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Commonwealth v. Carter

Supreme Judicial Court of Massachusetts, Bristol

February 6, 2019


          Heard: October 4, 2018.

          Indictment found and returned in the Superior Court Department on February 6, 2015. The case was heard by Lawrence Moniz, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          Daniel N. Marx (William W. Fick, Nancy Gertner, Joseph P. Cataldo, & Cornelius J. Madera, III, also present) for the defendant.

          Shoshana E. Stern, Assistant District Attorney (Maryclare Flynn, Assistant District Attorney, also present) for the Commonwealth.

          Eva G. Jellison, for youth advocacy division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief.

          Brian Hauss, of New York, Matthew R. Segal, & Ruth A. Bourquin, for American Civil Liberties Union & another, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         At age seventeen, Michelle Carter was charged with involuntary manslaughter as a youthful offender for the suicide death of Conrad Roy, age eighteen. In Commonwealth v. Carter, 474 Mass. 624 (2016) (Carter I), we affirmed the Juvenile Court judge's denial of the motion to dismiss the youthful offender indictment, "conclud[ing] that there was probable cause to show that the coercive quality of the defendant's verbal conduct overwhelmed whatever willpower the eighteen year old victim had to cope with his depression, and that but for the defendant's admonishments, pressure, and instructions, the victim would not have gotten back into [his] truck and poisoned himself to death." Id. at 635-636. Thereafter, the defendant waived her right to a jury trial, and the case was tried to a judge in the Juvenile Court over several days. The defendant was convicted as charged and has appealed. We now consider whether the evidence at trial was sufficient to support the judge's finding of proof beyond a reasonable doubt that the defendant committed involuntary manslaughter as a youthful offender, and whether the other legal issues raised or revisited by the defense, including that the defendant's verbal conduct was protected by the First Amendment to the United States Constitution, require reversal of the conviction. We conclude that the evidence was sufficient to support the judge's finding of proof beyond a reasonable doubt that the defendant committed involuntary manslaughter as a youthful offender, and that the other legal issues presented by the defendant, including her First Amendment claim, lack merit. We therefore affirm.[1]


         In Carter I, 474 Mass. at 625-630 & nn.3-8, we discussed at length the facts before the grand jury, including the numerous text messages exchanged between the defendant and the victim in the days leading up the victim's death on July 12, 2014. Viewed in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence supporting the defendant's conviction was not substantially different at trial and revealed the following facts.

         On July 13, 2014, the victim's body was found in his truck, which was parked in a store parking lot in Fairhaven. He had committed suicide by inhaling carbon monoxide that was produced by a gasoline powered water pump located in the truck.

         The defendant, who lived in Plainville, and the victim, who divided his time between his mother's home in Fairhaven and his father's home in Mattapoisett, first met in 2012, when they were both visiting relatives in Florida. Thereafter, they rarely saw each other in person, but they maintained a long-distance relationship by electronic text messaging[2] and cellular telephone (cell phone) conversations. A frequent subject of their communications was the victim's fragile mental health, including his suicidal thoughts. Between October 2012 and July 2014, the victim attempted suicide several times by various means, including overdosing on over-the-counter medication, drowning, water poisoning, and suffocation. None of these attempts succeeded, as the victim abandoned each attempt or sought rescue.

         At first, the defendant urged the victim to seek professional help for his mental illness. Indeed, in early June 2014, the defendant, who was planning to go to McLean Hospital for treatment of an eating disorder, asked the victim to join her, saying that the professionals there could help him with his depression and that they could mutually support each other. The victim rebuffed these efforts, and the tenor of their communications changed. As the victim continued researching suicide methods and sharing his findings with the defendant, the defendant helped plan how, where, and when he would do so, [3] and downplayed his fears about how his suicide would affect his family.[4] She also repeatedly chastised him for his indecision and delay, texting, for example, that he "better not be bull shiting me and saying you're gonna do this and then purposely get caught" and made him "promise" to kill himself.[5] The trial judge found that the defendant's actions from June 30 to July 12 constituted wanton or reckless conduct in serious disregard of the victim's well-being, but that this behavior did not cause his death. This and other evidence, however, informed and instructed the judge about the nature of their relationship and the defendant's understanding of "the feelings that he has exchanged with her -- his ambiguities, his fears, his concerns," on the next night.

         In the days leading to July 12, 2014, the victim continued planning his suicide, including by securing a water pump that he would use to generate carbon monoxide in his closed truck.[6] On July 12, the victim drove his truck to a local store's parking lot and started the pump. While the pump was operating, filling the truck with carbon monoxide, the defendant and victim were in contact by cell phone. Cell phone records showed that one call of over forty minutes had been placed by the victim to the defendant, and a second call of similar length by the defendant to the victim, during the time when police believe the victim was in his truck committing suicide. There is no contemporaneous record of what the defendant and victim said to each other during those calls.

