usual rule on
waived claims therefore applies. Commonwealth v. Bookman, 492
Mass. 396, 401 (2023). Thus, to the extent that we discern
error in the jury instructions as they relate to the defendant's
subjective understanding of the threatening nature of his
speech, we will vacate the convictions under G. L. c. 275, § 2,
unless the error was harmless beyond a reasonable doubt. See
Commonwealth v. Souza, 492 Mass. 615, 638-639 (2023).
b. Threats. At trial, the judge instructed the jury that,
as to each indictment for threatening to commit a crime, the
Commonwealth bore the burden of proving the following four
elements beyond a reasonable doubt: (1) that the defendant
expressed an intent to injure a person or property of another;
(2) that the defendant intended his threat to be conveyed to a
particular person; (3) that the threatened injury, if carried
out, would constitute a crime; and (4) that the defendant made
4 the threat under circumstances that could reasonably cause the
person to whom it was conveyed to fear that the defendant had
both the intention and the ability to carry it out. Although
the instructions correctly stated the law as it stood at the
time of trial, see, e.g., Commonwealth v. Sholley, 432 Mass.
721, 724-725 (2000), cert. denied, 532 U.S. 980 (2001), they did
not require the jury to consider the defendant's subjective
understanding of the threatening quality of his voicemail
messages to the victims, and so they did not conform with the
holding in Counterman, 600 U.S. at 79. See Commonwealth v.
Cruz, 495 Mass. 110, 114 (2024).
Moreover, we are not confident that the absence of an
instruction on the defendant's subjective understanding was
harmless beyond a reasonable doubt. The defendant's mental
state was a live issue at trial, and the jury may have reached a
different conclusion if instructed as now required.2 We are not
persuaded by the Commonwealth's contention, based on the judge's
criminal responsibility instructions, that, by rejecting that
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-277
COMMONWEALTH
vs.
GREGORY OSTIGUY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2018, the defendant was indicted on two counts of
threatening to commit a crime, G. L. c. 275, § 2, and two counts
of intimidation of a witness, G. L. c. 268, § 13B. All four
indictments stemmed from statements the defendant made in
voicemail messages to the two victims, each of whom was or had
previously been the defendant's supervising probation officer.
The defendant was convicted of all four offenses after a jury
trial in the Superior Court, and he filed a timely notice of
appeal from those convictions. Because, as to the indictments
for threatening to commit a crime, the jury were not given the
guidance required under Counterman v. Colorado, 600 U.S. 66, 79
(2023), we vacate the judgments on the defendant's threats convictions and set aside the jury's verdicts on those
indictments; otherwise, we affirm.
Background. The defendant's appeal includes a challenge to
the sufficiency of the evidence supporting his convictions.
Thus, we briefly summarize the facts in the light most favorable
to the Commonwealth, see Commonwealth v. Latimore, 378 Mass.
671, 677 (1979), reserving certain details for later discussion.
In July 2018, the defendant was subject to supervised
pretrial conditions of release in the District Court, which
included restrictions on his ability to have contact with his
pet dog. He was supervised by a probation officer who knew him
and with whom he had previously had a good working relationship.
On July 30, 2018, the probation officer was unexpectedly
called into the courtroom to attend a hearing on the defendant's
efforts to regain possession of his dog. The hearing did not go
as the defendant hoped, and he became frustrated. The defendant
described himself as "pissed off," made statements in open court
about his ability to carry out "biological warfare" and use
"explosives," and then abruptly left the building.
Later that day, the defendant left voicemail messages for
his probation officer and the assistant chief probation officer
in the same court. The message to the probation officer was,
"You're very good. So you're hoping you have a place to come to work to. Ha. And you know I can take care of it.
2 And just like jail, you want to try to do a song. As big as you are, I'm not worried. But I do respect unemployment. It's a decent gesture, I can grant you, for stealing my dog. Thank you. Thank you very much."
In his message to the assistant chief, the defendant said,
"I'm giving you a head's up, Dave,[1] about biological warfare. Not everything has to be flash and bang, or armor-piercing, or shot through a bow. Or chemically induced. [You] people do not understand the field you are shitting on, and I'm going to tell you. You've been warned. Biological warfare is nothing. It is easy, in my book. . . . My life is counterterrorism training."
Both the probation officer and the assistant chief viewed
the defendant's messages as threats and were fearful as a
result. They reported the defendant's messages to the police
and the court, and the defendant was ultimately arrested,
indicted, and convicted, as we have noted.
Discussion. 1. Counterman issues. a. Clairvoyance
exception. In Counterman, 600 U.S. at 72-73, -- a case decided
while the defendant's appeal was pending -- the United States
Supreme Court held that where an individual is criminally
charged for making "true threats," the prosecution must prove
that the defendant acted with at least reckless disregard for
the threatening nature of the speech to avoid impermissibly
chilling the speaker's First Amendment rights. Although here,
1 The assistant chief had previously supervised the defendant as a probation officer, and his family and the defendant's family knew each other personally.
