Petition for Writ of Certiorari — Michelle Carter, Petitioner v. Massachusetts
Supreme Court briefJul 8, 2019
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APPENDIX TABLE OF CONTENTS
Opinion of the Supreme Judicial Court of
Massachusetts (February 6, 2019) .................... 1a
Decision of the Trial Judge, Bristol Juvenile Court
(June 16, 2017) ................................................. 30a
Verdict of the Trial Judge, Bristol Juvenile Court
(June 16, 2017) ................................................. 41a
Opinion of the Supreme Judicial Court of
Massachusetts (July 1, 2016) ........................... 43a
Indictment ............................................................... 65a
Michelle Carter Text to Sam Boardman
(September 15, 2014 at 8:24-8:32 P.M.) .......... 68a
App.1a
OPINION OF THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS
(FEBRUARY 6, 2019)
SUPREME JUDICIAL COURT OF
MASSACHUSETTS
________________________
COMMONWEALTH
v.
MICHELLE CARTER
________________________
SJC-12502
Before: 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, 52 N.E.3d
1054 (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,
App.2a
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
FACTS
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,
393 N.E.2d 370 (1979), the evidence supporting the
1 We acknowledge the amicus briefs submitted by the youth
advocacy division of the Committee for Public Counsel Services
and the Massachusetts Association of Criminal Defense Lawyers,
and by the American Civil Liberties Union and the American
Civil Liberties Union of Massachusetts.
App.3a
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 gasolinepowered 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 longdistance relationship by electronic text messaging2
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
2 Voluminous text messages between the defendant and victim
—apparently their entire text history—were admitted in evidence.
App.4a
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
3 For example, on July 7, 2014, between 10:57 P.M. and 11:08 P.M.,
they exchanged the following text messages:
DEFENDANT: “Well there’s more ways to make CO.
Google ways to make it . . . .”
VICTIM: “Omg”
DEFENDANT: “What”
VICTIM: “portable generator that’s it”
DEFENDANT: “That makes CO?”
VICTIM: “yeah! It’s an internal combustion engine.”
DEFENDANT: “Do you have one of those?”
VICTIM: “There’s one at work.”
Similarly, on July 11, 2014, at 5:13 P.M., the defendant
sent the victim the following text message: “ . . . Well
in my opinion, I think u should do the generator
because I don’t know much about the pump and with
a generator u can’t fail”
See Commonwealth v. Carter, 474 Mass. 624, 626 n.4, 52
N.E.3d 1054 (2016) (Carter I ).
4 During the evening of July 11 and morning of July 12, 2014, the
victim and the defendant exchanged the following text messages
(Note: misspellings in original):
VICTIM: “I have a bad feeling tht this is going to create a lot
of depression between my parents/sisters”
[...]
DEFENDANT: “I think your parents know you’re in a
really bad place. Im not saying they want you to do
it, but I honestly feel like they can except it. They
App.5a
know there’s nothing they can do, they’ve tried helping,
everyone’s tried. But there’s a point that comes
where there isn’t anything anyone can do to save
you, not even yourself, and you’ve hit that point and
I think your parents know you’ve hit that point. You
said you’re mom saw a suicide thing on your computer
and she didn’t say anything. I think she knows it’s
on your mind, and she’s prepared for it”
DEFENDANT: “Everyone will be sad for a while, but they
will get over it and move on. They won’t be in
depression I won’t let that happen. They know how
sad you are and they know that you’re doing this to
be happy, and I think they will understand and accept
it. They’ll always carry u in their hearts”
[...]
VICTIM: “i don’t want anyone hurt in the process though”
VICTIM: “I meant when they open the door, all the carbon
monoxide is gonna come out they can’t see it or smell
it. whoever opens the door”
DEFENDANT: “They will see the generator and know that
you died of CO . . . .”
[...]
VICTIM: “Idk I’m freaking out again” . . .
[...]
DEFENDANT: “I thought you wanted to do this. The time
is right and you’re ready, you just need to do it! You
can’t keep living this way. You just need to do it like
you did last time and not think about it and just do it
babe. You can’t keep doing this every day”
VICTIM: “I do want to. but like I’m freaking for my family.
I guess”
VICTIM: “idkkk”
DEFENDANT: “Conrad. I told you I’ll take care of them.
Everyone will take care of them to make sure they
won’t be alone and people will help them get thru it.
App.6a
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 defenWe talked about this, they will be okay and accept it.
People who commit suicide don’t think this much
and they just do it”
See Carter I, 474 Mass. at 627 n.5.
5 On July 12, 2014, between 4:25 A.M. and 4:34 A.M., they
exchanged the following text messages (Note: misspellings in original):
DEFENDANT: “So I guess you aren’t gonna do it then, all
that for nothing”
DEFENDANT: “I’m just confused like you were so ready
and determined”
VICTIM: “I am gonna eventually”
VICTIM: “I really don’t know what I’m waiting for . . but I
have everything lined up”
DEFENDANT: “No, you’re not, Conrad. Last night was it.
You keep pushing it off and you say you’ll do it but u
never do. Its always gonna be that way if u don’t
take action”
DEFENDANT: “You’re just making it harder on yourself
by pushing it off, you just have to do it”
DEFENDANT: “Do u wanna do it now?”
VICTIM: “Is it too late?”
VICTIM: “Idkk it’s already light outside”
VICTIM: “I’m gonna go back to sleep, love you I’ll text you
tomorrow”
DEFENDANT: “No? Its probably the best time now because
everyone’s sleeping. Just go somewhere in your
truck. And no one’s really out right now because it’s
an awkward time”
App.7a
DEFENDANT: “If u don’t do it now you’re never gonna do
it”
DEFENDANT: “And u can say you’ll do it tomorrow but
you probably won’t”
See Carter I, 474 Mass. at 626 n.4.
At various times between July 4 and July 12, 2014, the defendant and the victim exchanged several similar text messages
(Note: misspellings in original):
DEFENDANT: “You’re gonna have to prove me wrong
because I just don’t think you really want this. You
just keeps pushing it off to another night and say
you’ll do it but you never do”
[...]
DEFENDANT: “SEE THAT’S WHAT I MEAN. YOU KEEP
PUSHING IT OFF! You just said you were gonna do
it tonight and now you’re saying eventually . . . .”
[...]
DEFENDANT: “But I bet you’re gonna be like ‘oh, it didn’t
work because I didn’t tape the tube right or something
like that’ . . . I bet you’re gonna say an excuse like that”
[...]
DEFENDANT: “Do you have the generator?”
VICTIM: “not yet lol”
DEFENDANT: “WELL WHEN ARE YOU GETTING IT”
[...]
DEFENDANT: “You better not be bull shiting me and saying
you’re gonna do this and then purposely get caught”
[...]
DEFENDANT: “You just need to do it Conrad or I’m
gonna get you help”
DEFENDANT: “You can’t keep doing this everyday”
App.8a
dant’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
VICTIM: “Okay I’m gonna do it today”
DEFENDANT: “Do you promise”
VICTIM: “I promise babe”
VICTIM: “I have to now”
DEFENDANT: “Like right now?”
VICTIM: “where do I go? :(”
DEFENDANT: “And u can’t break a promise. And just go in a
quiet parking lot or something” (emphasis added).
See Carter I, 474 Mass. at 628 n.6.
6 During that same time period, the defendant carried out what
the prosecutor called a “dry run.” On July 10—two days before
the victim’s suicide—the defendant sent text messages to two
friends, stating that the victim was missing, that she had not
heard from him, and that his family was looking for him. She
sent similar messages to those friends the following day, stating
that the victim was still missing and that she was losing hope.
In fact, at that time, the defendant was in communication with
the victim and knew he was not missing. She also asked a
friend in a text message, “Is there any way a portable generator
can kill you somehow? Because he said he was getting that and
some other tools at the store, and he said he needed to replace
the generator at work and fix stuff . . . but he didn’t go to work
App.9a
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:
today so I don’t know why he would have got that stuff.” In fact,
the defendant and the victim had previously discussed the use
of a generator to produce carbon monoxide. As the Commonwealth
argued at trial, this dry run demonstrated the defendant’s
motive to gain her friends’ attention and, once she had their
attention, not to lose it by being exposed as a liar when the
victim failed to commit suicide. Arguably, these desires caused
her to disregard the clear danger to the victim.
App.10a
“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, 474
Mass. 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
7 The defendant eventually texted the victim’s sister, but not
until 10:18 P.M., more than two hours after the second lengthy
phone call with the victim. In that text, the defendant asked,
“Do you know where your brother is?” and did not explain what
she knew about the victim.
App.11a
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.
DISCUSSION
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. 482, 496-497, 969 N.E.2d 672 (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
App.12a
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.
1.
Sufficiency of the Evidence
The defendant argues that her conviction was
unsupported by sufficient evidence.8 In particular,
8 The defendant suggests that she was indicted for involuntary
manslaughter based on wanton or reckless conduct, but wrongly
convicted based on a wanton or reckless failure to act. In our
view, the indictment charging the defendant with manslaughter
“by wanton and reckless conduct” subsumed both theories. See
Commonwealth v. Pugh, 462 Mass. 482, 497, 969 N.E.2d 672 (2012),
App.13a
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, 466 N.E.
2d 510 (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 by someone,
that is, that the crime was real and not imaginary.”
Id. Indeed, “in a homicide case, the corroborating
evidence need only tend to show that the alleged victim
is dead.” Id.
Here, the defendant’s statement was more than
adequately corroborated not only by the victim’s death
but also by text messages exchanged with the victim
encouraging him to commit suicide, and by the fact
that the defendant and the victim were in voice contact
while the suicide was in progress—that is, despite
the physical distance between them, the defendant
was able to communicate with the victim, hear what
was going on in the truck, and give him instructions.
quoting Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d
902 (1944) (“the requirement of ‘wanton or reckless conduct’
may be satisfied by either the commission of an intentional act
or an intentional ‘omission where there is a duty to act’”). Moreover, it is clear from the judge’s findings that the conviction was
not based solely on a failure to act but also on the defendant’s
affirmative conduct, namely, directing the victim to get back in
the truck.
