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SJC-12043

                COMMONWEALTH   vs.   MICHELLE CARTER.



            Suffolk.    April 7, 2016. - July 1, 2016.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Homicide. Youthful Offender Act. Grand Jury. Evidence, Grand
     jury proceedings. Practice, Criminal, Grand jury
     proceedings.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 22, 2015.

    The case was reported by Botsford, J.


     Dana Alan Curhan (Joseph P. Cataldo with him) for the
defendant.
     Shoshana E. Stern, Assistant District Attorney (Katie Cook
Rayburn, Assistant District Attorney, with her) for the
Commonwealth.
     Eva G. Jellison & David J. Nathanson, for Youth Advocacy
Division of the Committee for Public Counsel Services & another,
amici curiae, submitted a brief.


    CORDY, J.   On February 6, 2015, the defendant, Michelle

Carter, was indicted as a youthful offender under G. L. c. 119,

§ 54, on a charge of involuntary manslaughter after she, at the
                                                                   2


age of seventeen, encouraged Conrad Roy (the victim), then

eighteen years of age, to commit suicide.   To indict a juvenile

as a youthful offender, the grand jury must hear evidence

establishing probable cause that (1) the juvenile is between the

ages of fourteen and eighteen at the time of the underlying

offense; (2) the underlying offense, if committed by an adult,

would be punishable by imprisonment in State prison; and (3) the

underlying offense involves the infliction or threat of serious

bodily harm.   G. L. c. 119, § 54.   The defendant moved in the

Juvenile Court to dismiss the youthful offender indictment,

arguing that the Commonwealth failed to present the grand jury

with sufficient evidence of involuntary manslaughter and that

the defendant's conduct did not involve the infliction or threat

of serious bodily harm.   The motion was denied.

    The principal question we consider in this case is whether

the evidence was sufficient to warrant the return of an

indictment for involuntary manslaughter where the defendant's

conduct did not extend beyond words.   We conclude that, on the

evidence presented to the grand jury, the verbal conduct at

issue was sufficient and, because a conviction of involuntary

manslaughter is punishable by imprisonment in State prison and

inherently involves the infliction of serious bodily harm, the

grand jury properly returned an indictment under the youthful
                                                                    3


offender statute.    Accordingly, we affirm the order of the

Juvenile Court.1

     1.   Background.   The grand jury heard evidence from four

witnesses over the course of three days.    That evidence, viewed

in the light most favorable to the Commonwealth, see

Commonwealth v. Moran, 453 Mass. 880, 885 (2012), included the

following:

     On the afternoon of July 13, 2014, an officer with the

Fairhaven police department located the deceased in his truck,

parked in a store parking lot.    The medical examiner concluded

that the victim had died after inhaling carbon monoxide that was

produced by a gasoline powered water pump located in the truck.

The manner of death was suicide.

     The victim had been receiving treatment for mental health

issues since 2011.   In 2013, the victim attempted to commit

suicide by overdosing on acetaminophen.    A friend saved his life

by contacting emergency services.

     During the course of the investigation into the victim's

suicide, a police review of his recent electronic communications

caused them to further explore his relationship with the

defendant.   The victim and the defendant met in 2011 and had

been dating at various times during that period, including at

     1
       We acknowledge the amicus brief submitted by the Youth
Advocacy Division of the Committee for Public Counsel Services
and the American Civil Liberties Union of Massachusetts.
                                                                    4


the time of the victim's death.    Because they did not live in

the same town, the majority of their contact took place through

the exchange of voluminous text messages and cellular telephone

calls.2    The grand jury heard testimony and were presented with

transcripts concerning the content of those text messages in the

minutes, days, weeks, and months leading up to the defendant's

suicide.    The messages revealed that the defendant was aware of

the victim's history of mental illness, and of his previous

suicide attempt, and that much of the communication between the

defendant and the victim focused on suicide.    Specifically, the

defendant encouraged the victim to kill himself,3 instructed him



     2
       In a written memorandum of decision, the judge stated
that, although the defendant and the victim rarely were in the
same physical location, "[t]he rapidity of the[ir] electronic
exchanges was almost immediate, similar to a conversation."
     3
       On July 8, 2014, between 8:09 P.M. and 8:18 P.M., the
defendant and victim exchanged the following text messages:

     Defendant: "So are you sure you don't wanna [kill
yourself] tonight?"

