Commonwealth v. Simpkins (Lawyers Weekly No. 10-007-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11601 COMMONWEALTH vs. ADAM SIMPKINS. Suffolk. October 9, 2014. – January 21, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ. Homicide. Practice, Criminal, Required finding, Double jeopardy. Supreme Judicial Court, Superintendence of inferior courts. Accessory and Principal. Firearms. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 7, 2013. The case was reported by Gants, J. Robert L. Sheketoff (Kirsten M. O’Brien with him) for the defendant. Cailin M. Campbell, Assistant District Attorney (Mark T. Lee, Assistant District Attorney, with her) for the Commonwealth. SPINA, J. In 2011, the defendant, Adam Simpkins, was indicted on charges of murdering Cordell MacAfee, armed assault with intent to murder Christopher Jones, accessory after the fact to murder, and unlawful possession of firearms. The jury found the defendant guilty of unlawful possession of firearms and accessory after the fact. The jury were unable to reach a verdict on the indictments charging murder and armed assault with intent to murder, and the judge declared a mistrial as to those indictments.[1] The Commonwealth requested that sentencing on the indictments on which the defendant was found guilty be postponed until he could be retried on the indictments that were mistried. The defendant, in turn, moved to dismiss the mistried indictments on two theories of double jeopardy, namely, (1) his motion for required findings of not guilty at the close of the Commonwealth’s case should have been allowed, and (2) the conviction of accessory after the fact has collateral estoppel effect barring retrial of the indictments alleging murder and armed assault with intent to murder. The defendant’s motion was denied. The defendant filed this petition under G. L. c. 211, § 3, alleging that the denial of his motion to dismiss violated principles of double jeopardy and that the Commonwealth, having convicted the defendant of being an accessory after the fact, was estopped as a matter of law from trying him as a principal for the same crime. See Costarelli v. Commonwealth, 374 Mass. 677, 679-680 (1978). The single justice reserved and reported the case, without decision, to the full court. We hold that the defendant’s motion for required findings of not guilty as to the indictments charging murder and armed assault with intent to murder should have been allowed. Because of this […]
Commonwealth v. Corliss (Lawyers Weekly No. 10-006-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11523 COMMONWEALTH vs. EDWARD CORLISS. Suffolk. October 29, 2014. – January 20, 2015. Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ. Homicide. Firearms. Robbery. Practice, Criminal, View, Loss of evidence by prosecution, Capital case. Evidence, Firearm, Jury view, Prior misconduct, Relevancy and materiality, Exculpatory, Expert opinion, Experiment. Witness, Expert. Indictments found and returned in the Superior Court Department on February 25, 2010. The cases were tried before Diane M. Kottmyer, J. Stephen Neyman for the defendant. Mindy S. Klenoff, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth. BOTSFORD, J. A jury convicted the defendant, Edward Corliss, of murder in the first degree on the theories of deliberate premeditation and felony-murder, and of unlawful possession of a firearm, and robbery while armed and masked. The defendant appeals, claiming (1) the trial judge’s restrictions on the defendant’s attendance at a jury view were improper; (2) it was error to admit a witness’s testimony that he saw the defendant with a gun more than one year before the shooting in question occurred; (3) the “destruction” by police of money seized from the defendant’s residence without first examining the money for fingerprints or deoxyribonucleic acid (DNA) warrants dismissal of the charges against him; and (4) it was error to exclude the video and testimony of the defendant’s expert showing that surveillance footage of the shooting distorted the height of the perpetrator. Finally, the defendant asks us to reverse his convictions under G. L. c. 278, § 33E. We affirm the convictions and decline to grant relief under G. L. c. 278, § 33E. Background. We recite the facts as the jury could have found them at trial, reserving some facts for later discussion. On the afternoon of December 26, 2009, Surendra Dangol, the victim, was working alone as a clerk at a convenience store located on Centre Street in the Jamaica Plain neighborhood of Boston. At approximately 2:45 P.M., a white motor vehicle stopped on Eliot Street opposite the store, at the intersection of Eliot and Centre Streets. A person wearing a hat and a bulky coat, and carrying a backpack, approached the vehicle and appeared to speak briefly with the driver, who had lowered the window. The vehicle then backed up on Eliot Street, away from the intersection with Centre Street […]
