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1 COMMONWEALTH OF MASSACHUSETTS BRISTOL, ss. JUVENILE COURT DEPARTMENT NEW BEDFORD DIVISION DOCKET NO.: 15YO0001NE COMMONWEALTH ) ) V. ) ) MICHELLE CARTER ) Defendant ) DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Now comes the defendant and hereby offers this memorandum in support of the Defendant’s Motion to Dismiss. A. The Grand Jury Indicted the Defendant on Insufficient Evidence that she Committed the Alleged Crime of Involuntary Manslaughter under M.G.L. c. 265, § 13. 1) Standard of Review In Commonwealth v. McCarthy, 385 Mass. 160 (1982), the Court declared, “at the very least the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest him. A grand jury finding of probable cause is necessary if indictments are to fulfill their traditional function as an effective protection ‘against unfounded criminal prosecutions’.” McCarthy at 163. McCarthy counsels as follows: “The right of individual citizens to be secure from an open and public accusation of crime and from the trouble, expense and anxiety of public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive prosecutions..” Id. at Footnote 6, quoting Jones v. Robbins, 8 Gray 329, 344 (1857).
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Defense motion to dismiss

Jan 11, 2016

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Ally Manning

Defense attorneys for Michelle Carter filed this motion to dismiss the charge of involuntary manslaughter against her in New Bedford Juvenile Court.
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    COMMONWEALTH OF MASSACHUSETTS BRISTOL, ss. JUVENILE COURT DEPARTMENT NEW BEDFORD DIVISION DOCKET NO.: 15YO0001NE COMMONWEALTH ) ) V. ) ) MICHELLE CARTER ) Defendant ) DEFENDANTS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS Now comes the defendant and hereby offers this memorandum in support of the Defendants

    Motion to Dismiss.

    A. The Grand Jury Indicted the Defendant on Insufficient Evidence that she Committed the Alleged Crime of Involuntary Manslaughter under M.G.L. c. 265, 13.

    1) Standard of Review

    In Commonwealth v. McCarthy, 385 Mass. 160 (1982), the Court declared, at the very least the

    grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to

    arrest him. A grand jury finding of probable cause is necessary if indictments are to fulfill their

    traditional function as an effective protection against unfounded criminal prosecutions. McCarthy at

    163.

    McCarthy counsels as follows:

    The right of individual citizens to be secure from an open and public accusation of crime and from the trouble, expense and anxiety of public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive prosecutions.. Id. at Footnote 6, quoting Jones v. Robbins, 8 Gray 329, 344 (1857).

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    2) Elements and Standard of Law for Involuntary Manslaughter in Massachusetts In Massachusetts, since there is no statutory definition of manslaughter under M.G.L. c.

    265, 13, [t]he elements of the crime are derived from the common law. Commonwealth v.

    Godin, 374 Mass. 120, 126 (1977). (See Exhibit #1: attached case law with appendix.)

    In this case, the Commonwealth has proceeded on a theory of involuntary manslaughter

    caused by wanton and reckless conduct, which has been described by the Supreme Judicial

    Court as an unlawful homicide unintentionally caused by an act which constitutes such

    disregard of probable harmful consequences to another as to amount to wanton and reckless

    conduct. Commonwealth v. Life Care Ctrs. Of Am., Inc., 456 Mass. 826, 832 (2010), quoting

    Godin, 374 Mass. at 126.

    Proof of recklessness requires more than a mistake of judgment or even gross

    negligence, and has been defined as intentional conductinvolv[ing] a high degree of

    likelihood that substantial harm will result to another. Commonwealth v. Pugh, 462 Mass.

    482, 496 (2012), quoting Commonwealth v. Michaud, 389 Mass. 491, 499 (1983) and

    Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). Wanton or reckless conduct is

    determined based either on the defendants specific knowledge or on what a reasonable person

    should have known in the circumstances. Pugh, 462 Mass. at 496. If based on the objective

    measure of recklessness, the defendants actions constitute wanton or reckless conductif an

    ordinary normal [juvenile] under the same circumstances would have realized the gravity of the

    danger. Pugh, 462 Mass at 496-497, quoting Welansky 316 Mass. at 398-3991. If based on the

    subjective measure, i.e., the defendants own knowledge, grave danger to others must have been

    1 As the United State Supreme Court recognized: developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence.Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of irretrievably depraved character than are the actions of adults. Graham v. Florida, 560 U.S. 48, 68 (2010).

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    apparent and the defendant must have chosen to run the risk rather than alter [her] conduct so as

    to avoid the act or omission which caused the harm. Pugh, 462 Mass. at 497, quoting

    Welansky, 316 Mass at 398.

    As a general rule, 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. Pugh, 462 Mass. at 497, quoting Welansky 316 Mass. at 399.

    (i) The Commonwealth Failed to Present Sufficient Evidence to the Grand Jury that the Defendant Engaged in Wanton and Reckless Conduct by the Commission of an Affirmative/Intentional Act.

    In order to present sufficient evidence of involuntary manslaughter under a theory of

    wanton and reckless conduct by way of the commission of an affirmative or intentional act,

    the Commonwealth must present sufficient evidence of the following elements:

    (1) The defendant caused the victims death;

    (2) The defendant intended the conduct that caused the victims death;

    (3) The defendants conduct was wanton and reckless;

    (4) [Where there is evidence of self-defense or defense of another.] The defendant did not

    act in proper self-defense or in proper defense of another.

    (See Exhibit #2: attached Supreme Judicial Court Model Jury Instructions on

    Homicide, Involuntary Manslaughter, p. 75.)

    Wanton or reckless conduct involving the commission of an intentional (or affirmative)

    act is conduct that is undertaken in disregard of the probable harm to others that may result.