App.14a
The trial judge also expressly “looked for independent
corroboration of some of the statements that [the
defendant] made, to make sure that there was no undue
reliance on any one source of evidence.” The judge
emphasized that the “photos taken at the scene of
the crime, where [the victim’s] truck was located,
clearly illustrate the location of the water pump
immediately adjacent to where he would have been
sitting in the truck, next to his upper torso and his
head, thereby giving a good explanation to [the
defendant’s description] that the noise was loud within
the truck. [The defendant] at that point, therefore,
had reason to know that [the victim] had followed
her instruction and had placed himself in the toxic
environment of that truck.” Clearly, the defendant
was not “confessing” to an imaginary crime. In sum,
the judge was entitled to credit the defendant’s statement, and the corroborating details, that the victim
had in fact gotten out of the truck and that the
defendant ordered him back into the truck, ultimately
causing his death.
The defendant also argues that the judge did not
properly apply the legal principles set forth in Carter
I. She points out that the judge’s remarks on the
record, explaining the guilty verdict, contain no
express finding that her words had a “coercive quality”
that caused the victim to follow through with his
suicide. See Carter I, 474 Mass. at 634. However,
those remarks were, as the judge stated, not intended
as a comprehensive statement of all the facts he found
or of all his legal rulings. Moreover, “judges in jurywaived trials are presumed to know and correctly apply
the law.” Commonwealth v. Healy, 452 Mass. 510,
514, 895 N.E.2d 752 (2008), quoting Commonwealth
App.15a
v. Watkins, 63 Mass. App. Ct. 69, 75, 823 N.E.2d 404
(2005). Finally, and perhaps most importantly, rather
than use our formulation, the judge expressly tracked
the elements of manslaughter. He found: “She instructs
[the victim] to get back into the truck, well knowing
of all of the feelings that he has exchanged with
her—his ambiguities, his fears, his concerns.” This,
the judge found, constituted “wanton and reckless
conduct by [the defendant], creating a situation where
there is a high degree of likelihood that substantial
harm would result to [the victim].”9 The judge then
further found that this conduct caused the victim’s
death beyond a reasonable doubt. His finding of causation in this context, at that precise moment in time,
includes the concept of coercion, in the sense of overpowering the victim’s will.
This finding is supported by the temporal distinctions about causation drawn by the judge. Until
the victim got out of the truck, the judge described
the victim as the cause of his own suicidal actions
and reactions. This period of “self-causation” and “self9 There is no question in this case that the Commonwealth proved
beyond a reasonable doubt that the defendant engaged in
wanton or reckless conduct, that is, “intentional conduct
. . . involv[ing] a high degree of likelihood that substantial harm
will result to another.” Pugh, 462 Mass. at 496, quoting Welansky,
316 Mass. at 399. Both the objective and subjective standards
discussed above are satisfied. Given the victim’s mental illness,
his previous suicide attempts, and his suicide plans, there can
be no doubt that an ordinary person such as the defendant, his
girlfriend who constantly communicated with him, would understand the grave danger to his life, and yet she continued to
pressure him to follow through with his plan. The difficult issue
before us is not whether the defendant’s conduct was wanton or
reckless, as this is not a close question, but whether her conduct
was the cause of the victim’s death.
App.16a
help,” which is completely consistent with his prior
behavior, ended when he got out of the truck. As the
judge explained:
“It is apparent to this Court in reviewing the
evidence that [the victim] was struggling with
his issues and seeing a way to address them
and took significant actions of his own toward
that end. His research was extensive. He
spoke of it continually. He secured the generator. He secured the water pump. He
researched how to fix the generator. He
located his vehicle in an unnoticeable area
and commenced his attempt by starting the
pump.
“However, he breaks that chain of self-causation by exiting the vehicle. He takes himself out of the toxic environment that it has
become. This is completely consistent with
his earlier attempts at suicide. In October of
2012, when he attempted to drown himself,
he literally sought air. When he exited the
truck, he literally sought fresh air. And he
told a parent of that attempt.
“Several weeks later, in October of 2012 again,
he attempts, through the use of pills, to take
his life but calls a friend and assistance is
sought and treatment secured. That [the
victim] may have tried and maybe succeeded another time, after July 12 or 13 of 2014,
is of no consequence to this Court’s deliberations.” (Emphasis added.)
The judge found that, once the victim left the truck,
the defendant overpowered the victim’s will and thus
App.17a
caused his death. As the defendant herself explained,
and we repeat due to its importance, “[The victim’s]
death is my fault like honestly I could have stopped
him I was on the phone with him and he got out of
the [truck] 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
couldnt have him live the way he was living anymore
I couldnt do it I wouldn’t let him.”
Although we recognize that legal causation in
the context of suicide is an incredibly complex inquiry,
we conclude that there was sufficient evidence to
support a finding of proof of such causation beyond a
reasonable doubt in the instant case. The judge could
have properly found, based on this evidence, that the
vulnerable, confused, mentally ill, eighteen year old
victim had managed to save himself once again in the
midst of his latest suicide attempt, removing himself
from the truck as it filled with carbon monoxide. But
then in this weakened state he was badgered back into
the gas-infused truck by the defendant, his girlfriend
and closest, if not only, confidant in this suicidal
planning, the person who had been constantly pressuring him to complete their often discussed plan,
fulfill his promise to her, and finally commit suicide.
And then after she convinced him to get back into the
carbon monoxide filled truck, she did absolutely nothing
to help him: she did not call for help or tell him to get
out of the truck as she listened to him choke and die.
In sum, the evidence at trial, in the light most
favorable to the Commonwealth, was sufficient to
establish the defendant’s guilt beyond a reasonable
doubt.
App.18a
2.
Due Process Claims
The defendant argues that she lacked fair notice
that she could be convicted of involuntary manslaughter
for her role in the victim’s suicide10 and that her
conviction therefore violated her right to due process.
That is, she argues that the law of involuntary manslaughter is unconstitutionally vague as applied to
her conduct. We rejected this argument in Carter I,
474 Mass. at 631 n.11, and we remain of the view
that the law is not vague. “A statute is unconstitutionally vague if [people] of common intelligence must
necessarily guess at its meaning . . . . If a statute has
been clarified by judicial explanation, however, it will
withstand a challenge on grounds of unconstitutional
vagueness.” Id., quoting Commonwealth v. Crawford,
430 Mass. 683, 689, 722 N.E.2d 960 (2000). “Manslaughter is a common-law crime that has not been
codified by statute in Massachusetts.” Carter I, supra,
quoting Commonwealth v. Rodriquez, 461 Mass. 100,
106, 958 N.E.2d 518 (2011). It has long been established in our common law that wanton or reckless
conduct that causes a person’s death constitutes involuntary manslaughter. See, e.g., Commonwealth v.
Campbell, 352 Mass. 387, 397, 226 N.E.2d 211
(1967), and cases cited (“Involuntary manslaughter is
an unlawful homicide, unintentionally caused . . . by
an act which constitutes such a disregard of probable
harmful consequences to another as to constitute
wanton or reckless conduct”). There is no doubt in
10 The defendant characterizes her conduct as merely “encouraging” the victim’s suicide. As we have discussed at length,
however, it is clear from the judge’s findings that she did not
merely encourage the victim, but coerced him to get back into
the truck, causing his death.
App.19a
this case that the defendant wantonly or recklessly
instructed the victim to kill himself, and that her
instructions caused his death.
Moreover, in the development of our common law,
“conduct similar to that of the defendant has been
deemed unlawful.” Carter I, 474 Mass. at 631 n.11,
citing Persampieri v. Commonwealth, 343 Mass. 19,
22-23, 175 N.E.2d 387 (1961). In Persampieri, supra,
the defendant was charged with murder, and pleaded
guilty to manslaughter, after his wife threatened to
commit suicide and he taunted her, saying she was
“chicken—and wouldn’t do it,” loaded a rifle and handed
it to her, and, when she had difficulty firing the rifle,
told her to take off her shoes and reach the trigger
that way. She did so and killed herself. Id. at 23. We
held that these facts would “have warranted a jury in
returning a verdict of manslaughter.” Id. Nor is
Persampieri the only case in which we upheld a
defendant’s conviction based on his participation in a
suicide. See Commonwealth v. Atencio, 345 Mass. 627,
627-628, 189 N.E.2d 223 (1963) (affirming conviction
of involuntary manslaughter arising from game of
“Russian roulette”). Indeed, the principle that a defendant might be charged and convicted of a homicide
offense merely for “repeatedly and frequently advis[ing]
and urg[ing] [a victim] to destroy himself,” with no
physical assistance, can be found in centuries-old
Massachusetts common law. Commonwealth v. Bowen,
13 Mass. 356, 356 (1816). In the Bowen case, the
defendant was in the adjoining jail cell of the victim,
whom the defendant harangued into hanging himself.11
11 The victim committed suicide by hanging hours before he
was to be hanged publicly for his own killing of his father.
Commonwealth v. Bowen, 13 Mass. 356, 356 (1816).
App.20a
Id. It is true, as the defendant points out, that the
defendant in Bowen, who was charged with murder for
such alleged conduct, was in fact acquitted by the
jury. Id. at 360-361. But the legal principle that
procuring a suicide “by advice or otherwise” may
constitute a homicide is clear from the instructions
reported in Bowen. Id. at 359. In sum, our common
law provides sufficient notice that a person might be
charged with involuntary manslaughter for reckless
or wanton conduct, including verbal conduct, causing
a victim to commit suicide. The law is not unconstitutionally vague as applied to the defendant’s conduct.12
3.
Free Speech Claims
The defendant argues that her conviction of involuntary manslaughter violated her right to free
speech under the First Amendment and art. 16.13 We
disagree and thus reaffirm our conclusion in Carter I
that no constitutional violation results from convicting
a defendant of involuntary manslaughter for reckless
and wanton, pressuring text messages and phone calls,
12 The defendant points out that, unlike Massachusetts, several
other States, rather than relying on the common law, have
enacted statutes prohibiting aiding or assisting suicide and
specifying what conduct runs afoul of such statutes. However,
the fact that some State Legislatures have chosen to address
this problem by statute in no way prevents us from concluding
that Massachusetts common law provided the defendant with
fair notice that her conduct was prohibited.