Commonwealth v. Bresilla (Lawyers Weekly No. 10-005-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-10837 COMMONWEALTH vs. ELYSEE BRESILLA. Middlesex. October 10, 2014. – January 16, 2015. Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ. Homicide. Firearms. Evidence, Firearm, Identification, Relevancy and materiality. Identification. Constitutional Law, Identification. Due Process of Law, Identification of inanimate object. Practice, Criminal, Capital case, Motion to suppress, Identification of defendant in courtroom, Conduct of prosecutor, Argument by prosecutor, Request for jury instructions, New trial. Indictments found and returned in the Superior Court Department on June 6, 2006. Pretrial motions to suppress evidence were heard by Diane M. Kottmyer, J; the cases were tried before Sandra L. Hamlin, J., and a motion for a new trial, filed on August 12, 2011, was considered by her. James W. Rosseel for the defendant. Fawn D. Balliro Andersen, Assistant District Attorney (Nicole L. Allain, Assistant District Attorney, with her) for the Commonwealth. CORDY, J. In the early morning hours of March 28, 2006, Doowensky Nazaire was shot and killed in front of a night club in Cambridge. Although the firearm was never recovered, the evidence implicating the defendant, Elysee Bresilla, as the shooter was substantial. Within minutes of the shooting, Cambridge police officers found the defendant crouching in the yard of a nearby residence. Within an hour, the police had performed a showup with a witness who identified the defendant as the shooter. Two eyewitnesses who knew the defendant came forward and identified him as the shooter. The defendant’s hands tested positive for gunshot primer residue. In the path of flight described by numerous witnesses, the police found the defendant’s discarded brown leather jacket. On the night of the shooting, two witnesses identified that jacket as the one worn by the shooter. The defendant was indicted on charges of murder in the first degree under theories of premeditation and extreme atrocity or cruelty, and possession of a firearm without a firearm identification (FID) card, in violation of G. L. c. 269, § 10 (h) (1). The defendant filed motions to suppress the identifications of himself and his jacket, which motions were denied. At trial, the defendant primarily challenged the identification evidence and the procedures employed by the Cambridge police in obtaining that evidence. A jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, and […]
Kitras, et al. v. Town of Aquinnah, et al. (Lawyers Weekly No. 11-006-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-260 Appeals Court MARIA A. KITRAS, trustee,[1] & others[2] vs. TOWN OF AQUINNAH & others.[3] No. 12-P-260. Suffolk. January 18, 2013. – January 14, 2015. Present: Kantrowitz, Berry, & Agnes, JJ. Easement. Necessity. Real Property, Easement. Civil action commenced in the Land Court Department on May 20, 1997. After review by this court, 64 Mass. App. Ct. 285 (2005), the case was heard by Charles W. Trombly, Jr., J. Wendy H. Sibbison for Maria A. Kitras & another. Leslie-Ann Morse for Mark D. Harding & others. Diane C. Tillotson for Martha’s Vineyard Land Bank & others. John Donnelly, Assistant Attorney General, for the Commonwealth. Jennifer S.D. Roberts for Vineyard Conservation Society, Inc. BERRY, J. From the earliest time, the members of the Wampanoag Tribe of Gay Head (now known as Aquinnah) in Martha’s Vineyard (Gay Head Tribe or Tribe), had a custom and practice of common access across the lands that are the subject of this appeal. For the reasons that follow, we conclude that the ancient origins of that common access — dating back before the late eighteenth century — establish the equivalent of a chain of title, with access rights that would not yield landlocked parcels. The late nineteenth century State statutory conveyance of large tracts of public common land in Aquinnah, including the subject lands, by the Legislature as grantor to the newly enfranchised Gay Head Tribe members as grantees, and the subsequent judicial partitioning of these governmentally conveyed lands did not, we determine, break these preexisting access rights. More specifically, the subsequent grantees of land tracts in the links of this chain of conveyances from the Gay Head Tribe members to the present plaintiffs were not divested of these long-held access rights flowing from the longstanding tribal custom and practice so as to leave the plaintiffs’ lots landlocked and bereft of easements. It is so that a plumb line — with perfectly fit easements in the precise transverse of paths walked by and through the lands by the Gay Head Tribe members, in their custom and practice — would, in this present time, be most difficult to reconstruct by metes and bounds since property boundaries were not set in that manner in the statutory governmental conveyances and subsequent judicial partition that deeded the lots to the Gay Head […]