    Life Care Ctrs. Of Am., Inc., 456 Mass. at 832. The commission of an intentional act requires

    sufficient evidence that a defendant committed physical acts that caused the victims death.

    Pugh, 462 Mass. at 497. See Welansky, 316 Mass. at 397(Usually wanton or reckless conduct

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    consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of

    probable harmful consequences to another.)

    Ultimately, under this theory of involuntary manslaughter by wanton and reckless

    conduct, the Commonwealth must present sufficient evidence that the decedents death was

    caused by an act of force used by the defendant. Pugh, 462 Mass. at 499. (Emphasis added).

    In the case at bar, the Commonwealth failed to present any evidence to the grand jury that

    the defendant committed an intentional, physical act of force that ultimately lead to the death of

    the decedent, Conrad Roy. The entire presentation of evidence to the grand jury that allegedly

    links the defendant to the death of the decedent consists of text and phone conversations the

    defendant had from an unknown location. The Commonwealth introduced the autopsy report,

    which concluded that the manner of death as reported by the medical examiner suicide, inhaled

    carbon monoxide in closed car with running gas powered water pump (See Grand Jury

    Minutes, 2/5/15, p. 12-115, lines 7-9.)2 No evidence was presented to show how a physical act

    of force, pressure, violence, or any direct touching by the defendant whatsoever lead to this

    manner of death.

    Therefore, the Commonwealth failed to present sufficient evidence that the defendant

    engaged in wanton and reckless conduct by the commission of an affirmative/intentional act.

    (ii) The Commonwealth Failed to Present Sufficient Evidence to the Grand Jury that the Defendant Engaged in Wanton and Reckless Conduct by an Omission or Failure to Act

    In order to present sufficient evidence of involuntary manslaughter under a theory of wanton and

    reckless conduct by way of an omission or failure to act, the Commonwealth must present sufficient

    evidence of the following elements:

    2 The Commonwealth has agreed to file one set of copies of all grand jury minutes and exhibits for the Courts review with this motion.

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    (1) There was a special relationship between the defendant and the victim that gave rise to a duty of

    care, or the defendant created a situation that posed a grave risk of death or serious injury to

    another;

    (2) The defendants failure to act caused the victims death;

    (3) The defendant intentionally failed to act;

    (4) The defendants failure to act was wanton and reckless

    (Exhibit #2, p. 80-81.)

    (a) No Special Relationship Existed Between the Defendant and the Decedent to Give Rise to a Duty of Care

    Special relationships that give rise to a duty of care are drawn on existing duties

    imposed by civil law. Commonwealth v. Levesque, 436 Mass. 443, 449 (2002). See

    Commonwealth v. Twitchell, 416 Mass. 114, 117 (1993)(Parents common law duty of care to

    their children can form the basis of involuntary manslaughter conviction as a result of reckless

    failure to seek medical attention.) Welansky, 316 Mass. at 397(A night club owners duty of care

    to patrons can form the basis of an involuntary manslaughter conviction where an owner failed to

    provide a safe means of escape from the nightclub in case of a fire.) Godin, 374 Mass. at 125-

    130(A duty of care arose in an employer/employee relationship where the defendant-employer

    had authority to maintain and control the building where employees died as a result of an

    explosion from fireworks that had been stored at unprecedented levels. )

    A special relationship may give rise to a duty where one has a custody of and control

    over another person. Jean W. v. Commonwealth, 414 Mass. 496, 514 (1993). Recently, the

    Supreme Judicial Court noted several specific categories of special relationships giving rise to

    a duty that are enumerated in The Restatement (Second) of Torts 316-320: parent and

    dependent children, master and servant, possessor of land or chattels and licensee, one in charge

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    of a person with dangerous propensities, and one having custody over another Lev v. Beverly

    Enterprises-Massachusetts, 457 Mass. 234, 243 (2010). In that case (a negligence civil action),

    the Court held that the employer did not have a special relationship giving rise to a duty of care

    where the employer did not have control over the actions of the employee who voluntarily

    ordered and consumed alcoholic beverages at a restaurant with her direct supervisor present

    before striking the plaintiff in a subsequent motor vehicle accident. Lev, 457 Mass. at 236, 242-

    244. Compare Godin, 374 Mass. at 125-130.

    The fact that [a private person] realizes or should realize that action on his part is

    necessary for another's aid or protection does not of itself impose upon him a duty to take such

    action." Jean W., 414 Mass. at 520, (concurrence), quoting The Restatement (Second) of Torts

    314 (1965); see also Coobes v. Florio, 450 Mass. 182, 194 (2007). Furthermore, the law

    provides no general duty to protect others from self-inflicted harm, i.e., suicide. Webstad v.

    Stortini, 83 Wn. App. 857, 866 (1996).

    In the Webstad case (a wrongful death action), a decedent involved in a relationship with

    the defendant, to whom she had made several suicidal gestures in the past, committed suicide by

    overdosing on pills directly after the defendant told her he was unable to commit to her and

    wanted to restore his marriage. The Court of Appeals of Washington held that no special

    relationship existed to give rise to a duty of control over another when a romantic partner

    commits suicide in response to her partners actions. Webstad, 83 Wn. App. at 870 and 872-

    873. As the Court stated:

    Suicide is a voluntary willful choice determined by a moderately intelligent mental power[,] which knows the purpose and the physical effect of the suicidal actThus, in cases of suicide, the person committing suicide is in effect both the victim and the actor. In fact, no duty exists to avoid acts or omissions that lead another person to commit suicide unless those acts or omissions directly or indirectly deprive that person of the command of his or her faculties or the control of his or her conduct.