     Victim:    "what do you mean am I sure?"

     Defendant:    "Like, are you definitely not doing it
tonight?"

     Victim:    "Idk yet I'll let you know"

     Defendant:    "Because I'll stay up with you if you wanna do
it tonight"

     Victim:    "another day wouldn't hurt"
                                                                      5


as to when and how he should kill himself,4 assuaged his concerns

over killing himself,5 and chastised him when he delayed doing



     Defendant:   "You can't keep pushing it off, tho, that's all
you keep doing"
     4
       The defendant helped the victim determine the method he
eventually used to kill himself. On July 7, 2014, between
10:57 P.M. and 11:04 P.M., they exchanged the following text
messages:

     Defendant: "Well there's more ways to make CO.    Google
ways to make it. . . "

     Victim:   "Omg"

     Defendant:   "What"

     Victim:   "portable generator that's it"

     On July 11, 2014, at 5:13 P.M., the defendant sent the
victim the following text message: " . . . Well in my opinion,
I think u should do the generator because I don't know much
about the pump and with a generator u can't fail"

     On July 12, 2014, between 4:25 A.M. and 4:34 A.M., they
exchanged the following text messages:

     Defendant: "So I guess you aren't gonna do it then, all
that for nothing"

     Defendant:   "I'm just confused like you were so ready and
determined"

     Victim:   "I am gonna eventually"

     Victim: "I really don't know what I'm waiting for. .       but
I have everything lined up"

     Defendant: "No, you're not, Conrad. Last night was it.
You keep pushing it off and you say you'll do it but u never do.
Its always gonna be that way if u don't take action"

     Defendant: "You're just making it harder on yourself by
pushing it off, you just have to do it"
                                                                    6




     Defendant:   "Do u wanna do it now?"

     Victim:   "Is it too late?"

     Victim:   "Idkk it's already light outside"

     Victim:   I'm gonna go back to sleep, love you I'll text you
tomorrow"

     Defendant: "No? Its probably the best time now because
everyone's sleeping. Just go somewhere in your truck. And no
one's really out right now because it's an awkward time"

     Defendant:   "If u don't do it now you're never gonna do it"

     Defendant:   "And u can say you'll do it tomorrow but you
probably won't"
     5
       During the evening of July 11, 2014, and morning of July
12, 2014, the victim and the defendant exchanged the following
text messages:

     Victim: "I'm just to sensitive. I want my family to know
there was nothing they could do. I am entrapped in my own
thoughts"

     Victim: "like no I would be happy if they had no guilt
about it. because I have a bad feeling tht this is going to
create a lot of depression between my parents/sisters"

     Victim: "i'm overthinking everything. . fuck.    I gotta
stop and just do it"

     Defendant:   "I think your parents know you're in a really
bad place. Im not saying they want you to do it, but I honestly
feel like they can except it. They know there's nothing they
can do, they've tried helping, everyone's tried. But there's a
point that comes where there isn't anything anyone can do to
save you, not even yourself, and you've hit that point and I
think your parents know you've hit that point. You said you're
mom saw a suicide thing on your computer and she didn't say
anything. I think she knows it's on your mind and she's
prepared for it"
                                                                  7



     Defendant: Everyone will be sad for a while, but they will
get over it and move on. They won't be in depression I won't
let that happen. They know how sad you are and they know that
you're doing this to be happy, and I think they will understand
and accept it. They'll always carry u in their hearts"

. . .

