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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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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 conduct…involv[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 defendant’s 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 defendant’s actions constitute ‘wanton or reckless conduct…if 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 defendant’s 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 victim’s death;
(2) The defendant intended the conduct that caused the victim’s death;
(3) The defendant’s 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 victim’s 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 decedent’s 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 Court’s 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 defendant’s failure to act caused the victim’s death;
(3) The defendant intentionally failed to act;
(4) The defendant’s 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 owner’s 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 partner’s 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 act’…Thus, 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 plaintiff’s 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 patient’s 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 decedent’s “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 decedent’s 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 danger…has 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 decedent’s] dependent condition. [The decedent’s] 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 “conduct…in the concerted action and cooperation…in helping to bring about
the deceased’s 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 behavior…then 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 decedent’s
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 ROY’s 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 ROY’s 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 you’re never gonna commit suicide? Be honest with me. Do you think about doing it?” Conrad Roy: “No I’m not” Unnamed Party: “Promsie me”
(See Grand Jury Exhibit #4, DVD: page 3,310 of “Report Conrad ROY’s phone.pdf”)
6/21/14 Unnamed Party: “I wanna hang out with you to show you how amazing you really are” Unnamed Party: “But it’s sooooo eaarrlyyyyy.”
Conrad Roy: “it’s controlling me like mr mind just wants me to give up but I know I can’t” Unnamed Party: “What’s the reason your holding on? Like what’s the thing that’s preventing you from giving up?”
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Conrad Roy: “my family” Conrad Roy: “you and people that care about me” Unnamed Party: “It’s time to start living your life for you, not just for them. Right now your just existing, you aren’t living. I wanna help you live again” (See Grand Jury Exhibit #4, DVD: page 3,308 of “Report Conrad ROY’s 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 don’t believe In myself so I’m stuck” Unnamed Party: “You only believe no one will give you all that because you don’t 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 ROY’s 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 don’t think it would but I’m 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 doesn’t 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 can’t get better I already made my decision.” (See Grand Jury Exhibit #4, DVD: page 3,286 of “Report Conrad ROY’s 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. That’s just me tho. When I have a serious problem like that, my first instinct is to get help because I know I can’t do it on my own” Conrad Roy: “Well it’s too late I already gave up.”
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(See Grand Jury Exhibit #4, DVD: page 3,439 of “Report Conrad ROY’s 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 ROY’s phone.pdf”: “portable generator that’s it”) The grand jury minutes also
reveal how he alone attempted to purchase and find a portable generator before taking one from
his father’s 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 ROY’s 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 decedent’s 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 defendant’s act or omission was the “proximate cause” of the decedent’s 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 defendant’s 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 decedent’s “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 defendant’s negligent operation of her automobile” that had
collided with decedent’s motor vehicle); People v. Kevorkian, 447 Mich. 436, 494, n. 70
(1994)(“[T]here may be circumstances where one recklessly…provides the means by which another
commits suicide could be found guilty…of involuntary manslaughter)(emphasis added); People v.
Duffy, 79 N.Y.2d 611, 616 (1992)(The defendant’s 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 decedent’s 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 decedent’s 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 decedent’s 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 “victim’s conduct was a supervening, intervening cause sufficient to break the chain of
causation.”)
In Pugh, the Supreme Judicial Court held that the defendant’s “failure to summon medical
assistance cannot be the legal or proximate cause of the baby’s death” after giving birth to a baby
unassisted by pulling on the baby’s feet, legs and body. Pugh, 462 Mass. at 500. As the Court stated:
“That the victim’s death followed the defendant’s [omission] in point of time is not sufficient proof to establish the defendant’s guilt…Speculation that the baby might have survived if the defendant had summoned medical help does not satisfy the Commonwealth’s burden of proving causation…because 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 Commonwealth’s own presentation to the grand jury shows that the cause of the
decedent’s 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 decedent’s suicide. The sequence of events started and
ended with the decedent’s 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 decedent’s 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 juvenile’s 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
infliction…of 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.
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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 decedent’s 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 Defendant’s 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 law…abridging 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).
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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 Dep’t 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 government’s 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 State’s 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 government’s argument that the criminal statute did not violate the
First Amendment, “because [the defendant’s] 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 doesn’t apply, laws restricting the “content of
protected speech” can still be constitutionally valid, but only if “it passed strict scrutiny—that is, unless
it is justified by a compelling government interest and is narrowly drawn to serve that interest.” Brown
v. Entm’t Merchs. Ass’n, 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
majority’s 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 ‘assists’…requires 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 State’s
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 Commonwealth’s 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”
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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 doesn’t
specifically address this type of conduct. In fact, unlike Minnesota and a small number of other states,
Massachusetts doesn’t 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 isn’t – 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 statute’s literal scope…is 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 legislature’s 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 defendant’s 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.
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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:
