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Commonwealth v. Brown

Supreme Judicial Court of Massachusetts, Middlesex

March 16, 2018


          Heard: November 7, 2017.

         The 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.

         The Supreme Judicial Court granted an application for direct appellate review.

          Luke Rosseel for the defendant.

          Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         A jury 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.


         We recite the facts as the jury could have found them, reserving certain facts for later discussion.

         Mahboobe Aria and Mehdi Aria[1] 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.

         The 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.

         Mahboobe 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.

         Carr 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.

         The 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.

         A 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.


         1. Jurisdiction.

         The defendant argues that, following our decision in Commonwealth v. Muckle, 478 Mass. 1001 (2017), the District Court lacked jurisdiction over her case.[2]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.

         The 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).

         The 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 intimidation statute.

         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.

         2. Motion ...

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