    Victim:   "i don't want anyone hurt in the process though"

     Victim: "I meant when they open the door, all the carbon
monoxide is gonna come out they can't see it or smell it.
whoever opens the door"

     Defendant: "They will see the generator and know that you
died of CO. . . ."

. . .

    Victim:   "hey can you do me a favor"

    Defendant:   "Yes of course"

    Victim:   "just be there for my family :)"

     Defendant: "Conrad, of course I will be there for your
family. I will help them as much as I can to get thru this, ill
tell them about how amazing their son/brother truly was"

. . .

    Victim:   "Idk I'm freaking out again"

    Victim:   I'm overthinking"

     Defendant: "I thought you wanted to do this. The time is
right and you're ready, you just need to do it! You can't keep
living this way. You just need to do it like you did last time
and not think about it and just do it babe. You can't keep
doing this every day"

     Victim: "I do want to. but like I'm freaking for my
family. I guess"

    Victim:   "idkkk"
                                                                      8


so.6    The theme of those text messages can be summed up in the

phrase used by the defendant four times between July 11 and July



     Defendant: "Conrad. I told you I'll take care of them.
Everyone will take care of them to make sure they won't be alone
and people will help them get thru it. We talked about this,
they will be okay and accept it. People who commit suicide
don't think this much and they just do it"
       6
       At various times between July 4, 2014, and July 12, 2014,
the defendant and the victim exchanged several text messages:

     Defendant: "You're gonna have to prove me wrong because I
just don't think you really want this. You just keeps pushing
it off to another night and say you'll do it but you never do"

. . .

     Defendant: "SEE THAT’S WHAT I MEAN. YOU KEEP PUSHING IT
OFF! You just said you were gonna do it tonight and now you're
saying eventually. . . ."

. . .

     Defendant: "But I bet you're gonna be like 'oh, it didn't
work because I didn't tape the tube right or something like
that' . . . I bet you're gonna say an excuse like that"

. . .

       Defendant:   "Do you have the generator?"

       Victim:   "not yet lol"

       Defendant:   "WELL WHEN ARE YOU GETTING IT"

. . .

     Defendant: "You better not be bull shiting me and saying
you're gonna do this and then purposely get caught"

. . .

     Defendant:     "You just need to do it Conrad or I'm gonna get
you help"
                                                                   9


12, 2014 (the day on which the victim committed suicide):   "You

just [have] to do it."

     Cellular telephone records that were presented to the grand

jury revealed that the victim and defendant also had two

cellular telephone conversations at the time during which police

believe that the victim was in his truck committing suicide.7

The content of those cellular telephone conversations is only

available as reported by the defendant to her friend, Samantha

Boardman.   After the victim's death, the defendant sent a text

message to Boardman explaining that, at one point during the




     Defendant:   "You can't keep doing this everyday"

     Victim:   "Okay I'm gonna do it today"

     Defendant:   "Do you promise"

     Victim:   "I promise babe"

     Victim:   "I have to now"

     Defendant:   "Like right now?"

     Victim:   "where do I go?    :("

     Defendant: "And u can't break a promise. And just go in a
quiet parking lot or something" (emphasis added).
     7
       One call, at 6:28 P.M. on July 12, came from the victim's
cellular telephone and the other, at 7:12 P.M., came from the
defendant's cellular telephone. Each call lasted over forty
minutes.
                                                                   10


suicide, the victim got out of his truck because he was

"scared," and the defendant commanded him to get back in.8

     It was apparent that the defendant understood the

repercussions of her role in the victim's death.   Prior to his

suicide, the defendant sought (apparently unsuccessfully) to

have the victim delete the text messages between the two, and

after learning that the police were looking through the victim's

cellular telephone, the defendant sent the following text

message to Boardman:   "Sam, [the police] read my messages with

him I'm done.   His family will hate me and I can go to jail."