Commonwealth v. Gomes (Lawyers Weekly No. 10-002-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC-11537 COMMONWEALTH vs. JEREMY D. GOMES. Berkshire. September 2, 2014. – January 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Evidence, Identification. Practice, Criminal, Request for jury instructions, Instructions to jury. Indictments found and returned in the Superior Court Department on October 24, 2011. The cases were tried before by John A. Agostini, J. The Supreme Judicial Court granted an application for direct appellate review. John Fennel, Committee for Public Counsel Services, for the defendant. John Bossé, Assistant District Attorney, for the Commonwealth. The following submitted briefs for amici curiae: Daniel F. Conley, District Attorney, & Cailin M. Campbell, Assistant District Attorney, for District Attorney for the Suffolk District. Lisa J. Steele for Massachusetts Association of Criminal Defense Lawyers. David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Nathalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley for American Psychological Association & another.2 M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan for the Innocence Network. GANTS, C.J. In the early morning of September 10, 2011, the defendant slashed the face of the victim, Zachary Sevigny, with a box cutter while the victim was sitting in the driver’s seat of his vehicle. A Superior Court jury found the defendant guilty of mayhem, in violation of G. L. c. 265, § 14; assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A (b); and breaking and entering a vehicle in the nighttime with the intent to commit a felony, in violation of G. L. c. 266, § 16.[1] On appeal, the defendant claims that the judge erred by giving the model jury instruction regarding eyewitness identification that we adopted in Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (Appendix) (1979), rather than the instruction he requested, which would have informed the jury about various scientific principles regarding eyewitness identification. We conclude that the judge did not err by declining to instruct the jury about these principles where the defendant offered no expert testimony, scholarly articles, or treatises that established that these principles were “so generally accepted that . . . a standard jury instruction stating [those principles] would be appropriate.” Commonwealth v. Santoli, 424 Mass. 837, 845 (1997), citing Commonwealth v. Hyatt, 419 Mass. 815, 818-819 […]
Commonwealth v. Johnson (Lawyers Weekly No. 10-003-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11567 COMMONWEALTH vs. KENNETH JOHNSON. Suffolk. September 2, 2014. – January 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Identification. Evidence, Identification. Practice, Criminal, Request for jury instructions, Instructions to jury. Indictments found and returned in the Superior Court Department on June 11, 2001. Following review by the Appeals Court, 74 Mass. App. Ct. 1129 (2009), the cases were tried before Patrick F. Brady, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Brad P. Bennion for the defendant. Cailin M. Campbell, Assistant District Attorney (David S. Bradley, Assistant District Attorney, with her) for the Commonwealth. David W. Ogden, Daniel S. Volchok, Francesco Valentini, & Natalie F.P. Gilfoyle, of the District of Columbia, & John C. Polley, for American Psychological Association & another, amici curiae, submitted a brief. M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan, for the Innocence Network, amicus curiae, submitted a brief.2 ANTS, C.J. In Commonwealth v. Franklin, 465 Mass. 895, 912 (2013), we recognized “that eyewitness identification may be an important issue at trial even where no eyewitness made a positive identification of the defendant as the perpetrator, but where eyewitnesses have provided a physical description of the perpetrator or his clothing, or have identified a photograph in an array as someone who looks like the perpetrator,” and we declared that, “where requested by the defendant, a judge should provide specific guidance to the jury regarding the evaluation of such eyewitness testimony through some variation of the approved identification instruction.” Here, the eyewitnesses described only the defendant’s gender and race, and the color of his shorts; identified other individuals as the perpetrator when shown a live lineup; and made no in-court identification. The trial judge declined the defendant’s request to give a variant of the approved identification instruction that included the directive, “You may take into account whether a witness ever participated in an identification procedure and failed to identify the defendant as the perpetrator.” We conclude that the judge did not abuse his discretion in declining to give the proposed instruction where there was no positive identification and no other eyewitness testimony that significantly incriminated the defendant. Therefore, we affirm the defendant’s convictions.[1] Background. On December 10, 2004, the defendant was convicted by a Superior Court jury of (1) assault by […]