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    Webstad, 83 Wn. App. at 866, quoting In re Sponatski, 220 Mass. 526 (1915).

    The Court ultimately rejected the plaintiffs assertion that a special relationship was

    established that created a duty for [the defendant] either to avoid all circumstances that could

    lead [the decedent] to choose to commit suicide or to seek medical assistance as soon as [the

    decedent] decided to take her pills. Webstad, 83 Wn. App. at 870. See also Chalhoub v.

    Dixon, 338 Ill. App. 3d 535, 539 (2003)(The legally recognized duty of a doctor who knew of

    his patients history of suicidal depression and yet failed to protect the patient from self-harm

    does not extend to lay persons with the same knowledge.)

    In this case, there was no special relationship between the defendant and the decedent

    that gave rise to a duty of care. None of the specifically recognized and enumerated existing

    duties in civil law encompassed their relationship as presented to the grand jury. At no time was

    evidence presented showing the defendant having custody or control over the decedent or

    his actions at any time. The presented evidence makes it clear that the defendant was not present

    when the decedent committed suicide.

    Even if there was alleged evidence presented that the defendant should have realized that

    action on her part was necessary for the decedents aid and protection, that alone did not

    impose upon her a duty of care to act in some way. The relationship between the defendant

    and the decedent, as presented to the grand jury, was one of friendship and/or a very limited

    romantic nature. The alleged evidence surrounding this relationship consisted of text messages

    and phone calls, where they both discussed the decedents intent and plan to commit suicide.

    The defendant did not have any legal obligation towards the decedent during the scope of and as

    the result of this relationship. The evidence demonstrates that the decedent alone made the

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    voluntary and willful decision to take his own life: a suicide he had long planned and attempted

    previously.

    Therefore, the Commonwealth failed to present sufficient evidence to the grand jury that

    a special relationship existed between the defendant and decedent that gave rise to a duty of

    care.

    (b) The Defendant did not Create a Situation that Posed a Grave Risk of Death or Serious Injury to the Decedent

    In 2002, the Supreme Judicial Court held: It is true that, in general, one does not have a duty to

    take affirmative action, however, a duty to prevent harm to others arises when one creates a dangerous

    situation, whether that situation was created intentionally or negligently. Levesque, 436 Mass. at 449.

    Accordingly, the Court then adopted a specific duty as enumerated in The Restatement (Second) of Torts

    321(1): If the actor does an act, and subsequently realizes or should realize that it has created an

    unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to

    prevent the risk from taking effect. See Levesque, 436 Mass. at 449.

    In Leveseque, the Supreme Judicial Court upheld involuntary manslaughter indictments against

    the defendants, who started [a] fire and then increased the risk of harm from that fire by allowing it to

    burn without taking adequate steps either to control it or to report it to the authorities. Levesque, 436

    Mass. at 450-451. (Emphasis added). See United States v. Hatatley, 130 F.3d 1399, 1406 (10th Cir.

    1997), cited by Levesque, 436 Mass. at 449 (When a person puts another in a position of danger, he

    creates for himself a duty to safeguard or rescue the person from that danger.)(emphasis added.); Jones

    v. State, 220 Ind. 384, 387 (1942), cited by Levesque, 436 Mass. at 449([O]ne who by his own

    overpowering criminal acts has put another in dangerhas the duty to preserve her life.)(emphasis

    added); State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. Court, 298 Mont. 146, 153 (2000), cited

    by Levesque, 436 Mass. at 449(emphasis added.)(Undoubtedly, when a person places another in a

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    position of danger, and then fails to safeguard or rescue that person, and the person subsequently dies as

    a result of this omission, such an omission may be sufficient to support criminal liability.)(emphasis

    added.)

    In Webstad, supra, the Court of Appeals of Washington held that the defendant did

    not.create the peril or [the decedents] dependent condition. [The decedents] voluntary

    willful choice to commit suicide created her peril and need for assistance. Webstad, 83 Wn.

    App. at 870. (Emphasis added). Compare: Commonwealth v. Atencio, 345 Mass. 627, 629-630

    (1963)(During a game of Russian roulette, where the decedent took a gun from one of the

    defendants, their conductin the concerted action and cooperationin helping to bring about

    the deceaseds foolish act established a duty of care to the decedent.); Persampieri v.

    Commonwealth, 343 Mass. 19, 23 (1961)(The defendant, who knew his wife was emotionally

    disturbed, had been drinking, and threatened to kill herself, engaged in conduct that could be

    found to be wanton and reckless when he loaded [a gun] for her, saw that the safety was off,

    and told her the means by which she could pull the trigger.); and Commonwealth v. Strickland,

    87 Mass.App.Ct. 46, 57, n. 14 (2015)(If the defendant truly believed [the decedent] was

    engaging in self-injurious behaviorthen leaving tools and other instruments all over the house

    with which [the decedent] could harm herself was strong proof of wanton and reckless

    behavior.)

    In the case at bar, at no time did the defendant create a situation that posed a grave risk

    of death or injury to the defendant.

    The evidence, as presented to the grand jury, demonstrates the decedent desired to take

    his own life and, that prior to even meeting the defendant, had previously attempted suicide and

    had been hospitalized and received mental health treatment on several different occasions. (See

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    Grand Jury Transcript, 1/22/15, testimony from Lynn Roy.) The contents of the decedents

    phone reveal that many months prior to his death, he was once again contemplating suicide. For

    example, an internet search on 8/28/13, reveals a search for

    Did+this+help+you+change+your+mind+about+suicide. (See Grand Jury Exhibit #4, DVD:

    page 3,096 of Report Conrad ROYs phone.pdf.) Further, a note on 9/1/13 reveals thoughts

    by the decedent of suicide and killing myself. (See Grand Jury Exhibit #4, DVD: page

    3,941 of Report Conrad ROYs phone.pdf.) This evidence that was presented to the grand jury

    demonstrates that the decedent had already, on his own and prior to any alleged communications

    with the defendant, an individualized predisposition towards both thoughts of and actually

    committing suicide.

