by Sam Rutherford

The Supreme Judicial Court of Massachusetts vacated a threat-based conviction because the jury instructions provided setting forth the elements of that offense did not require the Commonwealth to prove that the defendant uttered a true threat of violence with the requisite mens rea of recklessness, as required by the U.S. Supreme Court’s decision in Counterman v. Colorado, 600 U.S. 66 (2023).

Arickson Cruz was charged with “Threat to Commit Crime” under G. L. c. 275, § 2. The charge was based on Cruz sending to his former girlfriend a text message stating, “I swear to god if you touch my [kids] one more time I’ll punch you in your fucking face Bitch, I’m not going to repeat myself again.” At trial, the jury was not instructed that it must find beyond a reasonable doubt that Cruz subjectively intended that his former girlfriend would interpret this statement as a true threat of violence. Cruz was convicted, and the Appeals Court affirmed his conviction in an unpublished decision. He timely appealed.

The Court noted that while Cruz’s appeal was pending, the U.S. Supreme Court decided Counterman, ruling that the First Amendment requires the prosecution to prove that the defendant “consciously disregarded a substantial risk that his communications would be viewed as threatening violence” in order to convict him for communicating a true threat. A true threat is a “serious expression” of an intent to commit an act of unlawful violence. Virginia v. Black, 538 U.S. 343 (2003). But whether a threat is true or not turns not on what the speaker believes but on how others would interpret the statement under an objective standard. Counterman.

Nonetheless, in order to ensure that threat prosecutions do not “chill” protected speech, the First Amendment demands that the prosecution prove the defendant had “some subjective understanding of the threatening nature of his statements.” Id. The required mental state, or mens rea, is recklessness, meaning that the defendant “is aware that others could regard his statements as threatening violence and delivers them anyway.” Id. (cleaned up, citation omitted).

Turning to the present case, the jury instructions at issue read: “In order to prove the defendant guilty of [threatening to commit a crime], the Commonwealth must prove four things beyond a reasonable doubt: First, that the defendant expressed an intent to injure a person or property of another now or in the future; Second, that the defendant intended that his threat be conveyed to a particular person; Third, that the injury that was threatened, if carried out, would constitute a crime; and Fourth, that the defendant made the threat under circumstances which could reasonably have caused the person to whom it was conveyed to fear that the defendant had both the intention and the ability to carry out the threat.”

The Court determined that the “instructions did not require the jury to find that the defendant was aware that others could regard his statement as threatening violence and delivered it anyway.” That is, the instructions lacked the requisite mens rea component required by Counterman. Thus, the Court held that his conviction violated the First Amendment and must be vacated.

Cruz also argued that G. L. c. 275, § 2, is invalid on its face and substantially overbroad in violation of the First Amendment because it was not drafted to include the requirement that the Commonwealth prove the defendant uttered a threat to commit a crime recklessly as Counterman now mandates. But the Court rejected this challenge, holding that it has a duty to “construe statutory language narrowly to avoid constitutional overbreadth, especially where we discern a legislative intent that the statute prohibit only constitutionally unprotected speech.” Quoting O’Brien v. Borowski, 961 N.E.2d 547 (Mass. 2012).

Because the Court had previously interpreted the statute as reaching only “true threats” that would not qualify as protected speech, Commonwealth v. Sholley, 739 N.E.2d 236 (Mass. 2000), it determined that it could construe G. L. c. 275, § 2, “to require that the Commonwealth prove beyond a reasonable doubt, inter alia, that the defendant acted with at least a mens rea of recklessness—that is, that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence and delivered it anyway.” See Counterman. So, certain “true threats” that are considered “protected speech” under Counterman, i.e., those that lack the requisite mens rea, are not covered by the statute like the threat in the current case. Thus, the Court held that the statute is not overbroad.

Finally, Cruz argued that his case should not be remanded for retrial because the Commonwealth failed to present sufficient evidence of his reckless intent to threaten during his first trial. See Commonwealth v. Guardado, 220 N.E.3d 102 (Mass. 2023) (“the prohibition against double jeopardy generally precludes retrial if the Commonwealth presented insufficient evidence at the original trial to support the defendant’s conviction.”). The Court rejected this contention for two reasons.

First, because Counterman was decided after Cruz’s trial, “the Commonwealth had no reason to introduce evidence of the defendant’s state of mind to establish his culpability for sending a true threat or to insist that the jury be instructed to include the mens rea requirement,” the Court reasoned. Consequently, the Court determined that double jeopardy does not bar retrying Cruz where an “unforeseen change” in First Amendment law altered the Commonwealth’s burden of proof. See Guardado.

Second, typically, when a conviction is vacated, a retrial is barred on double jeopardy grounds “only where the evidence at the first trial was insufficient to establish an essential element of the crime,” the Court stated. Commonwealth v. Bolling, 969 N.E.2d 640 (Mass. 2012). While Cruz was tried prior to Counterman, the Commonwealth did present sufficient evidence to allow a rational jury to find beyond a reasonable doubt that he possessed the requisite mens rea under Counterman, according to the Court. Prior to sending the message in question, the evidence showed that Cruz had been upset with his girlfriend for leaving him for several years and had been “screaming and yelling” at her just a few hours before sending the message. A “properly instructed jury,” the Court reasoned, could have found that Cruz recklessly uttered a true threat not shielded from criminal liability by Counterman based on this evidence. Thus, the Court held that retrying Cruz was not barred by double jeopardy.

Accordingly, the Court reversed Cruz’s threat-based conviction and remanded the case for a new trial with proper jury instructions incorporating the Counterman standard. See: Commonwealth v. Cruz, 247 N.E.3d 25 (Mass. 2024).

Writer’s note: The Court attached to its opinion a revision to the model jury instructions for the offense of “Threat to Commit Crime.” That model instruction now includes the following additional element that the Commonwealth must prove beyond a reasonable doubt: “Fifth: That the defendant was aware of or consciously disregarded a substantial risk that the communication would be viewed as threatening violence. This element requires that the defendant was aware that others could regard his statement as threatening violence and yet the defendant delivered it anyway.” 

Subscribe today

Already a subscriber? Login

Related legal cases