During the investigation, and after cross-referencing the text

messages in the defendant's cellular telephone and those in the

victim's cellular telephone, the police discovered that the

defendant had erased certain text messages between her and the

victim.   The defendant also lied to police about the content of

her conversations with the victim.   Finally, the defendant

acknowledged in a text message to Boardman that she could have

stopped the victim from committing suicide:   "I helped ease him

into it and told him it was okay, I was talking to him on the



     8
       The text message to Samantha Boardman, in relevant part,
stated: "Sam, [the victim's] death is my fault like honestly I
could have stopped him I was on the phone with him and he got
out of the [truck] because it was working and he got scared and
I fucking told him to get back in Sam because I knew he would do
it all over again the next day and I couldnt have him live the
way he was living anymore I couldnt do it I wouldnt let him."
                                                                   11


phone when he did it I coud have easily stopped him or called

the police but I didn't."

    Based on the foregoing evidence, the Commonwealth

successfully sought to indict the defendant for involuntary

manslaughter, as a youthful offender, asserting that the

defendant's wanton or reckless conduct was the cause of the

victim's death.   After a judge of the Juvenile Court denied the

defendant's motion to dismiss, the defendant filed a petition

for relief under G. L. c. 211, § 3.    On February 1, 2016, a

single justice of this court reserved and reported the case to

the full court.

    2.   Discussion.   "Ordinarily, a 'court will not inquire

into the competency or sufficiency of the evidence before the

grand jury.'"   Commonwealth v. Rex, 469 Mass. 36, 39 (2014),

quoting Commonwealth v. Robinson, 373 Mass. 591, 592 (1977).

However, in Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982),

we recognized a limited exception for when the grand jury

"fail[] to hear any evidence of criminal activity by the

defendant."   "At the very least, the grand jury must hear enough

evidence to establish the identity of the accused and to support

a finding of probable cause to arrest the accused for the

offense charged" (footnote omitted).    Rex, supra at 40.

"Probable cause requires sufficient facts to warrant a person of

reasonable caution in believing that an offense has been
                                                                    12


committed . . . ; this standard requires considerably less than

that which is required to warrant a finding of guilt" (citations

omitted).   Commonwealth v. Levesque, 436 Mass. 443, 447 (2002).

     a.   Involuntary manslaughter.9   Involuntary manslaughter can

be proved under two theories, either (1) wanton or reckless

conduct or (2) wanton or reckless failure to act.    Commonwealth

v.   Life Care Ctrs. of Am., Inc., 456 Mass. 826, 832 (2010).


     9
       The Model Jury Instructions on Homicide 73 (2013) define
"[i]nvoluntary manslaughter" as "an unlawful killing
unintentionally caused by wanton and reckless conduct." Wanton
or reckless conduct

     "is conduct that creates a high degree of likelihood
     that substantial harm will result to another. It is
     conduct involving a grave risk of harm to another that
     a person undertakes with indifference to or disregard
     of the consequences of such conduct. Whether conduct
     is wanton and reckless depends either on what the
     defendant knew or how a reasonable person would have
     acted knowing what the defendant knew. If the
     defendant realized the grave risk created by his
     conduct, his subsequent act amounts to wanton and
     reckless conduct whether or not a reasonable person
     would have realized the risk of grave danger. Even if
     the defendant himself did not realize the grave risk
     of harm to another, the act would constitute wanton
     and reckless conduct if a reasonable person, knowing
     what the defendant knew, would have realized the act
     posed a risk of grave danger to another. It is not
     enough for the Commonwealth to prove the defendant
     acted negligently, that is, in a manner that a
     reasonably careful person would not have acted. The
     Commonwealth must prove that the defendant's actions
     went beyond negligence and amounted to wanton and
     reckless conduct as . . . defined . . . ."

