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SJC-13445
COMMONWEALTH vs. JEAN REZAC.
Plymouth. December 4, 2023. - July 22, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.
Reckless Endangerment of a Child. Intimidation of Witness. Criminal Responsibility. Practice, Criminal, Indictment, Probation. Constitutional Law, Grand jury, Indictment, Privacy. Grand Jury. Global Positioning System Device. Privacy.
Indictments found and returned in the Superior Court Department on June 27, 2018.
The cases were heard by William F. Sullivan, J.
The Supreme Judicial Court granted an application for direct appellate review.
John P. Warren for the defendant. Arne Hantson, Assistant District Attorney, for the Commonwealth. Haylie Jacobson, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
BUDD, C.J. After a bench trial, a Superior Court judge
found the defendant, Jean Rezac, guilty of reckless endangerment 2
of a child and witness intimidation in connection with the
defendant's attack on her minor son. The defendant raises
several arguments on appeal, which, for the reasons discussed
infra, we reject.1
Background. 1. Facts. We recount the relevant facts as
presented to the trial judge, reserving some details for later
discussion.2 On the evening of April 24, 2018, after arguing
with her then-twelve year old son (victim) about the need for
him to use elastics on his dental braces, the defendant said,
"What's the point of living if we are fighting all the time[?]"
The next morning, after the defendant believed that a voice told
her that she should end her life, she retrieved kitchen knives
and attempted to commit suicide in the bathroom but did not
follow through. She then contemplated the hopelessness of both
her and the victim's lives and decided to end the victim's life
to prevent him from experiencing "misery and frustration" due to
his medical conditions.
1 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services.
2 Although the defendant did not testify, both parties stipulated to the admission of evidence containing statements made by the defendant, including police reports and recorded interviews of both children. The written evaluations of both expert witnesses also were submitted in evidence and contained additional statements of the defendant. 3
The defendant entered the victim's bedroom, asked how he
was feeling, and then covered his head with a blanket and left
the room. When she returned shortly thereafter, the victim felt
a sharp pain in his neck, observed blood, and realized the
defendant had stabbed him. The defendant then brought the
victim to the bathroom, placed him in the tub and forced his
head under water. The pair struggled, and the victim eventually
was able to break free and ran away screaming, "[D]on't kill me,
don't kill me."
The victim attempted to dial 911 on his cell phone, but the
defendant took the cell phone from him before the call was
answered. When the 911 dispatch operator called back, the
defendant answered, said everything was "okay," and hung up.
The victim eventually managed to barricade himself in another
bedroom and call the police.
When police responded to the scene, they observed the
victim with a cut on his neck and smeared blood on the bathroom
door. The defendant, who had locked herself in the bathroom,
was unresponsive. One officer forced his way into the bathroom
and found the defendant sitting in a partially filled bathtub,
fully clothed, with a blank stare on her face. After she
attempted to stab herself with knives she had in her possession,
the officer took the weapons and began to render first aid. As 4
he did so, the defendant stated, "I don't want to live anymore,
leave me alone, just let me die."
2. Procedural history. The defendant was indicted on (1)
assault and battery by means of a dangerous weapon, G. L.
c. 265, § 15A; (2) attempted murder, G. L. c. 265, § 16; (3)
reckless endangerment of a child, G. L. c. 265, § 13L; and (4)
intimidation of a witness, G. L. c. 268, § 13B. Shortly after
her arraignment, the defendant moved for a criminal
responsibility evaluation, which was completed by Dr. Ashley
Murray while the defendant was committed at the Worcester
Recovery Center and Hospital. After the defendant provided
notice that she intended to raise a lack of criminal
responsibility defense, the Commonwealth moved for a second
evaluation, which was completed by Dr. Fabian Saleh. The
defendant called both experts as witnesses at her jury-waived
trial.
After the trial, the judge issued his verdict in a
memorandum of decision. On the assault and battery by means of
a dangerous weapon and attempted murder charges, the judge found
the defendant not guilty by reason of mental illness or mental
defect (major depressive disorder with depression and psychotic
features). However, the judge found the defendant guilty of
endangerment of a child and intimidation of a witness. The
defendant was sentenced to a five-year term of probation on each 5
of the convictions to run concurrently. The conditions included
no unsupervised contact with her two children and global
positioning system (GPS) monitoring for two years. The
defendant appealed, and this court granted the defendant's
application for direct appellate review.
