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15-P-653                                                 Appeals Court

                      COMMONWEALTH   vs.   JOHN ECKER.


                              No. 15-P-653.

           Hampden.      June 5, 2017. - September 13, 2017.

                Present:   Sullivan, Henry, & Shin, JJ.


Practice, Criminal, Motion to suppress, Instructions to jury.
     Constitutional Law, Imprisonment, Freedom of speech and
     press. Malice. Criminal Harassment. Harassment
     Prevention. Stalking. Attempt.


     Indictments found and returned in the Superior Court
Department on March 5, 2014.

     A pretrial motion to suppress evidence was heard by Mary-
Lou Rup, J.; a motion for reconsideration was considered by C.
Jeffrey Kinder, J., and the cases were tried before him.


     Deborah Bates Riordan for the defendant.
     Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.


    SHIN, J.     A Superior Court jury convicted the defendant of

stalking, two counts of criminal harassment, and attempt to
                                                                    2


commit a crime (violation of a harassment prevention order).1      On

appeal the defendant argues that (1) the motion judge should

have suppressed evidence of a letter that he wrote from prison

because the letter was seized in violation of his rights under

the First Amendment to the United States Constitution, (2) the

trial judge gave an erroneous jury instruction on the definition

of "malicious" conduct, as it pertains to stalking and criminal

harassment, and (3) the evidence was insufficient to prove that

the defendant was guilty of those offenses.   We affirm.

     Background.   The convictions at issue arose from

interactions that the defendant had with two victims.    We

summarize the facts relating to each victim in turn, viewing the

evidence and the reasonable inferences therefrom in the light

most favorable to the Commonwealth.   See Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979).

     Victim 1 -- Miranda.2   In May of 2013, Miranda interviewed

and hired the defendant for a position at Burger King.     The

following day, the defendant returned to see Miranda, claiming

to have questions about company policy.    Miranda spoke to him

for a couple of minutes.


     1
       The jury also convicted the defendant of intimidating a
witness and seven counts of violating a harassment prevention
order. He does not challenge those convictions on appeal.
     2
       A pseudonym. The defendant was convicted of criminal
harassment with respect to this victim.
                                                                     3


    The defendant returned the next day looking for Miranda,

but she was not working.    The defendant then asked another

employee for Miranda's phone number and schedule.    When the

employee would not give him that information, he requested that

she call Miranda for him, which she declined to do.    Later the

same week, the defendant called Miranda at work and asked to set

up a time to go over the employee manual and company policy.

Although Miranda directed him to speak with the owner instead

and gave him the main office number, he showed up again the next

day looking for her.

    Two days later, Miranda received a letter from the

defendant on her home fax machine, which was connected to her

home phone line.   She thereafter received the same letter by

mail at her home address.    The defendant began the letter by

stating, "It's your CIA boyfriend and hopefully your future

husband."   He then stated, "The most important issue that we

need to clarify is the relationship between you and I.    From the

first meeting on, our attraction to each other was well defined

indeed.   You can't hide something like that and we need to

address it immediately."    The defendant told Miranda that he had

sent her text messages asking her to marry him and that he

needed to see her "to discuss this matter and clearly define

[their] relationship."   He also stated that, because the

company's policy prohibited them from dating, one of them needed
                                                                     4


to be reassigned so that they could "continue with the

relationship."

    Miranda was "terrified" that the defendant knew her home

address and phone number and "was afraid that he[] [was] going

to show up at [her] house."    She applied for and obtained a

harassment prevention order against the defendant, after which

he ceased contact with her.

    Victim 2 -- Caren.3    The summer of the same year, the

defendant began focusing on Caren, who often walked by his house

on her way to visit her grandmother.    Caren was then sixteen

years old, while the defendant was around fifty-three years old.

The defendant would routinely stare at Caren and call out,

"[H]ey baby," "[H]ey beautiful," and "[H]ey sexy" to her.       He

also yelled at her from across the street to come inside his

house for tea.

