Commonwealth v. Gregory Ostiguy.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-277

COMMONWEALTH

vs.

GREGORY OSTIGUY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2018, the defendant was indicted on two counts of

threatening to commit a crime, G. L. c. 275, § 2, and two counts

of intimidation of a witness, G. L. c. 268, § 13B. All four

indictments stemmed from statements the defendant made in

voicemail messages to the two victims, each of whom was or had

previously been the defendant's supervising probation officer.

The defendant was convicted of all four offenses after a jury

trial in the Superior Court, and he filed a timely notice of

appeal from those convictions. Because, as to the indictments

for threatening to commit a crime, the jury were not given the

guidance required under Counterman v. Colorado, 600 U.S. 66, 79

(2023), we vacate the judgments on the defendant's threats
convictions and set aside the jury's verdicts on those

indictments; otherwise, we affirm.

Background. The defendant's appeal includes a challenge to

the sufficiency of the evidence supporting his convictions.

Thus, we briefly summarize the facts in the light most favorable

to the Commonwealth, see Commonwealth v. Latimore, 378 Mass.

671, 677 (1979), reserving certain details for later discussion.

In July 2018, the defendant was subject to supervised

pretrial conditions of release in the District Court, which

included restrictions on his ability to have contact with his

pet dog. He was supervised by a probation officer who knew him

and with whom he had previously had a good working relationship.

On July 30, 2018, the probation officer was unexpectedly

called into the courtroom to attend a hearing on the defendant's

efforts to regain possession of his dog. The hearing did not go

as the defendant hoped, and he became frustrated. The defendant

described himself as "pissed off," made statements in open court

about his ability to carry out "biological warfare" and use

"explosives," and then abruptly left the building.

Later that day, the defendant left voicemail messages for

his probation officer and the assistant chief probation officer

in the same court. The message to the probation officer was,

"You're very good. So you're hoping you have a place to
come to work to. Ha. And you know I can take care of it.

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And just like jail, you want to try to do a song. As big
as you are, I'm not worried. But I do respect
unemployment. It's a decent gesture, I can grant you, for
stealing my dog. Thank you. Thank you very much."

In his message to the assistant chief, the defendant said,

"I'm giving you a head's up, Dave,[1] about biological
warfare. Not everything has to be flash and bang, or
armor-piercing, or shot through a bow. Or chemically
induced. [You] people do not understand the field you are
shitting on, and I'm going to tell you. You've been
warned. Biological warfare is nothing. It is easy, in my
book. . . . My life is counterterrorism training."

Both the probation officer and the assistant chief viewed

the defendant's messages as threats and were fearful as a

result. They reported the defendant's messages to the police

and the court, and the defendant was ultimately arrested,

indicted, and convicted, as we have noted.

Discussion. 1. Counterman issues. a. Clairvoyance

exception. In Counterman, 600 U.S. at 72-73, -- a case decided

while the defendant's appeal was pending -- the United States

Supreme Court held that where an individual is criminally

charged for making "true threats," the prosecution must prove

that the defendant acted with at least reckless disregard for

the threatening nature of the speech to avoid impermissibly

chilling the speaker's First Amendment rights. Although here,

1 The assistant chief had previously supervised the
defendant as a probation officer, and his family and the
defendant's family knew each other personally.

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the defendant did not raise a First Amendment objection to the

jury instructions given at his trial, we agree with the

defendant that the theory "was not sufficiently developed at the

time of trial . . . to afford [him] a genuine opportunity to

raise his claim," Commonwealth v. Guardado, 491 Mass. 666, 686,

S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024),

quoting Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984),

and that the "clairvoyance exception" to our usual rule on

waived claims therefore applies. Commonwealth v. Bookman, 492

Mass. 396, 401 (2023). Thus, to the extent that we discern

error in the jury instructions as they relate to the defendant's

subjective understanding of the threatening nature of his

speech, we will vacate the convictions under G. L. c. 275, § 2,

unless the error was harmless beyond a reasonable doubt. See

Commonwealth v. Souza, 492 Mass. 615, 638-639 (2023).

b. Threats. At trial, the judge instructed the jury that,

as to each indictment for threatening to commit a crime, the

Commonwealth bore the burden of proving the following four

elements beyond a reasonable doubt: (1) that the defendant

expressed an intent to injure a person or property of another;

(2) that the defendant intended his threat to be conveyed to a

particular person; (3) that the threatened injury, if carried

out, would constitute a crime; and (4) that the defendant made

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the threat under circumstances that could reasonably cause the

person to whom it was conveyed to fear that the defendant had

both the intention and the ability to carry it out. Although

the instructions correctly stated the law as it stood at the

time of trial, see, e.g., Commonwealth v. Sholley, 432 Mass.