Id. at 76-79. The 2016 proposed model jury instructions are
substantially similar in content to the 2013 model jury
instructions.
                                                                  13


The indictment was returned on the basis of the defendant's

wanton or reckless conduct.10

     Wanton or reckless conduct is "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. Welansky, 316 Mass. 383, 399

(1944).   Whether conduct is wanton or reckless is

     "determined based either on the defendant's specific
     knowledge or on what a reasonable person should have
     known in the circumstances. . . . If based on the
     objective measure of recklessness, the defendant's
     actions constitute wanton or reckless conduct . . . if
     an ordinary normal [person] under the same
     circumstances would have realized the gravity of the
     danger. . . . If based on the subjective measure,
     i.e., the defendant's own knowledge, grave danger to
     others must have been apparent and the defendant must
     have chosen to run the risk rather than alter [his or
     her] conduct so as to avoid the act or omission which
     caused the harm" (quotations and citations omitted).

Pugh, supra at 496-497.

     b.   Sufficiency of the evidence presented to the grand

jury.11   The Commonwealth bore the burden of presenting the grand


     10
       Our case law uses the phrases "wanton and reckless
conduct" and "wanton or reckless conduct" interchangeably.     See,
e.g., Commonwealth v. Pugh, 462 Mass. 482, 496-497 (2012).
     11
       Before we consider whether the grand jury heard testimony
sufficient to warrant an indictment against the defendant for
involuntary manslaughter, we address her argument that G. L.
c. 265, § 13 (punishing involuntary manslaughter), is
unconstitutionally vague as applied to her. Specifically, the
defendant argues that no one of ordinary intelligence -- never
mind a juvenile -- would understand that encouraging suicide is
prosecutable under existing law.
                                                               14




     A criminal statute must be "sufficiently explicit to give
clear warning as to proscribed activities." Commonwealth v.
Orlando, 371 Mass. 732, 734 (1977). "A statute is
unconstitutionally vague if men of common intelligence must
necessarily guess at its meaning. . . . If a statute has been
clarified by judicial explanation, however, it will withstand a
challenge on grounds of unconstitutional vagueness" (quotation
and citation omitted). Commonwealth v. Crawford, 430 Mass. 683,
689 (2000). "Where a statute's literal scope . . . is capable
of reaching expression sheltered by the First Amendment [to the
United States Constitution], the [vagueness] doctrine demands a
greater degree of specificity than in other contexts" (citation
omitted). Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 581
(2006).

     The crime the defendant is charged with is neither
objectively nor subjectively vague as applied to the defendant.
"Manslaughter is a common-law crime that has not been codified
by statute in Massachusetts" (citation omitted). Commonwealth
v. Rodriquez, 461 Mass. 100, 106 (2011). General Laws c. 265,
§ 13, does not describe the crime; instead, it sets out only the
punishment, while the elements of the crime are created as part
of the common law. Under common law, conduct similar to that of
the defendant has been deemed unlawful, see Persampieri v.
Commonwealth, 343 Mass. 19, 22-23 (1961) (jury warranted in
convicting defendant of involuntary manslaughter where he
provided wife with gun, taunted her, and encouraged her to
commit suicide, resulting in her killing herself), and it is
therefore not objectively vague.

     On a subjective basis, the evidence presented by the
Commonwealth showed that the defendant was personally aware that
her conduct was both reprehensible and punishable: the
defendant asked the victim to delete the text messages between
the two of them, deleted several of those messages from her own
cellular telephone, and, after police began investigating the
victim's cellular telephone, lied about her involvement and told
her friend that, if the police uncovered the text messages
between her and the victim, she could go to jail. The charge of
involuntary manslaughter is not vague as applied to the
defendant.
                                                                  15


jury with sufficient evidence to support a finding of probable

cause that the defendant's conduct (1) was intentional;12 (2) was

wanton or reckless; and (3) caused the victim's death.     Life

Care Ctrs. of Am., Inc., 456 Mass. at 832.