13 As in Commonwealth v. Walters, 472 Mass. 680, 690 n.26, 37
N.E.3d 980 (2015), S.C., 479 Mass. 277, 94 N.E.3d 764 (2018),
we apply the same analysis under the First Amendment to the
United States Constitution and art. 16 of the Massachusetts
Declaration of Rights.
App.21a
preying upon well-known weaknesses, fears, anxieties
and promises, that finally overcame the willpower to
live of a mentally ill, vulnerable, young person, thereby
coercing him to commit suicide. Carter I, 474 Mass.
at 636 n.17. We more fully explain our reasoning here.
The crime of involuntary manslaughter proscribes
reckless or wanton conduct causing the death of
another. The statute makes no reference to restricting
or regulating speech, let alone speech of a particular
content or viewpoint: the crime is “directed at a course
of conduct, rather than speech, and the conduct it
proscribes is not necessarily associated with speech”
(quotation and citation omitted). Commonwealth v.
Johnson, 470 Mass 300, 308, 21 N.E.3d 937 (2014).
The defendant cannot escape liability just because
she happened to use “words to carry out [her] illegal
[act].” Id. at 309, quoting United States v. Barnett,
667 F.2d 835, 842 (9th Cir. 1982). See Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 502, 69
S.Ct. 684, 93 L. Ed. 834 (1949) (upholding conviction
for speech used as “essential and inseparable part” of
crime).
Although numerous crimes can be committed
verbally, they are “intuitively and correctly” understood
not to raise First Amendment concerns. Schauer,
Categories and the First Amendment: A Play in Three
Acts, 34 Vand. L. Rev. 265, 279 (1981). See K. Greenawalt, Speech, Crime, and the Uses of Language 6-7
(1989) (listing twenty-one examples of crimes committed using speech). The same is true under art. 16.
See, e.g., Commonwealth v. Disler, 451 Mass. 216, 222,
224-226, 884 N.E.2d 500 (2008) (defendant could not
assert art. 16 defense to conviction of child enticement
even though crime could be committed by “words
App.22a
[spoken or written] and nothing more”); Commonwealth v. Sholley, 432 Mass. 721, 727, 739 N.E.2d
236 (2000), cert. denied, 532 U.S. 980, 121 S. Ct.
1621, 149 L. Ed. 2d 484 (2001) (“no violation” of art.
16 where defendant was convicted of making threat
under G. L. c. 275, § 2). “It has never been deemed an
abridgment of freedom of speech . . . to make a course
of conduct illegal merely because the conduct was in
part initiated, evidenced, or carried out by means of
language, either spoken, written, or printed” (citation
omitted). Johnson, 470 Mass. at 309.14 Indeed, the
United States Supreme Court has held that “speech
or writing used as an integral part of conduct in
violation of a valid criminal statute” is not protected
by the First Amendment. Giboney, 336 U.S. at 498.
Accord United States v. Stevens, 559 U.S. 460, 468469, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010). See
Commonwealth v. Chou, 433 Mass. 229, 236, 741
N.E.2d 17 (2001) (“true threats” lack First Amendment
protection because “purpose is to cause injury rather
than to add to, or to comment on, the public discourse”).
The defendant contends nonetheless that prosecuting and convicting her of involuntary suicide effected
a content-based restriction on speech that does not
withstand strict scrutiny. In particular, she acknowledges the Commonwealth’s compelling interest in pre14 Crimes committed using text messages or other electronic
communications are treated no differently. See Walters, 472
Mass. at 696 (threat conveyed by “telecommunication device or
electronic communication device” would not receive First Amendment or art. 16 protection [citation omitted]); Commonwealth v.
Johnson, 470 Mass. 300, 312, 21 N.E.3d 937 (2014) (there is no
First Amendment protection for electronic communications and
Internet postings used to commit harassment).
App.23a
serving human life but argues that we failed to
determine in Carter I, 474 Mass. at 636 n.17, that
the restriction on speech was narrowly tailored to
further that interest. We disagree. The only speech
made punishable in Carter I was “speech integral to
[a course of] criminal conduct,” Stevens, 559 U.S. at
468, citing Giboney, 336 U.S. at 498, that is, a
“systematic campaign of coercion on which the virtually
present defendant embarked—captured and preserved
through her text messages—that targeted the equivocating young victim’s insecurities and acted to subvert
his willpower in favor of her own,” Carter I, supra.
Other involuntary manslaughter prosecutions and convictions have similarly targeted a course of criminal
conduct undertaken through manipulative wanton or
reckless speech directed at overpowering the will to
live of vulnerable victims. See Persampieri, 343 Mass.
at 22-23; Bowen, 13 Mass. at 359-360.
As the Supreme Court has explained, “From 1791
to the present . . . the First Amendment has permitted
restrictions upon the content of speech in a few limited
areas . . . which have never been thought to raise
any constitutional problems,” including “speech integral
to criminal conduct” (quotations and citations omitted).
Stevens, 559 U.S. at 468-469. We do not apply the
narrow tailoring required by strict scrutiny in these
contexts but rather determine whether the speech at
issue falls within these “well-defined and narrowly
limited classes of speech” (quotation and citation
omitted). Brown v. Entertainment Merchants Ass’n,
564 U.S. 786, 804, 131 S. Ct. 2729, 180 L. Ed. 2d 708
(2011). Thus, there is nothing in the prosecution or
conviction of the defendant in the instant case, or
the prior involuntary manslaughter cases in the
App.24a
Commonwealth involving verbal criminal conduct, to
suggest that the First Amendment has been violated
in any way. The only verbal conduct punished as
involuntary manslaughter has been the wanton or
reckless pressuring of a vulnerable person to commit
suicide, overpowering that person’s will to live and
resulting in that person’s death. We are therefore not
punishing words alone, as the defendant claims, but
reckless or wanton words causing death. The speech
at issue is thus integral to a course of criminal
conduct and thus does not raise any constitutional
problem.
Regardless, even if we were to apply strict scrutiny
to the verbal conduct at issue because it might implicate
other constitutionally protected speech regarding suicide or the end of life, we would conclude that the
restriction on speech here has been narrowly circumscribed to serve a compelling purpose. As we explained
in Carter I, 474 Mass. at 636, and reemphasize today,
this case does not involve the prosecution of end-oflife discussions between a doctor, family member, or
friend and a mature, terminally ill adult confronting
the difficult personal choices that must be made
when faced with the certain physical and mental
suffering brought upon by impending death.15 Nor
15 In Carter I, 474 Mass. at 636, we stated: “It is important to
articulate what this case is not about. It is not about a person
seeking to ameliorate the anguish of someone coping with a
terminal illness and questioning the value of life. Nor is it about
a person offering support, comfort, and even assistance to a
mature adult who, confronted with such circumstances, has
decided to end his or her life. These situations are easily
distinguishable from the present case, in which the grand jury
heard evidence suggesting a systematic campaign of coercion on
which the virtually present defendant embarked—captured and
App.25a
does it involve prosecutions of general discussions about
euthanasia or suicide targeting the ideas themselves.
See Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct.
2533, 105 L. Ed. 2d 342 (1989) (“If there is a bedrock
principle underlying the First Amendment, it is that
the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or disagreeable”). Nothing in Carter I, our decision
today, or our earlier involuntary manslaughter cases
involving verbal conduct suggests that involuntary
manslaughter prosecutions could be brought in
these very different contexts without raising important
First Amendment concerns. See Commonwealth v.
Bigelow, 475 Mass. 554, 562, 59 N.E.3d 1105 (2016)
(“In considering the First Amendment’s protective
reach, critical to the examination is the context and
content of the speech at issue” [quotation omitted]).
We emphasize again, however, that the verbal conduct
targeted here and in our past involuntary manslaughter cases is different in kind and not degree,
and raises no such concerns. Only the wanton or
reckless pressuring of a person to commit suicide that
overpowers that person’s will to live has been proscribed. This restriction is necessary to further the
Commonwealth’s compelling interest in preserving life.
Thus, such a prohibition would survive even strict
scrutiny.
4.
“Infliction” of Serious Bodily Harm
The defendant argues that her conviction as a
youthful offender cannot survive under G. L. c. 119,
preserved through her text messages—that targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her own.”
App.26a
§ 54, because she did not inflict serious bodily harm
on the victim. She argues that the term “infliction” in
§ 54 requires direct, physical causation of harm, not
mere proximate causation, and that from her remote
location, she could not have inflicted serious bodily
harm on the victim within the meaning of the statute.
We reject this unduly narrow interpretation of the
statutory language. The youthful offender statute
authorizes an indictment against a juvenile who is
“alleged to have committed an offense . . . involv[ing]
the infliction or threat of serious bodily harm”
(emphasis added). G. L. c. 119, § 54. By its terms, the
statute requires that the offense involve the infliction
of serious bodily harm, not that the defendant herself
be the one who directly inflicted it. If we were to
interpret the statute to include such a requirement,
it is difficult to see how a juvenile could be indicted
as a youthful offender for, say, hiring a third party to
carry out an attack on a victim. It is enough, as we
said in Carter I, that “involuntary manslaughter in
these circumstances inherently involves the infliction
of serious bodily harm.” Carter I, 474 Mass. at 637
n.19.
5.
“Reasonable Juvenile”
The defendant next argues, as she did in Carter
I, that her actions should have been evaluated under
a “reasonable juvenile” standard rather than a “reasonable person” standard.16 As we said before,
16 Unlike in Carter I, 474 Mass. at 636 n.18, the defendant
raised this claim at trial by moving for a required finding of not
guilty on this ground (among others). The judge denied the
motion without stating his reasons, making it unclear to us
whether he rejected a “reasonable juvenile” standard as a matter
App.27a
“Whether conduct is wanton or reckless is
‘determined based either on the defendant’s
specific knowledge or on what a reasonable
person should have known in the circumstances . . . . If based on the objective measure of recklessness, the defendant’s actions
constitute wanton or reckless conduct . . . if
an ordinary normal [person] under the same
circumstances would have realized the
gravity of the danger . . . . If based on the
subjective measure, i.e., the defendant’s own
knowledge, grave danger to others must
have been apparent and the defendant must
have chosen to run the risk rather than
alter [his or her] conduct so as to avoid the
act or omission which caused the harm’
(quotations and citation omitted).”