    The text messages, as submitted to the grand jury reveal that, at the earliest, the defendant

    and the decedent began having discussions about suicide in June of 2014. In fact, there are

    deleted text messages conversations between the decedent and an unnamed party (presumably

    the defendant) in which the unnamed party pleads with the decedent not to commit suicide and to

    seek help. For example:

    6/19/14: Unnamed Party: Are you 100% positive that youre never gonna commit suicide? Be honest with me. Do you think about doing it? Conrad Roy: No Im not Unnamed Party: Promsie me

    (See Grand Jury Exhibit #4, DVD: page 3,310 of Report Conrad ROYs phone.pdf)

    6/21/14 Unnamed Party: I wanna hang out with you to show you how amazing you really are Unnamed Party: But its sooooo eaarrlyyyyy. Conrad Roy: its controlling me like mr mind just wants me to give up but I know I cant Unnamed Party: Whats the reason your holding on? Like whats the thing thats preventing you from giving up?

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    Conrad Roy: my family Conrad Roy: you and people that care about me Unnamed Party: Its time to start living your life for you, not just for them. Right now your just existing, you arent living. I wanna help you live again (See Grand Jury Exhibit #4, DVD: page 3,308 of Report Conrad ROYs phone.pdf)

    6/23/14: Conrad Roy: No one is going to give my confidence, no one will give me strength, no one will give me preservance, no one can make me feel smart, funny or cool. No one fah help me but me but I dont believe In myself so Im stuck Unnamed Party: You only believe no one will give you all that because you dont let yourself open up to the help people are trying to give you Unnamed Party: You just automatically think no one can help you and nothing will work. You never really give yourself a chance to heal and get better (See Grand Jury Exhibit #4, DVD: page 3,487 of Report Conrad ROYs phone.pdf)

    Then, even after this unnamed party, presumably the defendant, pleads with him to seek

    help and to not take his life, the decedent makes it clear in subsequent texts that he has already

    made the decision on his own to commit suicide.

    6/29/14: Unnamed Party: But the mental hospital would help you. I know you dont think it would but Im telling you, if you give them a chance, they can save your life Unnamed Party: Part of me wants you to try something and fail just so you can get help Conrad Roy: It doesnt help. trust me Unnamed Party: So what are you gonna do then? Keep being all talk and no action and everyday go thru saing how badly you wanna kill yourself? Or are you gonna try to get better? Conrad Roy: I cant get better I already made my decision. (See Grand Jury Exhibit #4, DVD: page 3,286 of Report Conrad ROYs phone.pdf.) (Emphasis added.) Then in a follow-up, undeleted text message conversation with the named defendant: 7/7/14 Conrad Roy: if you were in my position. honestly what would you do Michelle Carter: I would get help. Thats just me tho. When I have a serious problem like that, my first instinct is to get help because I know I cant do it on my own Conrad Roy: Well its too late I already gave up.

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    (See Grand Jury Exhibit #4, DVD: page 3,439 of Report Conrad ROYs phone.pdf)

    The text messages further reveal that the decedent came up with the idea to kill himself

    via carbon monoxide by a portable generator. (See Grand Jury Exhibit #4, DVD: page 3,438

    Report Conrad ROYs phone.pdf: portable generator thats it) The grand jury minutes also

    reveal how he alone attempted to purchase and find a portable generator before taking one from

    his fathers house that he ultimately used in the commission of his own suicide. (See Grand Jury

    Exhibit #4, DVD: pages 3,237 to 3,240 of Report Conrad ROYs phone.pdf)

    At no time does the evidence reveal that the defendant provided the decedent with the

    means to kill himself or placed or put him in a life threatening situation. It reveals the

    opposite: the decedents long term thoughts, planning and acts towards the commission of his

    suicide were all of his own volition and creation. When the decedent committed the final acts

    towards his suicide by driving to a parking lot, bringing the portable generator, and then running

    the generator, he was by himself while the defendant was not present and was presumably far

    away in an unknown location using a phone. While the defendant revealed in a subsequent text

    message conversation to her friend, Samantha Boardman, how she allegedly told the decedent

    to get back in after he got out of the car, the evidence does not show any physical act by the

    defendant, placing or putting the decedent back in the vehicle. Again, if anything, it reveals

    only the opposite conclusion: by securing a portable generator, driving to a parking lot, starting

    the generator and placing himself in the vehicle, the decedent created his own peril that

    ultimately lead to his death.

    Therefore, the Commonwealth failed to present sufficient evidence to the grand jury that

    the defendant created a situation posing a grave risk of death or serious injury to the defendant.

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    (iii) The Defendant Did Not Cause the Suicide of the Decedent

    Even if the Court were to find that the defendant committed an act or omission constituting

    wanton and reckless conduct, the Commonwealth is still required to present sufficient evidence, under

    either theory, that the defendants act or omission was the proximate cause of the decedents death.

    Proximate cause is a cause, which in the natural and continuous sequence, produces the death, and

    without which the death would not have occurred. Pugh, 462 Mass. at 500, quoting Commonwealth v.

    Rhoades, 379 Mass. 810, 825 (1980). [T]he defendants conduct must be the efficient cause, the cause

    that necessarily sets in operation the factors which caused the death. Rhoades, 379 Mass. at 825.