3 the defendant did not raise a First Amendment objection to the
jury instructions given at his trial, we agree with the
defendant that the theory "was not sufficiently developed at the
time of trial . . . to afford [him] a genuine opportunity to
raise his claim," Commonwealth v. Guardado, 491 Mass. 666, 686,
S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024),
quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984),
and that the "clairvoyance exception" to our usual rule on
waived claims therefore applies. Commonwealth v. Bookman, 492
Mass. 396, 401 (2023). Thus, to the extent that we discern
error in the jury instructions as they relate to the defendant's
subjective understanding of the threatening nature of his
speech, we will vacate the convictions under G. L. c. 275, § 2,
unless the error was harmless beyond a reasonable doubt. See
Commonwealth v. Souza, 492 Mass. 615, 638-639 (2023).
b. Threats. At trial, the judge instructed the jury that,
as to each indictment for threatening to commit a crime, the
Commonwealth bore the burden of proving the following four
elements beyond a reasonable doubt: (1) that the defendant
expressed an intent to injure a person or property of another;
(2) that the defendant intended his threat to be conveyed to a
particular person; (3) that the threatened injury, if carried
out, would constitute a crime; and (4) that the defendant made
4 the threat under circumstances that could reasonably cause the
person to whom it was conveyed to fear that the defendant had
both the intention and the ability to carry it out. Although
the instructions correctly stated the law as it stood at the
time of trial, see, e.g., Commonwealth v. Sholley, 432 Mass.
721, 724-725 (2000), cert. denied, 532 U.S. 980 (2001), they did
not require the jury to consider the defendant's subjective
understanding of the threatening quality of his voicemail
messages to the victims, and so they did not conform with the
holding in Counterman, 600 U.S. at 79. See Commonwealth v.
Cruz, 495 Mass. 110, 114 (2024).
Moreover, we are not confident that the absence of an
instruction on the defendant's subjective understanding was
harmless beyond a reasonable doubt. The defendant's mental
state was a live issue at trial, and the jury may have reached a
different conclusion if instructed as now required.2 We are not
persuaded by the Commonwealth's contention, based on the judge's
criminal responsibility instructions, that, by rejecting that
defense, the jury necessarily found that the defendant knew and
2 The defendant also argues in his brief that Counterman entitled him to an instruction "addressing his diminished capacity" and ability to understand the threatening character of his messages. The judge's final charge did include such an instruction, however.
5 understood that his conduct was wrong. For example, the jury
may well have found that the Commonwealth proved the defendant
was not suffering from a mental disease or defect, in which case
they would not have gone on to consider whether he appreciated
the wrongfulness of his conduct. Thus, because the defendant's
convictions under G. L. c. 275, § 2, violated the First
Amendment, and that violation was not harmless beyond a
reasonable doubt, we vacate those convictions and set aside the
verdicts on the corresponding indictments.3 See Cruz, 495 Mass.
at 114, citing Counterman, 600 U.S. at 69.
c. Witness intimidation. The indictments against the
defendant for intimidation under G. L. c. 268, § 13B, stemmed
from the same conduct as that on which the indictments for
threatening to commit a crime were based, and the holding of
Counterman applies equally to them. On this record, however, we
are not persuaded that Counterman requires that the intimidation
convictions be vacated.
The judge in this case instructed the jury, inter alia,
that to convict the defendant of intimidation, the Commonwealth
was required to prove beyond a reasonable doubt that the
3 As to these convictions (and in contrast to his appeal from the convictions of intimidation), the defendant does not challenge the sufficiency of the Commonwealth's evidence.
6 defendant "willfully . . . threatened" a probation officer "with
the specific intent . . . to punish . . . such [p]robation
[o]fficer for participating in a criminal proceeding of any
type." On special verdict slips, the jury documented their
determinations that the Commonwealth had proven intimidation on
that theory as to both indictments under G. L. c. 268, § 13B.
The jury were not otherwise instructed on the Commonwealth's
obligation to prove the defendant's mens rea at the time he made
the threats.
To the extent the judge erred in failing to instruct the
jury more specifically in accordance with Counterman, we are
persuaded that the error in this instance was harmless beyond a
reasonable doubt. This is because, at least as to the theory of
the crimes on which the jury convicted the defendant, the
judge's instructions were adequate to protect the defendant's
First Amendment rights. Given the ordinary meaning of the words
"to punish,"4 the effect of the judge's instructions was to
require the Commonwealth to prove the defendant's subjective
awareness of the threatening nature of his words. See
Counterman, 600 U.S. at 79; Cruz, 495 Mass. at 114. The
4 The Merriam-Webster Online dictionary defines "punish" as "to inflict injury on" or "to hurt." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/punish.
7 defendant could hardly have intended to punish the recipients of
his voicemail messages if he were not at least aware "that
others could regard [the] statements [in those messages] as
threatening" when he made them (quotation and citation omitted).
Counterman, supra. See Cruz, supra. We are therefore satisfied
that, in this circumstance, the judge's instructions provided
the First Amendment protections required under Counterman, and
any error in the instructions was harmless beyond a reasonable
doubt.5 Cf. Commonwealth v. Harris, 101 Mass. App. Ct. 308, 308-
309 (2022) (constitutional error in jury instructions "was not
. . . corrected by other language in the instructions," and thus
was not harmless beyond reasonable doubt).