Carter I, 474 Mass. at 631, quoting Pugh, 462 Mass.
at 496-497. The defendant argues essentially that,
when considering a juvenile’s actions under the
objective measure of recklessness, we should consider
whether an ordinary juvenile under the same circumstances would have realized the gravity of the
danger. It is clear from the judge’s findings, however,
that he found the defendant’s actions wanton or reckless
under the subjective measure, that is, based on her
own knowledge of the danger to the victim and on her
of law, determined that the evidence would be sufficient to establish
the defendant’s guilt under a “reasonable juvenile” standard, or
determined that, regardless of whether an objective “reasonable
juvenile” standard was proper, the evidence was sufficient to
establish her guilt under a subjective standard. The defendant
did not press for a “reasonable juvenile” standard in her closing
argument. The Commonwealth does not claim that the issue was
not preserved.
App.28a
choice to run the risk that he would comply with her
instruction to get back into the truck. That finding is
amply supported by the trial record. Because the
defendant’s conduct was wanton or reckless when
evaluated under the subjective standard, there is no
need to decide whether a different objective standard
should apply to juveniles.
Moreover, it is clear from the judge’s sentencing
memorandum that he did in fact consider the defendant’s age and maturity when evaluating her actions
and that he was familiar with the relevant case law
and “mindful” of the general principles regarding
juvenile brain development. He noted that on the day
of the victim’s death, she was seventeen years and
eleven months of age and at an age-appropriate level
of maturity. Her ongoing contact with the victim in
the days leading to his suicide, texting with him
about suicide methods and his plans and demanding
that he carry out his plan rather than continue to
delay, as well as the lengthy cell phone conversations
on the night itself, showed that her actions were not
spontaneous or impulsive. And, as the judge specifically found, “[h]er age or level of maturity does not
explain away her knowledge of the effects of her
telling [the victim] to enter and remain in that toxic
environment, leading to his death.” Where the judge
found that the defendant ordered the victim back into
the truck knowing the danger of doing so, he properly
found that her actions were wanton or reckless,
giving sufficient consideration to her age and maturity.
6.
Expert Witness
Finally, the defendant argues that the judge
wrongly denied her motion in limine to admit expert
App.29a
testimony by a forensic psychologist. The witness
would have testified as to general principles and
characteristics of the undeveloped adolescent brain,
but not as to the defendant specifically, as he had
never examined her. It is true, as the defendant argues,
that we have upheld the admission of similar testimony
in the past. See Commonwealth v. Okoro, 471 Mass.
51, 66, 26 N.E.3d 1092 (2015). But the fact that one
judge properly exercised his discretion to admit expert
testimony in one case does not mean that another judge
abused his discretion by excluding similar testimony
in a different case. We have reviewed the voir dire
testimony of the defendant’s expert witness and conclude that the judge did not abuse his discretion by
determining that the proffered testimony would not
have aided the finder of fact in the circumstances of
this case. Moreover, after the judge ruled on the
motion in limine, the defendant waived her right to a
jury trial and proceeded before the same judge. Where
an experienced judge of the Juvenile Court sat as the
finder of fact in the defendant’s case, we cannot perceive any prejudice to the defendant in his decision to
preclude this expert testimony in the circumstances of
this case.
CONCLUSION
The evidence against the defendant proved that,
by her wanton or reckless conduct, she caused the
victim’s death by suicide. Her conviction of involuntary
manslaughter as a youthful offender is not legally or
constitutionally infirm. The judgment is therefore
affirmed.
So ordered.
App.30a
DECISION OF THE TRIAL JUDGE,
BRISTOL JUVENILE COURT
(JUNE 16, 2017)
COMMONWEALTH OF MASSACHUSETTS
BRISTOL JUVENILE COURT
TAUNTON SESSION
________________________
COMMONWEALTH OF MASSACHUSETTS
v.
MICHELLE CARTER
________________________
Docket No. 15YO0001NE
Before: The Hon. Lawrence MONIZ, Associate Judge
(Court called to order.)
THE COURT OFFICER: Court, all rise.
THE COURT: Good morning, everyone.
THE COURT OFFICER: You may be seated. Court is
now in session. Please remain quiet.
THE CLERK: Good morning, Your Honor. June 16,
2017. You have before you the matter of Commonwealth v. Michelle Carter, scheduled to
(indiscernible) decision on the trial.
THE COURT: All right. So before I begin, I want to
thank the members of the media and the members
of the public who have been here for the appropriate decorum that they have shown throughout this trial. Please understand, I expect that
App.31a
same level of decorum today. Should there be
any breach of that decorum, you can expect that
there will be a harsh response from this judge.
The law does not require that any explanation
as to a verdict be given, when the judge is the
fact-finder, unless a request for rulings has been
made, and that has not been done in this case.
Nonetheless, I am of the opinion that some explanation of my verdict is warranted. My comments
that follow should not be construed as a complete
explanation of my findings as to the facts, my
deliberative process or all of the law that has
been analyzed and applied by me to the facts as
I have found them to be. Rather, they are provided to you to provide some context for the decisions that have been made.
I have essentially divided the evidence in this
case into three components. The first component
comprises roughly the period of June 29, 2014
through the ending of the text messages between
Ms. Carter and Mr. Roy on or about July 12, 2014.
The second period commences immediately thereafter and encompasses primarily the phone conversations and activity occurring until the—I’m
sorry—occurring from the ending of the text
messages through July 13, 2014. But that area
of evidentiary consideration is strongly informed
by all of the other evidence in this case. The
third period is all of the evidence not encompassed
in those two areas that I have just described.
This Court first finds that the Commonwealth
has proven beyond a reasonable doubt that the
actions taken by Ms. Carter as to the period from
June 30 to July 12 constituted wanton and reckless
App.32a
conduct by her, in disregard—in serious disregard
of the wellbeing of Mr. Roy.
The Commonwealth has not proven as to that time
period that said reckless or wanton behavior
caused the death of Mr. Roy. It is apparent to
this Court in reviewing the evidence that Mr.
Roy was struggling with his issues and seeing a
way to address them and took significant actions
of his own toward that end. His research was
extensive.
He spoke of it continually. He secured the generator. He secured the water pump. He researched
how to fix the generator. He located his vehicle in
an unnoticeable area and commenced his attempt
by starting the pump.
However, he breaks that chain of self-causation
by exiting the vehicle. He takes himself out of
the toxic environment that it has become. This is
completely consistent with his earlier attempts
at suicide. In October of 2012, when he attempted
to drown himself, he literally sought air. When
he exited the truck, he literally sought fresh air.
And he told a parent of that attempt.
Several weeks later, in October of 2012 again, he
attempts, through the use of pills, to take his life
but calls a friend and assistance is sought and
treatment secured. That Mr. Roy may have tried
and maybe succeeded another time, after July 12
or 13 of 2014, is of no consequence to this Court’s
deliberations.
Although some have suggested for this case that
the legal principles involved are novel, that is
not accurate. Approximately 200 years ago a man
App.33a
in Hampshire County, in the Commonwealth of
Massachusetts, an inmate at the Hampshire jail,
was charged with causing the murder of the man
in the next cell. Case is Commonwealth v. Bowen.
The law was different in those days but some of
the similarities existed.
The person who ended up taking his life in the
Bowen case was named Jewett. Jewett in fact hung
himself in his jail cell approximately six hours
before he was to be publicly hanged for killing
his father. Whether Mr. Roy in this case would
have taken his life at another time does not control
or even inform this Court’s decision. In the Bowen
case, where they refer to Mr. Jewett, the person
who took his life, as the culprit, the Court writes,
“The culprit, though under sentence of death, is
cheered by hope to the last moment of his existence.”
Returning to this case. When Ms. Carter realizes that Mr. Roy has exited the truck, she
instructs him to get back into the truck, which
she has reason to know is or is becoming a toxic
environment inconsistent with human life. She
is mindful that the process in the truck will take
approximately 15 minutes. Whether that is a true
fact is not relevant. What is relevant is that that
is her state of mind based upon a text exchanged
between she and Mr. Roy during the period of June
30 to July 14.
She instructs Mr. Roy to get back into the truck,
well knowing of all of the feelings that he has
exchanged with her-his ambiguities, his fears,
his concerns. This Court finds that instructing
Mr. Roy to get back in the truck constituted willful
App.34a
and reck—I’m sorry—wanton and reckless conduct
by Ms. Carter, creating a situation where there
is a high degree of likelihood that substantial
harm would result to Mr. Roy.
Ms. Carter knows, through her own admission,
that Mr. Roy has followed her instruction. As she
indicates in various text messages, subsequently
created, to some of her friends, she indicates that
she can hear him coughing and she can hear the
loud noise of the motor. The Court notes that I
looked for independent corroboration of some of
the statements that Ms. Carter made, to make sure
that there was no undue reliance on any one source
of evidence.
The photos taken at the scene of the crime, where
Mr. Roy’s truck was located, clearly illustrate the
location of the water pump immediately adjacent
to where he would have been sitting in the truck,
next to his upper torso and his head, thereby giving
a good explanation to Ms. Carter’s definition that
the noise was loud within the truck. Ms. Carter
at that point, therefore, had reason to know that
Mr. Roy had followed her instruction and had
placed himself in the toxic environment of that
truck.
At this point in the Court’s analysis, the Court took
direction from a case Commonwealth v. Levesque.
In Commonwealth v. Levesque, it is indicated
that “where one’s actions create a life-threatening risk to another, there is a duty to take
reasonable steps to alleviate the risk. The reckless
failure to fulfill this duty can result in a charge
of manslaughter.”
App.35a
Knowing that Mr. Roy is in the truck, knowing
the condition of the truck, knowing—or at least
having a state of mind that 15 minutes would pass,
Ms. Carter takes no action in a furtherance of
the duty that she has created by instructing Mr.
Roy to get back into the truck. She admits in a
subsequent text that she did nothing. She did
not call the police or Mr. Roy’s family.
She knew his location, again, according to a text
that she sent, as being at the Kmart plaza.
According to one of her emails, and other credible
evidence—I’m sorry. According to other credible
evidence—the police officers who testified—the
location where Mr. Roy’s truck was located was
approximately one half mile from the public
services office of Fairhaven, which included both
the fire department and the police department.
