Heard: May 2, 2018.
Indictments found and returned in the Superior Court
Department on May 31, 2012.
cases were tried before Mitchell H. Kaplan, J., and a motion
for a new trial, filed on July 27, 2015, was considered by
P. Lovins for the defendant.
Elizabeth J. May, Assistant District Attorney, for the
Present: Rubin, Henry, & Desmond, JJ.
defendant was convicted after a jury trial of stalking in
violation of G. L. c. 265, § 43 (a.), and assault and
battery in violation of G. L. c. 265, § 13A (a.),
the evidence in the light most favorable to the Commonwealth,
see Commonwealth v. Latimore, 378
Mass. 671, 677 (1979), the jury could have found the
following. The victim and defendant were married in Malawi
and moved to Woburn together in the summer of
2009. Their relationship was initially
"good" but then deteriorated. The defendant became,
in the victim's words, "controlling" and
frequently demanded to check the victim's cellular
telephone (cell phone) and electronic mail messages
(e-mails). The defendant also became physically
"abusive." The victim testified that the defendant
"tried to choke" her, using two hands and squeezing
her neck, and threatened to kill her, something that, she
testified, he threatened to do "all the time."
September of 2010, the victim moved into her own apartment in
Burlington. Although she did not tell the defendant where she
had moved, he first showed up within one or two weeks and
continued to go to her apartment about four times per month.
She would let him in because "[i]t was embarrassing
arguing outside when everybody's seeing you." When
the defendant went in, he would check her e-mails and cell
phone, and he would telephone her friends and accuse them of
sleeping with her. The defendant also would telephone the
victim "all the time" -- sometimes up to twenty
times in a row and sometimes with blocked numbers -- asking
her where she was, and he would follow her. Around April 1,
2011, the defendant entered the victim's apartment,
pointed a knife at the victim's neck, and threatened to
use it to kill both her and himself. One week later, the
defendant again turned up at the victim's apartment
uninvited. The victim, understandably not wanting him to be
there, lied by stating that she had to go to work. When he
discovered that this was a lie, he entered the victim's
apartment, took her cell phone and the handset from the home
telephone, threatened to kill her, and eventually hit her
repeatedly with his boot. The victim managed to escape to a
neighbor's house, but not before, by the defendant's
own admission, he grabbed her arm while she was running out
the door. After the victim escaped, her friend Patrick
received calls from the victim's cell phone and home
telephone numbers from a man he did not know who cursed at
him and refused to tell him the victim's whereabouts.
Patrick then called the police and drove to the victim's
defendant argues that the evidence was insufficient to
support his conviction of stalking. The statute provides that
"[w]hoever (1) willfully and maliciously engages in a
knowing pattern of conduct or series of acts over a period of
time directed at a specific person which seriously alarms or
annoys that person and would cause a reasonable person to
suffer substantial emotional distress, and (2) makes a threat
with the intent to place the person in imminent fear of death
or bodily injury, shall be guilty of the crime of stalking .
. . ." G. L. c. 265, § 43 (a).
defendant contends first that his repeated intimidating,
threatening, and physically violent conduct directed at the
victim was not "wilful" because it was not
"intentional and by design." Commonwealthv.Peruzzi, 15 Mass.App.Ct. 437, 443
(1983). The defendant argues that this conduct was
"motivated by jealousy and anger." Contrary to the
implication of his argument, this does not, even if true,
indicate that the conduct was not intentional and by ...