Discussion. The defendant appeals from her convictions,
arguing that she was not criminally responsible for any of her
actions, and that, in any case, there was insufficient evidence
to support the convictions. She also argues that the indictment
charging her with reckless endangerment impermissibly was
ambiguous. Finally, she challenges the probation condition of
GPS monitoring as presumptively unreasonable.
1. Criminal responsibility. a. Standard. When a
defendant raises a defense of a lack of criminal responsibility,
the Commonwealth is required to demonstrate that the defendant
was criminally responsible at the time of the offense beyond a
reasonable doubt. See Commonwealth v. Dunphe, 485 Mass. 871,
878 (2020). The Commonwealth may do so by, among other things,
establishing that the defendant did not suffer from a mental
disease or defect. See id. at 879.
If the defendant suffered from a mental disease or defect
when she committed the crime, the Commonwealth must demonstrate
that the defendant (1) did not lack the substantial capacity to
appreciate the criminality or wrongfulness of her conduct, and 6
(2) did not lack the substantial capacity to conform her conduct
to the requirements of the law. See Commonwealth v. McHoul, 352
Mass. 544, 546 (1967). See also Commonwealth v. Goudreau, 422
Mass. 731, 737 (1996) (Appendix) (providing model jury
instruction on criminal responsibility).
The first prong requires proof that the defendant
understood the difference between right and wrong, i.e.,
cognition. See McHoul, 352 Mass. at 546. As used in this
context, "criminality" refers to the "legal import" of the
conduct at issue and "wrongfulness" refers to the "moral
import."3 Goudreau, 422 Mass. at 738 (Appendix). That is, the
Commonwealth must prove that at the time of the offense, the
defendant understood either that her actions were illegal
(criminal) or that they were immoral (wrongful). See id. The
second prong requires proof that the defendant had the ability
to control her actions, i.e., volition. The Commonwealth must
prove both prongs for the defendant to be held criminally
responsible for her actions. See McHoul, supra at 546-547.
The defendant contends that the judge used the wrong
standard to determine that she was criminally responsible for
3 Thus, we have used "wrongfulness" as shorthand for "moral wrongfulness." See, e.g., Commonwealth v. Alemany, 488 Mass. 499, 503 (2021); Commonwealth v. Loya, 484 Mass. 98, 99 (2020); Goudreau, 422 Mass. at 738 (Appendix); McHoul, 352 Mass. at 546- 547. 7
the actions she took after the attack on her son. Pointing to
cases from outside of this jurisdiction, the defendant argues
that the standard to establish criminal responsibility is (or
should be) that the Commonwealth prove the defendant was able to
appreciate both the criminality and the wrongfulness of her
conduct rather than one or the other. Otherwise, she contends,
a defendant could be convicted even if she believed her actions
were morally, but not legally, justified or vice versa. We are
not persuaded by this argument.
To begin, we note that our standard is based on the Model
Penal Code formulation, which presents the option of using
either or both terms.4 See McHoul, 352 Mass. at 546-547
(adopting § 4.01 of Model Penal Code). See also Model Penal
Code § 4.01 & comment, at 178 nn.43-44 (Official Draft and
Revised Comments 1985). When the drafters of the Model Penal
Code considered which of the two terms to use, they concluded
that "few cases are likely to arise in which the variation will
4 The Model Penal Code standard for criminal responsibility provides:
"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law."
Model Penal Code § 4.01 (Official Draft and Revised Comments 1985). 8
be determinative." Model Penal Code § 4.01 explanatory note, at
164. This is because "a defendant who appreciates society's
moral disapproval of his conduct will almost always assume that
the conduct is criminal, and vice versa." Model Penal Code
§ 4.01 comment 2, at 169. See Kahler v. Kansas, 589 U.S. 271,
312 (2020) (Breyer, J., dissenting) ("The two inquiries are
closely related and excuse roughly the same universe of
defendants"); People v. Schmidt, 216 N.Y. 324, 340 (1915)
(Cardozo, J.) ("Knowledge that an act is forbidden by law will
in most cases permit the inference of knowledge that, according
to the accepted standards of mankind, it is also condemned as an
offense against good morals"). This court has used one term or
the other when referencing prong one,5 but we never have limited
our inquiry to one or the other. See Goudreau, 422 Mass. at 738
(Appendix). We decline to do so today for the same reasons.