She did not notify his mother or his sister, even
though just several days before that she had
requested their phone numbers from Mr. Roy and
had obtained them, and had opened a line of
communication with Camdyn Roy on, I believe,
July 10, but just a few days before the events in
question. She called no one.
And finally, she did not issue a simple additional
instruction—get out of the truck.
Consequently, this Court has found that the
Commonwealth has proven beyond a reasonable
doubt that Ms. Carter’s actions—and also her
failure to act, where she had a self-created duty
to Mr. Roy, since she had put him into that toxic
environment—constituted, each and all, wanton
and reckless conduct.
App.36a
And this Court further finds that the Commonwealth has proven beyond a reasonable doubt
that said conduct caused the death of Mr. Roy.
This Court does not find that the intentionality
necessary for such wanton and reckless conduct
is obviated by Dr. Breggin’s theory of involuntary
intoxication in that the Court did not find that
analysis credible.
Ms. Carter, please stand.
This Court, having reviewed the evidence and
applied the law thereto, now finds you guilty on
the indictment charging you with the involuntary
manslaughter of the person Conrad Roy, III.
This Court further finds that the Commonwealth
has proven beyond a reasonable doubt that you
are a youthful offender, and you are adjudged so
at this time.
You may be seated.
That verdict is now recorded, and it is in writing
as well.
Commonwealth, do you wish to be heard?
MS. FLYNN: The Commonwealth moves for sentencing,
Your Honor.
THE COURT: Pardon me?
MS. FLYNN: The Commonwealth moves for sentencing.
THE COURT: Sentencing is not appropriate at this
time. Chapter 119, Section 58 requires that a
presentencing report be prepared and given to
the judge before sentencing can be imposed.
App.37a
MS. FLYNN: Understood, Your Honor. With that, the
Commonwealth would ask that Ms. Carter’s bail be
revoked and she be taken into custody.
THE COURT: And the basis for that request?
MS. FLYNN: She’s now been convicted of a felony,
and clearly she’s a danger not only to others but,
based on the testimony, to herself.
THE COURT: All right. Thank you.
Mr. Cataldo, Mr. Madera, do you wish to be heard
on the Commonwealth’s request?
MR. CATALDO: Yes. I ask you not to revoke the bail,
Your Honor. This case has been pending for a
couple of years now. She’s showed up each and
every time, she’s obeyed the conditions—all the
conditions that she had of her release, and I do
not think that the evidence shows that she is a
danger to the public if she’s released.
THE COURT: Mr. Cataldo, are you willing to inquire
of your client as to whether she has a passport?
MR. CATALDO: Yes. One moment, please.
(Ms. Carter confers with Counsel.)
MR. CATALDO: No, she does not have a passport,
Your Honor.
THE COURT: All right. The Court notes that, as Mr.
Cataldo points out, this case has a long history.
To my knowledge, Ms. Carter has never failed to
appear. When she was interviewed by the police
at the King Philip Regional High School, she was
cooperative with that interview. She’s cooperative
with allowing the police into her home. I believe
that revised conditions of bail release will suffice
App.38a
to secure the concerns of the Commonwealth as
well as to allow for the completion of the sentencing
report before it is done.
Consequently, Mr. Cataldo, assuming that your
client accepts the following conditions, I will
allow her to remain on bail. She will have no
contact with any member of the Roy family or any
of the witnesses who have testified in this case.
And by no contact, obviously I mean no texting,
no Facebook, no Snapchat—none of those things
that provide for any type of direct or indirect
communication, including of course anything
through a third party.
She shall not apply for nor obtain a passport. She
shall not leave the Commonwealth of Massachusetts except by further order of this Court. But I
do not restrict that to just me, in the event I am
not available. A request may be made of any
judge who is sitting here in the Juvenile Court.
Commonwealth, recognizing the Court’s position
on this, do you have any other requests as to
additional bail conditions of release?
MS. FLYNN: No, thank you, Your Honor.
THE COURT: All right. Okay. I’m going to ask that a
probation sentencing report be provided by July
21. Can that be done?
MS. TAYLOR: Yes, Your Honor.
THE COURT: Thank you very much, Ms. Taylor.
I want the attorneys to understand that it is the
position of this judge that sentencing reports
prepared by the Probation Department are for the
App.39a
judge. In fairness, since they—I give them careful
reflection in coming to a sentencing determination.
I will allow the attorneys, as well as any necessary
individuals within the District Attorney’s Office,
to be provided with one copy that may be read by
those individuals that I have just identified. And
that, Mr. Cataldo, you, Mr. Madera and your legal
defense team, may similarly be provided with one
copy.
It is not a public document. It is not filed with
the clerk’s office, and there is no public access to
that document. So you are prohibited from disseminating any of the information contained in
that sentencing report to any individual other
than within your own defense or prosecution team.
Now, that being done on July 21, I would like to
see if we could schedule a sentencing hearing
perhaps for the week of July 31, subject, of course,
to the respect that I have for people’s vacations,
or the first week in August.
MR. CATALDO: August 3, please?
THE COURT: I’m sorry, August 3?
MR. CATALDO: August 3.
THE COURT: What day is that. I don’t have—
MR. CATALDO: A Thursday.
THE COURT: Thursday. Is that okay, Madam Clerk?
THE CLERK: That’s fine, Judge.
THE COURT: All right. Then this matter will stand
continued to August 3 for a sentencing hearing.
We’ll be in recess until that date.
App.40a
Counsel, I have a copy of the verdict for all of
you, if you’d like it.
MS. FLYNN: Thank you, Your Honor.
MS. RAYBURN: Thank you, Your Honor. Thank you,
Madam
Clerk. Thank you, Mr. Clerk.
THE COURT: Thank you very much.
THE COURT OFFICER: All rise.
(Court adjourned.)
App.41a
VERDICT OF THE TRIAL JUDGE,
BRISTOL JUVENILE COURT
(JUNE 16, 2017)
COMMONWEALTH OF MASSACHUSETTS
BRISTOL JUVENILE COURT
TAUNTON SESSION
________________________
COMMONWEALTH
v.
MICHELLE CARTER
________________________
Docket No. 15YO0001NE
This Court, having considered and weighed all of
the evidence presented, and having applied the laws
of the Commonwealth of Massachusetts to said evidence, now finds the Defendant, Michelle Carter, guilty
on the indictment charging her with involuntary manslaughter of Conrad Roy, III.
This Court further finds, as to said indictment,
that the Commonwealth has proven, beyond a reasonable doubt, that Michelle Carter is a youthful
offender, as that term is defined in G.L c 119 s 52,
and she is adjudged to be a youthful offender on this
date.
App.42a
By the Court
/s/ Lawrence Moniz
Associate Justice
Dated: June 16, 2017
cc: Attorneys Rayburn, Flynn, Cataldo, and Madera
A true copy
Attest /s/ {illegible}
Magistrate
App.43a
OPINION OF THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS
(JULY 1, 2016)
SUPREME JUDICIAL COURT OF
MASSACHUSETTS
________________________
COMMONWEALTH
v.
MICHELLE CARTER
________________________
SJC-12043
Before: GANTS, C.J., SPINA, CORDY,
BOTSFORD, DUFFLY, LENK, & HINES, JJ.
CORDY, J.
On February 6, 2015, the defendant, Michelle
Carter, was indicted as a youthful offender under G.
L. c. 119, § 54, on a charge of involuntary manslaughter
after she, at the age of seventeen, encouraged Conrad
Roy (the victim), then eighteen years of age, to commit
suicide. To indict a juvenile as a youthful offender,
the grand jury must hear evidence establishing probable
cause that (1) the juvenile is between the ages of
fourteen and eighteen at the time of the underlying
offense; (2) the underlying offense, if committed by
an adult, would be punishable by imprisonment in State
prison; and (3) the underlying offense involves the
infliction or threat of serious bodily harm. G. L. c.
119, § 54. The defendant moved in the Juvenile Court
App.44a
to dismiss the youthful offender indictment, arguing
that the Commonwealth failed to present the grand
jury with sufficient evidence of involuntary manslaughter and that the defendant’s conduct did not
involve the infliction or threat of serious bodily harm.
The motion was denied.
The principal question we consider in this case is
whether the evidence was sufficient to warrant the
return of an indictment for involuntary manslaughter
where the defendant’s conduct did not extend beyond
words. We conclude that, on the evidence presented to
the grand jury, the verbal conduct at issue was sufficient and, because a conviction of involuntary manslaughter is punishable by imprisonment in State prison
and inherently involves the infliction of serious bodily
harm, the grand jury properly returned an indictment under the youthful offender statute. Accordingly, we affirm the order of the Juvenile Court.1
1.
Background
The grand jury heard evidence from four witnesses
over the course of three days. That evidence, viewed
in the light most favorable to the Commonwealth, see
Commonwealth v. Moran, 453 Mass. 880, 885, 906
N.E.2d 343 (2012), included the following:
On the afternoon of July 13, 2014, an officer with
the Fairhaven police department located the deceased
in his truck, parked in a store parking lot. The medical
examiner concluded that the victim had died after
inhaling carbon monoxide that was produced by a
1 We acknowledge the amicus brief submitted by the Youth
Advocacy Division of the Committee for Public Counsel Services
and the American Civil Liberties Union of Massachusetts.
App.45a
gasoline powered water pump located in the truck.
The manner of death was suicide.
The victim had been receiving treatment for
mental health issues since 2011. In 2013, the victim
attempted to commit suicide by overdosing on acetaminophen. A friend saved his life by contacting emergency services.
During the course of the investigation into the
victim’s suicide, a police review of his recent electronic
communications caused them to further explore his
relationship with the defendant. The victim and the
defendant met in 2011 and had been dating at various
times during that period, including at the time of the
victim’s death. Because they did not live in the same
town, the majority of their contact took place through
the exchange of voluminous text messages and cellular
telephone calls.2 The grand jury heard testimony and
were presented with transcripts concerning the content
of those text messages in the minutes, days, weeks,
and months leading up to the victim’s suicide. The
messages revealed that the defendant was aware of
the victim’s history of mental illness, and of his previous suicide attempt, and that much of the communication between the defendant and the victim focused
on suicide. Specifically, the defendant encouraged the
victim to kill himself,3 instructed him as to when and
2 In a written memorandum of decision, the judge stated that,
although the defendant and the victim rarely were in the same
physical location, “[t]he rapidity of the[ir] electronic exchanges
was almost immediate, similar to a conversation.”