     The defendant argues that, because she neither was

physically present when the victim killed himself nor provided

the victim with the instrument with which he killed himself, she

did not cause his death by wanton or reckless conduct.13    She

maintains that verbally encouraging someone to commit suicide,

no matter how forcefully, cannot constitute wanton or reckless

conduct.   Effectively, the argument is that verbal conduct can

never overcome a person's willpower to live, and therefore

cannot be the cause of a suicide.     We disagree.

     We have never required in the return of an indictment for

involuntary manslaughter that a defendant commit a physical act

in perpetrating a victim's death.14    We also never have had


     12
       Viewed in the light most favorable to the Commonwealth,
there was evidence that the defendant intended to pressure the
victim into killing himself. The defendant told her friend,
Samantha Boardman, that she "couldn't have [the victim] live the
way he was living anymore. [She] couldn't do it. [She]
wouldn't let him."
     13
       Although not physically present when the victim committed
suicide, the constant communication with him by text message and
by telephone leading up to and during the suicide made the
defendant's presence at least virtual.
     14
       Physical acts are certainly one means by which the
Commonwealth can show the commission prong of involuntary
                                                                      16


occasion to consider such an indictment against a defendant on

the basis of words alone.      This is not, however, the first time

that we have contemplated the charge of involuntary manslaughter

against a defendant where the death of the victim is self-

inflicted.    See, e.g., Commonwealth v. Atencio, 345 Mass. 627

(1963); Persampieri v. Commonwealth, 343 Mass. 19 (1961).

      At issue in Atencio was a "game" of "Russian roulette"

played by the two defendants, Atencio and Marshall, and the

deceased.    Atencio, supra at 628.    Marshall took the gun first,

pointed it at his own head, and pulled the trigger; nothing

happened.    Id. at 628-629.    He passed the gun to Atencio, who

also pointed the gun at his own head and pulled the trigger,

again with no result.    Id. at 629.    Atencio then passed the gun

to the deceased; when he pointed it at his own head and pulled

the trigger, "[t]he cartridge exploded, and he fell over dead."

Id.

      In affirming the involuntary manslaughter convictions

against both defendants, we reasoned that "the Commonwealth had

an interest that the deceased should not be killed by the wanton

or reckless conduct of himself and others" (emphasis added).

Id.   "Such conduct could be found in the concerted action and



manslaughter. See Pugh, 462 Mass. at 497. However, the
defendant does not point to -- and our research has not
uncovered -- any case in which physical acts have been made a
prerequisite of involuntary manslaughter.
                                                                           17


cooperation of the defendants in helping to bring about the

deceased's foolish act," id., as "[i]t would not be necessary

that the defendants force the deceased to play or suggest that

he play."   Id. at 630.        We concluded that it did not matter that

Atencio was the one who handed the gun to the deceased, as

opposed to Marshall, affirming both defendants' convictions.

Id. at 630.       Indeed, had the deceased been the first to

participate in the "game," and killed himself before either

Atencio or Marshall touched the gun, his acts would still have

been imputable to the defendants.         Id.    It was, instead, the

atmosphere created in the decision to play the "game" that

caused the deceased to shoot himself, as there was "mutual

encouragement" to participate.         Id.

    In Persampieri, 343 Mass. at 22, the defendant told his

wife that he intended to divorce her.           She threatened to commit

suicide.    Id.    The defendant, knowing that the victim had

already attempted suicide twice, said she was "chicken -- and

wouldn't do it."       Id.    When she retrieved a .22 caliber rifle,

he helped her to load it and handed it to her, noting that the

safety was off.      Id.     With the gun barrel on the floor, the

victim struggled to pull the trigger.           Id. at 23.   The defendant

told her that if she took off her shoe she could reach the

trigger, at which point she successfully shot and killed

herself.    Id.    We concluded that the jury were warranted in
                                                                   18


returning a verdict of involuntary manslaughter based on the

theory of wanton or reckless conduct, id., noting that the

defendant, "instead of trying to bring [the victim] to her

senses, taunted her, told her where the gun was, loaded it for

her, saw that the safety was off, and told her the means by

which she could pull the trigger.   He thus showed a reckless

disregard of his wife's safety and the possible consequences of

his conduct."   Id.

