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I Commonwealth of Massachus~tts

Supreme Judicial Cour~

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I Bristol County 2016 Sitting

I No. 12043

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Commonwealth
I v.
I Michelle Carter

I On Appeal After Reservation. Ancl Report From The Supreme

Judicial Court For Suffolk County And From A Decision Of
The Juvenile Court Of Bristol Coun~y
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I Reply Brief For The Defendant/App&l:J,.ant .

I Dana Alan Curhan Joseph P. C;.1taldo

B.B.O. # 544250 B.B.O. # 558646
I 29 Commonwealth Ave.
Fifth Floor ,. \
Cornelius J. Madera, I I I
B.B.O. # 65Sii65
Boston, MA 02116-2349 Ryan Faenza Cataldo, LLC
I (617) 267-3800
dana~curhan@verizon.net
1000 Franklit\ Village Drive
Suite 302
Franklin, MA 02038

I '(508) 528-2400
JCataldc@rfclawoffices.com
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Table of Contents
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Table of Authorities i
I A. Cases i

I B. Other Authorities i

Issues As To The Commonwealth's Statement

I Of Facts 1

Argument 2

I I. Issues As To The Commonwealth's Argument 2

I II. Conclusion 8

Certification
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Table of Authorities
I A. Cases

I Commonwealth v. Atencio,
345 Mass. 627 (1963) ... 3

I Commonwealth v. Catalina,
407 Mass. 779 (1990) ..... 4

I Commonwealth v. Levesque,
436 Mass. 443 (2002) ..... 5

I Commonwealth v. Pugh,
462 Mass. 482 (2012) 4

I Commonwealth v. Walker,
442 Mass. 185 (2004) .. 4

I Giboney v. Empire Storage & Ice Co.,

336 u.s. 490 (1949) ..... . 6

I Persampieri v. Commonwealth,
343 Mass. 19 (1961) ..... . 3, 4

I State ex rel. Kuntz v. Montana

Thirteenth Judicial Dist. Court,
298 Mont. 146, 995 P.2d 951 (2000) 5
I State v. Melchert-Dinkel,
844 N.W.2d 13 (2014) ..... 6, 7
I United States v. Hatatley,
13 0 F. 3d 13 9 9 (1Oth Cir. 19 9 7) 5
I United States v. Stevens,
559 u.s. 460 (2010) ..... 6

I B. Other Authorities

I G.L. c. 119, 54 . . . . . . . . . . 2

United States Constitution,

I First Amendment . . . . . . . . . . . 6

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Issues As To The Commonwealth's Statement Of
I Facts

Carter challenges a brief portion of the

I Commonwealth's statement of facts, as set forth below.

In her brief, Carter adopted the findings of the

I trial court in lieu of a statement of facts. In those

I findings, the court found she and Roy exchanged

nvoluminous text[] messages, phone calls .and email[s]

I . . . in the months preceding [Roy's] death,u and that

many of the utext message communications between the

I two focused on specific plans, direction and

I encouragement, for [Roy] to commit suicide." [R. App.

119]. For more than thirty pages, the Commonwealth

I summarizes or quotes many of those text messages.

While Carter does not dispute their content, she

I contends that one of those messages appears to be

I taken out of context and may present an inaccurate

picture of the events that occurred. Specifically, on

I Page 23 of its brief, the Commonwealth quotes a text

exchange from July 12, 2014 in which Carter asks Roy,

I uDid you delete the messages?" The Commonwealth

suggests that Carter came up with a plan for Roy to

I delete their text message conversations with the

I suggestion that she showed a consciousness of guilt in

doing so. However, three days earlier, on July 9,

I 2014, Roy texted Carter the following:

CONRAD: I'm gonna delete my messages now

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CARTER: Why are you depleting them? And okay babe I
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love you so much

CONRAD: someone's gonna see my phone

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See Grand Jury Exhibit #7, DVD: page 219 of SMS with Conrad I
ROY only Report.pdf. Accordingly, a more complete account

of the text message conversations reveal that Roy, not

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Carter, came up with the plan to delete his text messages I
so as not disclose them to other people.