3 On July 8, 2014, between 8:09 P.M. and 8:18 P.M., the defendant and victim exchanged the following text messages:
App.46a
how he should kill himself,4 assuaged his concerns
over killing himself,5 and chastised him when he
DEFENDANT: “So are you sure you don’t wanna [kill yourself] tonight?”
VICTIM: “what do you mean am I sure?”
DEFENDANT: “Like, are you definitely not doing it tonight?”
VICTIM: “Idk yet I’ll let you know”
DEFENDANT: “Because I’ll stay up with you if you wanna
do it tonight”
VICTIM: “another day wouldn’t hurt”
DEFENDANT: “You can’t keep pushing it off, tho, that’s
all you keep doing”
4 The defendant helped the victim determine the method he
eventually used to kill himself. On July 7, 2014, between 10:57
P.M. and 11:04 P.M., they exchanged the following text messages:
DEFENDANT: “Well there’s more ways to make CO.
Google ways to make it. . . .”
VICTIM: “Omg”
DEFENDANT: “What”
VICTIM: “portable generator that’s it”
On July 11, 2014, at 5:13 P.M., the defendant sent the victim
the following text message: “ . . . Well in my opinion, I think u
should do the generator because I don’t know much about the
pump and with a generator u can’t fail”
On July 12, 2014, between 4:25 A.M. and 4:34 A.M., they
exchanged the following text messages:
DEFENDANT: “So I guess you aren’t gonna do it then, all
that for nothing”
DEFENDANT: “I’m just confused like you were so ready
and determined”
VICTIM: “I am gonna eventually”
App.47a
VICTIM: “I really don’t know what I’m waiting for . . but I
have everything lined up”
DEFENDANT: “No, you’re not, Conrad. Last night was it.
You keep pushing it off and you say you’ll do it but u
never do. Its always gonna be that way if u don’t take
action”
DEFENDANT: “You’re just making it harder on yourself
by pushing it off, you just have to do it”
DEFENDANT: “Do u wanna do it now?”
VICTIM: “Is it too late?”
VICTIM: “Idkk it’s already light outside”
VICTIM: “I’m gonna go back to sleep, love you I’ll text you
tomorrow”
DEFENDANT: “No? Its probably the best time now because
everyone’s sleeping. Just go somewhere in your
truck. And no one’s really out right now because it’s
an awkward time”
DEFENDANT: “If u don’t do it now you’re never gonna do it”
DEFENDANT: “And u can say you’ll do it tomorrow but
you probably won’t”
5 During the evening of July 11, 2014, and morning of July 12,
2014, the victim and the defendant exchanged the following text
messages:
VICTIM: “I’m just to sensitive. I want my family to know
there was nothing they could do. I am entrapped in
my own thoughts”
VICTIM: “like no I would be happy if they had no guilt about
it. because I have a bad feeling tht this is going to
create a lot of depression between my parents/sisters”
VICTIM: “i’m overthinking everything . . fuck. I gotta stop
and just do it”
DEFENDANT: “I think your parents know you’re in a
really bad place. Im not saying they want you to do
it, but I honestly feel like they can except it. They
App.48a
know there’s nothing they can do, they’ve tried
helping, everyone’s tried. But there’s a point that
comes where there isn’t anything anyone can do to
save you, not even yourself, and you’ve hit that point
and I think your parents know you’ve hit that point.
You said you’re mom saw a suicide thing on your
computer and she didn’t say anything. I think she
knows it’s on your mind and she’s prepared for it”
DEFENDANT: Everyone will be sad for a while, but they
will get over it and move on. They won’t be in
depression I won’t let that happen. They know how
sad you are and they know that you’re doing this to
be happy, and I think they will understand and
accept it. They’ll always carry u in their hearts”
[...]
VICTIM: “i don’t want anyone hurt in the process though”
VICTIM: “I meant when they open the door, all the carbon
monoxide is gonna come out they can’t see it or smell
it. whoever opens the door”
DEFENDANT: “They will see the generator and know that
you died of CO. . . . “
[...]
VICTIM: “hey can you do me a favor”
DEFENDANT: “Yes of course”
VICTIM: “just be there for my family :)”
DEFENDANT: “Conrad, of course I will be there for your
family. I will help them as much as I can to get thru
this, ill tell them about how amazing their son/brother
truly was”
[...]
VICTIM: “Idk I’m freaking out again”
VICTIM: “I’m overthinking”
DEFENDANT: “I thought you wanted to do this. The time
is right and you’re ready, you just need to do it! You
App.49a
delayed doing so.6 The theme of those text messages
can be summed up in the phrase used by the defendcan’t keep living this way. You just need to do it like
you did last time and not think about it and just do it
babe. You can’t keep doing this every day”
VICTIM: “I do want to. but like I’m freaking for my family.
I guess”
VICTIM: “idkkk”
DEFENDANT: “Conrad. I told you I’ll take care of them.
Everyone will take care of them to make sure they
won’t be alone and people will help them get thru it.
We talked about this, they will be okay and accept it.
People who commit suicide don’t think this much
and they just do it”
6 At various times between July 4, 2014, and July 12, 2014, the
defendant and the victim exchanged several text messages:
DEFENDANT: “You’re gonna have to prove me wrong
because I just don’t think you really want this. You
just keeps pushing it off to another night and say
you’ll do it but you never do”
[...]
DEFENDANT: “SEE THAT’S WHAT I MEAN. YOU KEEP
PUSHING IT OFF! You just said you were gonna do
it tonight and now you’re saying eventually. . . . “
[...]
DEFENDANT: “But I bet you’re gonna be like ‘oh, it didn’t
work because I didn’t tape the tube right or something like that’ . . . I bet you’re gonna say an excuse
like that”
[...]
DEFENDANT: “Do you have the generator?”
VICTIM: “not yet lol”
DEFENDANT: “WELL WHEN ARE YOU GETTING IT”
App.50a
ant four times between July 11 and July 12, 2014
(the day on which the victim committed suicide):
“You just [have] to do it.”
Cellular telephone records that were presented
to the grand jury revealed that the victim and defendant
also had two cellular telephone conversations at the
time during which police believe that the victim was
in his truck committing suicide.7 The content of those
cellular telephone conversations is only available as
reported by the defendant to her friend, Samantha
Boardman. After the victim’s death, the defendant
sent a text message to Boardman explaining that, at
one point during the suicide, the victim got out of his
[...]
DEFENDANT: “You better not be bull shiting me and saying
you’re gonna do this and then purposely get caught”
[...]
DEFENDANT: “You just need to do it Conrad or I’m gonna
get you help”
DEFENDANT: “You can’t keep doing this everyday”
VICTIM: “Okay I’m gonna do it today”
DEFENDANT: “Do you promise”
VICTIM: “I promise babe”
VICTIM: “I have to now”
DEFENDANT: “Like right now?”
VICTIM: “where do I go? :(”
DEFENDANT: “And u can’t break a promise. And just go
in a quiet parking lot or something” (emphasis added).
7 One call, at 6:28 P.M. on July 12, came from the victim’s cellular
telephone and the other, at 7:12 P.M., came from the defendant’s cellular telephone. Each call lasted over forty minutes.
App.51a
truck because he was “scared,” and the defendant
commanded him to get back in.8
It was apparent that the defendant understood
the repercussions of her role in the victim’s death.
Prior to his suicide, the defendant sought (apparently
unsuccessfully) to have the victim delete the text
messages between the two, and after learning that
the police were looking through the victim’s cellular
telephone, the defendant sent the following text
message to Boardman: “Sam, [the police] read my
messages with him I’m done. His family will hate me
and I can go to jail.” During the investigation, and
after cross-referencing the text messages in the
defendant’s cellular telephone and those in the victim’s
cellular telephone, the police discovered that the
defendant had erased certain text messages between
her and the victim. The defendant also lied to police
about the content of her conversations with the victim.
Finally, the defendant acknowledged in a text message
to Boardman that she could have stopped the victim
from committing suicide: “I helped ease him into it
and told him it was okay, I was talking to him on the
phone when he did it I could have easily stopped him
or called the police but I didn’t.”
Based on the foregoing evidence, the Commonwealth successfully sought to indict the defendant for
involuntary manslaughter, as a youthful offender,
8 The text message to Samantha Boardman, in relevant part,
stated: “Sam, [the victim’s] death is my fault like honestly I
could have stopped him I was on the phone with him and he got
out of the [truck] because it was working and he got scared and
I fucking told him to get back in Sam because I knew he would
do it all over again the next day and I couldnt have him live the
way he was living anymore I couldnt do it I wouldnt let him.”
App.52a
asserting that the defendant’s wanton or reckless
conduct was the cause of the victim’s death. After a
judge of the Juvenile Court denied the defendant’s
motion to dismiss, the defendant filed a petition for
relief under G. L. c. 211, § 3. On February 1, 2016, a
single justice of this court reserved and reported the
case to the full court.
2.
Discussion
“Ordinarily, a ‘court will not inquire into the
competency or sufficiency of the evidence before the
grand jury.’” Commonwealth v. Rex, 469 Mass. 36, 39,
11 N.E.3d 1060 (2014), quoting Commonwealth v.
Robinson, 373 Mass. 591, 592, 368 N.E.2d 1210 (1977).
However, in Commonwealth v. McCarthy, 385 Mass.
160, 163, 430 N.E.2d 1195 (1982), we recognized a
limited exception for when the grand jury “fail[ ] to
hear any evidence of criminal activity by the defendant.”
“At the very least, the grand jury must hear enough
evidence to establish the identity of the accused and
to support a finding of probable cause to arrest the
accused for the offense charged” (footnote omitted).
Rex, supra at 40. “Probable cause requires sufficient
facts to warrant a person of reasonable caution in
believing that an offense has been committed . . . ;
this standard requires considerably less than that
which is required to warrant a finding of guilt”
(citations omitted). Commonwealth v. Levesque, 436
Mass. 443, 447, 766 N.E.2d 50 (2002).
