This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in a District Court, the defendant was convicted of intimidating a witness. Because we are unpersuaded by his argument that the evidence was insufficient, we affirm.
Our inquiry is " whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The jury could have found the following facts based on the Commonwealth's evidence. At approximately 6:00 p.m. on August 4, 2012, Lieutenant John Murphy of the Barnstable police department pulled his unmarked police car into the North Street parking lot in Hyannis. Murphy observed a young man (later identified as the defendant) and a woman (later identified as Sarah Smith, the defendant's girl friend) engaged in an " animated conversation." Dressed in undercover clothes, Murphy exited his car to investigate. He found the defendant and Smith in the midst of a heated, profanity-laden quarrel that already had escalated to such an extent that passersbys were beginning to stop and watch what was transpiring. Murphy was concerned that the verbal confrontation could become physical, and consequently he decided to follow the pair as they walked through the parking lot.
The defendant then grabbed Smith and hollered that she was " a fucking c--t." Smith pulled her arm away and said, " Don't touch me." After Murphy moved closer to the couple, the defendant called out to him, " What are you looking at . . . I'll fuck you up." At this juncture, without identifying himself as a police officer, Murphy retrieved his cellular telephone to call for assistance from a uniformed patrol. Seeing this, the defendant told Murphy: " You can call whoever you want. I can see your face. You don't know who you're messing with." Concerned for his safety and that of those who had congregated to see what was going on, Murphy waited for the arrival of a uniformed officer to take the defendant into custody.
Under the relevant portion of the statute, the Commonwealth had to prove that the defendant " intimidate[d] or harasse[d] another person who is . . . a witness or potential witness at any stage of a criminal investigation . . . with the intent to impede, obstruct . . . or otherwise interfere . . . with such a proceeding." G. L. c. 268, § 13B, as amended through St. 2010, c. 256, § 120. " Intimidation . . . is putting a person in fear for the purpose of influencing his or her conduct." Commonwealth v. Pagels, 69 Mass.App.Ct. 607, 613, 870 N.E.2d 645 (2007).
There plainly was sufficient evidence for jurors to conclude, beyond a reasonable doubt, that the defendant made intimidating statements to Murphy, who at that point already had initiated a criminal investigation of the defendant's actions. However, the parties agree that there was no evidence that the defendant was aware that Murphy was an undercover police officer. Hence, the defendant is able to argue forcefully that he could not have known that the criminal investigation of his conduct had already begun. But not only is there no requirement that a defendant be aware that a criminal investigation was pending, there is not even a requirement that an investigation or other criminal " proceeding" be pending.
See Hrycenko v. Commonwealth, 459 Mass. 503, 509, 945 N.E.2d 915 (2011). Contrast Commonwealth v. Burt, 40 Mass.App.Ct. 275, 277, 663 N.E.2d 271 (1996) (decided under an earlier version of the statute). It is sufficient that the defendant intended to discourage the witness from providing information in the future. See Commonwealth v. King, 69 Mass.App.Ct. 113, 120-121, 866 N.E.2d 938 (2007). Reasonable jurors readily could have concluded that the defendant threatened Murphy with the intent of preventing him from reporting what he had just observed to the police; indeed, it is hard to imagine jurors interpreting the defendant's statements any other way. At least under the circumstances of this case, that was sufficient.
The principal thrust of the defendant's argument is that " there was no objective or subjective basis for believing that he had committed" a crime, and, therefore, there was no basis on which reasonable jurors could have concluded that he intended to interfere with a criminal investigation. The Commonwealth counters by arguing that threatening an eyewitness in an effort to prevent that person from going to the police is sufficient, regardless of whether that person had any basis in fact to believe that a crime may have been committed. We need not decide whether the Commonwealth's position necessarily is correct, because we conclude that the evidence in any event was sufficient here. The facts of this case are very far from one in which the witness's apparent interest in contacting the police lacked any significant factual basis. To the contrary, at least with regard to the assault charge, the Commonwealth presented sufficient evidence at trial upon which the jury could have convicted the defendant. Thus, even under the defendant's theory, there plainly was a reasonable basis to conclude that a crime may have occurred.
In sum, we conclude that there was sufficient evidence upon which reasonable jurors could have found, beyond a reasonable doubt, that the defendant threatened a " witness or potential witness" with the intent of interfering with a criminal investigation.
Kafker, Rubin & Milkey, JJ.