    See Commonwealth v. Carlson, 447 Mass. 79, 83-84 (2006)(The decedents ultimate decision

    to be removed from life support was not an independent occurrence but the final step in the continuous

    sequence of events that began with the defendants negligent operation of her automobile that had

    collided with decedents motor vehicle); People v. Kevorkian, 447 Mich. 436, 494, n. 70

    (1994)([T]here may be circumstances where one recklesslyprovides the means by which another

    commits suicide could be found guiltyof involuntary manslaughter)(emphasis added); People v.

    Duffy, 79 N.Y.2d 611, 616 (1992)(The defendants furnishing of a rifle with a number of rounds of

    ammunition, knowing full well that [the decedent] had been drinking heavily and was in an extremely

    depressed and suicidal state was an actual contributory cause of death, in the sense that they forged a

    link in the chain of causes which actually brought about the death.); Atencio, 345 Mass. at 629-630

    (The decedents taking of the gun from one of the defendants during a game of Russian roulette was not

    an independent or intervening act precluding a finding of proximate cause of the decedents death in

    which the defendants were present and participated in the game); Compare: Lewis v. State, 474 So. 2d

    766, 771 (1985)(The defendant did not cause the decedents death during a game of Russian roulette

    after he had put away a gun and was not present when the decedent took the gun, loaded it, and shot

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    himself. The victims conduct was a supervening, intervening cause sufficient to break the chain of

    causation.)

    In Pugh, the Supreme Judicial Court held that the defendants failure to summon medical

    assistance cannot be the legal or proximate cause of the babys death after giving birth to a baby

    unassisted by pulling on the babys feet, legs and body. Pugh, 462 Mass. at 500. As the Court stated:

    That the victims death followed the defendants [omission] in point of time is not sufficient proof to establish the defendants guiltSpeculation that the baby might have survived if the defendant had summoned medical help does not satisfy the Commonwealths burden of proving causationbecause that the baby might have survived with proper care.engender[s] considerable doubt as to what actually happened.

    Pugh, 462 Mass. at 500, quoting J.R. Nolan & L.J. Sartorio, Criminal Law 121 (3d ed. 2001) and State v. Osmus, 73 Wyo. 183, 202 (1954)(emphasis added). The Court further stated:

    Such speculation is particularly inadequate in this case, because there was no expert testimony as to what assistance, once summoned, medical professionals could have rendered, or whether the assistance would have been successful.

    Pugh, 462 Mass. at 500-501. In this case, the Commonwealths own presentation to the grand jury shows that the cause of the

    decedents death was by the hands of the decedent himself. As stated previously, it was the decedent

    who alone drove to the parking lot, brought the portable generator, and then ran the generator while

    inside his vehicle that ultimately lead to his death by inhalation of carbon monoxide. The autopsy report

    that was submitted by the Commonwealth to the grand jury corroborates this manner of death and

    affirmatively states that the cause of death was was suicide not homicide.

    Furthermore, the defendant was not present and did not participate with the decedent in his acts.

    She was in an unknown location presumably far away and on a phone. No evidence was presented that

    she provided the means for the decedent to kill himself or that she committed an act that set into

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    operation the sequence of events leading to the decedents suicide. The sequence of events started and

    ended with the decedents own actions.

    Even if the defendant was under a duty of care to act and summon assistance or help, as in the

    Pugh case, it is speculation that the decedent might have survived if the defendant had in fact summoned

    medical help or assistance and when that summon for help should have been initiated. The exact time of

    the decedents death is unclear, and there was no medical or expert testimony presented about what if

    any assistance if rendered would have been successful in preventing the death of the decedent. One

    revelation that is clear in the grand jury minutes was that the decedent was determined to take his own

    life and, in the end, did so. That is the natural and continuous sequence that permeates throughout the

    evidence submitted to the grand jury.

    As such, the Commonwealth failed to present sufficient evidence to the grand jury that the

    defendant caused the suicide of the decedent.

    3) Conclusion

    For the foregoing reasons, the Commonwealth failed to present sufficient evidence of probable

    cause to the grand jury that the defendant committed the crime of involuntary manslaughter under

    M.G.L. c. 265, 13. Therefore, the above-numbered indictment must be dismissed.

    B. The Grand Jury Indicted the Defendant on Insufficient Evidence that She Was a Youthful Offender Under M.G.L. c. 119, 54

    Under M.G.L. c. 119, 54, the Commonwealth may proceed by indictment against a juvenile if

    the following requirements are met: (1) the alleged offense was committed while the individual was

    between the ages of fourteen and seventeen years; (2) if he were an adult, the offense would be

    punishable by imprisonment in the State prison (i.e., a felony); and (3) the individual was previously

    committed to the department of youth services, or the alleged offense involved certain enumerated

    firearms violations, or it involved the infliction or threat of serious bodily harm. Commonwealth v.

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    Quincy Q., 434 Mass. 859, 862 (2001). In the case at bar, the Commonwealth has failed to present

    sufficient evidence to the grand jury of the third element, including, as will be discussed, evidence of an

    infliction or threat of serious bodily harm.

    [W]hen a prosecutor seeks a youthful offender indictment relying on the infliction or threat of

    serious bodily harm component of the statute, the conduct constituting the offense must involve the

    infliction or threat of serious bodily harm. Quincy Q., 434 Mass. at 863. That means there must be

    evidence presented that the defendant threatened serious bodily harm or that serious bodily injuries

    were actually inflicted. Quincy Q., 434 Mass. at 863. (Emphasis added.) See Commonwealth v. Clint

    C., 430 Mass. 219, 225, n. 8 (1999)(A court reviewing a challenge to the sufficiency of the statutory

    requirements for a youthful offender indictment must consider the underlying facts of the offense and

    not whether the offense itself involved threat or infliction of serious bodily harm.) Commonwealth v.

