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14-P-1283 Appeals Court
COMMONWEALTH vs. PAUL MUCKLE.
No. 14-P-1283.
Suffolk. September 10, 2015. - October 3, 2016.
Present: Green, Rubin, & Hanlon, JJ.
Intimidation of Witness. Threatening. Stalking. District
Court, Jurisdiction. Boston Municipal Court. Practice,
Criminal, Duplicative convictions, Lesser included offense,
Instructions to jury.
Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on April 12, 2012.
The case was tried before Annette Forde, J., and a motion
to vacate was heard by her.
Edward Gauthier for the defendant.
Zachary Hillman, Assistant District Attorney, for the
Commonwealth.
HANLON, J. After a 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.
2
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.
Background. Viewing the evidence in the light most
favorable to the Commonwealth, the jury could have found the
following facts:1
At some 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
1
As the unlawful wiretap conviction (count 4) was not
challenged on appeal, the facts giving rise to that conviction
are not summarized here.
3
Higgins joined Nelson, Mullens in February, 2009, he was
assigned to work on the ongoing case.
Because 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.
In 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
4
"[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."
On June 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!"
On 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."
There 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
5
"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 stopped.
On 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."
On April 1, 2012, the defendant sent an e-mail to a large
mailing list saying, in part, "Sean Higgins! you [sic] are the
6
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.
Discussion. a. The Commonwealth's appeal. After 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."2 The language of the intimidation statute itself, that
2
The full text of G. L. c. 218, § 26, as amended through
St. 2010, c. 74, § 1A, provides:
7
is, G. L. c. 268, § 13B, is broader than that, and in this case,
"The district courts and divisions of the Boston
municipal court department shall have original
jurisdiction, concurrent with the superior court, of the
following offenses, complaint of which shall be brought in
the court of the district court department, or in the
Boston municipal court department, as the case may be,
within which judicial district the offense was allegedly
committed or is otherwise made punishable: -- all
violations of by-laws, orders, ordinances, rules and
regulations, made by cities, towns and public officers, all
misdemeanors, except libels, all felonies punishable by
imprisonment in the state prison for not more than five-
years, the crimes listed in paragraph (1) of subsection (a)
of section eight of chapter ninety B, subparagraph (1) of
paragraph (a) of subdivision (1) of section twenty-four,
paragraph (a) of section twenty-four G and paragraph (1) of
section twenty-four L of chapter ninety, paragraph (a) of
section thirty-two and paragraph (a) of section thirty-two
A of chapter ninety-four C, and section thirty-two J of
chapter ninety-four C, section 38B of chapter 127, section
one hundred and thirty-one E of chapter one hundred and
forty, 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, and sections one, fifteen and
fifteen A of chapter two hundred and seventy-three, and 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, intimidation of a witness or
juror under section thirteen B of chapter two hundred and
sixty-eight, 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. They
shall have jurisdiction of proceedings referred to them
under the provisions of section four A of chapter two
hundred and eleven."
We note that the statute was further amended in 2014, but
that amendment does not bear on this case.
8
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.
General 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 . . . ."
The 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
9
not more than five-years . . . ."3 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").
That 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").
3
The fourth and fifth categories include specific sections
of G. L. c. 90 and c. 90B (relating to motor vehicle and motor
boat offenses) and G. L. c. 94C (controlled substances).
10
"'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-Whitacre v. Department of Pub. Health, 446 Mass. 350, 358
(2006) (Spina, J., concurring)." Rotondi v. 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 the same category) was
intended to include all of the offenses made criminal therein,
including the behavior prohibited in subsequent amendments to
the underlying criminal statute.
The legislative history of G. L. c. 268, § 13B, supports
that interpretation. Thus, in September, 1996, in order to
increase the maximum penalty for the crime of intimidation, the
statute was amended "by striking out . . . the words 'the state
prison for not less than two and one-half years and not more
than five' and inserting in place thereof the following words:—
a house of correction for not more than two and one-half years
or in the state prison for not less than two and one-half years
11
and not more than ten." St. 1996, c. 393, § 4. That amendment
effectively removed G. L. c. 268, § 13B, from the jurisdiction
of the District and Boston Municipal Courts because that crime
was then no longer a "felon[y] punishable by imprisonment in the
state prison for not more than five-years."
