MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
Janet Kenton-Walker, Justice
The defendant, Damien Grenga (" Grenga"), is charged with two identical counts of making bomb threats in his high school in violation of G.L.c. 269, § 14(b). Grenga moves the court to dismiss the indictment against him, arguing that the Grand Jury heard insufficient evidence for issuing the indictment and that his statements in the school constituted protected free speech under the First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights. For the following reasons, Grenga's motion to dismiss is ALLOWED in part and DENIED in part.
The following facts are taken from the Grand Jury minutes. In April 2012, Grenga was a student at Blackstone-Millville Regional High School (the " school") in Blackstone. On April 13, 2012, Lieutenant Gregory Gilmore (" Lt. Gilmore") of the Blackstone Police Department obtained information from the school's guidance counselor with regard to Grenga's alarming conduct. The guidance counselor had received an e-mail from a student expressing grave concern about Grenga and describing his conduct. During class, Grenga asked the teacher what he would do if he showed up to the school wearing a bomb vest. The teacher confirmed Grenga's statement to the vice principal of the school. The students in Grenga's class also provided statements confirming Grenga's statement.
Grenga also drew a picture of a stick figure person wearing a bomb vest. Under this drawing, Grenga wrote the word " soon." The teacher did not see this drawing because concerned students erased the drawing immediately.
Later, in an online discussion with other students on Facebook, Grenga made yet another statement which alarmed classmates and school authorities. Students were discussing the upcoming prom. One of the students joked that he would bring a blowup doll to the prom as his date. Grenga responded to this comment, suggesting that the student " fill the doll with 20 pounds of explosives."
These events, combined with Grenga's recent appearance and conduct leading up to the alleged threats gravely concerned administrators of the school. One day, for example, Grenga showed up to school with an upside down cross cut into his forehead. Grenga's friends reported that Grenga had been drinking and doing drugs in the days that led up to the threats.
In addition to the conduct, as well as verbal and written statements, Grenga also demonstrated an interest in Columbine High School, the site of a mass school shooting that killed numerous students. Grenga " liked" Columbine High School on Facebook. The Blackstone Police Department later determined that Grenga had done some research on Columbine High School on his personal computer.
Grenga also researched a substance known as " Solidox, " a household agent allegedly used to make homemade explosives. Grenga solicited friends into driving him to K-Mart to purchase Solidox.
The Commonwealth charged Grenga with two counts of making bomb threats. Lt. Gilmore, who investigated these incidents, testified before the Grand Jury session on December 4, 2014, recounting the above facts. On December 5, 2014, the Grand Jury indicted Grenga on both counts.
" [A] court reviewing the sufficiency of evidence before a grand jury should not dismiss if the evidence was adequate 'to establish the level of probable cause required to support an arrest or search.'" Commonwealth v. Brown, 55 Mass.App.Ct. 440, 446-47, 771 N.E.2d 214 (2002), quoting Commonwealth v. McCarthy, 385 Mass. 160, 162-63, 430 N.E.2d 1195 (1982). Probable cause is " reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense." Commonwealth v. Stevens, 362 Mass. 24, 26, 283 N.E.2d 673 (1972), quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Where a grand jury receives " no evidence of criminality on the part of the accused, " however, " fundamental fairness requires that an indictment be dismissed . . ." Commonwealth v. Cheremond, 461 Mass. 397, 404, 961 N.E.2d 97 (2012) (emphasis in original).
Grenga asserts that there was insufficient evidence before the Grand Jury to prove that he had the requisite intent to threaten anyone and that his statements were not " true threats, " rendering his statements protected under the First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights.
The court begins its assessment of the evidence before the Grand Jury with the language of G.L.c. 269, § 14(b), ...