    Hoshi H., 72 Mass.App.Ct. 18, 21 (2008)([W]e look only to the juveniles own conduct in assessing the

    applicability of that provision.) See also Felix F., a juvenile v. Commonwealth, 471 Mass. 513, 517

    (2015).

    When assessing whether there was an infliction of serious bodily harm, the Commonwealth is

    required to present sufficient evidence of a touching by the defendant that itself involve[s] the

    inflictionof serious bodily harm. Quincy Q, 434 Mass. at 863-864. In Quincy Q, the Supreme

    Judicial Court dismissed a youthful offender indictment for indecent assault and battery, where the

    alleged assault by the defendant in the case consisted of a touching that did not involve an infliction or

    threat of serious bodily harm. Quincy Q., 434 Mass. at 864. See Talbott v. Fisher, 2011 U.S. Dist.

    LEXIS 57024; 2011 WL 2112445 (D.Minn 2011)(In a felony battery provision that results in serious

    bodily injury to another, [o]nly physical contact with another person with a substantial degree of force

    will lead to the infliction of such serious bodily injury...)(emphasis added); People v. Modiri, 39 Cal.

  • 17

    4th 481, 492-493 (2006)(California Supreme Court analyzes felony assault provision where one

    personally inflicts great bodily injury to another and defines to inflict as: to lay [a blow] on

    [something damaging or painful] to be endured: impose.A blow is inflicted as long as it hits or strikes

    its target, or is administered or delivered thereto. Thus, physical contact of a forceful nature is

    required.)

    In the case at bar, the Commonwealth failed to present any evidence that the defendant

    committed a threat or infliction of serious bodily harm. The only alleged evidence linking the defendant

    to the decedents suicide are text messages and phone calls from an unknown location, presumably from

    a far distance away. There is no evidence that the defendant made any sort of touching of the decedent

    as part of the allegations, much less a physical infliction causing serious bodily harm. The autopsy

    report that was submitted by the Commonwealth corroborates that the manner of death was suicide,

    which was caused by the inhalation of carbon monoxide from the portable generator. Accordingly, it

    was the decedent himself whose own physical actions provided the instruments and inflicted the injuries

    that lead to his death.

    Therefore, since the Commonwealth failed to present sufficient evidence to the grand jury to

    support the statutory requirements for a youthful offender indictment, the indictment must be dismissed.

    C. M.G.L. c. 265, 13, as Applied to the Defendant, is Unconstitutional under the Defendants First Amendment Rights under the United States Constitution and Article XVI of the Massachusetts Declaration of Rights

    Under the First Amendment to the United States Constitution, as applied to the states under the

    Fourteenth Amendment, Congress shall make no lawabridging the freedom of speech. Similarly,

    under Article 16 of the Massachusetts Declaration of Rights, [t]he right of free speech shall not be

    abridged.3 Content-based prohibitions, enforced by severe criminal penalties, have the constant

    3 The analysis under art. 16 is the same as that under the First Amendment. Opinion of the Justices to the Senate, 436 Mass. 1201, 1205, n.6 (2002).

  • 18

    potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat

    the Constitution demands that content-based restrictions on speech be presumed invalid, and that the

    Government bear the burden of showing their constitutionality. Ashcroft v. ACLU, 542 U.S. 656, 698

    (2004). As a general matter, the amendment establishes that above all else, the government has no

    power to restrict expression because of its message, its ideas, its subject matter, or its content. State v.

    Melchert-Dinkel, 844 N.W.2d 13, 18 (2014), quoting Police Dept of Chicago v. Mosley, 408 U.S. 92,

    95 (1972).

    In Melchert-Dinkel, the Minnesota Supreme Court analyzed whether a Minnesota criminal

    statute, punishing individuals for assisting, advising or encouraging another to commit suicide

    was a constitutional content-based restriction under the First Amendment. Melchert-Dinkel, supra.

    The government argued that there were three exceptions to the First Amendment that made this type of

    speech unprotected. Melchert-Dinkel, 844 N.W.2d at 19.

    The government first argued that the statute was valid under the speech integral to criminal

    conduct exception to the First Amendment. Melchert-Dinkel, 844 N.W.2d at 19. This exception

    applies to speech or writing used as an integral part of conduct in violation of a valid criminal statute.

    Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). However, as the Melchert-Dinkel

    Court held, Giboney specifically stated that the exception was for speech integral to conduct in

    violation of a valid criminal statute, and there is no valid statute criminalizing suicide here. Melchert-

    Dinkel, 844 N.W.2d at 19-20 (Emphasis added.) Accordingly, the Minnesota Supreme Court held that

    this exception did not apply. Melchert-Dinkel, 844 N.W.2d at 20.

    The Court also similarly rejected the governments second argument for an exception where the

    First Amendment allows states to forbid advocating for someone else to break the law when such

    advocacy is both directed to inciting or producing imminent lawless action and it is likely to incite or

  • 19

    produce such action. Melchert-Dinkel, 844 N.W.2d at 20, quoting Brandenburg v. Ohio, 395 U.S.

    444, 447 (1969). As the Court held, the States argument fails because suicide is not unlawful and

    cannot be considered lawless action. Melchert-Dinkel, 844 N.W.2d at 21.

    Finally, the Court rejected the governments argument that the criminal statute did not violate the

    First Amendment, because [the defendants] communications with the victims involved deceit, fraud,

    and lies, and was, thus, constitutional under the fraud exception to the First Amendment. Melchert-

    Dinkel, 844 N.W.2d at 21. As the Court stated, this exception does not apply to lying, as the U.S.