Moreover, our two-pronged legal standard imposes a higher
burden of proof on the Commonwealth than jurisdictions that
require proof of an appreciation of both legal and moral
wrongfulness, because it includes both cognitive and volitional
prongs.6 In contrast, the jurisdictions that require the
See, e.g., Commonwealth v. Lawson, 475 Mass. 806, 811 5
(2016) (criminality); Commonwealth v. DiPadova, 460 Mass. 424, 431 (2011) (wrongfulness).
This court first articulated the general principles of the 6
two-pronged approach to establishing criminal responsibility to 9
government to prove that a defendant understands both the legal
and moral wrongfulness of her actions do not address cases where
a mental disease or defect "destroys or overrides the
defendant's power of self-control."7 Model Penal Code § 4.01
comment 2, at 167. Our standard therefore protects the
defendant who loses the ability to conform his or her actions to
the requirements of the law as well as the defendant who does
which we adhere today in Commonwealth v. Rogers, 7 Met. 500, 501-502 (1844). There, the court concluded that proof of criminal responsibility requires both proof of the "capacity and reason sufficient to enable [the defendant] to distinguish between right and wrong" and "mental power sufficient to apply that knowledge to his own case." Rogers, supra. In 1962, the American Law Institute published the first official draft of the Model Penal Code, which codified the two-prong approach this court already had embraced. See note 4, supra. This court officially adopted the Model Penal Code rule in McHoul, 352 Mass. at 547, noting, "we regard the Code definition as an evolutionary restatement of our [Rogers] rule rather than a substantively new rule."
7 These jurisdictions have not adopted the Model Penal Code standard for determining criminal responsibility but instead continue to adhere to the single-prong "right-wrong" test as first articulated in M'Naghten's Case, 8 Eng. Rep. 718 (1843) (M'Naghten). See Kahler, 589 U.S. at 319-326 (Appendix) (listing eighteen jurisdictions following M'Naghten framework, three jurisdictions following M'Naghten supplemented by volitional prong, ten jurisdictions following moral incapacity standard, fourteen jurisdictions following Model Penal Code, and two jurisdictions with "unique formulation"); 1 W.R. LaFave, Substantive Criminal Law § 7.2(a), at 717-718 (3d ed. 2018) (noting that single-prong cognitive test is "the predominant rule in the United States," used in Federal courts and "more than thirty" States). 10
not appreciate the criminality or wrongfulness of his or her
actions.
Under our formulation of the standard, a defendant who has
a mental disease or defect may be held criminally responsible
for her actions only if the Commonwealth proves that she did not
lack the capacity to appreciate the criminality or wrongfulness
of her conduct, and she did not lack the capacity to conform her
conduct to the requirements of the law. McHoul, 352 Mass. at
546-547. If the Commonwealth can prove one prong but not the
other, the defendant may not be held criminally responsible for
her conduct. See Commonwealth v. Bois, 476 Mass. 15, 26 (2016).
We decline the defendant's invitation to change our standard for
determining criminal responsibility.8
8 The defendant additionally argues that the Goudreau instruction is contradictory because it states that the Commonwealth must prove that a mental disease or defect "did not deprive the defendant of a meaningful understanding and intelligent comprehension of the legal and moral import of [his or her] conduct" (emphasis added). Goudreau, 422 Mass. at 738 (Appendix). We disagree. This portion of the instruction focuses on the term "appreciate," emphasizing that the Commonwealth has the burden to prove that a defendant appreciated (i.e., understood) the wrongfulness of his or her actions at the time of the act. The instruction does not require proof of both legal and moral wrongfulness. In fact, the phrase "criminality or wrongfulness" appears in the instruction six times, all in connection with discussing the Commonwealth's burden. See id. at 737-739 (Appendix). This includes the sentence referenced by the defendant, which begins by reiterating that the Commonwealth must "establish that the defendant had substantial capacity to appreciate the criminality or wrongfulness of [his or her] conduct" (emphasis added). Id. at 738 (Appendix). 11
b. Application. The defendant argues that she was not
criminally responsible for her actions as the Commonwealth
failed to prove that she was able to appreciate the wrongfulness
of her actions after the attack. We do not agree.