Argument
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I. Issues As To The Commonwealth's Argument I
In rejecting Carter's motion to dismiss, the

trial court held that there was a uthreat" of serious I

bodily harm to justify the issuance of a youthful

offender indictment under G.L. c. 119, 54. The

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Commonwealth has correctly conceded that the trial I
court erred in so finding, as there was no such

threat. [Commonwealth's Brief at 45 n.4]. Carter I

addresses this argument in her opening brief, and

especially in view of the Commonwealth's concession,

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she will not repeat that argument.
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The Commonwealth relies upon and argues at some

length that Carter actually inflicted serious bodily I

harm upon Roy. As part of that argument, the

Commonwealth contends that a party need not engage in

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any physical acts to inflict serious bodily harm.
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[Commonwealth's Brief at 42-44]. Carter fully

addressed this point in her opening brief and will not I

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I repeat those arguments here. [Carter Opening Brief at

14-16].

I However, the Commonwealth then focuses on two

cases that Carter cites and discusses, Commonwealth v.

I Atencio, 345 Mass. 627 (1963) and Persampieri v.

I Commonwealth, 343 Mass. 19 (1961). The Commonwealth

contends that these cases stand for the proposition

I that someone can be charged with manslaughter by

encouraging another person to commit suicide, and that

I neither case stands for the proposition that a

I physical act is required in order to inflict serious

bodily harm. [Commonwealth's Brief at 38-39].

I As to the first point, neither case and in fact

no case in Massachusetts holds that one can be charged

I with manslaughter solely by encouraging another person

to commit suicide.
I As to the latter point, neither case addresses

I whether a physical act is or is not required. However,

in both cases, the defendant physically participated

I in the conduct and/or provided the means that lead to

the death of another person. In Atencio, this Court

I premised criminal liability on the fact that the

I defendants were part of a joint enterprise in a game

of Russian roulette. That game involved nactive

I participation" by the defendants. One defendant pulled

the trigger, and the gun did not fire. The second
I defendant did the same, and the gun again did not

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fire. He then physically gave the gun to the decedent,

who pulled the trigger leading to his death. 345 Mass.

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at 630. In Persampieri, the defendant was physically
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present when his intoxicated wife killed herself, he

told her where the gun was located, he physically I

loaded the gun for her, he explained to her the nmeans

by which she could pull the trigger" and then he

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personally observed that the nsafety was off." 343
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Mass. at 23.
In fact, every Massachusetts decision cited by I
the Commonwealth and the trial court for the

proposition that a physical act is not required to

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support a manslaughter charge involved a physical act

that resulted in the victim's death. See Commonwealth

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v. Pugh, 462 Mass. 482, 497 (2012) (physical acts in I
attempting to dislodge unborn child from birth canal);

Commonwealth v. Walker, 442 Mass. 185, 191-193 (2004) I

(surreptitiously mixing multiple doses of prescription

medication with alcohol into victim's drink);

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Commonwealth v. Catalina, 407 Mass. 779, 689-692 I
(1990) (distribution of heroin).

In this,case, Carter did not provide the I

generator to Roy. Roy obtained it and by himself set

in motion the sequence of events that lead to his

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death. Any contribution to Roy's death on Carter's
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part consisted solely of words, and significantly,

those words did not threaten or mislead Roy in any I

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I way. Regardless of how one may feel about. Carter's

conduct, no Massachusetts case holds or in any way

I suggests that words encouraging someone to take his

life, no matter how forceful, can support a guilty

I finding of involuntary manslaughter by the infliction

I of serious bodily harm.

The Commonwealth fares no better under the

I omission theory of manslaughter. In addressing whether

Carter can be found liable based on her failure to

I act, the Commonwealth relies on Commonwealth v.