    One day in August of 2013, an envelope addressed to Caren

arrived in the mail at her grandmother's house.    It contained

the defendant's business card with three questions written on

the back:   "Do you need a ride?   Would you like to go to lunch,

the Big E, the movies?    Would you like me to take you shopping

at Macy's?"   Caren's mother called the defendant, asked him to

leave Caren alone, and hung up the phone.   The defendant called


    3
       A pseudonym. The defendant was convicted of both stalking
and criminal harassment with respect to this victim.
                                                                     5


back and asked for permission to date Caren, to which her mother

replied, "Absolutely not.   She's sixteen years old."   The

defendant responded that he had not done anything illegal, then

paused and stated, "As of yet."   After another pause, he stated,

"I don't plan on it."    Caren's mother "panicked" and applied for

and obtained a harassment prevention order for herself and Caren

against the defendant.

     Thereafter, the defendant began sending letters to Caren.4

In the first letter, the defendant asked for "another chance,"

writing, "I will care for you, suck your toes and everything

else until death do us part.   Your indentured servant's

husband's tongue awaiting your command."    Over the following

weeks, the defendant sent Caren several more letters, in which

he declared his love for her, said that he had granted her

durable power of attorney so that she could be in charge of his

financial affairs, and suggested that they consider moving to

Canada to "start a life together."   In another letter the

defendant shared details about his convictions for attempted

murder and for being a felon in possession of a firearm, spoke

of a "sexually explicit" letter he had sent to a woman whom he

referred to as his "French-American CIA soulmate," and stated

that he once had visions of that woman being "trapped and beaten


     4
       The defendant also called Caren's home eight times between
October 19 and November 5, 2013.
                                                                    6


and stabbed in the vagina."   The defendant explained that he was

sharing this information with Caren because she "need[ed] to

know and be aware of who [she is] sharing a bed with along with

any potential safety risks involved."

    Discussion.   1.   Motion to suppress.   While the defendant

was in pretrial detention at the Hampden County house of

correction (HCHC), the Springfield police department notified

HCHC officials that he was sending letters to Caren in violation

of the harassment prevention order that was then in place.

HCHC's written policies, a copy of which was provided to the

defendant, authorized the inspection of inmates' outgoing

nonprivileged correspondence when "such action is necessary to

maintain security or order in the facility or protect the

physical safety of an individual."   The policies also authorized

disapproval of outgoing correspondence "the contents of which

fall as a whole or in significant part" into certain categories,

including "[c]riminal activity or plans for criminal activity."

Pursuant to these policies, prison officials began inspecting

the defendant's outgoing nonprivileged mail and confiscated any

letters directed to or regarding Caren.

    The defendant moved to suppress evidence of the confiscated

letters, claiming a violation of his First Amendment rights.

The judge denied the motion, concluding that prison officials

properly monitored the defendant's mail based on "specific
                                                                     7


information that the defendant was violating an active

antiharassment order" and to "investigat[e] if the defendant was

engaging in such criminal activity and [to] prevent[] the

defendant from committing such conduct."   On appeal the

defendant challenges the judge's ruling with respect to only one

letter, which he addressed to a flower shop, requesting that

flowers, gifts, and a card be sent to Caren.5    In reviewing this

challenge, "we accept the judge's subsidiary findings of fact

absent clear error but 'conduct an independent review of h[er]

ultimate findings and conclusions of law.'"     Commonwealth v.

Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v.

Jimenez, 438 Mass. 213, 218 (2002).

     Although "prison inmates retain certain constitutional

rights," those rights are necessarily limited by "[t]he fact of

confinement as well as the legitimate goals and policies of the

penal institution."   Cacicio v. Secretary of Pub. Safety, 422

Mass. 764, 770 n.10 (1996), quoting from Bell v. Wolfish, 441

U.S. 520, 545-547 (1979).   Thus, a policy authorizing censorship

of inmate mail does not run afoul of the First Amendment so long

as it is "reasonably related to legitimate penological

interests."   Commonwealth v. Jessup, 471 Mass. 121, 130-131

(2015), quoting from Turner v. Safley, 482 U.S. 78, 89 (1987).