Both experts agreed that the defendant was unable to
appreciate the wrongfulness of her conduct when she attacked the
victim. Specifically, both experts opined that the defendant's
decision to kill her son to "prevent him further misery and
frustration" demonstrated that she was unable to appreciate that
her actions were "morally wrong" at the time of the attack.9
Thus, the judge's finding that the defendant was not criminally
responsible for the attack was supported by the evidence. See
Bois, 476 Mass. at 26 ("failure to prove either prong requires a
verdict of not guilty by reason of insanity").
In contrast, the evidence was sufficient to find the
defendant criminally responsible for her actions immediately
9 The two experts disagreed regarding the second prong. Murray opined that the defendant was able to conform her conduct to the requirements of the law during and after the attack, while Saleh concluded that the defendant was unable to control her behavior during the attack because she "experienced a sudden, yet transient episode of dissociation/depersonalization, characterized by a feeling of unreality and detachment, just before and right at the time of her stabbing." This difference of opinion is irrelevant, however, because the Commonwealth was unable to demonstrate the first prong, i.e., that the defendant appreciated the wrongfulness or criminality of her conduct when she stabbed the victim. 12
after the attack, i.e., when she prevented the victim from
calling 911. Both experts opined that the defendant was able to
appreciate the criminality of her conduct10 based on her attempt
to prevent the victim from calling the police and her attempt to
kill herself to avoid being arrested.11
Both experts additionally indicated that, at least after
the attack, the defendant had the substantial capacity to
conform her conduct to the requirements of the law. Indeed,
Murray opined that the defendant was "engaged in . . .
purposeful behaviors" -- her wish to kill herself quickly was
motivated by her not wanting to be arrested, and her stopping
the attempt to drown the victim because she "couldn't overpower
him and . . . [she] knew the cops were coming" indicate
decision-making based on "the reality of her situation" as
opposed to psychotic thought processes.
In the light most favorable to the Commonwealth,
Commonwealth v. Clary, 388 Mass. 583, 588-589 (1983), this
evidence was sufficient to support the trial judge's finding
10As explained supra, notwithstanding the defendant's assertions to the contrary, the Commonwealth was required to prove that the defendant lacked the capacity to understand the criminality of her actions or the wrongfulness of those actions, not both (and that the defendant could conform her actions to the requirements of the law).
11During the evaluation conducted by Murray, the defendant indicated that she stabbed herself because not living would be better than being "in trouble with the law." 13
that the defendant could appreciate the criminality of her
actions and could conform her conduct to the requirements of the
law after attacking the victim. See Commonwealth v. Pugh, 462
Mass. 482, 494-495 (2012) (accepting trial judge's findings of
fact except where clearly erroneous).
2. Sufficiency of the evidence. The defendant moved for a
required finding of not guilty at the close of the
Commonwealth's evidence, which was denied. On appeal she argues
that even if she were criminally responsible for her actions
after the attack, there was insufficient evidence on which to
convict her of reckless endangerment of a child and intimidation
of a witness. In reviewing claims of insufficient evidence, we
assess the evidence in the light most favorable to the
Commonwealth to determine whether any rational trier of fact
could have found each element of the crime beyond a reasonable
doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678
(1979).
a. Witness intimidation. General Laws c. 268, § 13B,
provides in relevant part:
"Whoever willfully, either directly or indirectly: . . . misleads, intimidates or harasses another person who is a . . . witness . . . with the intent to or with reckless disregard for the fact that it may . . . impede, obstruct, delay, prevent or otherwise interfere with . . . a criminal investigation at any stage . . . shall be punished . . . ." 14
See G. L. c. 268, § 13B (b) (iii), as appearing in St. 2018,
c. 69, § 155. The defendant's actions that prevented the
victim, a witness to the crime, from completing his call to
police to report the attack clearly fall within the behavior
prohibited by the statute. We disagree with the defendant that
the Commonwealth failed to prove she acted willfully.
