Supreme Judicial Court of Massachusetts, Middlesex
Heard: November 7, 2017.
case was tried before Michele B. Hogan, J.; a restitution
hearing was held before Daniel C. Crane, J.; and a motion for
postconviction relief was heard by Hogan, J.
Supreme Judicial Court granted an application for direct
Rosseel for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
in the District Court convicted the defendant, Johnelle M.
Brown, of assault and battery and witness intimidation. After
beginning the sentencing hearing, the trial judge revoked the
defendant's bail and delayed sentencing for four days.
After reconvening, the judge imposed a sentence of a one-year
commitment to a house of correction, suspended for two years,
probation, and restitution. The defendant disputes the
District Court's jurisdiction over the witness
intimidation prosecution. The defendant also appeals from the
denial of her motion for a new trial, revocation of bail, and
order of payment of restitution. We affirm.
recite the facts as the jury could have found them, reserving
certain facts for later discussion.
Aria and Mehdi Aria managed a restaurant. On April 6, 2014,
the restaurant closed at 2:30 A.M. At approximately 2:40
A.M., Mahboobe and Mehdi were completing tasks relevant to
closing the restaurant. Mehdi was outside, cleaning the
outdoor seating. Mahboobe was inside.
defendant and a man arrived in an automobile and parked
outside the restaurant. The man was not identified by name at
trial, but the defendant's motion for a new trial,
appellate brief, and affidavits identify this man as Tyrell
Carr. Carr remained in the automobile while the defendant
went into the restaurant. Mahboobe was near the cash register
when the defendant walked into the restaurant.
told the defendant that the restaurant was closed. The
defendant said that she needed to use the bathroom. Mahboobe
refused to allow the defendant to use the bathroom because
Mahboobe had already cleaned it. The defendant said that she
would "call [her] boyfriend" if Mahboobe refused
her use of the bathroom; Mahboobe still refused. The
defendant took a bottle of juice from a refrigerator in the
restaurant, placed it in front of the register, and told
Mahboobe that she was going to purchase it. Mahboobe replied
that the credit card machine and cash register were already
closed so she could not make any more sales. The defendant
opened the door to the restaurant and called out to someone.
Carr came inside the restaurant and loudly asked Mahboobe why
she was not allowing the defendant to use the bathroom.
Mahboobe reiterated that the bathroom was closed.
waved a credit card at Mahboobe and offered to pay for the
bottle of juice the defendant had placed on the counter.
Mahboobe refused payment, explaining that the restaurant and
credit card machine were closed. Mehdi entered the restaurant
and asked the defendant and Carr to leave. The defendant took
the juice bottle off the counter and threw it in
Mahboobe's direction. The bottle struck glass that
separates the cashier from the kitchen. Carr grabbed Mehdi.
Carr hit and slapped Mehdi's face and pulled his shirt.
While Carr struggled with Mehdi, the defendant kicked the
bathroom door. Mahboobe retrieved a telephone from underneath
the cash register and moved out from behind the counter
toward the defendant. Mahboobe was standing one to two feet
away from the defendant when she tried to dial 911. The
defendant grabbed the wrist of the hand in which Mahboobe was
holding the telephone and said, "You're bad
fuck." After approximately one minute, the defendant let
go of Mahboobe's wrist. As Mehdi and Carr continued to
fight, Mahboobe left the restaurant and telephoned 911. The
defendant followed. The defendant asked Mahboobe why she
telephoned the police. The defendant then punched Mahboobe in
the face, causing Mahboobe to drop the telephone. The
telephone fell to the ground and broke. A man was inside of a
nearby bar when he "heard a commotion next door, like
tables and chairs being banged around." He and a bar
security employee went outside and saw Mahboobe being punched
in the face.
defendant opened the door to the restaurant and told Carr
that Mahboobe had telephoned the police. Carr came out of the
restaurant and drove away with the defendant in a vehicle
that had been parked on the street.
police officer responded to the 911 call. Upon arrival, he
noticed that Mahboobe had a red mark on her face and
Mehdi's head and mouth were bleeding.
defendant argues that, following our decision in
Commonwealth v. Muckle, 478 Mass. 1001 (2017), the
District Court lacked jurisdiction over her
case.General Laws c. 218, § 26
(jurisdiction statute), confers jurisdiction upon the Boston
Municipal Court (BMC) and District Court over prosecutions
for "intimidation of a witness or juror under [G. L. c.