However, in the same 1996 act, which, significantly, was
entitled "Chapter 393. An Act Providing Concurrent Jurisdiction
in the Superior and District Courts for the Crime of
Intimidation of a Witness" (emphasis added), St. 1996, c. 393,
G. L. c. 218, § 26, also was amended by inserting after the word
"[fourteen years of] 'age', . . . the following words:— ,
intimidation of a witness or juror under section thirteen B of
chapter two hundred and sixty-eight." St. 1996, c. 393, § 1.
Thus, at the same time, jurisdiction was restored to the
District and Boston Municipal Courts for the crime of
intimidation. The idea that, in so doing, the Legislature
intended that intimidation of a witness or a juror be prosecuted
either in the Superior Court or the District and Boston
Municipal Courts, but thereafter reserved for exclusive Superior
Court jurisdiction intimidation of "persons furnishing
information in connection with a criminal investigation, and
. . . 'criminal investigators'" (a crime that had been covered
by the earlier version of the statute, see St. 1970, c. 177,
and, thus, had been within the jurisdiction of the District and
12
Boston Municipal Courts since 1970) simply is not reasonable,
much less likely.4
In 2006, Governor Romney signed into law a bill entitled
"An Act Reducing Gang Violence." See St. 2006, c. 48. Among
other provisions of that act was the revision of G. L. c. 268,
§ 13B, to broaden its reach. In 2010, the statute was amended
again effective November 4, 2010, substituting the amended
clause (iv), providing: "a person who is furthering a civil or
criminal proceeding, including criminal investigation, grand
jury proceeding, trial, other criminal proceeding of any type,
probate and family proceeding, juvenile proceeding, housing
proceeding, land proceeding, clerk's hearing, court ordered
mediation, any other civil proceeding of any type," see St.
2010, c. 256, § 120, for the former clause (iv), which read: "a
person who is or was furthering a criminal investigation, grand
jury proceeding, trial or other criminal proceeding of any
type," see St. 2006, c. 48, § 3. The same amendment substituted
the following clause (v), providing: "a person who is or was
attending or had made known his intention to attend a civil or
criminal proceeding, including criminal investigation, grand
4
We note that, while the title of the act referred to
"Intimidation of a Witness," the language of the statute itself
used the phrase "intimidation of a witness or juror," thus
supporting the inference that it was the statute as a whole and
not merely some of its parts that were to be included in the
District and Boston Municipal Courts' jurisdiction. See St.
1996, c. 393, § 1.
13
jury proceeding, trial, other criminal proceeding of any type,
probate and family proceeding, juvenile proceeding, housing
proceeding, land proceeding, clerk's hearing, court-ordered
mediation, any other civil 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 . . . ," see St. 2010, c. 256, § 120, for the former
clause (v), which read: "a person who is or was attending or
had made known his intention to attend a grand jury proceeding,
trial or other criminal proceeding of any type with the intent
to impede, obstruct, delay, harm, punish or otherwise interfere
thereby with a criminal investigation, grand jury proceeding,
trial or other criminal proceeding of any type . . . ," see St.
2006, c. 48, § 3.
"'[A] statute must be interpreted according to the intent
of the Legislature ascertained from all its words construed by
the ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers may be
effectuated.' Commonwealth v. Figueroa, 464 Mass. 365, 368
(2013), quoting from Harvard Crimson, Inc. v. President &
Fellows of Harvard College, 445 Mass. 745, 749 (2006). Where a
literal reading would 'lead to an awkward and even intolerable
14
result,' we will eschew it 'for a more liberal or more
encompassing approach.' Mailhot v. Travelers Ins. Co., 375
Mass. 342, 348 (1978)." Rodman v. Rodman, 470 Mass. 539, 541
(1978). Again, the notion that the Legislature, over the years
between 1996 and 2010, while dramatically increasing both the
penalty and the scope of the intimidation statute to protect
more and more people victimized by the crime of intimidation,
was at the same time performing the kind of jurisdictional
gymnastics envisioned by the defendant is fanciful at best, and
certainly not "consonant with reason and common sense." Rotondi
v. Contributory Retirement Appeal Bd., 463 Mass. at 648.