    Supreme Court has held that speech is not unprotected simply because the speaker knows that he or she

    is lying. Melchert-Dinkel, 844 N.W.2d at 21, citing United States v. Alavarez, 132 S.Ct. 2537, 2545-

    47 (2012). Further, the exception only narrowly applies to restricting speech amounting to false

    claims that are made to gain a material advantage, including money or other valuable

    considerations, such as offers of employment. Melchert-Dinkel, 844 N.W.2d at 21. As such, the

    Court held that both on its face and as applied to the facts of the case, this exception did not apply.

    Melchert-Dinkel, 844 N.W.2d at 21.

    When an exception to the First Amendment doesnt apply, laws restricting the content of

    protected speech can still be constitutionally valid, but only if it passed strict scrutinythat is, unless

    it is justified by a compelling government interest and is narrowly drawn to serve that interest. Brown

    v. Entmt Merchs. Assn, 131 S.Ct. 2729, 2738 (2011). See Opinion of the Justices to the Senate, 436

    Mass. at 1206; Final Exit Network, Inc. v. State, 290 Ga. 508, 510 (2012)(Georgia Supreme Court

    declares state statute that criminalizes advertising or offering to assist and assisting in the commission of

    suicide unconstitutional infringement under the First Amendment; the Court held that the statute was not

    narrowly tailored to promote a compelling interest in preventing suicide, as it reaches only those who

    publicly offer to assist in suicide rather than simply imposing a ban on all assisted suicides.)

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    In Melchert-Dinkel, the Minnesota Supreme Court declared that part of the criminal statute that

    specifically penalized assisting suicide was a compelling state interest that was narrowly tailored, as

    it narrow[ed] the reach of the statute by aiming at a particular individual and was narrowed by the

    term assists itself. Melchert-Dinkel, 844 N.W.2d at 22-23. See Minnesota Statutes 609.215, subd.

    1. However, in a strong dissent (which the defense, in the case at bar, would argue Massachusetts

    should follow if our legislature had enacted such a statute), Justice Alan Page disagreed with the

    majoritys decision to remand the case back to the trial court for a determination as to whether the

    defendant, in fact, assisted in any suicide, stating, in part, that there was insufficient evidence at trial

    that he so assisted. He further stated:

    The same dictionary that the court relies on for the meaning of help defines assist as [a]n act of helping and to help a person in necessity; an action, process or result. The New Shorter Oxford English Dictionary 132 (1993) (emphasis added). Thus, the word assistsrequires an action more concrete than speech instructing another on suicide methods. To hold otherwise arguably criminalizes the publication of books that simply describe successful suicidal behavior. I would interpret assists to require an action that furthers the suicide, such as providing materials or physically assisting the suicide. Melchert-Dinkel, 844 N.W.2d at 26.

    However, the Minnesota Supreme Court unanimously held that the part of the statute that

    penalized advising or encouraging one to commit suicide was only tangential to the States

    compelling interest in preserving life and not narrowly tailored, such that it would allow the State to

    seek broad prosecutions on general discussions of suicide with specific individuals or groups.

    Melchert-Dinkel, 844 N.W.2d at 24. As the Court stated:

    Speech in support of suicide, however distasteful, is an expression of a viewpoint on a matter of public concern, and given current U.S. Supreme Court First Amendment jurisprudence, is therefore entitled to special protection as the highest rung of hierarchy of First Amendment values. Melchert-Dinkel, 844 N.W.2d at 24, quoting Snyder v. Phillips, 131 S.Ct. 1207, 1215 (2011).

  • 21

    In this case, M.G.L. c. 265, 13, as applied to the defendant, infringes upon her constitutional

    rights to free speech under the First Amendment to the United States Constitution and Article 16 of the

    Massachusetts Declaration of Rights. The Commonwealth has charged the defendant with involuntary

    manslaughter. The statutory provision penalizing manslaughter simply states that [w]hoever commits

    manslaughter shall, except as hereinafter provided, be punished. See M.G.L. c. 265, 13. The

    statute does not expressly provide for any prohibition against, assisting, aiding, advising or encouraging

    suicide.

    Here, the Commonwealths novel and entire case against the defendant consists of

    communications from her by way of text messages and phone calls entirely in the mold of speech.

    The Commonwealth intends to use the content of that speech to prosecute her for the crime of

    involuntary manslaughter. Therefore, the manslaughter statute, as applied to the defendant, is

    presumptively unlawful, unless the Commonwealth meets its burden showing its constitutionality.

    Firstly, as in the Melchert-Dinkel case, none of the First Amendment exceptions to the content-

    based regulations apply here. As in Minnesota, there is no current statute criminalizing the act of

    suicide in Massachusetts. Accordingly, both the speech integral to criminal conduct exception and the

    exception allowing advocacy that is both directed to inciting or producing imminent lawless action

    and it is likely to incite or produce such action do not apply in this case. The third exception, allowing

    restrictions on speech amounting to fraud also does not apply, as there is no evidence that the

    defendant made a false statement with the intent to gain a material advantage, including money or other

    valuable considerations.

    The statute, as applied to the defendant, also fails to meet the heavy burden of strict scrutiny

    analysis for content-based restrictions. Firstly, in the light most favorable to the Commonwealth, the

    speech that the Commonwealth intends to use against the defendant consists entirely of encouraging

  • 22

    or, at most, advising the decedent to commit the act of suicide. As in the Melchert-Dinkel case, the

    Commonwealth cannot meet its burden to show how restricting this content-based speech is compelling

    government interest, or, even more strikingly, how the manslaughter statute is narrowly tailored to

    address a compelling state interest. Here, in Massachusetts, there is no such statute.