     5
       This letter was the basis of the defendant's conviction
for attempting to commit a crime.
                                                                   8


     Here, the defendant does not argue that the HCHC policies

are unconstitutional on their face.   Instead, he challenges the

policies as applied, claiming that his letter could not be

seized without a warrant because it did not threaten the

security of the facility or the physical safety of any person.

We disagree.   Inspecting the defendant's mail to prevent him

from violating an active harassment prevention order was

reasonably related to the legitimate penological interests of

maintaining order and preventing commission of a crime.    See Van

den Bosch v. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011),

quoting from Turner, 482 U.S. at 89 ("Prison officials may . . .

impose restrictions on prisoner correspondence if those

restrictions are 'reasonably related to legitimate penological

interests,'" including "crime deterrence").    See also O'Keefe v.

Van Boening, 82 F.3d 322, 326 (9th Cir. 1996) ("[T]he prevention

of criminal activity and the maintenance of prison security are

legitimate penological interests which justify the regulation of

both incoming and outgoing prisoner mail").6   See generally

Jessup, 471 Mass. at 131-133.   Moreover, we reject the

defendant's contention that it was arbitrary and capricious for

HCHC officials to open all of his nonprivileged mail, rather

than limiting their inspection to letters addressed to Caren.

     6
       For someone who has been convicted of a crime, "prisoner
rehabilitation" would be another legitimate penological
interest. Van den Bosch, 658 F.3d at 785.
                                                                     9


It was reasonable to presume that the defendant might try to

contact Caren through third parties, especially given that

HCHC's assistant superintendent expressly warned the defendant

to stop communicating with Caren and her mother.    The motion to

suppress the letter to the flower shop was therefore properly

denied.

     2.   Jury instruction.   The crimes of criminal harassment

and stalking both require proof that the defendant engaged in

"malicious" conduct.7    Relying on the model jury instruction, the

trial judge instructed the jury as follows:    "An act is done

maliciously if it's done intentionally and without justification

or mitigation, and any reasonably prudent person would have

foreseen the actual harm that resulted."    See Instructions 6.640

and 6.680 of the Criminal Model Jury Instructions for Use in the

District Court (2011).    The defendant argues that, under

Commonwealth v. McDonald, 462 Mass. 236, 242 (2012), the judge

should have instead instructed that whether an act is malicious

depends on the defendant's subjective state of mind and requires

     7
       Specifically, the criminal harassment statute requires
proof that the defendant "willfully and maliciously engage[d] in
a knowing pattern of conduct or series of acts over a period of
time directed at a specific person, which seriously alarm[ed]
that person and would cause a reasonable person to suffer
substantial emotional distress." G. L. c. 265, § 43A(a), as
amended by St. 2010, c. 92, § 10. The stalking statute requires
substantially the same proof and requires further that the
defendant "ma[de] a threat with the intent to place the person
in imminent fear of death or bodily injury." G. L. c. 265,
§ 43(a), as appearing in St. 2014, c. 284, § 85.
                                                                  10


proof of specific intent to harm the victim.    Because the

defendant preserved this issue for appeal, we review for

prejudicial error.   See Commonwealth v. Allen, 474 Mass. 162,

168 (2016).

     We discern no error in the judge's instruction.    In

Commonwealth v. Paton, 63 Mass. App. Ct. 215, 219 (2005), we

specifically rejected the argument that a defendant must have

"act[ed] out of 'cruelty, hostility, or revenge'" to be guilty

of criminal harassment.   Instead, concluding that "[w]e need not

be confined to only those particular states of mind," we defined

a malicious act to include an "intentional, wrongful act

performed against another without legal justification or

excuse."   Ibid., quoting from Black's Law Dictionary 977 (8th

ed. 2004).