The court's analysis in Wilcox v. Riverside Park
Enterprises, Inc., 21 Mass. App. Ct. 419, 420 n.2 (1986), is
instructive here. In Wilcox, this court said, "[A]n official
title to an act does not control the plain provisions of the
statute, and, if there is any variation between the title and
the body of the statute, the latter governs." Ibid. Compare
Commonwealth v. Fernandes, 46 Mass. App. Ct. 455, 458-459 (1999)
(when caption and body of indictment are in discord, body of
indictment governs). Thus, focusing solely on the statutory
language as instructed, G. L. c. 268, § 13B, clearly outlines
five separate subsections of persons to be protected from
intimidation. G. L. c. 268, § 13B(1)(c)(i)-(v). Subsection (i)
pertains to those witnesses warranting protection; subsection
15
(iii) includes "juror" (or grand juror) embedded within a long
list of others (including law enforcement, the judge, and other
court personnel). It is unreasonable to conclude that the
Legislature intended, with the phrase "intimidation of a witness
or juror," to cherry pick only witnesses or jurors from a
substantial list of others in prescribing jurisdiction.
The dissent's citation to Della Jacova v. Widett, 355 Mass.
266 (1969), is not helpful here. There, in the context of a
civil malicious prosecution case, the court noted that a
conviction of the plaintiff of the crime of forgery under G. L.
c. 267, § 1, in a Municipal Court was beyond the jurisdiction of
that court and did not establish conclusively that there had
been probable cause for the prosecution. Id. at 273-274.
However, G. L. c. 218, § 26, does not refer to G. L. c. 267,
§ 1, but only "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." That language
places that crime not in the seventh category, but in the eighth
category, described supra at -- that is, a list of common-law
crimes, with no citation to a statute. In the case before us,
by contrast, there is a reference to the relevant statute: that
is, "intimidation of a witness or juror under section thirteen B
of chapter two hundred and sixty-eight" is placed specifically
16
within the jurisdiction of the District and Boston Municipal
Courts.
Both intimidation cases under G. L. c. 268, § 13B, and
cases of malicious destruction of all kinds of property under
G. L. c. 266, § 127, are tried routinely in the District and
Boston Municipal Courts -- without regard for the distinctions
urged. See Instruction 7.360 of the Criminal Model Jury
Instructions for Use in the District Court (rev. May, 2014).
See also Instruction 8.280 of the Criminal Model Jury
Instructions for Use in the District Court (2009).
In addition, both the intimidation of a witness statute and
the malicious destruction of property statute, along with their
respective legislative histories, have been analyzed extensively
by the Supreme Judicial Court, each time reviewing a case tried
in the District Court on a charge for which the dissent's
analysis would conclude that court had no jurisdiction. See
Commonwealth v. Hamilton, 459 Mass. 422 (2011) (where the
defendant was tried in the District Court for intimidating a
probation officer).5 See also Commonwealth v. Deberry, 441 Mass.
211, 214-215 (2004) (where the defendant was tried in the
5
While the conviction in Hamilton, 459 Mass. at 435, was
reversed on the ground that the intimidation took place after
all criminal proceedings had ended, behavior not made criminal
by the then-existing version of the statute, nowhere in the
opinion does the court express concern about the jurisdiction of
the District Court to hear the case.
