Opinion
10-P-707
12-08-2011
COMMONWEALTH v. MARLEE COELHO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Marlee Coelho, was found guilty on a complaint charging him with witness intimidation, in violation of G. L. c. 268, § 13B, as appearing in St. 2006, c. 48, § 3. On appeal, the defendant argues that (1) the Commonwealth did not present sufficient evidence to prove each essential element of the charge of witness intimidation beyond a reasonable doubt; (2) the defendant received ineffective assistance of counsel; (3) the judge erred in allowing the admission of a photographic array; and (4) the prosecutor made improper statements during closing argument.
General Laws c. 268, § 13B, provides in relevant part, '(1) Whoever, directly or indirectly, willfully . . . (c) . . . intimidates . . . another person who is: (i) a witness . . . at any stage of a . . . trial . . . (v) . . . with the intent to impede, obstruct . . . or otherwise interfere thereby with a . . . trial . . . shall be punished . . . .'
We conclude that the evidence presented by the Commonwealth was insufficient to prove an essential element of the offense of witness intimidation beyond a reasonable doubt -- that the acts were done 'with the intent to impede or influence [the] . . . witness's testimony.' Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010). Accordingly, we reverse the judgment, set aside the verdict, and order judgment for the defendant.
Intimidation for the purposes of the statute has been defined as 'putting a person in fear for the purpose of influencing his or her conduct.' Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 123-124 (2010). In cases applying
These cases were decided under a prior version of G. L. c. 268, § 13B, which provided in pertinent part, 'whoever, directly or indirectly, willfully endeavors by means of . . . intimidation . . . to influence, impede, obstruct . . . or otherwise interfere with any witness . . . in any stage of a trial . . . shall be punished . . . .' G. L. c. 268, § 13B, as amended through St. 1996, c. 393, § 4. See generally Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 532-535 (2010) ('[B]oth before and after the amendment, the Commonwealth was required to prove that the defendant wilfully engaged in intimidating conduct, that is, acts or words that would instill fear in a reasonable person, and did so with the intent to impede or influence a potential witness's testimony').
G. L. c. 268, § 13B, 'the intent of the defendant to influence the testimony the target witness may give has been a fairly obvious inference.' Commonwealth v. McCreary, supra at 800. See Commonwealth v. Robinson, 444 Mass. 102, 104, 109-110 (2005) (defendant threatens victim by stating, 'Are you sure you want to go on with this?'); Commonwealth v. Rivera, 76 Mass. App. Ct. at 531 (defendant and cohorts attack victim and warn him to remain silent about the incident).
The Legislature's main goal in enacting a statute prohibiting witness intimidation is to 'protect witnesses from being intimidated or harassed so that they do not become reluctant to give truthful evidence in investigatory or judicial proceedings.' Commonwealth v. Cruz, 442 Mass. 299, 309 (2004). See Commonwealth v. McCreary, 45 Mass. App. Ct. at 799 ('larger purpose is to prevent interference with the administration of justice'). We recognize that many citizens are dissuaded from participating as a witness in the judicial system for fear of retaliation or due to intimidation. See Commonwealth v. Rivera, 76 Mass. App. Ct. at 534 & n.6, quoting from Report of the Joint Committee on Public Safety, 2005 Senate Doc. No. 26, at 6, 13, 14.
While the Commonwealth attempted to carry out the intent of the witness intimidation statute, in this case, the Commonwealth's evidence lacked sufficient legal force. The Commonwealth argues that the defendant 'indirectly' intimidated the victim, Claudio DePina, pointing to the severity of the attack; the familial relationship between the defendant and the first assailant, who was the defendant's brother and whose trial was pending; DePina's refusal to identify the defendant in a photo array; and DePina's demeanor at trial. Even applying the 'time, place and circumstances' standard, see Commonwealth v. McCreary, 45 Mass. App. Ct. at 800, the Commonwealth's evidence did not rise to the level of sufficiency that, in turn, would have allowed the jury to determine the defendant's culpability.
The Commonwealth relied heavily on circumstantial evidence, inferences, and the testimony of an uncooperative victim who provided contradictory and elusive statements that undercut the Commonwealth's theory. See Commonwealth v. Martino, 412 Mass. 267, 272-273 (1992) (evidence that is largely circumstantial is permissible, as long as it is reasonable and proof of the Commonwealth's position has not deteriorated at the close of all the evidence).
The facts of this case are more similar to the second incident discussed in Commonwealth v. Drumgoole, 49 Mass. App. Ct. 87, 89, 92 (2000) (in which 'at most the evidence showed the defendant bumped [the potential witness] in a crowded restaurant . . . [an] act . . . not accompanied by intimidating words connecting the act to [the victim's] role as a potential witness'), than like Commonwealth v. Perez, 47 Mass. App. Ct. 605, 606-607, 609-610 (1999), a case the Commonwealth principally relies on. Commonwealth v. Perez, supra, is distinguishable, as there the evidence included the deteriorated relationship between the victim and the defendants, the victim's participation as a witness against a fellow gang member, the knowledge of the victim's role in the criminal investigation, and the meeting of the defendants an hour before the attack on the victim, indicating a planned attack; further, one of the perpetrators yelled, pointing at the witness, 'There he is!' before the car was aimed at the witness. Here, unlike in Perez, the Commonwealth produced no corroborating evidence that the defendant sought to threaten or intimidate the witness. Viewed in the light most favorable to the Commonwealth, there is no evidence, beyond a mere thread of commonality, from which it could be inferred that the fight between DePina and the defendant was linked to an attempt to influence DePina's testimony or to prevent him from testifying. The evidence was thus insufficient to permit the inference that the defendant violated the witness intimidation statute. Contrast Commonwealth v. Cathy C., 64 Mass. App. Ct. 471, 475-476 (2005). Instead, from the testimony of the witness, DePina, the encounter appears to have been accidental, and he states that he was the instigator. Thus, the Commonwealth's evidence was insufficient to prove beyond a reasonable doubt that the defendant's actions were taken with the intent to influence the witness's testimony or prevent him from testifying, rather than in response to an accidental encounter in which the victim instigated the fight.
Prosecutor: 'On the day that you had the fight with [the defendant], did he say anything about when you got cut?'
DePina: 'I was walking. He was running his mouth. I pushed him and, you know, we fight.'
Prosecutor: 'When he was running his mouth did he say anything about the day you got cut?'
Prosecutor: 'Did he say anything about whether you should come to court?'
Depina: 'No. Oh, I don't remember that, not like
Prosecutor: 'Did he say anything about whether you should come to court and testify against his brother?'
DePina: 'No.'
Prosecutor: 'What was he running his mouth about?'
DePina: 'Because he heard if I catch him we're going to fight.'
Prosecutor: 'Mr. DePina, isn't it true that when you met with the officers that day you told them that MC [the defendant] told you that if you came to court to testify against his brother he'd break your neck?'
Prosecutor: 'Did you tell the police that MC told you that he was going to use a baseball bat?'
Prosecutor: 'Did you tell the police that MC told you not to come to court?'
Deciding as we do, we have no occasion to decide the other claims of error raised by the defendant on appeal.
Judgment reversed.
Verdict set aside.
Judgment for defendant.
By the Court (Trainor, Brown & Carhart, JJ.),