App.53a
a. Involuntary manslaughter9
Involuntary manslaughter can be proved under
two theories, either (1) wanton or reckless conduct or
(2) wanton or reckless failure to act. Commonwealth
v. Life Care Ctrs. of Am., Inc., 456 Mass. 826, 832,
926 N.E.2d 206 (2010). The indictment was returned
9 The Model Jury Instructions on Homicide 73 (2013) define
“[i]nvoluntary manslaughter” as “an unlawful killing unintentionally caused by wanton and reckless conduct.” Wanton or reckless conduct
“is conduct that creates a high degree of likelihood
that substantial harm will result to another. It is
conduct involving a grave risk of harm to another
that a person undertakes with indifference to or disregard of the consequences of such conduct. Whether
conduct is wanton and reckless depends either on
what the defendant knew or how a reasonable person
would have acted knowing what the defendant knew.
If the defendant realized the grave risk created by
his conduct, his subsequent act amounts to wanton
and reckless conduct whether or not a reasonable
person would have realized the risk of grave danger.
Even if the defendant himself did not realize the grave
risk of harm to another, the act would constitute
wanton and reckless conduct if a reasonable person,
knowing what the defendant knew, would have realized the act posed a risk of grave danger to another.
It is not enough for the Commonwealth to prove the
defendant acted negligently, that is, in a manner
that a reasonably careful person would not have acted.
The Commonwealth must prove that the defendant’s
actions went beyond negligence and amounted to
wanton and reckless conduct as . . . defined . . . .”
Id. at 76-79. The 2016 proposed model jury instructions are
substantially similar in content to the 2013 model jury instructions.
App.54a
on the basis of the defendant’s wanton or reckless
conduct.10
Wanton or reckless conduct is “intentional conduct
. . . involv[ing] a high degree of likelihood that substantial harm will result to another.” Commonwealth
v. Pugh, 462 Mass. 482, 496, 969 N.E.2d 672 (2012),
quoting Commonwealth v. Welansky, 316 Mass. 383,
399, 55 N.E.2d 902 (1944). Whether conduct is wanton
or reckless is
“determined based either on the defendant’s
specific knowledge or on what a reasonable
person should have known in the circumstances. . . . If based on the objective measure of recklessness, the defendant’s actions
constitute wanton or reckless conduct . . . if
an ordinary normal [person] under the same
circumstances would have realized the gravity
of the danger. . . . If based on the subjective
measure, i.e., the defendant’s own knowledge, grave danger to others must have
been apparent and the defendant must have
chosen to run the risk rather than alter [his
or her] conduct so as to avoid the act or
omission which caused the harm” (quotations and citations omitted).
Pugh, supra at 496-497.
10 Our case law uses the phrases “wanton and reckless conduct”
and “wanton or reckless conduct” interchangeably. See, e.g.,
Commonwealth v. Pugh, 462 Mass. 482, 496-497, 969 N.E.2d
672 (2012).
App.55a
b. Sufficiency of the Evidence Presented to the
Grand Jury11
11 Before we consider whether the grand jury heard testimony
sufficient to warrant an indictment against the defendant for
involuntary manslaughter, we address her argument that G. L.
c. 265, § 13 (punishing involuntary manslaughter), is unconstitutionally vague as applied to her. Specifically, the defendant argues
that no one of ordinary intelligence—never mind a juvenile—
would understand that encouraging suicide is prosecutable
under existing law.
A criminal statute must be “sufficiently explicit to give clear
warning as to proscribed activities.” Commonwealth v. Orlando,
371 Mass. 732, 734, 359 N.E.2d 310 (1977). “A statute is unconstitutionally vague if men of common intelligence must necessarily guess at its meaning. . . . If a statute has been clarified by
judicial explanation, however, it will withstand a challenge on
grounds of unconstitutional vagueness” (quotation and citation
omitted). Commonwealth v. Crawford, 430 Mass. 683, 689, 722
N.E.2d 960 (2000). “Where a statute’s literal scope . . . is capable
of reaching expression sheltered by the First Amendment [to
the United States Constitution], the [vagueness] doctrine
demands a greater degree of specificity than in other contexts”
(citation omitted). Commonwealth v. Abramms, 66 Mass. App.
Ct. 576, 581, 849 N.E.2d 867 (2006).
The crime the defendant is charged with is neither objectively
nor subjectively vague as applied to the defendant. “Manslaughter is a common-law crime that has not been codified by statute
in Massachusetts” (citation omitted). Commonwealth v. Rodriquez,
461 Mass. 100, 106, 958 N.E.2d 518 (2011). General Laws c.
265, § 13, does not describe the crime; instead, it sets out only
the punishment, while the elements of the crime are created as
part of the common law. Under common law, conduct similar to
that of the defendant has been deemed unlawful, see Persampieri
v. Commonwealth, 343 Mass. 19, 22-23, 175 N.E.2d 387 (1961)
(jury warranted in convicting defendant of involuntary manslaughter where he provided wife with gun, taunted her, and
encouraged her to commit suicide, resulting in her killing herself), and it is therefore not objectively vague.
App.56a
The Commonwealth bore the burden of presenting the grand jury with sufficient evidence to support
a finding of probable cause that the defendant’s conduct (1) was intentional;12 (2) was wanton or reckless; and (3) caused the victim’s death. Life Care
Ctrs. of Am., Inc., 456 Mass. at 832.
The defendant argues that, because she neither
was physically present when the victim killed himself nor provided the victim with the instrument with
which he killed himself, she did not cause his death
by wanton or reckless conduct.13 She maintains that
verbally encouraging someone to commit suicide, no
matter how forcefully, cannot constitute wanton or
reckless conduct. Effectively, the argument is that
verbal conduct can never overcome a person’s willpower
On a subjective basis, the evidence presented by the Commonwealth showed that the defendant was personally aware that
her conduct was both reprehensible and punishable: the defendant asked the victim to delete the text messages between the
two of them, deleted several of those messages from her own
cellular telephone, and, after police began investigating the
victim’s cellular telephone, lied about her involvement and told
her friend that, if the police uncovered the text messages between
her and the victim, she could go to jail. The charge of involuntary manslaughter is not vague as applied to the defendant.
12 Viewed in the light most favorable to the Commonwealth,
there was evidence that the defendant intended to pressure the
victim into killing himself. The defendant told her friend, Samantha
Boardman, that she “couldn’t have [the victim] live the way he
was living anymore. [She] couldn’t do it. [She] wouldn’t let him.”
13 Although not physically present when the victim committed
suicide, the constant communication with him by text message
and by telephone leading up to and during the suicide made the
defendant’s presence at least virtual.
App.57a
to live, and therefore cannot be the cause of a suicide.
We disagree.
We have never required in the return of an
indictment for involuntary manslaughter that a defendant commit a physical act in perpetrating a victim’s
death.14 We also never have had occasion to consider
such an indictment against a defendant on the basis
of words alone. This is not, however, the first time
that we have contemplated the charge of involuntary
manslaughter against a defendant where the death
of the victim is self-inflicted. See, e.g., Commonwealth
v. Atencio, 345 Mass. 627, 189 N.E.2d 223 (1963);
Persampieri v. Commonwealth, 343 Mass. 19, 175
N.E.2d 387 (1961).
At issue in Atencio was a “game” of “Russian
roulette” played by the two defendants, Atencio and
Marshall, and the deceased. Atencio, supra at 628.
Marshall took the gun first, pointed it at his own
head, and pulled the trigger; nothing happened. Id.
at 628-629. He passed the gun to Atencio, who also
pointed the gun at his own head and pulled the
trigger, again with no result. Id. at 629. Atencio then
passed the gun to the deceased; when he pointed it at
his own head and pulled the trigger, “[t]he cartridge
exploded, and he fell over dead.” Id.
In affirming the involuntary manslaughter convictions against both defendants, we reasoned that
14 Physical acts are certainly one means by which the Commonwealth can show the commission prong of involuntary manslaughter. See Pugh, 462 Mass. at 497. However, the defendant
does not point to—and our research has not uncovered—any
case in which physical acts have been made a prerequisite of
involuntary manslaughter.
App.58a
“the Commonwealth had an interest that the deceased
should not be killed by the wanton or reckless conduct
of himself and others” (emphasis added). Id. “Such
conduct could be found in the concerted action and
cooperation of the defendants in helping to bring
about the deceased’s foolish act,” id., as “[i]t would not
be necessary that the defendants force the deceased
to play or suggest that he play.” Id. at 630. We
concluded that it did not matter that Atencio was the
one who handed the gun to the deceased, as opposed
to Marshall, affirming both defendants’ convictions.
Id. Indeed, had the deceased been the first to
participate in the “game,” and killed himself before
either Atencio or Marshall touched the gun, his acts
would still have been imputable to the defendants.
Id. It was, instead, the atmosphere created in the
decision to play the “game” that caused the deceased
to shoot himself, as there was “mutual encouragement” to participate. Id.
In Persampieri, 343 Mass. at 22, the defendant
told his wife that he intended to divorce her. She
threatened to commit suicide. Id. The defendant,
knowing that the victim had already attempted
suicide twice, said she was “chicken—and wouldn’t
do it.” Id. When she retrieved a .22 caliber rifle, he
helped her to load it and handed it to her, noting that
the safety was off. Id. With the gun barrel on the
floor, the victim struggled to pull the trigger. Id. at
23. The defendant told her that if she took off her
shoe she could reach the trigger, at which point she
successfully shot and killed herself. Id. We concluded
that the jury were warranted in returning a verdict
of involuntary manslaughter based on the theory of
wanton or reckless conduct, id., noting that the
App.59a
defendant, “instead of trying to bring [the victim] to
her senses, taunted her, told her where the gun was,
loaded it for her, saw that the safety was off, and told
her the means by which she could pull the trigger.
He thus showed a reckless disregard of his wife’s
safety and the possible consequences of his conduct.”
Id.
These cases elucidate that, because wanton or
reckless conduct requires a consideration of the
likelihood of a result occurring, the inquiry is by its
nature entirely fact-specific. The circumstances of
the situation dictate whether the conduct is or is not
wanton or reckless. We need not—and indeed cannot—define where on the spectrum between speech
and physical acts involuntary manslaughter must
fall. Instead, the inquiry must be made on a case-bycase basis.