17
District Court for violation of G. L. c. 266, § 127,
specifically, damage to a kitchen wall; the court noted that the
offense was prohibited by the statute because "amendments to the
statute in 1978 expanded personal property covered by the
statute to encompass real property, i.e., 'dwelling house' or
'building.' See St. 1978, c. 544 . . . ").6
Finally, while not controlling, it is worth noting that the
practical effect of the dissent's position would be to curtail
drastically the ability of the Commonwealth to prosecute these
crimes -- contrary, one would think, to the intent of the
Legislature -- by placing them on Superior Court dockets already
bursting with murder, aggravated rape, armed robbery,
trafficking, and other serious criminal -- and civil -- cases.
In addition, because the dissent concludes that the case turns
on jurisdiction, the result urged would open up for collateral
attack every such conviction in the last twenty years. We are
satisfied that count 1 should not have been dismissed.
b. The defendant's cross appeal. In his cross appeal, the
defendant makes several arguments. The first is a claim that a
threat to commit a crime is a lesser included offense of
stalking and therefore that charge should have been dismissed as
6
The decision in Deberry, 441 Mass. at 215, turned on the
issue whether the relevant amount for determining if the damage
was in excess of $250 was the amount of damage to the property
or the value of the property itself.
18
duplicative. Applying the familiar, elements-based approach to
double jeopardy issues articulated by the Supreme Judicial Court
in Commonwealth v. Vick, 454 Mass. 418, 431 (2009), it is clear
that the argument fails because each crime contains elements not
present in the other. Thus, for example, while stalking
requires proof that the defendant "[made] a threat with the
intent to place the person in imminent fear of death or bodily
injury," stalking also requires proof that the defendant
"willfully and maliciously engage[d] in a knowing pattern of
conduct or series of acts over a period of time directed at a
specific person which seriously alarm[ed] or annoy[ed] that
person and would cause a reasonable person to suffer substantial
emotional distress." G. L. c. 265, § 43(a), as amended through
St. 2010, c. 92, § 9.
By contrast, threat to commit a crime requires proof that
what was threatened was a crime. See G. L. c. 275, § 2;
Commonwealth v. Hamilton, 459 Mass. at 426-427. Thus, a person
could be convicted of a threat to commit a property crime, and
if that were the only threat, despite proof that the defendant
"willfully and maliciously engage[d] in a knowing pattern of
conduct or series of acts over a period of time directed at a
specific person which seriously alarm[ed] or annoy[ed] that
person and would cause a reasonable person to suffer substantial
19
emotional distress," he or she could not be convicted of
stalking. See G. L. c. 265, § 43(a).
Next the defendant argues that there is an error in the
docket sheet and mittimus with respect to his sentence on count
2. On count 1, the defendant was sentenced to two years in the
house of correction, with one year to serve, and the balance
suspended until April 24, 2019. On count 2, he was sentenced to
two years in the house of correction from and after count 1,
suspended until April 24, 2019. The docket sheet and the
mittimus, however, both state that on count 2 the defendant was
sentenced to two years in the house of correction committed.
At the hearing on the motion to dismiss, after dismissing
count 1, the clerk read the following sentence into the record:
"The Court has vacated without prejudice your finding of
guilty as to Count 1 and the sentence thereafter of two
years, one to serve, the balance suspended until April
24th, 2019. And Counts 2, 3 and 4 stand as imposed on
April 30th. Count 2 is two years in the house of
correction, sentence is suspended until April 24th of 2019.
Count 3 is six months in the house of corrections suspended
until April 24th of 2019 from and after Count 2. And Count
4 is committed to the house of corrections, six months,
sentence suspended to from and after Count 3."
The judge responded, "Thank you. All set." After a discussion
between the judge and the clerk about the mittimus, the judge
confirmed, "There's no change in the sentence except that . . .
Count 1 was vacated."
20
In light of this, we agree with the Commonwealth, which
concedes that the docket sheet and mittimus must be amended to
reflect that the defendant's two-year sentence on count 2 should
have remained a suspended sentence. In any event, however,
because we reinstate the conviction on count 1, the original
sentences must stand.
The defendant argues next that there was insufficient
evidence to support his conviction of stalking because there was
no threat made with intent to place the victim in imminent fear
of death or bodily injury. In light of all of the evidence
detailed above, including the e-mail about explosive water
bottles, and the e-mail stating that the defendant could not
"wait to roast" the victim and would "get [his] hand around [the
victim's] fat heart," we are satisfied that the evidence was
sufficient to support the defendant's conviction of stalking.