As mentioned supra, both experts testified that the
defendant understood the criminality of her actions and was able
to conform her actions to the requirements of the law when she
took away her son's cell phone to prevent him from calling for
help. See Commonwealth v. Schuchardt, 408 Mass. 347, 352 (1990)
("Conduct is wilful when the actor intends both the conduct and
its harmful consequences . . ."). Murray opined that this
conduct demonstrated that the defendant was engaged in
"purposeful" behavior. See Commonwealth v. Brennan, 481 Mass.
146, 154 (2018) ("Wilful conduct is that which is 'intentional
rather than accidental'" [citation omitted]).
b. Reckless endangerment of a child. To prove reckless
endangerment of a child, the Commonwealth must demonstrate that
the defendant wantonly or recklessly engaged in conduct that
created a substantial risk of serious bodily injury or sexual
abuse to a child under age eighteen, or failed to take
reasonable steps to alleviate that risk where a duty to act
existed. See Commonwealth v. Hardy, 482 Mass. 416, 421 (2019). 15
The defendant must actually be aware of, and consciously
disregard, the risk. See G. L. c. 265, § 13L; Commonwealth v.
Coggeshall, 473 Mass. 665, 670 (2016). As defined in the
statute, "serious bodily injury" is an injury that results in
"permanent disfigurement, protracted loss or impairment of a
bodily function, limb or organ, or substantial risk of death."
G. L. c. 265, § 13L. See Commonwealth v. Mayotte, 475 Mass.
254, 264 (2016).
Here, the judge found that after the attack in which she
stabbed and attempted to drown her son, the defendant's attempts
to prevent him from calling for help constituted a failure to
take reasonable steps to alleviate the risk of substantial
bodily injury.12 We are not persuaded by the defendant's
arguments that there was no risk of serious bodily injury or
that the defendant was not "actually aware" of the risk to the
victim. Although no medical records were submitted in evidence
detailing the full extent of the victim's injuries, the statute
penalizes the failure to alleviate the risk of serious bodily
12We need only examine whether the evidence was sufficient to demonstrate that the defendant failed to take steps to alleviate the risk of serious bodily harm because the judge made clear that was the theory on which the conviction was based. Contrast Commonwealth v. Gonzalez, 452 Mass. 142, 146 (2008) ("The Commonwealth concedes that because the judge's verdict did not reveal whether he relied on the theory of joint venture or constructive possession, the evidence must be sufficient to support both theories"). 16
injury, not actual injury. See Commonwealth v. Hendricks, 452
Mass. 97, 106 (2008), S.C., 453 Mass. 1001 (2009) (sufficient
evidence of reckless endangerment where defendant engaged in
high-speed police chase with three year old child, who suffered
no injuries). Here, the twelve year old victim had been stabbed
in the neck and survived a drowning attempt at the hands of the
defendant. Police observed a cut on the victim's neck and blood
smeared "all over" the bathroom door, as well as blood droplets
throughout the house. This evidence was sufficient to prove
that the defendant failed to take reasonable steps to alleviate
the risk of serious bodily harm by preventing the victim from
contacting emergency aid responders after the attack. Contrast
Hardy, 482 Mass. at 424-425 (insufficient evidence of reckless
endangerment where evidence did "not support an inference that
grave danger from not securing [the child] in a booster seat was
apparent"). Although the defendant was found not criminally
responsible for the conduct that created the initial harm, the
evidence supported the conclusion that, after the attack, she
was aware of and could appreciate the harm she caused.
3. Indictment ambiguity. The defendant argues that the
reckless endangerment charge impermissibly was ambiguous because
the grand jury specifically did not describe the conduct alleged
to have comprised the crime. As discussed supra, reckless
endangerment may be caused either by creating a substantial risk 17
of serious bodily injury or failing to take reasonable steps to
alleviate such a risk where a duty to act exists. See Hardy,
482 Mass. at 421. The indictment alleges that the defendant
"did engage in wanton or reckless conduct creating a substantial
risk of serious bodily injury . . . or wantonly or recklessly
failed to take reasonable steps to alleviate such risk or
injury" (emphasis added).