    These cases elucidate that, because wanton or reckless

conduct requires a consideration of the likelihood of a result

occurring, the inquiry is by its nature entirely fact-specific.

The circumstances of the situation dictate whether the conduct

is or is not wanton or reckless.    We need not -- and indeed

cannot -- define where on the spectrum between speech and

physical acts involuntary manslaughter must fall.   Instead, the

inquiry must be made on a case-by-case basis.

    Here, the particular circumstances of the defendant's

relationship with the victim may have caused her verbal

communications with him in the last minutes of his life on July

12, 2014, to carry more weight than mere words, overcoming any

independent will to live he might have had.   It is in those

final moments, when the victim had gotten out of his truck,

expressing doubts about killing himself, on which a verdict in

this case may ultimately turn.   In that moment of equivocation,
                                                                   19


the victim could have continued to delay his death, perhaps

attempting suicide again at a later date, or perhaps seeking

treatment; or he could have gotten back into the truck and

followed through on his suicide.   The grand jury heard that the

victim, after the defendant commanded him to "get back in,"

obeyed, returning to the truck, closing the door, and succumbing

to the carbon monoxide.

     In our view, the coercive quality of that final directive

was sufficient in the specific circumstances of this case to

support a finding of probable cause.   Those circumstances

included the defendant's virtual presence at the time of the

suicide, the previous constant pressure the defendant had put on

the victim, and his already delicate mental state.15   In sum,

there was ample evidence to establish probable cause that the

defendant's conduct was wanton or reckless, under either a

subjective or an objective standard.   The grand jury could have

found that an ordinary person under the circumstances would have

realized the gravity of the danger posed by telling the victim,

who was mentally fragile, predisposed to suicidal inclinations,

     15
       As in the case against the husband in Persampieri, the
Commonwealth's evidence here shows that the defendant fully
understood and took advantage of the victim's fragility. Prior
to July 12, 2014, the defendant had helped to plan the victim's
suicide, assuaged the victim's guilt about leaving his family,
expressed her frustration that the victim had, at various times,
delayed killing himself, and threatened to seek mental health
treatment for the victim (despite his protestations) if he did
not kill himself.
                                                                    20


and in the process of killing himself, to get back in a truck

filling with carbon monoxide and "just do it."   See Levesque,

436 Mass. at 452.   And significantly, the grand jury also could

have found that the defendant -- the victim's girl friend, with

whom he was in constant and perpetual contact -- on a subjective

basis knew that she had some control over his actions.16

     The defendant argues that, even if she was wanton or

reckless, her words (spoken when she was miles away from the

victim) could not be the cause of the victim's death.   Instead,

it was his decision to get back in the truck that resulted in

his suicide.   We are not convinced.   Because there was evidence

that the defendant's actions overbore the victim's willpower,

there was probable cause to believe that the victim's return to

the truck after the defendant told him to do so was not "an

independent or intervening act" that, as a matter of law, would

preclude his action from being imputable to her.   See Atencio,

345 Mass. at 629-630.   The text messages suggest that the victim

had been delaying suicide for weeks; to ignore the influence the

defendant had over the victim would be to oversimplify the

circumstances surrounding his death.   His delay of that suicide

and subsequent excuses for such delays were followed by his girl


     16
       The defendant admitted to Boardman: "I helped ease him
into it and told him it was okay, I was talking to him on the
phone when he did it I coud have easily stopped him or called
the police but I didn't."
                                                                  21


friend's disappointment, frustration, and threats to seek

unwanted treatment on his behalf.   In sum, we conclude that

there was probable cause to show that the coercive quality of

the defendant's verbal conduct overwhelmed whatever willpower

the eighteen year old victim had to cope with his depression,

and that but for the defendant's admonishments, pressure, and

instructions, the victim would not have gotten back into the

truck and poisoned himself to death.   Consequently, the evidence

before the grand jury was sufficient for a finding of probable

cause that the defendant, by wanton or reckless conduct, caused

the victim's death.17

     It is important to articulate what this case is not about.

