July 8, 2016
MEMORANDUM AND ORDER ON MOTION TO DISMISS
B. Krupp, Justice
Khyeme Johnson (" Johnson") is charged with one
count of witness intimidation, G.L.c. 268, § 13B, after
he took photographs of a group of undercover police officers
standing in a public hallway at the Central Division of the
Boston Municipal Court (" the BMC"). The matter is
before me on defendant's Superseding Motion to Dismiss
(Docket #11), which seeks relief on two grounds. First,
Johnson argues that because his conduct described to the
grand jury did not violate the witness intimidation statute,
the grand jury did not hear sufficient evidence to support
the indictment. Commonwealth v. McCarthy, 385 Mass.
160, 162, 430 N.E.2d 1195 (1982). Second, he asserts that
even if his conduct does violate the statute, the statute is
unconstitutional by infringing his rights under the First and
Fourteenth Amendments to the United States Constitution and
Articles XVI and LXXVII of Massachusetts Declaration of
rights, and is unconstitutionally vague. For the reasons that
follow, Johnson's motion is ALLOWED .
testimony before the grand jury may be summarized as follows.
January 16, 2016, Officer Brian Linehan ("
Linehan"), a member of the Drug Control Unit ("
DCU") assigned to Boston Police Area A-1, was in the BMC
with five other DCU officers. The Area A-1 DCU officers
frequently work in plain clothes, performing surveillance and
conducting, among other things, undercover "
buy/bust" investigations. None of the officers were in
uniform as they waited for a motion hearing or trial outside
Courtroom 10, a criminal session at the BMC. Courtroom 10 is
the courtroom closest to the elevator. Linehan saw Johnson
walking toward the elevator and talking with two or more
other people. Johnson and the individuals with whom he was
walking initially looked over in the direction of Linehan and
the other DCU officers as they walked by. As Johnson waited
for the elevator, he took out a cell phone and used it to
take more than one flash photograph of the group of DCU
had previously arrested Johnson a couple of times for
drug-related incidents, and recognized him. Johnson likewise
was familiar with at least some of the DCU officers. Linehan
and the other DCU officers were not in the BMC on January 16
in connection with any case related to Johnson. By that date,
the cases defendant had had with the Area A-1 DCU were
resolved. There was no evidence presented to the
grand jury to suggest that defendant knew why the DCU
officers were at the BMC, that he was aware of or had any
interest in any case that brought them to the BMC, that he
had any knowledge of any pending or anticipated case or
investigation DCU was then working, or that his decision to
take photographs had anything to do with any pending or
month prior to January 16, Linehan and members of the DCU had
seen Johnson around Boylston Street near the St. Francis
House Shelter, an area patrolled by undercover or "
plain clothes" DCU officers from Area A-1. The police
observed Johnson yelling to alert others to their presence
when he saw DCU members in the area.
seeing the flash of Johnson's cell phone near the
elevator in the BMC, the police approached, took custody of
the cell phone, and placed Johnson under arrest. This charge
followed. Linehan testified (and told Johnson) that he feared
a photograph of himself and his fellow officers could be
circulated through social media and, if so, could
'jeopardize current investigations, ongoing
investigations, future investigations and . . . could
[jeopardize] the safety of myself in the future or my family
or my partners' safety or their families as well."
Johnson told the police he did not know taking pictures was a
crime. He apologized and stated that he photographed the
officers so he could identify them in the future.
challenge under McCarthy requires a comparison of
the evidence produced to the grand jury against the statute
defining the crime with which the defendant is charged to
determine if the grand jury had a factual basis to find
probable cause to believe defendant committed the particular
offense. " Probable cause to sustain an indictment is a
decidedly low standard." Commonwealth v.
Hanright, 466 Mass. 303, 311, 994 N.E.2d 363 (2013),
citing Commonwealth v. Moran, 453 Mass. 880, 883-84,
906 N.E.2d 343 (2009), and Commonwealth v. Hason,
387 Mass. 169, 174, 439 N.E.2d 251 (1982). See also
Commonwealth v. Perkins, 464 Mass. 92, 101, 981
N.E.2d 630 & n.18 (2013) (probable cause is "
substantially" less than proof required to avoid
directed verdict). To survive a McCarthy challenge,
the evidence presented to the grand jury must consist of
" reasonably trustworthy information . . . sufficient to
warrant a prudent man in believing that the defendant had
committed or was committing an offense."
Hanright, 466 Mass. at 311-12, quoting
Commonwealth v. Stevens, 362 Mass. 24, 26, 283
N.E.2d 673 (1972).
is charged with violating the witness intimidation statute,
G.L.c. 268, § 13B. It provides in relevant part as
Whoever, directly or indirectly, willfully
(a) threatens, or attempts or causes physical injury,
emotional injury, economic injury ...