    As stated previously, the manslaughter statute is completely silent on assisting, advising, or

    encouraging one to commit suicide. Accordingly, unlike the Melchert-Dinkel case, the statute doesnt

    specifically address this type of conduct. In fact, unlike Minnesota and a small number of other states,

    Massachusetts doesnt even proscribe specific and separate statutory penalties for assisting or

    encouraging suicide. As such, even if there is evidence, as was remanded for a determination in

    Melchert-Dinkel, that the defendant assisted in the suicide of the decedent which the defense

    maintains there isnt the manslaughter statute does not come close to narrowly addressing this type of

    conduct and, thus, cannot pass constitutional muster.

    Therefore, since M.G.L. c. 265, 13, as applied to the defendant, is unconstitutional under the

    First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of

    rights, the above-numbered indictment must be dismissed.

    D. M.G.L. c. 265, 13 is Unconstitutionally Vague as Applied to the Defendant under the Due Process Provisions of the Fourteenth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights

    It is fundamental tenet of due process that [no] one may be required at peril of life, liberty

    or property to speculate as to the meaning of penal statutes. United States v. Batchelder, 442 U.S.

    114, 123 (1979), quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). A criminal statute is

    therefore invalid if it fails to give a person of ordinary intelligence fair notice that his contemplated

    conduct is forbidden. Lanzetta, 442 U.S. at 123, quoting United States v. Harris, 347 U.S. 612,

    617 (1954). A statute which either forbids or requires the doing of an act in terms so vague that

  • 23

    men of common intelligence must necessarily guess at its meaning and differ as to its application,

    violates the first essential of due process of law. Commonwealth v. Bohmer, 374 Mass. 368, 371-

    372 (1978), citing Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). The statute must be

    sufficiently explicit to give clear warning as to proscribed activities. Commonwealth v. Orlando,

    371 Mass. 732, 734 (1977). See American Dog Owners Assn., Inc v. Lynn, 404 Mass. 73, 79

    (1989)(ordinance restricting ownership of pit bulls was unconstitutionally vague, because it failed

    to provide law enforcement officials with ascertainable standards by which to enforce the

    ordinance.); Commonwealth v. Pagan, 445 Mass. 161, 171 (2005) (statute requiring lifetime

    community parole for certain criminal offenders contained ambiguities and inconsistencies that

    leave it hopelessly confusing and unconstitutionally vague as applied to a category of offenders.)

    [T]he vagueness doctrine also prohibits such imprecision as might give rise to arbitrary

    enforcement of law. Commonwealth v. Abramms, 66 Mass.App.Ct. 576, 580 (2006). The concept

    of the vagueness in the due process context is based in part on the principle that a penal statute

    should provide comprehensible standards that limit prosecutorial and judicial discretion.

    Commonwealth v. Pagan, 445 Mass. 161, 172-173 (2005)(emphasis added). An additional

    principle to be noted is that [w]here a statutes literal scopeis capable of reaching expression

    sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity

    than in other contexts. Abramms, 66 Mass.App.Ct. at 581, quoting Smith v. Goguen, 415 U.S. 566,

    573 (1974)(emphasis added). Under the rule of lenity, any uncertainty that results from a literal

    reading of the statute is to be resolved in favor of the defendant. Commonwealth v. Perella, 464

    Mass. 274, 283 (2013).

    In the case at bar, M.G.L. c. 265, 13, as applied to the defendant, is unconstitutionally vague

    as applied to the defendant under the due process provisions of the Fifth and Fourteenth Amendment

  • 24

    to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. The

    Commonwealth is alleging an unprecedented claim that by encouraging or advising the decedent to

    commit suicide she, a juvenile, committed the crime of involuntary manslaughter. As stated

    previously, the actual manslaughter statute is silent on this type of conduct. A review of the case law

    on involuntary manslaughter under this statute does not reveal any precedent that this type of claim

    has ever been made. Given that the type of alleged conduct against the defendant concerns content-

    based expression that is sheltered by the First Amendment, a greater degree of specificity is required

    when reviewing this statute under the vagueness doctrine. The manslaughter statute provides no

    such specificity.

    At the present time, there is no criminal statute in Massachusetts specifically prohibiting

    suicide or even assisting or encouraging suicide. Despite the legislatures decision not to enact such

    a law, the Commonwealth decided to charge the defendant with an even more serious crime: a form

    of homicide. Given that the manslaughter statute, nor any proscribed law in the Commonwealth, do

    not provide a sufficiently explicit warning to someone of ordinary intelligence let alone a juvenile

    in the defendants position that encouraging (or even assisting) suicide is prosecutable under

    existing law, M.G.L. c. 265, 13 is hopelessly confusing and vague as applied to the defendant and

    has lead to an arbitrary enforcement of this law by the Commonwealth. Furthermore, the rule of

    lenity requires that any uncertainty from a literal reading of the statute be resolved in favor of the

    defendant.

    Therefore, since M.G.L. c. 265, 13, as applied to the defendant, is unconstitutionally vague,

    the above-numbered indictment must be dismissed.

  • 25

    E. Conclusion WHEREFORE, based on the foregoing, the defendant prays this Honorable Court allows

    her motion to dismiss and to prevent the Commonwealth from embarking down this slippery

    slope.

    Respectfully submitted,

    The Defendant, MICHELLE CARTER By: ____________________________ Joseph P. Cataldo (BBO# 558646) Cornelius J. Madera, III (BBO# 658665) Cataldo Law Offices, LLC 1000 Franklin Village Drive, Suite 302 Franklin, MA 0203 Telephone: (508) 528-2400 Dated: