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17-P-512 Appeals Court
COMMONWEALTH vs. PETER CHONGA.
No. 17-P-512.
Middlesex. May 2, 2018. - November 1, 2018.
Present: Rubin, Henry, & Desmond, JJ.
Stalking. Assault and Battery. Evidence, Threat.
Indictments found and returned in the Superior Court
Department on May 31, 2012.
The cases were tried before Mitchell H. Kaplan, J., and a
motion for a new trial, filed on July 27, 2015, was considered
by him.
Nelson P. Lovins for the defendant.
Elizabeth J. May, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. The defendant was convicted after a jury trial
of stalking in violation of G. L. c. 265, § 43 (a), and assault
2
and battery in violation of G. L. c. 265, § 13A (a).1 He now
appeals.
Background. Viewing 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 2009.2 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."
In 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
1 The defendant was found not guilty of rape, attempted
murder, assault by means of a dangerous weapon, witness
intimidation, and a second count of assault and battery.
2 The victim moved to the United States in or about January
of 2008, working as an au pair for a family in Connecticut, and
at her request, the defendant joined her in the United States in
the summer of 2009.
3
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 apartment.
4
Discussion. The 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).
The 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." Commonwealth v. 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 design, or
that the defendant did not intend both the conduct and its
harmful consequences.
Second, the defendant contends that his words did not
constitute threats, because there was no evidence of a "fearful
or apprehensive response." In making this argument, he relies
on the statement in Commonwealth v. Chou, 433 Mass. 229, 234
5
(2001), that "language properly may be understood and treated as
a threat even in the absence of an explicit statement of an
intention to harm the victim as long as circumstances support
the victim's fearful or apprehensive response."
To begin with, we note that the defendant neither requested
nor received an instruction that the threat element of stalking
required that the victim subjectively be put in fear or
apprehension. Rather, the jury were instructed without
objection that the threat element of stalking would be met by
proof beyond a reasonable doubt that "the defendant also made a
threat with the intention of placing the alleged victim in
imminent fear of death or bodily injury." See Virginia v.
Black, 538 U.S. 343, 359 (2003) ("'True threats' encompass those
statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to
a particular individual or group of individuals"). On appeal,
the defendant does not claim any error in that instruction, and
the evidence was clearly sufficient to support the jury's
finding on the elements of threat and intent.
In any event, the claim that there was no evidence of a
fearful or apprehensive response is insubstantial. Assuming
without deciding that the language in Chou means the definition
of threat may include a requirement of subjective fear or
apprehension, not just a statement that would objectively
6
"justify" such a response, Commonwealth v. Ditsch, 19 Mass. App.
Ct. 1005, 1005 (1985), the jury readily could have found such a
response here. The victim testified that, with respect to the
incident in which the defendant, while pointing a knife at her
neck, told her he would kill her, "[h]e scared [her]." Her
friend Patrick likewise testified that immediately after that
incident the victim sounded like "[s]omebody scared for her
life."3
The defendant also argues with respect to the assault and
battery charge that the Commonwealth failed to prove the absence
of justification beyond a reasonable doubt. One form of
"assault and battery is 'the intentional and unjustified use of
force upon the person of another, however slight.'"
Commonwealth v. Burno, 396 Mass. 622, 625 (1986), quoting
Commonwealth v. McCan, 277 Mass. 199, 203 (1931). The jury
3 The jury acquitted the defendant of attempted murder with
respect to the choking incident and of assault by means of a
dangerous weapon with respect to the knife incident. Even if
the jury had based its threat finding on one or both of these
incidents, and not the boot incident (which would have been
enough on its own, since the stalking statute requires only one
threat), and even if doing so would have created an inconsistent
verdict, which we do not decide, inconsistency of verdicts would
not in these circumstances undermine the guilty verdict for the
crime of stalking. See Commonwealth v. Elliffe, 47 Mass. App.
Ct. 580, 584 (1999) ("[A] defendant is not entitled to relief
where a jury returns factually inconsistent verdicts; problems
arise only where verdicts are legally inconsistent -- i.e.,
where, removed from the factual context of the particular case,
the government could not possibly have proved the elements of
both crimes with respect to the defendant").
7
could have found beyond a reasonable doubt with respect to the
incident on April 8, 2011, that the defendant was having an
argument with the victim, was upset with her, and, therefore,
grabbed her arm as she was running out the door. (Indeed, they
could have found that the defendant himself told this to an
officer of the Burlington police department.) That is an
intentional and unjustified use of force upon the person of the
victim. The defendant's argument to the contrary -- that his
action was justified because "a sudden non-violent grasp at a
spouse during an argument must fall outside the crime of battery
because of marital expectations of familiarity" -- has no
support and is anathema to the modern law of the Commonwealth,
which recognizes the fundamental humanity, and inviolable
personal integrity, of all persons, regardless of gender,
married, or single.
Judgments affirmed.
Order denying motion for
new trial affirmed.
Commonwealth v. Chonga
Combined Opinion