2. Sufficiency of the evidence. The defendant next
contends that the evidence presented by the Commonwealth was
insufficient to support his conviction of intimidation of the
assistant chief probation officer, because it did not establish
that the assistant chief had any role in the hearing that was
the catalyst for the defendant's voicemail messages. Drawing
all reasonable inferences in the Commonwealth's favor to
determine whether any rational trier of fact could have found
5 We express no opinion about the adequacy of the instructions on any other theory on which the defendant might have been convicted.
8 this element of the crime beyond a reasonable doubt, see
Latimore, 378 Mass. at 677, we are not persuaded.
While there was no evidence to show that the assistant
chief actually "participat[ed] in" the July 2018 hearing that
preceded and precipitated the defendant's threatening
voicemails, G. L. c. 268, § 13B (b), there was evidence from
which the jury could have inferred that the defendant believed,
albeit incorrectly, that he had done so.6 Cf. Commonwealth v.
Wheeler, 102 Mass. App. Ct. 411, 415 (2023) (reversing
defendant's convictions of intimidation of case specialist where
Commonwealth presented "no evidence that the case specialist
knew any information about [the defendant's court proceeding] at
all"). Where the evidence was sufficient to establish that the
defendant acted with the intent to punish the assistant chief
for the part he reasonably believed the assistant chief played
6 For example, based on the substance and timing of the defendant's messages for the probation officer and the assistant chief probation officer, the jury could have inferred the defendant knew that the assistant chief was the probation officer's supervisor. Commonwealth v. Roy, 464 Mass. 818, 824 (2013) (permissible inference need only be reasonable and possible, it need not be necessary or inescapable); Commonwealth v. Ross, 92 Mass. App. Ct. 377, 378 (2017) (same). On that basis, the jury could have likewise inferred that the defendant thought the assistant chief had a role in the July 2018 proceedings. See Roy, supra; Ross, supra.
9 in his hearing, we conclude that it was also sufficient to
support the defendant's conviction under G. L. c. 268, § 13B.
3. Other evidentiary challenges. We review the
defendant's remaining challenges, which are to the judge's
admission of certain evidence, for an abuse of discretion. See
Commonwealth v. Ng, 491 Mass. 247, 257 (2023). If there was an
abuse of discretion, we review any preserved challenge under a
prejudicial error standard, see Commonwealth v. Niemic, 483
Mass. 571, 598 (2019); if the defendant did not preserve an
objection, we review for a substantial risk of a miscarriage of
justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846
(2010).
Assuming in this case that (1) the probation officer and
the assistant chief probation officer should not have been
permitted to testify to their opinions that the defendant's
voicemail messages amounted to "threats," see Commonwealth v.
Hamilton, 459 Mass. 422, 439 (2011), and (2) the defendant's
objections to these opinions were preserved, we discern no
prejudice to the defendant from the admission of those
statements. Here, as in Hamilton, it would have been apparent
to the jury from the victims' responses to the messages that
they considered the messages to be threats. See id.
10 Although the evidence the defendant characterizes as
"vouching" was also generally admissible to show that the
voicemail messages caused their recipients apprehension, and to
show that the recipients' responses were reasonable, see
Hamilton, 459 Mass. at 426-427, the repetition of this kind of
evidence comes close to impermissible "piling on." Even
assuming that the defendant's objections on this basis were
preserved, however, we again discern no prejudice from the
repetition where the jury heard the transcripts of the messages
verbatim, and so could make their own first-hand assessment of
the seriousness of any threats contained in them, and the
reasonableness of the victims' responses.
Finally, because we discern little purpose for the evidence
elicited by the Commonwealth regarding the police and judicial
response to the victims' reports of the threatening messages,
other than to repeat those accusations and corroborate them, we
agree with the defendant that this evidence should not have come
in. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008)
(testimony regarding "[t]he description of the investigative
process" and "[t]he fact that the Commonwealth brought its
resources to bear on this incident" is "unnecessary and
irrelevant to the issue of the defendant's guilt, and is
extremely prejudicial"). Like the trial judge, who sua sponte
11 intervened to limit this testimony, we see little relevance to
this aspect of the Commonwealth's evidence.7 We are not,
however, persuaded that a new trial is required where the
responses the witnesses described were implicit in the fact that
the defendant was charged and brought to trial. See
Commonwealth v. West, 487 Mass. 794, 807 (2021).
Conclusion. The judgments of conviction for threatening to
commit a crime are vacated, and the verdicts on those
indictments are set aside. The judgments of conviction for
intimidation of a witness are affirmed.
So ordered.
By the Court (Massing, Hand & Smyth, JJ.8),
Clerk
Entered: February 28, 2025.
7 Moreover, even if the evidence was relevant to the defendant's criminal responsibility because it showed that the defendant was calm and appropriate at the time of his arrest, the repetition of the evidence increased its potential for unfair prejudice beyond its probative value. See Mass. G. Evid. § 403 (2024).
8 The panelists are listed in order of seniority.