In addition, we reject the defendant's argument that there
was insufficient evidence to support his conviction of
threatening to commit a crime, to wit, to kill. See
Commonwealth v. Hamilton, 459 Mass. at 427, quoting from
Commonwealth v. Sholley, 432 Mass. 721, 724-725 (2000) ("The
elements of threatening a crime include an expression of
intention to inflict a crime on another and an ability to do so
21
in circumstances that would justify apprehension on the part of
the recipient of the threat").
Finally, the defendant raises several unpreserved claims of
error with respect to the jury instructions. We review these
claims to determine if there was error and, if so, whether the
error created a substantial risk of a miscarriage of justice.
See Commonwealth v. Kelly, 470 Mass. 682, 697 (2015). In sum,
we see no error and certainly no substantial risk of a
miscarriage of justice.
The defendant argues that the judge erred in giving the
stalking instruction without also, sua sponte, instructing the
jury on the lesser included offense of harassment. In the
defendant's view, because his defense was that he never intended
to threaten or frighten the victim, a harassment instruction was
warranted. The defendant did not request such an instruction.
"[I]n the absence of any request by the defendant for such an
instruction, or of any indication that the defendant brought
this interpretation of the facts to the judge's attention, the
judge was not required to give the instruction sua sponte."
Commonwealth v. Tavares, 471 Mass. 430, 439 (2015). Moreover,
as the Commonwealth argues, giving an instruction on harassment
could have prevented the defendant from obtaining the outright
acquittal he sought on the stalking charge. Finally, even if
the judge should have discussed with defense counsel in a charge
22
conference the possibility of giving a lesser included offense
instruction, the fact that the jurors convicted the defendant of
threatening to kill the victim indicates that it is unlikely
that they would have convicted him only of the lesser offense of
harassment, rather than stalking, even had they been given the
option.
The jury also were not given a specific unanimity
instruction on the charge of threat to commit a crime. Again,
there was no request for such an instruction, and this case
therefore is controlled by Commonwealth v. Julien, 59 Mass. App.
Ct. 679, 686 (2003), which holds that, in these circumstances,
the failure of a judge sua sponte to give a specific unanimity
instruction does not create a substantial risk of a miscarriage
of justice.
The defendant raises two claims of error with respect to
the instructions on the intimidation charge. Because the
defendant did not clearly object at trial, again, we review for
error and, if there was error, we review for whether the error
gave rise to a substantial risk of a miscarriage of justice.
See Commonwealth v. Kelly, 470 Mass. at 697.
The defendant argues first that the judge erred in
including the words "harm" or "punish" in explaining the
elements of the intimidation of a witness charge to the jurors,
23
because the Supreme Judicial Court had determined in
Commonwealth v. Hamilton, 459 Mass. at 432-436, that those terms
were ambiguous. The defendant’s argument is misplaced. It is
true that the Supreme Judicial Court "invited" the Legislature
to clarify the ambiguity in the 2006 version of § 13B
"particularly as it relates to retaliatory conduct." Id. at
436. However, the court did not instruct that the terms "harm"
or "punish" could no longer be used in instructing the jury on
the elements of the charge. Although the judge here may not
have provided a strict reading of the intimidation of a witness
model jury instruction, he was not required to do so, so long as
all of the elements of the crime were included in the
instruction given. See Commonwealth v. Robinson, 449 Mass. 1, 8
(2007) ("A judge need not use any particular words in
instructing the jury as long as the legal concepts are properly
described"). There was no error.
The defendant next asserts that he prepared his case with
the understanding that the Commonwealth's theory of the case was
that Higgins was a "defense attorney." However, the judge
charged the jury that the statute also would punish behavior
intimidating "anyone who might be involved in a court
proceeding," "an attorney," and "whatever, someone involved in a
court proceedings." In the defendant's view, this instruction
24
improperly extended the statute's protection to "basically
anyone involved in the court system." This argument also fails.