721, 724-725 (2000), cert. denied, 532 U.S. 980 (2001), they did

not require the jury to consider the defendant's subjective

understanding of the threatening quality of his voicemail

messages to the victims, and so they did not conform with the

holding in Counterman, 600 U.S. at 79. See Commonwealth v.

Cruz, 495 Mass. 110, 114 (2024).

Moreover, we are not confident that the absence of an

instruction on the defendant's subjective understanding was

harmless beyond a reasonable doubt. The defendant's mental

state was a live issue at trial, and the jury may have reached a

different conclusion if instructed as now required.2 We are not

persuaded by the Commonwealth's contention, based on the judge's

criminal responsibility instructions, that, by rejecting that

defense, the jury necessarily found that the defendant knew and

2 The defendant also argues in his brief that Counterman
entitled him to an instruction "addressing his diminished
capacity" and ability to understand the threatening character of
his messages. The judge's final charge did include such an
instruction, however.

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understood that his conduct was wrong. For example, the jury

may well have found that the Commonwealth proved the defendant

was not suffering from a mental disease or defect, in which case

they would not have gone on to consider whether he appreciated

the wrongfulness of his conduct. Thus, because the defendant's

convictions under G. L. c. 275, § 2, violated the First

Amendment, and that violation was not harmless beyond a

reasonable doubt, we vacate those convictions and set aside the

verdicts on the corresponding indictments.3 See Cruz, 495 Mass.

at 114, citing Counterman, 600 U.S. at 69.

c. Witness intimidation. The indictments against the

defendant for intimidation under G. L. c. 268, § 13B, stemmed

from the same conduct as that on which the indictments for

threatening to commit a crime were based, and the holding of

Counterman applies equally to them. On this record, however, we

are not persuaded that Counterman requires that the intimidation

convictions be vacated.

The judge in this case instructed the jury, inter alia,

that to convict the defendant of intimidation, the Commonwealth

was required to prove beyond a reasonable doubt that the

3 As to these convictions (and in contrast to his appeal
from the convictions of intimidation), the defendant does not
challenge the sufficiency of the Commonwealth's evidence.

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defendant "willfully . . . threatened" a probation officer "with

the specific intent . . . to punish . . . such [p]robation

[o]fficer for participating in a criminal proceeding of any

type." On special verdict slips, the jury documented their

determinations that the Commonwealth had proven intimidation on

that theory as to both indictments under G. L. c. 268, § 13B.

The jury were not otherwise instructed on the Commonwealth's

obligation to prove the defendant's mens rea at the time he made

the threats.

To the extent the judge erred in failing to instruct the

jury more specifically in accordance with Counterman, we are

persuaded that the error in this instance was harmless beyond a

reasonable doubt. This is because, at least as to the theory of

the crimes on which the jury convicted the defendant, the

judge's instructions were adequate to protect the defendant's

First Amendment rights. Given the ordinary meaning of the words

"to punish,"4 the effect of the judge's instructions was to

require the Commonwealth to prove the defendant's subjective

awareness of the threatening nature of his words. See

Counterman, 600 U.S. at 79; Cruz, 495 Mass. at 114. The

4 The Merriam-Webster Online dictionary defines "punish" as
"to inflict injury on" or "to hurt." Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/punish.

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defendant could hardly have intended to punish the recipients of

his voicemail messages if he were not at least aware "that

others could regard [the] statements [in those messages] as

threatening" when he made them (quotation and citation omitted).

Counterman, supra. See Cruz, supra. We are therefore satisfied

that, in this circumstance, the judge's instructions provided

the First Amendment protections required under Counterman, and

any error in the instructions was harmless beyond a reasonable

doubt.5 Cf. Commonwealth v. Harris, 101 Mass. App. Ct. 308, 308-

309 (2022) (constitutional error in jury instructions "was not

. . . corrected by other language in the instructions," and thus

was not harmless beyond reasonable doubt).

2. Sufficiency of the evidence. The defendant next

contends that the evidence presented by the Commonwealth was

insufficient to support his conviction of intimidation of the

assistant chief probation officer, because it did not establish

that the assistant chief had any role in the hearing that was

the catalyst for the defendant's voicemail messages. Drawing

all reasonable inferences in the Commonwealth's favor to

determine whether any rational trier of fact could have found

5 We express no opinion about the adequacy of the
instructions on any other theory on which the defendant might
have been convicted.