Because the charge could have been based either on the
attack itself or on the attempt to prevent the victim from
calling the police, and the defendant was found guilty based
only on her attempt to prevent the victim from contacting the
police, she argues that she may have been convicted of a crime
for which she was not indicted. See Commonwealth v. Barbosa,
421 Mass. 547, 551 (1995). We disagree.
The defendant is correct that art. 12 of the Massachusetts
Declaration of Rights requires that "the offense as to which the
grand jury have found probable cause, and thus have charged in
an indictment, must be the same as the offense the Commonwealth
seeks to prove at trial." Commonwealth v. Sullivan, 492 Mass.
36, 42 (2023). However, "where multiple acts are charged in an
indictment as part of a single, continuing criminal episode
occurring close in time," art. 12 is not violated. Id. at 45.
Thus, the question here is not whether the defendant was
convicted of an offense for which she was not indicted, but 18
whether the Commonwealth was "within its discretion" to proceed
under a single indictment for multiple theories of reckless
endangerment of a child. Commonwealth v. Smiley, 431 Mass. 477,
480 (2000).
In this case, the indictment permissibly alleged a single
crime perpetrated under multiple theories, which generally "may
be alleged in the same count in the alternative." G. L. c. 277,
§ 31. See Barbosa, 421 Mass. at 550 n.5, quoting Commonwealth
v. Nichypor, 419 Mass. 209, 212 (1994) ("Where a crime can be
committed in any one of several ways . . . [t]hen the defendant
should be convicted if it is proved that he committed the crime
in any of those ways"). See also Commonwealth v. Dingle, 73
Mass. App. Ct. 274, 277-282 (2008) (statute prohibiting
possession and dissemination of child pornography lawfully
criminalized two means of committing same offense, despite
variation in single element across two subsections).13 The
Commonwealth had the discretion to charge the defendant under a
single indictment where both the defendant's attack on the
13Here, as in Dingle, the only variation between the two means of proving child endangerment are whether the defendant "engages in conduct" creating risk or "fails to take reasonable steps to alleviate" the same risk. See G. L. c. 265, § 13L. All other elements are the same, the penalty is the same, and the dual elements of proof are contained within the same provision (a single sentence), indicative of the Legislature's intent to "fashion a single crime that could be accomplished" in two ways. Dingle, 73 Mass. App. Ct. at 280-281. 19
victim and her attempts to block him from calling for help
formed a single, continuous criminal episode. See Smiley, 431
Mass. at 479-480 ("Commonwealth was within its discretion in
requesting and receiving a single indictment for armed assault
in a dwelling" despite option to pursue separate indictments for
each occupant of dwelling); Commonwealth v. Gunter, 427 Mass.
259, 275 n.17 (1998), S.C., 456 Mass. 1017 (2010) and 459 Mass.
480, cert. denied, 565 U.S. 868 (2011) ("It would have been
possible for the Commonwealth to request that the grand jury
return three separate indictments" where defendant assaulted
multiple persons in dwelling as part of single attack).14
Contrast Barbosa, 421 Mass. at 548-549 (art. 12 violated where
jury considered evidence of two separate drug transactions but
defendant convicted of single, unspecified transaction with "no
14Nor is the indictment ambiguous because it charged the offense in the alternative. Relying on Commonwealth v. Brogan, 415 Mass. 169 (1993), the defendant maintains that the indictment was invalid because it listed the ways of committing the offense with the disjunctive "or" rather than the conjunctive "and." Although dicta in Brogan, supra at 178, does state that an indictment properly charges commission of a crime in multiple ways "using the conjunction 'and,'" we also have stated that the disjunctive "or" is proper when alleging violation of the statute "by proof of the performance by the defendant of any one of the said acts." Commonwealth v. Martin, 304 Mass. 320, 322 (1939). This apparent contradiction easily is resolved by understanding that the use of "and" versus "or" is a matter of form, not substance. See Commonwealth v. Murphy, 415 Mass. 161, 164-165 (1993). 20
indication that count one of the indictment was intended to
include more than one act of distribution").
The defendant does not argue that insufficient evidence was
presented to the grand jury to satisfy both theories of the
offense. Nor does she claim that she was not on notice of the
alleged conduct underpinning each theory of reckless
endangerment in this case.15 There was no art. 12 violation.
