Commonwealth v. Ecker (Lawyers Weekly No. 11-118-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 15-P-653 Appeals Court COMMONWEALTH vs. JOHN ECKER. No. 15-P-653. Hampden. June 5, 2017. – September 13, 2017. Present: Sullivan, Henry, & Shin, JJ. Practice, Criminal, Motion to suppress, Instructions to jury. Constitutional Law, Imprisonment, Freedom of speech and press. Malice. Criminal Harassment. Harassment Prevention. Stalking. Attempt. Indictments found and returned in the Superior Court Department on March 5, 2014. A pretrial motion to suppress evidence was heard by Mary-Lou Rup, J.; a motion for reconsideration was considered by C. Jeffrey Kinder, J., and the cases were tried before him. Deborah Bates Riordan for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. SHIN, J. A Superior Court jury convicted the defendant of stalking, two counts of criminal harassment, and attempt to commit a crime (violation of a harassment prevention order).[1] On appeal the defendant argues that (1) the motion judge should have suppressed evidence of a letter that he wrote from prison because the letter was seized in violation of his rights under the First Amendment to the United States Constitution, (2) the trial judge gave an erroneous jury instruction on the definition of “malicious” conduct, as it pertains to stalking and criminal harassment, and (3) the evidence was insufficient to prove that the defendant was guilty of those offenses. We affirm. Background. The convictions at issue arose from interactions that the defendant had with two victims. We summarize the facts relating to each victim in turn, viewing the evidence and the reasonable inferences therefrom in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Victim 1 — Miranda.[2] In May of 2013, Miranda interviewed and hired the defendant for a position at Burger King. The following day, the defendant returned to see Miranda, claiming to have questions about company policy. Miranda spoke to him for a couple of minutes. The defendant returned the next day looking for Miranda, but she was not working. The defendant then asked another employee for Miranda’s phone number and schedule. When the employee would not give him that information, he requested that she call Miranda for him, which she declined to do. Later the same week, the defendant called Miranda at work and asked to set up a time to go over the employee […]