I Levesque, 436 Mass. 443, 449-453 (2002) to suggest

that she ucreated" Roy's life-threatening

I circumstances and therefore had a duty to summons

assistance. 1 Here again, Levesque and the cases cited

I therein involved physical acts that placed someone in

danger. See Id. (defendants started a fire that

I created a risk of physical harm); State ex rel. Kuntz

I v. Montana Thirteenth Judicial Dist. Court, 298 Mont.

146, 154, 995 P.2d 951, 957 (2000) (defendant had a

I duty to summons medical assistance after stabbing her

boyfriend); United States v. Hatatley, 130 F.3d 1399,

I 1406 (lOth Cir. 1997) (defendant could be criminally

I liable by leaving robbery victim badly beaten in a

cold, remote location). At most, Carter simply

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The Commonwealth does not suggest the existence of any
I special relationship akin to a parent/child or
employer/employee relationship.

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encouraged Roy to carry through with his plan to take

his life. No Massachusetts case or statute has

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recognized a duty to act in circumstances where Roy
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himself created his own peril.

Finally, in addressing Carter's First Amendment I

argument, the Commonwealth argues that the prosecution

of her speech is not protected where it was "generated

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in connection with illegal activities".

[Commonwealth's Brief at 45]. The Commonwealth appears

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to be referring to the exception to the First I
Amendment for "speech integral to criminal conduct."

United States v. Stevens, 559 u.s. 460, 468 (2010);

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Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498

(1949) However, as the Court held, this exception was

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limited to "speech integral to conduct 'in violation I
of a valid criminal statute.'" State v. Melchert-

Dinkel, 844 N.W.2d 13, 19 (2014), quoting Giboney v. I

u.s.
Empire Storage and Ice Co., 336 at 498 (emphasis

in original). As noted in Carter's opening brief,

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there is no statute in Massachusetts criminalizing I
suicide or the encouragement of suicide. Compare Id.

Simply calling her speech a "verbal act instrumental I

in the commission of the crime of manslaughter", as

the Commonwealth does in its brief [Commonwealth's

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Brief at 46]; does not take such speech out of the
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protection of the First Amendment. In the absence of

any physical assistance, the Commonwealth's argument I

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I is circular, as the speech itself is alleged to be the
criminal conduct. See Id. at 20. The Commonwealth

I cannot eliminate the protections of the First

Amendment simply by charging her with manslaughter.
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II. Conclusion

Based on the authorities cited and the

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reasons aforesaid, as well as the authorities and
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reasons set forth in her opening brief, Carter

requests that this Court order that the trial I

court dismiss the youthful offender indictment

and preclude her from being prosecuted as a

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juvenile where any such prosecution would rest on
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the fatally flawed manslaughter theory and her

protected speech rights. In the alternative, she I

asks for such other relief as she may be

entitled.
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Respectfully submitted,
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Michelle Carter
By her attorneys,
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Dana Alan Curhan
B.B.O. # 544250
Joseph P. Cataldo
B.B.O. # 558646 I
29 Commonwealth Ave. Cornelius J. Madera, III
Fifth Floor
Boston, MA 02116-2349
B.B.O. # 658665
Ryan Faenza Cataldo, LLC
1000 Franklin Village Drive
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(617) 267-3800
dana.curhan@verizon.net Suite 302
Franklin, MA 02038
(508) 528-2400
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JCataldo@rfclawoffices.com
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Certification

I I certify that this brief complies with the relevant

rules of court pertaining to the preparation and
filing of briefs. Those rules include Mass. R. App.
I P. 16(a)(6) (pertinent findings or memorandum of
decision); Mass. R. App. P. 16(e) (references to the
record); Mass. R. App. P. 16(f) (reproduction of
I statutes, rules and regularrtions); Mass. R. App. P.
16(h) (length of briefs); Mass. R. App. P. 18
(appendix to the briefs}; and Mass. R. App. P. 20
I (form of briefs, appendices, and other papers).

I
Dana Alan Curhan
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