In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 10-004-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11697 IN THE MATTER OF A GRAND JURY INVESTIGATION. Suffolk. September 4, 2014. – January 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Grand Jury. Subpoena. Cellular Telephone. Constitutional Law, Grand jury, Subpoena, Self-incrimination. Practice, Criminal, Grand jury proceedings, Subpoena duces tecum, Warrant. Evidence, Grand jury proceedings. Attorney at Law, Attorney-client relationship. Search and Seizure, Warrant, Probable cause. Probable Cause. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 7, 2014. The case was reserved and reported by Botsford, J. Aaron M. Katz (Patrick Welsh with him) for the petitioner. James L. Sultan (Charles W. Rankin with him) for the amicus curiae. Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth. LENK, J. This appeal arises from a petition brought under G. L. c. 211, § 3, challenging a Superior Court judge’s order approving the issuance of a grand jury subpoena duces tecum that compels a law firm to produce a cellular telephone. The single justice reserved and reported the matter to this court, and our analysis is confined to the limited record before us. The Commonwealth contends that the telephone belonged to John Doe,[1] the target of a grand jury investigation; that it was transferred from Doe to the law firm to obtain legal advice; and that it contains in the information stored on its memory, particularly in its record of text messages, evidence of a crime under investigation by the grand jury. The Superior Court judge determined that, while a subpoena served on Doe would violate his right against self-incrimination, and a subpoena served on the law firm would violate the attorney-client privilege, a subpoena compelling the law firm to produce the telephone could be served upon an ex parte showing by the Commonwealth of probable cause sufficient for the issuance of a search warrant. We conclude that, on the record before us, the attorney-client privilege protects Doe against compelled production of the telephone by the law firm, and that the protection afforded by the attorney-client privilege may not be set aside based on a showing of probable cause. We therefore reverse the Superior Court judge’s order. 1. Background. The law firm began representing Doe in April, 2013. According to the Commonwealth, in June, 2013, Doe transferred the telephone to the law firm in connection with its provision of legal services to him.[2] In March, 2014, the Commonwealth moved […]
Care and Protection of Laurent (Lawyers Weekly No. 11-005-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-189 Appeals Court CARE AND PROTECTION OF LAURENT.[1] No. 14-P-189. Middlesex. September 5, 2014. – January 9, 2015. Present: Green, Graham, & Katzmann, JJ. Minor, Care and protection. Parent and Child, Care and protection of minor. Practice, Civil, Care and protection proceeding, Findings by judge. Petition filed in the Middlesex County Division of the Juvenile Court Department on October 17, 2011. The case was heard by Kenneth J. King, J. David J. Cohen, Committee for Public Counsel Services, for the mother. Richard A. Salcedo for Department of Children and Families. Julia A.B. Pearson for the child. GRAHAM, J. On October, 17, 2011, the Department of Children and Families (department) filed a care and protection petition in the Middlesex County Division of the Juvenile Court Department pursuant to G. L. c. 119 § 24, alleging Laurent was a child in need of care and protection. On that day, the trial court judge granted temporary emergency custody of Laurent to the department. The department later placed him in foster care, where he remained through the conclusion of the trial. Trial on the department’s petition occurred over seven non-consecutive days, beginning on November 1, 2012, and concluding on January 3, 2013. On February 21, 2013, the judge found the mother unfit, essentially, on the basis that she was too cognitively limited to parent the child. Accordingly, the child was committed to the custody of the department, with reunification as the plan. On appeal, the mother contends that the judge’s findings regarding her parenting deficiencies, taken as a whole, do not support a conclusion that the child was at risk of serious harm, and thus in need of care and protection.[2] We agree with mother and, accordingly, reverse the judgment. 1. Background. We summarize the material facts from the judge’s extensive findings, which are supported by the evidence, and essentially undisputed. Laurent is one of five children born to the mother, who was forty years old at time of trial. The mother experienced significant trauma and neglect as a child. As a child, the mother contracted lead poisoning, which resulted in severe developmental disabilities. In addition, the mother sustained a skull fracture when she was eight years old. When she was fourteen, she was placed in department custody due to abuse and neglect. She was […]