It is not about a person seeking to ameliorate the anguish of

someone coping with a terminal illness and questioning the value


     17
       The speech at issue in this case is not protected under
the First Amendment to the United States Constitution or art. 16
of the Massachusetts Declaration of Rights because the
Commonwealth has a compelling interest in deterring speech that
has a direct, causal link to a specific victim's suicide. See
Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 197 n.12
(2005) (content-based restrictions on expressive conduct must
satisfy "strict scrutiny" standard, meaning government must
"demonstrate that the restriction is necessary to serve a
compelling state interest and that it is narrowly drawn to
achieve that end" [citation omitted]); Brown v. Entertainment
Merchants Ass'n, 564 U.S. 786, 799 (2011); Washington v.
Glucksberg, 521 U.S. 702, 728 (1997) (State "has an unqualified
interest in the preservation of human life" [citation omitted]).
See also State v. Melchert-Dinkel, 844 N.W.2d 13, 23 (Minn.
2014) (affirming in part constitutionality of statute
prohibiting "assist[ing]" suicide as against First Amendment
challenge).
                                                                  22


of life.    Nor is it about a person offering support, comfort,

and even assistance to a mature adult who, confronted with such

circumstances, has decided to end his or her life.     These

situations are easily distinguishable from the present case, in

which the grand jury heard evidence suggesting a systematic

campaign of coercion on which the virtually present defendant

embarked -- captured and preserved through her text messages --

that targeted the equivocating young victim's insecurities and

acted to subvert his willpower in favor of her own.     On the

specific facts of this case, there was sufficient evidence to

support a probable cause finding that the defendant's command to

the victim in the final moments of his life to follow through on

his suicide attempt was a direct, causal link to his death.

    3.     Conclusion.18   The grand jury were justified in

returning an indictment of involuntary manslaughter against the



    18
       The defendant argues that the indictment is flawed where
the grand jurors did not consider the charges from the
perspective of a "reasonable juvenile of the same age" standard.
Massachusetts currently does not require that a grand jury
consider charges based on such a standard. This issue was not
raised below. See G. L. c. 277, § 47A ("In a criminal case, any
defense or objection based upon defects in the institution of
the prosecution or in the complaint or indictment, other than a
failure to show jurisdiction in the court or to charge an
offense, shall only be raised . . . by a motion in conformity
with the requirements of the Massachusetts Rules of Criminal
Procedure"). There was not an evidentiary hearing on the issue,
the judge did not offer any opinion as to the argument's merits,
and the arguments presented by the defendant and amici at this
stage regarding the impact of juvenile indictments are being
                                                                  23


defendant.   Because involuntary manslaughter carries a potential

punishment of incarceration in State prison and is inherently a

crime that involves the infliction of serious bodily harm,19 and

because the defendant was seventeen years of age at the time of

the offense, her indictment as a youthful offender on the

underlying involuntary manslaughter charge was also supported by

the evidence.   The motion judge's denial of the defendant's

motion to dismiss is affirmed.

                                    So ordered.




raised for the first time on appeal.   The argument was therefore
waived.
     19
       The defendant argues that her conduct cannot constitute
the infliction or threat of serious bodily harm, as is required
for an indictment under the youthful offender statute, G. L.
c. 119, § 54. Having concluded that the grand jury were
justified in returning an indictment for involuntary
manslaughter, we are convinced that they were also justified in
returning such indictment under the youthful offender statute,
given that involuntary manslaughter under these circumstances
inherently involves the infliction of serious bodily harm.