4. GPS monitoring. As a condition of the defendant's
probation, the judge ordered GPS monitoring for a period of two
years. The defendant argues the failure to establish an
exclusion zone renders the GPS monitoring condition
presumptively unreasonable. Although judges generally have wide
latitude in setting conditions of probation, Commonwealth v.
Goodwin, 458 Mass. 11, 16 (2010), where a condition infringes on
a constitutional right, it must be "reasonably related" to the
goals of sentencing and probation to be enforceable (citation
omitted), Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001).
Because GPS monitoring constitutes a warrantless search under
art. 14 of the Massachusetts Declaration of Rights and the
15That the defendant subsequently was deemed not criminally responsible for the first set of conduct does not render the indictment invalid. See Commonwealth v. McLaughlin, 431 Mass. 506, 508 (2000) ("a defendant may be found not guilty by reason of insanity or impaired mental condition as to one charge, and guilty as to other charges, even where all arise out of the same criminal episode" [citation omitted]). 21
Fourth Amendment to the United States Constitution, we consider
it presumptively unconstitutional unless the Commonwealth
establishes that such a search is reasonable, i.e., that the
government interest sufficiently outweighs the privacy
intrusion. See Commonwealth v. Roderick, 490 Mass. 669, 672-673
(2022).
In Roderick, we established that the Commonwealth has a
compelling interest in enforcing exclusion zones by means of GPS
monitoring as a condition of probation. Id. at 677. However,
as the defendant points out, we also stated that this interest
is furthered "only where the GPS device is configured
effectively to notify authorities should a defendant enter
prohibited areas." Id. Nevertheless, we disagree with the
defendant that the GPS monitoring ordered by the judge here is
impermissible because the judge did not set an exclusion zone.
Here, the judge noted that GPS monitoring would further the
Commonwealth's interest in enforcing the condition that the
defendant stay away from the family home except for supervised
visits.16 The absence of a geographic exclusion zone was not an
16 At the sentencing hearing, the judge said:
"I'm making a finding that the need to impose this GPS monitoring has been balanced against the privacy invasion occasioned by such monitoring. And, the reasoning, I'd say, at this point, is that the victims in this case reside in the home[.] [We're] not going to set a complete exclusion zone, because if there are supervised visitations 22
"unsubstantiated possibility," as it was in Roderick, but a
deliberate choice by the judge designed to better facilitate
supervised visits between the family and ensure compliance with
the terms of probation. Contrast id. at 678-679 (government
interest in enforcing stay-away condition could not be justified
where Commonwealth had no address for victim).
Moreover, in Roderick, we noted that even absent an
exclusion zone, the Commonwealth also possesses a valid interest
in deterring and investigating future crimes where they provide
"sufficient evidence that a defendant poses a demonstrable risk
of reoffending." Id. at 679. We also have previously justified
GPS monitoring as a term of probation as a means to "ensure
compliance with any of the defendant's . . . conditions of
probation." Commonwealth v. Johnson, 481 Mass. 710, 719-720,
cert. denied, 140 S. Ct. 247 (2019). Unlike in Roderick, where
no exclusion zone existed at the inception of the search, here,
the defendant's GPS monitoring was ordered at sentencing to
"make sure that she's not going to the house outside of any of
[the scheduled supervised visit] times." Given the facts of
this case and the government interest in "ensuring the victim's
'sense of safety, security and well-being,'" it was not
unreasonable for the judge to impose the GPS monitoring to deter
that occur in the house, [the court], certainly, would allow that." 23
the defendant from overstepping the limited access she had to
the house and the victim. Roderick, 490 Mass. at 677.
We conclude that the imposition of GPS monitoring in this
case sufficiently balances the valid government interests
against the invasion on the defendant's privacy and is
reasonably related to the goals of probation. See Johnson, 481
Mass. at 720-721 (GPS monitoring as condition of probation not
unreasonable where defendant's diminished privacy expectation
outweighed by governmental interests served by such monitoring).
Conclusion. For the reasons stated, we affirm the
defendant's convictions and the probation condition of GPS
monitoring.
So ordered.