268, § 13B]." General Laws c. 268, § 13B (1)
(c0 (i), (iii) (intimidation statute), proscribes
intimidation of, inter alia, "a witness or potential
witness[, ] ... a judge, juror, grand juror, prosecutor,
police officer, [F]ederal agent, investigator, defense
attorney, clerk, court officer, probation officer or parole
officer." In Muckle, supra at 1003, we
held that, "the express inclusion of witnesses and
jurors [in G. L. c. 218, § 26, ] excludes all other
persons listed in [G. L. c. 268, § 13B, ] who are not
expressly included." In that case, the defendant was
accused of intimidating an attorney in a case to which he was
a party. Commonwealth v. Muckle, 90 Mass.App.Ct.
384, 385-388 (2016). We therefore affirmed the dismissal of
the complaint in the BMC for lack of jurisdiction.
Muckle, 478 Mass. at 1004.
defendant seeks to analogize her case to Muckle,
arguing that the District Court did not have jurisdiction
because, at the time of the assault, Mahboobe was not a
"witness" but was a "potential witness."
The defendant seeks to draw a distinction between a
"witness" and a "potential witness" in
the intimidation statute. However, when assessing the
District Court's jurisdiction, we must begin our
interpretation with the meaning of "witness" in the
jurisdiction statute. We interpret a statute's text,
construing its words "by the ordinary and approved usage
of the language." Energy Express, Inc. v.
Department of Pub. Utils., 477 Mass. 571, 576 (2017),
quoting Meikle v. Nurse, 474 Mass. 207, 210 (2016).
We are bound to "interpret the statute so as to render
the legislation effective, consonant with sound reason and
common sense." Harvard Crimson, Inc. v.
President & Fellows of Harvard College, 445 Mass.
745, 749 (2006).
term "witness" is broadly used to characterize an
individual with information that is pertinent to an
investigation or case and is often used interchangeably with
"potential witness." See Commonwealth v.
Rakes, 478 Mass. 22, 41 (2017) (describing individuals
who might testify in future as "witnesses" and
"potential witnesses"); Commonwealth v.
Squires, 476 Mass. 703, 711 (2017) (Gaziano, J.,
dissenting) (using "potential witnesses" to
describe those who might see crime occurring);
Commonwealth v. Williams, 475 Mass. 705, 708 (2016)
(using "potential witnesses" to describe people
interviewed by police); Commonwealth v. Watkins, 473
Mass. 222, 239-241 (2015) (using "witnesses" to
describe people who testified during trial and those who did
not testify but had relevant information that could have been
offered during trial); Commonwealth v. Brewer, 472
Mass. 307, 311 n.10, 313-315 (2015) (using
"witness" to describe person present at shooting
who gave statement to police, and describing people who had
information to share at trial but did not testify as
"witnesses" and "potential witnesses");
Commonwealth v. Collins, 470 Mass. 255, 270-273
(2014) (using "potential witness" to describe those
on witness list during trial); Commonwealth v.
Robinson, 444 Mass. 102, 110-111 (2005) (using
"witness" to describe person's status when he
was going to testify at hearing and after hearing had
concluded); Commonwealth v. Finn, 362 Mass. 206,
207-208 (1972) (using "witnesses" to describe
individuals present at scene of crime when discussing
investigatory conversations with police and testimony at
trial); Commonwealth v. McCreary, 45 Mass.App.Ct.
797, 800 (1998) (using "prospective witness, "
"potential witness, " and "witness" when
describing facts of several witness intimidation cases). The
myriad uses of "witness" and its frequent
convergence with "potential witness" suggest the
ordinary meaning of "witness" encompasses victims
of intimidation who could also be described as
"potential witnesses." Such a holding is consistent
with our decision in Muckle, where we interpreted
"juror" in the jurisdictional statute to encompass
"juror" and "grand juror" in the
distinction advocated by the defendant would cause the
District Court to gain and lose jurisdiction repeatedly over
prospective witness intimidation prosecutions during the
course of a crime, investigation, trial, and subsequent
proceedings. Indeed, Mahboobe's status at the time of the
assault could be characterized as both a "witness"
and a "potential witness." She was a
"witness" to the assault of Mehdi with information
to provide to the 911 operator and police officers and a
"potential witness" to further criminal activity.
When the trial commenced, she was a "potential
witness" who might have been called to testify and, upon
being called, became a "witness." Common sense
dictates that "witness" in the jurisdictional
statute includes "a witness or potential witness at any
stage of a criminal investigation, grand jury proceeding,
trial or other criminal proceeding of any type, " as
protected by G. L. c. 268, § 13B (1) (cO (i). Therefore,
the District Court properly exercised jurisdiction over the
prosecution of the defendant for witness intimidation.