The evidence presented at trial informed the jury that Higgins
was one of the attorneys representing Wells Fargo in the various
ongoing civil suits involving the defendant, which places
Higgins squarely in the realm of protection afforded by the
intimidation statute. See G. L. c. 268, § 13B(1)(c)(iv). To
say that Higgins, the lawyer for Wells Fargo, was just "anyone"
utilizing the court system is disingenuous. Again, we discern
no error in the judge's final charge to the jury, and certainly
no substantial risk of a miscarriage of justice. See
Commonwealth v. Kelly, supra.
Conclusion. The order dismissing count 1 is reversed. The
defendant's conviction on count 1 is reinstated, and his
convictions on the remaining counts are affirmed. We remand the
matter for further proceedings, including imposition of the
original sentences, consistent with this opinion.
So ordered.
RUBIN, J. (dissenting in part and concurring in part). I
join so much of the court's opinion as affirms the defendant's
convictions. Count 1, however, which charged the defendant with
intimidation of a person furthering a court proceeding in
violation of G. L. c. 268, § 13B, was properly dismissed by the
trial judge on the basis of the plain language of the
jurisdictional statute, G. L. c. 218, § 26, language consciously
and deliberately adopted by the Legislature. Because we are
without power to ignore or amend that language, I respectfully
dissent from that portion of the court's opinion reversing the
trial judge's order of dismissal.
The plain language of G. L. c. 218, § 26, as amended
through St. 1996, c. 393, § 1, says that the District and Boston
Municipal Courts have jurisdiction over prosecutions for
"intimidation of a witness or juror under section thirteen B of
chapter two hundred and sixty-eight," not over cases of
intimidation of any other individuals brought under that
section. Likewise, the criminal complaint in this case
explicitly says, "Superior Court jurisdiction, however, District
Court has final jurisdiction for a witness or juror under G. L.
c. 218, § 26." Relying on the plain language of the statute,
the Boston Municipal Court judge properly dismissed count 1.
Where the language of the statute is plain, that should be the
2
end of our enquiry. If the Legislature chooses to amend the
statute, of course it has power to do so.
Even were the statute ambiguous, however -- and in the end
the majority acknowledges it is not -- there is conclusive
evidence that the Legislature intended to give the District and
Boston Municipal Courts jurisdiction only over intimidation
cases made criminal by G. L. c. 268, § 13B, where the victim was
a witness or juror.
To begin with, the question is the meaning of the 1996 Act
that inserted the relevant words in G. L. c. 218, § 26, St.
1996, c. 393 (the 1996 Act), not the meaning (or history) of the
subsequent amendments to the substantive criminal statute, G. L.
c. 268, § 13B, on which the majority focuses. The 1996 Act
increased the maximum sentence for a violation of § 13B, which
had been five years in State prison, to ten years in State
prison. This had the effect not only of making violation of the
statute a more serious crime but also of, commensurate with
that, taking all acts criminalized by the statute out of the
broad grant to District and Boston Municipal Courts of
jurisdiction over any crimes punishable by imprisonment in the
State prison for not more than five years. The 1996 Act at the
same time, however, inserted into § 26 the words "intimidation
of a witness or juror under section thirteen B of chapter two
hundred and sixty-eight."
3
At the time of the 1996 Act, the structure of G. L. c. 268,
§ 13B, was different than it is today in a way that makes the
"witness or juror" limitation understandable. The version in
effect when the 1996 Act was adopted read: "Whoever, directly
or indirectly, willfully endeavors . . . by misrepresentation,
intimidation, force or threats of force to influence, impede,
obstruct, delay or otherwise interfere with any witness or juror
in any stage of a trial or other criminal proceeding or with any
person furnishing information to a criminal investigator
relating to a violation of a criminal statute of the
commonwealth . . . shall be punished . . ." (emphasis added).