Wodinsky, et al. v. Kettenbach, et al. (Lawyers Weekly No. 11-004-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1170 Appeals Court JEROME WODINSKY & another[1] vs. MICHAEL L. KETTENBACH[2] & others.[3] No. 13-P-1170. Suffolk. September 29, 2014. – January 6, 2015. Present: Cohen, Meade, & Milkey, JJ. Consumer Protection Act, Trade or commerce. Massachusetts Civil Rights Act. Civil Rights, Coercion. Abuse of Process. Conspiracy. Condominiums, Common expenses. Real Property, Condominium. Evidence, Relevancy and materiality. Practice, Civil, Judgment notwithstanding verdict, Attorney’s fees. Civil actions commenced in the Superior Court Department on September 28, 2009, and November 13, 2009. After consolidation, the case was tried before Frank M. Gaziano, J., and motions for judgment notwithstanding the verdict and for attorney’s fees were heard by him. Donald N. Sweeney (Steven P. Perlmutter with him) for the plaintiffs. Alan K. Posner (Mikalen E. Howe with him) for the defendants. MEADE, J. Following the consolidation of two cases for a jury trial, Jerome Wodinsky and Bernadette L. Wodinsky appeal from the allowance by the trial judge of a motion for judgment notwithstanding the verdict (n.o.v.), which vacated in part a $ 1.85 million award[4] against the defendants, Michael L. Kettenbach, individually and as trustee of 303 Commonwealth Condominium Trust; Frances Demoulas Kettenbach, individually and as manager of CMTF, LP (CMTF); and Gary Crossen, individually and as trustee of 303 Commonwealth Avenue Realty Trust.[5] The Wodinskys also appeal from the judge’s refusal to send to the jury their G. L. c. 93A claims against each of the three individual defendants, and the judge’s decision to reduce the attorney’s fees award to one of their attorneys. Crossen and the Kettenbachs cross appeal, claiming that the judge erred in denying their motion for judgment n.o.v. on the Wodinskys’ abuse of process, civil conspiracy, and Massachusetts Civil Rights Act (MCRA) claims, in making certain evidentiary rulings, and in awarding attorney’s fees to the Wodinskys.[6] Finally, the Kettenbachs, as trustees of the 303 Commonwealth Condominium Trust, appeal the verdict in the second action in the Wodinskys’ favor, claiming that they should not have been permitted to challenge the assessment of condominium expenses against them.[7] We affirm. Background. Mindful of the jury’s verdicts, we summarize relevant facts in the light most favorable to the Wodinskys, reserving certain details for our later discussion. See Foley v. Polaroid Corp., 400 Mass. 82, 85 (1987). At the time of trial, the Wodinskys and the […]
Commonwealth v. Johnson (and a companion case) (Lawyers Weekly No. 10-202-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11660 COMMONWEALTH vs. WILLIAM P. JOHNSON (and a companion case[1]). Essex. September 3, 2014. – December 23, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Criminal Harassment. Constitutional Law, Freedom of speech and press. Practice, Criminal, Required finding, Discovery, Disclosure of evidence, Loss of evidence by prosecution, Promise by prosecutor, Argument by prosecutor, Speedy trial, Venue. Evidence, Authentication. Complaints received and sworn to in the Lawrence Division of the District Court Department on October 16, 2008. Motions to dismiss were heard by Anthony P. Sullivan, J., Mark A. Sullivan, J., and James D. Barretto, J.; and the cases were tried before Michael A. Uhlarik, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert S. Sinsheimer (Lisa A. Parlagreco & Ronald J. Ranta with him) for William P. Johnson. Valerie A. DePalma (Susan H. McNeil with her) for Gail M. Johnson. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth. Daniel J. Lyne & Theodore J. Folkman, for Eugene Volokh, amicus curiae, submitted a brief. CORDY, J. This case concerns the constitutionality of the criminal harassment statute, G. L. c. 265, § 43A (a), and its application to acts of cyberharassment among others. Specifically, we consider whether a pattern of harassing conduct that includes both communications made directly to the targets of the harassment and false communications made to third parties through Internet postings solely for the purpose of encouraging those parties also to engage in harassing conduct toward the targets can be constitutionally proscribed by the statute. We also consider whether, to the extent that this pattern of conduct includes speech, that speech is protected by the First Amendment to the United States Constitution or is unprotected speech integral to the commission of the crime. The defendants, William and Gail Johnson, were both convicted of criminal harassment. William[2] was also convicted of making a false, or “frivolous,” report of child abuse, G. L. c. 119, § 51A (c). Among other things, the defendants’ conduct included posting information about the victims online along with false statements about items that the victims allegedly either had for sale or were giving away, with the object of encouraging unwitting third parties to repeatedly contact and harass the victims at their home and on their telephone. The […]