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this element of the crime beyond a reasonable doubt, see

Latimore, 378 Mass. at 677, we are not persuaded.

While there was no evidence to show that the assistant

chief actually "participat[ed] in" the July 2018 hearing that

preceded and precipitated the defendant's threatening

voicemails, G. L. c. 268, § 13B (b), there was evidence from

which the jury could have inferred that the defendant believed,

albeit incorrectly, that he had done so.6 Cf. Commonwealth v.

Wheeler, 102 Mass. App. Ct. 411, 415 (2023) (reversing

defendant's convictions of intimidation of case specialist where

Commonwealth presented "no evidence that the case specialist

knew any information about [the defendant's court proceeding] at

all"). Where the evidence was sufficient to establish that the

defendant acted with the intent to punish the assistant chief

for the part he reasonably believed the assistant chief played

6 For example, based on the substance and timing of the
defendant's messages for the probation officer and the assistant
chief probation officer, the jury could have inferred the
defendant knew that the assistant chief was the probation
officer's supervisor. Commonwealth v. Roy, 464 Mass. 818, 824
(2013) (permissible inference need only be reasonable and
possible, it need not be necessary or inescapable); Commonwealth
v. Ross, 92 Mass. App. Ct. 377, 378 (2017) (same). On that
basis, the jury could have likewise inferred that the defendant
thought the assistant chief had a role in the July 2018
proceedings. See Roy, supra; Ross, supra.

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in his hearing, we conclude that it was also sufficient to

support the defendant's conviction under G. L. c. 268, § 13B.

3. Other evidentiary challenges. We review the

defendant's remaining challenges, which are to the judge's

admission of certain evidence, for an abuse of discretion. See

Commonwealth v. Ng, 491 Mass. 247, 257 (2023). If there was an

abuse of discretion, we review any preserved challenge under a

prejudicial error standard, see Commonwealth v. Niemic, 483

Mass. 571, 598 (2019); if the defendant did not preserve an

objection, we review for a substantial risk of a miscarriage of

justice. See Commonwealth v. McCoy, 456 Mass. 838, 845-846

(2010).

Assuming in this case that (1) the probation officer and

the assistant chief probation officer should not have been

permitted to testify to their opinions that the defendant's

voicemail messages amounted to "threats," see Commonwealth v.

Hamilton, 459 Mass. 422, 439 (2011), and (2) the defendant's

objections to these opinions were preserved, we discern no

prejudice to the defendant from the admission of those

statements. Here, as in Hamilton, it would have been apparent

to the jury from the victims' responses to the messages that

they considered the messages to be threats. See id.

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Although the evidence the defendant characterizes as

"vouching" was also generally admissible to show that the

voicemail messages caused their recipients apprehension, and to

show that the recipients' responses were reasonable, see

Hamilton, 459 Mass. at 426-427, the repetition of this kind of

evidence comes close to impermissible "piling on." Even

assuming that the defendant's objections on this basis were

preserved, however, we again discern no prejudice from the

repetition where the jury heard the transcripts of the messages

verbatim, and so could make their own first-hand assessment of

the seriousness of any threats contained in them, and the

reasonableness of the victims' responses.

Finally, because we discern little purpose for the evidence

elicited by the Commonwealth regarding the police and judicial

response to the victims' reports of the threatening messages,

other than to repeat those accusations and corroborate them, we

agree with the defendant that this evidence should not have come

in. See Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008)

(testimony regarding "[t]he description of the investigative

process" and "[t]he fact that the Commonwealth brought its

resources to bear on this incident" is "unnecessary and

irrelevant to the issue of the defendant's guilt, and is

extremely prejudicial"). Like the trial judge, who sua sponte

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intervened to limit this testimony, we see little relevance to

this aspect of the Commonwealth's evidence.7 We are not,

however, persuaded that a new trial is required where the

responses the witnesses described were implicit in the fact that

the defendant was charged and brought to trial. See

Commonwealth v. West, 487 Mass. 794, 807 (2021).

Conclusion. The judgments of conviction for threatening to

commit a crime are vacated, and the verdicts on those

indictments are set aside. The judgments of conviction for

intimidation of a witness are affirmed.

So ordered.

By the Court (Massing, Hand &
Smyth, JJ.8),

Clerk

Entered: February 28, 2025.

7 Moreover, even if the evidence was relevant to the
defendant's criminal responsibility because it showed that the
defendant was calm and appropriate at the time of his arrest,
the repetition of the evidence increased its potential for
unfair prejudice beyond its probative value. See Mass. G. Evid.
§ 403 (2024).

8 The panelists are listed in order of seniority.

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