     Likewise, in Commonwealth v. O'Neil, 67 Mass. App. Ct. 284,

293 (2006), we concluded that "the statute's requirement of

malice" is satisfied where the defendant's "conduct was

intentional and without justification or mitigation, and any

reasonably prudent person would have foreseen the actual harm

that resulted."   As in Paton, we rejected an invitation to

define malice to "include the element of hatred, spite, grudge,

or ill will," holding that criminal harassment does not require

proof of specific intent.   Id. at 291-292.    "The malice

required," we reiterated, "is not a feeling of ill-will toward
                                                                     11


the person threatened, but the wilful doing of the act with the

illegal intent."     Id. at 292, quoting from Commonwealth v.

Buckley, 148 Mass. 27, 28 (1888).

    The defendant does not dispute that the judge's instruction

comported with Paton and O'Neil but claims that McDonald changed

existing law.     In support, he relies on the following quotation

from a parenthetical in McDonald:     "malicious acts are 'done

with an evil disposition, a wrong and unlawful motive or

purpose; the wilful doing of an injurious act without lawful

excuse.'"    462 Mass. at 242, quoting from Paton, 63 Mass. App.

Ct. at 219.    But this parenthetical quotation does not have the

import that the defendant gives it.    The defendant disregards

the latter part of the quotation -- defining a malicious act as

"the wilful doing of an injurious act without lawful excuse" --

which, as he acknowledged at oral argument, conveys essentially

the same message as the judge's instruction.    Furthermore,

McDonald takes the quotation from Paton, which, again, rejected

a definition of malice that would require proof of specific

intent.     McDonald also cites O'Neil with approval in the same

paragraph.     See ibid.

    In short, we see nothing in McDonald that overrules or

calls into doubt our decisions in Paton and O'Neil.     As the

judge's instruction was consistent with Paton and O'Neil, there

was no error.
                                                                   12


    3.   Sufficiency of the evidence.    The defendant's

sufficiency challenge is limited to the element of malice.    We

review the evidence in the light most favorable to the

Commonwealth to determine whether "any rational trier of fact

could have found [that] . . . element[] of the crime beyond a

reasonable doubt."    Latimore, 378 Mass. at 677.

    The defendant mainly argues that there was no evidence that

he harbored ill will towards the victims.    As discussed above,

however, ill will is not required to prove stalking or criminal

harassment.    Although the defendant also claims that the

evidence was insufficient to prove malice under the instruction

as given, he provides no reasoning in support, other than

conclusory assertions that his actions were "innocuous" and not

"malicious."

    In any event, we conclude that the evidence was sufficient

for a rational jury to find that the defendant acted

maliciously.    With respect to Miranda, after meeting her once in

a professional setting, the defendant persisted in contacting

her, located her home phone number and address, and then sent

her a letter claiming to be her "CIA boyfriend" and discussing

an imaginary romantic relationship between them.    With respect

to sixteen year old Caren, the defendant committed numerous acts

that the jury could have found to be malicious, including

sending her letters in which he addressed her as his romantic
                                                                      13


and sexual partner, gave details about his criminal history,

suggested leaving the country together, and described violent

fantasies of a woman being beaten and stabbed.      The defendant's

conduct was intentional and without justification or mitigation,

and we are satisfied that a reasonably prudent person would have

foreseen that both victims would have been harmed by his

behavior.   See O'Neil, 67 Mass. App. Ct. at 293.    Thus, viewed

in the light most favorable to the Commonwealth, the evidence

was sufficient to support the defendant's convictions for

stalking and criminal harassment.   See Paton, 63 Mass. App. Ct.

at 220 ("defendant's staring at the victim in the bar without

speaking and then unexpectedly appearing in proximity to her in

other places had an ominous, menacing, even sinister quality"

and "constitute[d] legally malicious conduct"); O'Neil, 67 Mass.

App. Ct. at 291, 293 (defendant acted maliciously by sending

victim numerous letters that presumed a relationship between

them where none existed).

                                    Judgments affirmed.
