Heard: September 10, 2015
received and sworn to in the Central Division of the Boston
Municipal Court Department on April 12, 2012.
case was tried before Annette Forde, J., and a
motion to vacate was heard by her.
Gauthier for the defendant.
Zachary Hillman, Assistant District Attorney, for the
Present: Green, Rubin, & Hanlon, JJ.
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.
the evidence in the light most favorable to the Commonwealth,
the jury could have found the following facts:
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
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.
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."
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!"
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."
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
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."
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.
The Commonwealth's appeal.
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." 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.
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 . . . ."
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
. . . ." 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") .
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 ...