G. L. c. 268, § 13B, as appearing in St. 1990, c. 369.1 As this
court explained contemporaneously in Commonwealth v. Isle, 44
Mass. App. Ct. 226, 228 (1998), "[t]he language of the witness
intimidation statute has two distinct branches, separated by the
word 'or.' The statute may be applied either to witnesses and
jurors in ongoing criminal proceedings, or to any person
furnishing information to a criminal investigator relating to a
crime."
Given the contemporaneous understanding of the statute to
have two branches, it makes perfect sense that the Legislature
might have intended precisely the result its language achieved
1
The 1996 Act itself added ", grand jury" after the word
"trial" in the quoted text, but left this language otherwise
intact. See St. 1996, c. 393, § 3.
4
with respect to the now-harsher statute: giving concurrent
jurisdiction to the District and Boston Municipal Courts over
first branch intimidation cases involving ongoing criminal
proceedings, but leaving the Superior Court alone with
jurisdiction over cases brought under the other branch of the
statute, which at that time included only those involving
persons furnishing information to a criminal investigator. This
result does not involve jurisdictional gymnastics; it amounts to
a commonplace act of legislative line drawing.
Indeed, and perhaps most significantly, there is conclusive
evidence that the decision to draw this line was intentional and
not some mere accident of careless phrasing. As it was
originally introduced, the bill that would become the 1996 Act
would actually have inserted the language "section 13B of
chapter two hundred and sixty-eight" into G. L. c. 218, § 26,
which would have given the District and Boston Municipal Courts
concurrent jurisdiction over all crimes under the statute. See
1996 Senate Doc. No. 2264 (introduced March 21, 1996). It was
amended during the legislative process to specify that
concurrent jurisdiction was conferred only to prosecutions of
"intimidation of a witness or juror" under that section.
Consistent with this, the original draft bill would have
inserted the language into the portion of the statute that lists
crimes only by statutory section and subsection numbers. The
5
final bill, however, inserted the modified language into a
different portion of the statute that contains verbal
descriptions of covered crimes.2
This statutory history, not mere "legislative history," but
the history of the text of the statute itself, clarifies any
ambiguity and confirms that the Legislature deliberately limited
the scope of District and Boston Municipal court jurisdiction
with respect to acts made criminal under G. L. c. 268, § 13B, to
the "witnesses and jurors" branch of the statute.
To be sure, G. L. c. 268, § 13B, was amended dramatically
in 2006 so that it now covers much more conduct. Under the 2006
amendments, intimidation of many other categories of individuals
was criminalized. St. 2006, c. 48, § 3. And in 2010, the
statute was amended again to include the category relevant here,
2
It suffices for present purposes to note that the statute
contains the two portions I have described. While Borges might
admire the ponderous eight-branch taxonomy put forward by the
court majority, I find it more confusing than helpful. Cf.
Borges, The Analytical Language of John Wilkins, in Other
Inquisitions 1937-1952 (Ruth L. Simms trans. University of Texas
Press, 1964) (purporting to quote a Chinese encyclopedia, the
Celestial Emporium of Benevolent Knowledge, that states that
"animals are divided into [a] those that belong to the Emperor,
[b] embalmed ones, [c] those that are trained, [d] suckling
pigs, [e] mermaids, [f] fabulous ones, [g] stray dogs, [h] those
that are included in this classification, [i] those that tremble
as if they were mad, [j] innumerable ones, [k] those drawn with
a very fine camel's hair brush, [l] others, [m] those that have
just broken a flower vase, [n] those that resemble flies from a
distance").
6
"a person who is furthering a civil or criminal proceeding."
St. 2010, c. 256, § 120.
Nonetheless, the Legislature has not amended G. L. c. 218,
§ 26, to expand the concurrent jurisdiction of the District and
Boston Municipal Courts to include cases involving intimidation
of anyone other than jurors or witnesses. Of course, it may do
so. Perhaps the majority thinks the Legislature should already
have done so. But it has not done so, and, unless it violates
the State or Federal Constitution -- which this limitation
obviously does not -- it is not for us to ignore or amend
legislative language that clearly and correctly expresses the
intent of the Legislature.
