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Commonwealth v. Muckle

Appeals Court of Massachusetts, Suffolk

October 3, 2016

COMMONWEALTH
v.
PAUL MUCKLE.

          Heard: September 10, 2015

         Complaint received and sworn to in the Central Division of the Boston Municipal Court Department on April 12, 2012.

         The case was tried before Annette Forde, J., and a motion to vacate was heard by her.

          Edward Gauthier for the defendant.

          Zachary Hillman, Assistant District Attorney, for the Commonwealth.

          Present: Green, Rubin, & Hanlon, JJ.

          HANLON, J.

         After a jury trial in the Boston Municipal Court, the defendant was convicted of intimidating a person furthering a court proceeding in violation of G. L. c. 268, § 13B (count 1); stalking in violation of G. L. c. 265, § 43 (count 2); threatening to commit a crime in violation of G. L. c. 275, § 2 (count 3); and unlawful wiretapping in violation of G. L. c. 272, § 99 (count 4). Afterwards, he filed a motion to vacate his conviction on count 1, which was allowed, and that count was dismissed. We have before us the Commonwealth's appeal of that dismissal, and the defendant's cross appeal of his remaining convictions on all counts except count 4. We reinstate the defendant's conviction on count 1 and affirm the other judgments. We remand the case to the trial court for imposition of the original sentences imposed after trial.

         Background.

         Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts:[1]

         At some point prior to 2009, the defendant's mother, Irene Wood, obtained a loan from Wells Fargo Bank (Wells Fargo) . Subsequently, the defendant filed suit against Wells Fargo in Superior Court, alleging that his mother's loan was predatory, fraudulent, and unenforceable. Thereafter, the defendant filed another suit against Wells Fargo, among others, in the United States District Court for the District of Massachusetts. Wells Fargo retained the law firm of Nelson, Mullens, Riley and Scarborough (Nelson, Mullens) as defense counsel, and when Sean Higgins joined Nelson, Mullens in February, 2009, he was assigned to work on the ongoing case.

         Because the defendant was representing himself pro se in the Federal suit, he and Higgins communicated fairly regularly about the case by telephone, electronic mail message (e-mail), and first class mail. At the beginning, these communications were in no way out of the ordinary. However, after some period of time, the defendant added Higgins's e-mail address to a large e-mail list and Higgins began to receive what he described as "spam" e-mails.

         In March, 2010, Judge Douglas P. Woodlock of the United States District Court allowed Wells Fargo's motion for summary judgment and dismissed the Federal case, and shortly thereafter, the defendant filed an appeal with the United States Court of Appeals for the First Circuit (First Circuit). After Judge Woodlock dismissed the case, the tone of the defendant's e-mails and other communications to Higgins began to change. Specifically, on May 2, 2010, the defendant sent an e-mail accusing Higgins of "disrespect[ing]" the defendant's mother and included a link to a video on the video sharing Web site YouTube of a telephone conversation between the defendant and Higgins. On June 2, 2010, the defendant sent an e-mail to a large mailing list with a motion attached that he said he intended to file in the Federal suit. The body of the e-mail said, in part, that "[t]his motion is about to send thunder claps upon Wall Street when they read it. READ IT AND WEEP ATTORNEY SEAN HIGGINS AND JUDGE DOUGLAS P. WOODLOCK, YOUR JUDGMENT IS AT HAND."

         On June 4, 2010, the defendant sent an e-mail to a large mailing list, which contained a link to a YouTube video. The body of the e-mail said, in part, "[L]et this video serve as a warning to Sean Higgins, Judge Woodlock, and anyone else who seeks to commit impropriety in the court .... I am trying to do this in a non destructive [sic] manner, but you guys just keep on testing MY LORD .... ow [sic] much longer do you supposed [sic] that He will remain patient before commanding me to end it! in my own way!"

         On August 12, 2010, the defendant forwarded a mass e-mail that contained a warning about bombs made from ordinary household items, such as plastic bottles. Above the forwarded message, the defendant wrote, in part, "I am even sending this to my opponents Attorney Dudley Goar [sic] and Attoryney [sic] Sean Higgins. I want them to be very careful because want [sic] them to be in one piece and in good health when we face off in the First Circuit court, I will get more satisfaction from that, so guys, read below and be safe."

         There was then a lull until October, 2011. During that month, the defendant telephoned Higgins and left him a voice mail message. In the message, the defendant called Higgins a "bastard" and said that he did not like him. Higgins testified that, at one point during the litigation, the defendant was telephoning him once or twice per week, but later, after some time, the number of calls decreased. Sometime before October 12, 2011, the defendant's appeal was dismissed by the First Circuit, and Higgins testified that, right after the appeal was over, the telephone calls stopped.

