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Commonwealth v. Johnson

Superior Court of Massachusetts, Suffolk

July 7, 2016

Commonwealth
v.
Khyeme Johnson No. 134241

          Filed July 8, 2016

          MEMORANDUM AND ORDER ON MOTION TO DISMISS

          Peter B. Krupp, Justice

         Defendant 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 .

         BACKGROUND

         The testimony before the grand jury may be summarized as follows.

         On 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 officers.

         Linehan 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.[1] 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 anticipated case.

         In the 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.

         After 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.

         DISCUSSION

          A 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).

         Johnson is charged with violating the witness intimidation statute, G.L.c. 268, § 13B. It provides in relevant part as follows:

Whoever, directly or indirectly, willfully
(a) threatens, or attempts or causes physical injury, emotional injury, economic injury ...

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