Today's majority is not the first to assert that it is not
"sensible" or "reasonable" to conclude that the Legislature
meant what it said. But the language of the statute, confirmed
by the statutory history, leaves no doubt. To the extent the
majority attempts to make the line drawn here seem so arbitrary
that it is "unreasonable to conclude" that this is what the
Legislature meant -- and in light of the structure of G. L.
c. 268, § 13B, at the time of adoption of the 1996 Act, there is
little to the majority's argument -- one need look no further
for refutation than the portion of G. L. c. 218, § 26, construed
in Della Jacova v. Widett, 355 Mass. 266 (1969). The
Legislature decided in that portion of the statute that the
7
District Court would be given concurrent jurisdiction with the
Superior Court over "forgery of a promissory note, or of an
order for money or other property," but not for forgery of
anything else prohibited by G. L. c. 267, § 1, including what
was at issue in Della Cova, forgery of an access slip to a safe
deposit box. Id. at 273. The line at issue in this case is no
less "sensible" or "reason[able]" than the line drawn there.
In the end, apparently recognizing that the trial judge in
fact correctly employed the "literal reading" of the statutory
text, the majority concludes that the Legislature's line drawing
here is so "intolerable" that we should depart from what the
statute says. Ante at .
Whatever our power, if any, under Supreme Judicial Court
precedent to ignore plain statutory language that was
deliberately enacted and that does not violate the State or
Federal Constitution, I simply cannot agree that a difference of
opinion whether a subset of one crime over which the Superior
Court has jurisdiction may also be heard in the District and
Boston Municipal Courts warrants its exercise. Since the trial
judge correctly construed the statute, I would affirm her order
of dismissal.3,4
3
The majority correctly holds that the practical concerns
it raises cannot trump the language of the statute.
Nonetheless, it is worth noting that there is some reason to
question the majority's assertion that properly reading the
8
statute will open the floodgates of collateral attack. While
the record contains no information about the frequency of
prosecution in the District or Boston Municipal Courts of cases
of intimidation under G. L. c. 268, § 13B, where the victim was
not a juror or witness, there appears to be only a single
reported appellate decision since the expansion of § 13B in 2006
which involved such a prosecution. The only reported appellate
decision for a prosecution for intimidation of anyone other than
a witness or a juror under the version of § 13B in place for the
decade between the amendment of G. L. c. 218, § 26, in 1996 and
the expansion of G. L. c. 268, § 13B, in 2006, was tried in the
Superior Court. Commonwealth v. King, 69 Mass. App. Ct. 113
(2007).
4
The defendant also argues that there is an error in the
docket sheet and mittimus with respect to his sentence on count
2. On count 1, which, as described, was dismissed, the
defendant was sentenced to two years in the house of correction
one year to serve, the balance suspended until April 24, 2019.
On count 2, he was sentenced to two years in the house of
correction from and after count 1, suspended until April 24,
2019. The docket sheet and the mittimus, however, both state
that on count 2 he has been sentenced to two years in the house
of correction committed.
After dismissing count 1, the clerk read the following
sentence into the record: "The Court has vacated without
prejudice your finding of guilty as to Count 1 and the sentence
thereafter of two years, one to serve, the balance suspended
until April 24th, 2019. And Counts 2, 3 and 4 stand as imposed
on April 30th. Count 2 is two years in the house of correction,
sentence is suspended until April 24th of 2019. Count 3 is six
months in the house of corrections suspended until April 24th of
2019 from and after Count 2. And Count 4 is committed to the
house of corrections, six months, sentence suspended to from and
after Count 3." The judge responded, "Thank you. All set."
After a discussion between the judge and the clerk about the
mittimus, the judge confirmed, "There's no change in the
sentence except that . . . Count 1 was vacated."
In light of this, the Commonwealth correctly concedes that
the docket sheet and mittimus must be amended to reflect that
the defendant's two-year sentence on count 2 should have
remained a suspended sentence. I read the majority's remand
order to require this.