D. Warren Justice.
up on its order of July 19, 2019, the court held a further
hearing on July 23, 2019 to consider the motion by defendant
Dajuan Williams to dismiss the complaint on the ground that
the alleged conduct on which the charges are based
constituted constitutionally protected freedom of expression.
hearing the State made a proffer on the record of the
evidence by which it would seek to prove its charges and
withdrew its objection to the court's consideration of
the pretrial motion to dismiss.
elements of the State's proffer are not disputed - that
the course of conduct relied upon by the State on the
stalking charge and the reckless conduct relied upon by the
State on the reckless conduct charge consist of (1) the April
27, 2019 posting on Facebook of the May 23, 2018 video
interview obtained in discovery in which a person named Jenn
Velez made statements that incriminated Williams in
CR-18-2736 and (2) multiple recorded jail phone calls on
April 27, 2019 demonstrating that Williams made considerable
efforts to arrange for the video to be posted on another
inmate's Facebook account.
those phone calls Williams expressly requested that the video
be hashtagged with Ms. Velez's street name
("Suki") and also that it be hashtagged with the
words to the effect of "be aware" and with a
request that recipients share the video. However, the State
did not propose to offer evidence that Williams requested the
addition of the hashtags "#ihaterats" or
"#snitch." The posting also has "rat,"
"pig," and "snake" emojis, but the State
does not contend that it has evidence those were requested by
Williams. According to defense counsel, the words
"#ihaterats" and "#snitch" (and
presumably the emojis) were added independently by the person
with whom Williams arranged to post the video.
it is possible to use a Facebook posting to communicate with
another Facebook user by "tagging" that user, Velez
was not tagged in the posting. The State did not propose to
offer any evidence that it was directly communicated to her.
aspects of the State's proffer are disputed. The State
contends that it can show that Williams had previously
threatened Velez in May 2018 and that he had threatened and
assaulted her in October 2018. Williams denies doing that and
argues that the State may not offer that evidence because the
conduct in question was previously the subject of charges in
CR-18-5548 that were dismissed as part of the plea deal in
which Williams entered a nolo plea to the trafficking charge
purposes of the motion the court will assume that although
Williams cannot be prosecuted for the 2018 conduct, the State
could offer evidence of that conduct to show that Williams
harbored an intent to threaten, harm, or retaliate against
Velez. Under M.R.Evid. 404(b) evidence of prior bad acts may
be offered to prove intent and motive, subject to weighing
the probative value of that evidence against the danger of
unfair prejudice under Rule 403. E.g., State v.
Pillsbury, 2017 ME 92 ¶¶ 13, 22-24, 161 A.3d
690. This motion does not present an appropriate occasion to
consider any Rule 403 issues. Moreover, although the charges
had been dismissed as part of a plea agreement, it does not
appear that Williams could successfully argue that evidence
of the 2018 threats and assault would be barred by the
collateral estoppel component of the double jeopardy clause.
See State v. Weckerly, 2018 ME 40 ¶¶ 9-17,
181 A.3d 675; State v. Dean, 589 A.2d 929, 933 (Me.
State has also offered to prove that Williams was aware,
based on a motion for a protective order that was granted in
CR-18-2736 on December 3, 2018, that the release of any
interview of Velez carried a risk that she would be subjected
to threats, intimidation, and retaliation. Williams disputes
that he was made aware of that protective order.
State proposes to offer evidence that the May 23, 2018 Velez
interview posted on Facebook on April 27, 2019 had previously
been circulated (not on Facebook) in January or February 2019
and that this had resulted in threats and vituperation
directed at Velez. The State did not, however, offer to prove
that it had evidence of specific threats, vituperation, or
retaliation against Velez resulting from the posting on April
certain portions of the State's offer of proof are
disputed, the outcome of the motion does not turn on the
disputed facts. For purposes of this motion, the court will
assume that the State would be able to present all of the
evidence in its offer of proof. In the court's view, this
would not be sufficient to remove Williams's conduct from
the protection of the First Amendment.
in and of itself, the Facebook post does not constitute a
"true threat" that would be outside the protection
of the First Amendment under Watts v. United States,
394 U.S. 705, 707 (1969) (per curiam). Nevertheless, the
State can under certain circumstances prohibit persons from
engaging in communication that constitutes a form of
harassment and intimidation, In drawing the line between
harassment that may be prohibited and protected speech, the
courts have found that conduct is not protected when two
factors are present. The first factor is whether an intent to
intimidate or harass has been shown. Thus, in Childs v.
Ballon, 2016 ME 142 ¶¶ 15, 19, 148 A.3d 291,
the Law Court addressed "speech as part of conduct
designed to threaten or harm" and speech
intended "not to communicate but for other
unjustifiable motives" (emphasis added).
Accord, Thome v. Bailey, 846 F.2d 241, 243 (4th Cir.
1988); State v. Brown, 85 P.3d 109, 113 (Ariz. App.
2004) (both relying on the statutory requirement of a
specific intent to harass).
second factor is whether there has been direct and intrusive
communication with an unwilling recipient. See Childs v.
Ballon, 2016 ME 142 ¶ 6 (hundreds of combative
emails sent to victim and repeated request to law enforcement
for wellness checks); Thorne v. Bailey, 846 F.2d at
243 (phone calls to university officials at work and at home,
letting phones ring for 15-20 minutes, conversations
including vituperative language); State v. Brown, 85
P.3d at 111 (repeated phone calls to victim by disappointed
suitor after court had entered a no contact order). The
second factor is what the courts have found constitutes not
just communication, but "conduct." See Childs
v. Ballou, 2016 ME 142 ¶¶ 15-17, 19; Thome
v. Bailey, 846 F.2d at 243.
case the State's offer of proof addresses the first
factor - intent - but the second factor is absent. The
State's offer of proof does not include any evidence of
direct communication with the victim or any other directly
intrusive actions toward the victim by the defendant.
Accordingly, the State's case depends on whether an
otherwise protected communication - not made or addressed to
the person who is the subject of the communication - can
nevertheless be the basis for a criminal prosecution if the
defendant had the intent and expectation that ...