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Commonwealth v. Fragata

Supreme Judicial Court of Massachusetts, Bristol

July 18, 2018

COMMONWEALTH
v.
JOSEPH FRAGATA.

          Heard: December 4, 2017.

         Complaint received and sworn to in the Fall River Division of the District Court Department on December 28, 2015. The case was tried before Gilbert J. Nadeau, Jr., J.

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

          Christopher DeMayo for the defendant.

          Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.

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

          LOWY, J.

         A District Court jury convicted the defendant, Joseph Fragata, of intimidating a witness in violation of G. L. c. 268, § 13B, in connection with an incident of alleged domestic violence.[1] The statute, as relevant here, provides:

"Whoever, directly or indirectly, willfully . . . attempts or causes physical injury . . . [or] intimidates . . . another person who is ... a witness or potential witness at any stage of a criminal investigation, ... or other criminal proceeding of any type . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished . . . ."

G. L. c. 268, § 13B (1) (a.), (c) (i), (v), as amended through St. 2010, c. 256, § 120.[2] The Commonwealth's theory at trial was that the defendant violated § 13B (1) (c) (i) by taking away the alleged victim's cellular telephone to prevent her from calling 911 for help after he had verbally assaulted her. On direct appellate review, the defendant contends primarily that the evidence was insufficient to sustain his conviction of witness intimidation under § 13B (1) (c) (i), because no view of the evidence would have allowed the jury to conclude that he had committed any crime before he took the victim's cellular telephone.

         We hold that, to convict a defendant of witness intimidation under the central provision at issue here, G. L. c. 268, § 13B (1) (c) (i), the Commonwealth must prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding. Applied here, we conclude that the evidence was insufficient to support the defendant's conviction on the particular theory argued by the Commonwealth at trial. There was sufficient evidence to convict the defendant of witness intimidation based on his conduct after he took the victim's cellular telephone. But this alternative ground was not argued by the Commonwealth, and we have no way of knowing whether the jury based their verdict on this alternative ground, for which the evidence was sufficient to convict, or on the theory argued by the Commonwealth, for which the evidence was insufficient to convict. Accordingly, we reverse.

         1. Background.

We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) .

         The victim and the defendant met in May, 2014, and developed a romantic relationship. On Christmas Day, 2015, the victim and the defendant hosted a small gathering in the apartment where the two were living. After their guests left, the defendant screamed at the victim and called her "nasty names." The victim began to cry and told the defendant that she was going to telephone 911. The defendant ...


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