         The defendant, however, sent a text to a friend at 8:02 P..M., shortly after the second call: "he just called me and there was a loud noise like a motor and I heard moaning like someone was in pain, and he wouldn't answer when I said his name. I stayed on the phone for like 20 minutes and that's all I heard." And at 8:25 P.M., she again texted that friend: "I think he just killed himself." She sent a similar text to another friend at 9:24 P.M.: "He called me, and I heard like muffled sounds and some type of motor running, and it was like that for 20 minutes, and he wouldn't answer. I think he killed himself." Weeks later, on September 15, 2014, she texted the first friend again, saying in part:

"I failed [the victim] I wasn't supposed to let that happen and now I'm realizing I failed him. [H]is death is my fault like honestly I could have stopped him I was on the phone with him and he got out of the car because it was working and he got scared and I fucking told him to get back in . . . because I knew he would do it all over again the next day and I couldn't have him live the way he was living anymore I couldn't do it I wouldn't let him."

         The judge found that the victim got out of the truck, seeking fresh air, in a way similar to how he had abandoned his prior suicide attempts. The judge also focused his verdict, as we predicted in Carter I, supra at 634, on "those final moments, when the victim had gotten out of his truck, expressing doubts about killing himself." The judge found that when the defendant realized he had gotten out of the truck, she instructed him to get back in, knowing that it had become a toxic environment and knowing the victim's fears, doubts, and fragile mental state. The victim followed that instruction. Thereafter, the defendant, knowing the victim was inside the truck and that the water pump was operating -- the judge noted that she could hear the sound of the pump and the victim's coughing -- took no steps to save him. She did not call emergency personnel, contact the victim's family, [7] or instruct him to get out of the truck. The victim remained in the truck and succumbed to the carbon monoxide. The judge concluded that the defendant's actions and her failure to act constituted, "each and all," wanton and reckless conduct that caused the victim's death.


         In Carter I, we considered whether there was probable cause for the grand jury to indict the defendant as a youthful offender for involuntary manslaughter, whereas here, we consider whether the evidence at trial was sufficient to support her conviction of that offense beyond a reasonable doubt, a much higher standard for the Commonwealth to meet. In Carter I, however, we also addressed and resolved several legal principles that govern this case. We rejected the defendant's claim that her words to the victim, without any physical act on her part and even without her physical presence at the scene, could not constitute wanton or reckless conduct sufficient to support a charge of manslaughter. Carter I, 474 Mass. at 632-633. Rather, we determined that verbal conduct in appropriate circumstances could "overcome a person's willpower to live, and therefore ... be the cause of a suicide." Id. at 633. We also ruled that "there was ample evidence to establish probable cause that the defendant's conduct was wanton or reckless under either a subjective or objective standard." Id. at 635. See id. at 631, quoting Commonwealth v. Pugh, 462 Mass. 483, 496-497 (2012) (wanton or reckless conduct may be "determined based either on the defendant's specific knowledge or on what a reasonable person should have known in the circumstances"). As we explained, "an ordinary person under the circumstances would have realized the gravity of the danger posed by telling the victim, who was mentally fragile, predisposed to suicidal inclinations, and in the process of killing himself, to get back in a truck filling with carbon monoxide." Carter I, supra at 635. We further explained that "the defendant -- the victim's girl friend, with whom he was in constant and perpetual contact -- on a subjective basis knew that she had some control over his actions." Id. We also rejected the defendant's claims that the involuntary manslaughter statute, G. L. c. 265, § 13, was unconstitutionally vague as applied to her, Carter I, supra at 631 n.11; that her reckless or wanton speech having a direct, causal link to the specific victim's suicide was protected under the First Amendment or art. 16 of the Massachusetts Declaration of Rights, Carter I, supra at 636 n.17; and that her offense did not involve the infliction or threat of serious bodily harm, as required by G. L. c. 119, § 54, the youthful offender statute, Carter I, supra at 637 n.19. For the most part, we decline to revisit these legal issues today, as we discern no error in our earlier analysis. With these principles in mind, we turn to the defendant's arguments on appeal, providing further explication, particularly on the First Amendment claim, where we deem necessary or appropriate.

         a. Sufficiency of the evidence.

         The defendant argues that her conviction was unsupported by sufficient evidence.[8] In particular, she argues that, to the extent her conviction was based on the victim's getting out of the truck and her ordering him back into it, it was improperly based on her after-the-fact statement, in her text message to a friend, that the victim "got out of the [truck] because it was working and he got scared and I fucking told him to get back in," a statement she asserts is uncorroborated. It is true that a conviction cannot be based solely on the defendant's extrajudicial confession. Commonwealth v.Forde, 392 Mass. 453, 458 (1984). The defendant's statement, however, was not uncorroborated. "The corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed ...

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