         On October 12, 2011, the defendant sent an e-mail to a large mailing list saying that the First Circuit had ruled against him and that "the first bloodshed will come from Massachusetts before I let ANY ONE take me out of my home." On October 19, 2011, the defendant sent an e-mail to a large mailing list saying, in part, "SEAN HIGGINS, REMEMBER HOW MUCH I DETEST YOU ... I WILL NEVER FORGET THAT YOU DISRESPECT [sic] MY MOTHER AND CALLED HER A LIAR . . . LET'S SEE WHO WILL BE THE LIAR WHEN YOU FACE A JURY OF THE REVOLUTION . . . THERE IS A PRISON CELL WAITING FOR YOU AT SOUTH BAY FOR YOUR CRIMES .... YOU WILL BE TRIED FOR TREASON AGAINST THE PEOPLE . . . ." On February 2, 2012, the defendant sent an e-mail to a large mailing list saying, in part, "DO NOT LET MY DEATH BE IN VAIN, MAKE SURE YOU PUT THE BLAME SQUARELY ON SEAN HIGGINS! AND JUDGE WOODLOCK THE DAY THEY BURY ME! THEY WILL CAUSE MY BLOODSHED."

         On April 1, 2012, the defendant sent an e-mail to a large mailing list saying, in part, "Sean Higgins! you [sic] are the only man on Earth I hate beside [sic] the pope and the Rothschild [sic], and I hate you even more than I hate them . . . I cannot wait to roast you! Not even god will intervene for you when I get my hand around your fat heart .... Is your heart light like a feather, or is it heavy as lead!?" On April 12, 2012, a criminal complaint was issued in the Boston Municipal Court against the defendant for the present offenses.

         Discussion.

         a. The Commonwealth's appeal.

         After the defendant was convicted and sentenced, he filed a motion to vacate his conviction of intimidation under G. L. c. 268, § 13B (count 1). The trial judge allowed the motion and vacated the conviction. In so doing, she agreed with the defendant that the Boston Municipal Court was without jurisdiction to hear that charge because the statute conferring jurisdiction in the District and Boston Municipal Courts over certain criminal matters refers to "intimidation of a witness or juror under section thirteen B of chapter two hundred and sixty-eight." G. L. c. 218, § 26. She concluded that this language provided the Boston Municipal Court with jurisdiction only over charges under that section alleging intimidation of a "witness" or a "juror."[2] The language of the intimidation statute itself, that is, G. L. c. 268, § 13B, is broader than that, and in this case, the defendant was convicted of intimidating a "person who [was] furthering a civil . . . proceeding." G. L. c. 268, § 13B(1)(c)(iv), as amended through St. 2010, c. 256, § 120. The Commonwealth appeals this dismissal, raising a question of first impression. After review of the record and the relevant legislative history, we are persuaded that the judge's interpretation is wrong and the conviction on count 1 should be reinstated.

         General Laws c. 218, § 26, controls which crimes may be prosecuted in the District and Boston Municipal Courts. The statute's history tracks the growth of those courts from what were termed "police courts" to the community courts they are today See Berg, Rough Justice to Due Process, The District Courts of Massachusetts 1869-2004 2-4, 71-76 (2004). The statute begins with these words, "The district courts and divisions of the Boston municipal court department shall have original jurisdiction, concurrent with the superior court, of the following offenses . . . ."

         The first three categories of offenses listed thereafter include, first, "all violations of by-laws, orders, ordinances, rules and regulations, made by cities, towns and public officers"; second, "all misdemeanors, except libels"; and third, "all felonies punishable by imprisonment in the state prison for not more than five-years . . . ."[3] The sixth category is a series of offenses described only by their statutory citations (i.e., "sections thirteen K, fifteen A and twenty-one A of chapter two hundred and sixty-five and sections sixteen, seventeen, eighteen, nineteen, twenty-eight, thirty, forty-nine and one hundred and twenty-seven of chapter two hundred and sixty-six") .

         That category is followed by a seventh category, the one at issue in this case; it includes one offense only by description (as in category six), and two offenses referring to the applicable statute and a short description. Specifically, this seventh category includes, in its entirety, "the crimes of malicious destruction of personal property under section one hundred and twenty-seven of chapter two hundred and sixty-six, indecent assault and battery on a child under fourteen years of age, [and] intimidation of a witness or juror under section thirteen B of chapter two hundred and sixty-eight." The final, or eighth, category includes a list of common-law crimes, with no citation to a statute (i.e., "escape or attempt to escape from any penal institution, forgery of a promissory note, or of an order for money or other property, and of uttering as true such a forged note or order, knowing the same to be forged").

          "'Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and courts must interpret the statute so as to render the legislation effective, consonant with reason and common sense.' Cote-Whitacrev.Department of Pub. Health, 446 Mass. 350, 358 (2006) (Spina, J., concurring)." Rotondiv.Contributory Retirement Appeal Bd., 463 Mass. 644, 648 (2012). The most sensible reading of the relevant portion of the jurisdiction statute, that is, the seventh category discussed supra, is that the Legislature's inclusion in that statute of the citation to G. L. c. 268, § 13B, prohibiting intimidation of a witness (and, for that matter, G. L. c. 266, § 127, prohibiting malicious destruction of property, which falls in ...


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