Here, the particular circumstances of the defendant’s relationship with the victim may have caused
her verbal communications with him in the last
minutes of his life on July 12, 2014, to carry more
weight than mere words, overcoming any independent will to live he might have had. It is in those final
moments, when the victim had gotten out of his
truck, expressing doubts about killing himself, on
which a verdict in this case may ultimately turn. In
that moment of equivocation, the victim could have
continued to delay his death, perhaps attempting
suicide again at a later date, or perhaps seeking
treatment; or he could have gotten back into the
truck and followed through on his suicide. The grand
jury heard that the victim, after the defendant
commanded him to “get back in,” obeyed, returning
App.60a
to the truck, closing the door, and succumbing to the
carbon monoxide.
In our view, the coercive quality of that final
directive was sufficient in the specific circumstances
of this case to support a finding of probable cause.
Those circumstances included the defendant’s virtual
presence at the time of the suicide, the previous
constant pressure the defendant had put on the
victim, and his already delicate mental state.15 In
sum, there was ample evidence to establish probable
cause that the defendant’s conduct was wanton or
reckless, under either a subjective or an objective
standard. The grand jury could have found that 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 and “just do it.” See Levesque, 436 Mass.
at 452. And significantly, the grand jury also could
have found 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.16
15 As in the case against the husband in Persampieri, the Commonwealth’s evidence here shows that the defendant fully understood and took advantage of the victim’s fragility. Prior to July
12, 2014, the defendant had helped to plan the victim’s suicide,
assuaged the victim’s guilt about leaving his family, expressed
her frustration that the victim had, at various times, delayed
killing himself, and threatened to seek mental health treatment
for the victim (despite his protestations) if he did not kill himself.
16 The defendant admitted to Boardman: “I helped ease him
into it and told him it was okay, I was talking to him on the
App.61a
The defendant argues that, even if she was
wanton or reckless, her words (spoken when she was
miles away from the victim) could not be the cause of
the victim’s death. Instead, it was his decision to get
back in the truck that resulted in his suicide. We are
not convinced. Because there was evidence that the
defendant’s actions overbore the victim’s willpower,
there was probable cause to believe that the victim’s
return to the truck after the defendant told him to do
so was not “an independent or intervening act” that,
as a matter of law, would preclude his action from
being imputable to her. See Atencio, 345 Mass. at
629-630. The text messages suggest that the victim
had been delaying suicide for weeks; to ignore the
influence the defendant had over the victim would be
to oversimplify the circumstances surrounding his
death. His delay of that suicide and subsequent
excuses for such delays were followed by his girl
friend’s disappointment, frustration, and threats to
seek unwanted treatment on his behalf. In sum, we
conclude 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 the truck and poisoned himself to death.
Consequently, the evidence before the grand jury was
sufficient for a finding of probable cause that the
phone when he did it I coud have easily stopped him or called
the police but I didn’t.”
App.62a
defendant, by wanton or reckless conduct, caused the
victim’s death.17
It is important to articulate what this case is not
about. It is not about a person seeking to ameliorate
the anguish of someone coping with a terminal illness
and questioning the value of life. Nor is it about a
person offering support, comfort, and even assistance
to a mature adult who, confronted with such circumstances, has decided to end his or her life. These
situations are easily distinguishable from the present
case, in which the grand jury heard evidence suggesting a systematic campaign of coercion on which the
virtually present defendant embarked—captured and
preserved through her text messages—that targeted
the equivocating young victim’s insecurities and
acted to subvert his willpower in favor of her own. On
the specific facts of this case, there was sufficient
17 The speech at issue in this case is not protected under the
First Amendment to the United States Constitution or art. 16 of
the Massachusetts Declaration of Rights because the Commonwealth has a compelling interest in deterring speech that has a
direct, causal link to a specific victim’s suicide. See Mendoza v.
Licensing Bd. of Fall River, 444 Mass. 188, 197 n.12, 827 N.E.2d
180 (2005) (content-based restrictions on expressive conduct
must satisfy “strict scrutiny” standard, meaning government
must “demonstrate that the restriction is necessary to serve a
compelling state interest and that it is narrowly drawn to
achieve that end” [citation omitted]); Brown v. Entertainment
Merchants Ass’n, 564 U.S. 786, 799, 131 S. Ct. 2729, 180 L. Ed.
2d 708 (2011); Washington v. Glucksberg, 521 U.S. 702, 728,
117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) (State
“has an unqualified interest in the preservation of human life”
[citation omitted]). See also State v. Melchert-Dinkel, 844 N.W.2d
13, 23 (Minn. 2014) (affirming in part constitutionality of statute
prohibiting “assist[ing]” suicide as against First Amendment
challenge).
App.63a
evidence to support a probable cause finding that
the defendant’s command to the victim in the final
moments of his life to follow through on his suicide
attempt was a direct, causal link to his death.
3.
Conclusion18
The grand jury were justified in returning an
indictment of involuntary manslaughter against the
defendant. Because involuntary manslaughter carries
a potential punishment of incarceration in State
prison and is inherently a crime that involves the
infliction of serious bodily harm,19 and because the
18 The defendant argues that the indictment is flawed where
the grand jurors did not consider the charges from the perspective of a “reasonable juvenile of the same age” standard. Massachusetts currently does not require that a grand jury consider
charges based on such a standard. This issue was not raised
below. See G. L. c. 277, § 47A (“In a criminal case, any defense or
objection based upon defects in the institution of the prosecution
or in the complaint or indictment, other than a failure to show
jurisdiction in the court or to charge an offense, shall only be
raised . . . by a motion in conformity with the requirements of
the Massachusetts Rules of Criminal Procedure”). There was
not an evidentiary hearing on the issue, the judge did not offer
any opinion as to the argument’s merits, and the arguments
presented by the defendant and amici at this stage regarding
the impact of juvenile indictments are being raised for the first
time on appeal. The argument was therefore waived.
19 The defendant argues that her conduct cannot constitute the
infliction or threat of serious bodily harm, as is required for an
indictment under the youthful offender statute, G. L. c. 119, § 54.
Having concluded that the grand jury were justified in returning
an indictment for involuntary manslaughter, we are convinced
that they were also justified in returning such indictment under
the youthful offender statute, given that involuntary manslaughter under these circumstances inherently involves the infliction
of serious bodily harm.
App.64a
defendant was seventeen years of age at the time of
the offense, her indictment as a youthful offender on
the underlying involuntary manslaughter charge was
also supported by the evidence. The motion judge’s
denial of the defendant’s motion to dismiss is affirmed.
So ordered.
App.65a
INDICTMENT
COMMONWEALTH OF MASSACHUSETTS
________________________
COMMONWEALTH
v.
MICHELLE CARTER
________________________
Involuntary Manslaughter 265/13
THE JURORS for the said Commonwealth on
their oath preset, that
Michelle Carter,
on or about July 12, 2014, at Fairhaven, in the
County or Bristol aforesaid, did commit an unlawful
killing of Conrad Roy III, by wanton and reckless
conduct, and by such wanton and reckless conduct
did cause the death of said Conrad Roy III.
/s/
Foreperson of the Grand Jury
A True Bill
/s/
Assistant District Attorney
App.66a
On this ___ day of ___ in the year Two Thousand
and Fifteen this indictment was returned and
presented to said Superior Court by the Grand Jury
and ordered to be filed and filed.
Attest:
/s/
Clerk/Magistrate
App.67a
And the JURORS, aforesaid, for the COMMONWEALTH OF MASSACHUSETTS, on their oath,
aforesaid, do further present that
MICHELLE CARTER,
Was between the ages of fourteen and eighteen on
the date of the aforementioned offense; and that the
aforementioned offense, if committed by an adult,
would be punishable by imprisonment in the state
prison, and that the aforementioned offense involved
the infliction or threat of serious bodily harm in
violation of law; and that the said Michelle Carter, is
therefore a youthful offender, as defined by Chapter
119, section 54.
A True Bill
/s/
Assistant District Attorney
/s/
Foreperson of the Grand Jury
A true copy
Attest: /s/
Magistrate
App.68a
MICHELLE CARTER TEXT TO SAM BOARDMAN
(SEPTEMBER 15, 2014 AT 8:24-8:32 P.M.)
Note: spelling errors in original are reproduced here
[Lynn Roy is] divorced so she like tells me that a
lot of people on his side of the family (some aunts and
uncles) and Conrads grandpa like treats her kinda
poorly and not supportive of what happened and stuff
like Coco [Conrad’s nickname] was very sensative
and he took things to heart. And his grandpa and
dad (her ex) didnt treat him that good and always
pressured him and stuff and it gave him so much
anxiety. And I always told him to not spend as much
time with them because he just couldn’t handle it
and it made him worse being around them but he
worked for them like they owned that tug boat
company and Coco always felt pressured to live up to
their expectations. But with all his issues and stuff
he couldn’t and that was a big part of his decision to
commit suicide. And so his mom just tells me how
they and like some aunts and uncles on that side just
dont have much sympathy and his grandpa especially doesnt seem to even care at all which drives me
insane but his mom and I both agree he will live with
the guilt. And she just like tells me all about that
and about her new boyfriend and stuff and I mean I
like that she tells me these things I want to help her
I just get ovwhelmed sometimes with what she says
like she expects me to know what to tell her and I
want to tell her the best things I can because I
promised Coco I’d help his mom and sisters get thru
this like I told him I wont let them go thru depression and I told him I’d help them and always be there
but now that I think of it, youre right she is depressed
App.69a
so I failed Coco I wasnt supposed to let that happen
and now I’m realizing I failed him. Sam his 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 Sam because I knew
he would do it all over again the next day and I
couldnt have him live the way he was living anymore
I couldnt do it I wouldnt let him. And therapy didnt
help him and I wanted him to go to McLean with me
when I went but he would go in the other department
for his issues but he didnt wanna go because he said
nothing they would do or say would help him or
change the way he feels. So I like started giving up
because nothing I did was helping and but I should of
tried harder like I should of did more and its all my
fault because I could of stopped him but I fucking
didnt all I had to say was I love you dont do this one
more time and hed still be here and he told me he
would give me signs to know he is watching over me
but I havent seen any and I just idk I’m sorry about
this rant I just needed to get that off my chest and its
finally all sinking in
Ex.20 (9/15/14 8:24-8:32 pm).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.