Opinion
No. 11–P–726.
2012-06-12
COMMONWEALTH v. Robert HICKEY.
We agree with the defendant that these arguments were improper under Commonwealth v. Thomas, 401 Mass. 109, 116 (1987), for suggesting that the Commonwealth's witnesses must have engaged in a conspiracy to lie for the defendant's testimony to be true. See Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010); Commonwealth v. Costello, 36 Mass.App.Ct. 689, 697 (1994) (remarks regarding prosecution witness conspiracy were improper). However, in light of the strong evidence against the defendant on the negligent operation count and the curative instruction from the judge, 6 the error was not prejudicial. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 556 (2011).
By the Court (KATZMANN, SIKORA & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert Hickey, was convicted of intimidation for the purpose of interfering with a criminal investigation under G.L. c. 268, § 13B, and negligent operation of a motor vehicle under G.L. c. 90, § 24. On appeal, the defendant contends there was insufficient evidence of his intent to interfere with a criminal investigation and challenges the propriety of the prosecutor's closing argument. For the reasons stated below, we reverse in part and affirm in part.
Discussion. 1. Sufficiency of the evidence. The defendant argues there was insufficient evidence to show that he specifically intended to “impede, obstruct, delay, harm, punish or otherwise interfere thereby with a criminal investigation,” as is required to convict him of intimidation for the purpose of interfering with a criminal investigation.
G.L. c. 268, § 13B, as appearing in St.2006, c. 48, § 3.
The defendant does not contest the sufficiency of the evidence on any other element of intimidation. In addition, the Commonwealth's theory at trial was limited to interference with a criminal investigation based on the events at the hospital.
In reviewing a challenge to the sufficiency of the evidence, “we ask whether, viewing the evidence in a light most favorable to the Commonwealth, ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ “ Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (emphasis original). “Evidence will not be sufficient to withstand [a] defendant's motion [for a directed verdict] unless it allows us to do more than ‘find that there was some record evidence, however slight, to support each essential element of the offense’ “ Corson v. Commonwealth, 428 Mass. 193, 197 (1998), quoting from Commonwealth v. Mandile, 403 Mass. 93, 94 (1988) (emphasis added). Likewise, evidence is insufficient if it merely piles “inference upon inference or conjecture and speculation.” Ibid. Viewing the evidence in the light most favorable to the Commonwealth, a rational jury could find the following: On December 21, 2008, the defendant rear-ended an automobile with the pickup truck he was driving. When the police arrived at the scene, the defendant “had a big gash on his head” and appeared to be intoxicated. The defendant admitted to having been drinking. He became agitated and uncooperative when confronted by the police, who told him to “calm down or you're going to get arrested.” The defendant responded “I get in an accident and I hit my head, so I'm drunk. So it's my fault.” The police did not advise him at the scene that he was under arrest or that there was an ongoing investigation regarding his criminal conduct.
The amendment to the statute effected by St.2010, c. 256, § 120, came into effect after the events of this case and is thus not relevant to our analysis.
The police concluded that the defendant needed medical attention and he was taken to the hospital. The police then went back to the station to prepare a criminal report and an accident report. At the hospital, the defendant was belligerent with medical personnel and refused treatment. As a result of the defendant's conduct, the police were called back to the hospital. The police informed the defendant that he had two choices: either calm down, get treated, and go home,
or get arrested. The defendant responded: “[W]hat, did all you guys come for me? What, they sent five of you ... I'll take all of you five f-ing guys.” He got up and pointed his finger in an assaultive manner. At this point he was arrested.
Whether the officer told the defendant he could go home “on a summons” is contested by the parties. This phrase was mentioned once in testimony, by one witness, in a nonresponsive answer to a question on cross-examination. The Commonwealth did not rely on the statement in closing. Furthermore, there was a successful objection to a discussion of what a summons was, which was granted in part because, during sidebar, the prosecutor indicated that the police officer had not stated the defendant would go home on a summons. We do not think that the evidence was sufficient for the jury to find the officer made reference to a summons. See Corson v. Commonwealth, supra.
Based on the evidence presented, we conclude that a rational finder of fact could not find, beyond a reasonable doubt, that the defendant knew that he was the subject of an ongoing criminal investigation at the time of his actions at the hospital. The evidence is that the police were at the hospital in response to the defendant's disruptive behavior, rather than as part of any ongoing criminal investigation.
Nothing in the evidence indicates that the defendant was under the false impression that the police were there as part of an ongoing investigation. The conversation between the defendant and the police at the hospital did not indicate that an investigation was underway, but instead that their focus was on his disruptive conduct while being treated at the hospital. The context of the police encounter with the defendant at the hospital does not support the view that his threats related back to the encounter he had with the police at the time of the crash. Thus, viewing the evidence in the light most favorable to the Commonwealth, a rational finder of fact could not find beyond a reasonable doubt that the defendant intended to intimidate the police regarding an investigation.
See Black's Law Dictionary 902 (9th ed.2009) (defining “investigate” as “[t]o inquire into (a matter) systematically; to make (a suspect) the subject of a criminal inquiry ... [t]o make an official inquiry”); id. at 864 (defining “inquiry” in certain contexts as “[f]act-finding ... [a] request for information, either procedural or substantive”). There is no evidence that the police were attempting to find facts or information regarding criminal conduct while at the hospital.
Whether he had the intention to interfere with some hypothetical future investigation is entirely speculative on this record. See Corson v. Commonwealth, 428 Mass. at 197.
The single, ambiguous reference to the defendant going home on a summons, see note 3, supra, does not remedy this evidentiary deficiency. See, e.g., Commonwealth v. Rivera, 460 Mass. 139, 143 (2011) (statement that child “[k]ind of, yeah” thought defendant followed him insufficient for jury to find defendant followed him).
2. Closing argument. The defendant also objects to the following portion of the prosecutor's closing argument:
“[F]or you to believe [the defense witnesses], you would have to believe that every single other witness that the Commonwealth called to the stand ... essentially all got together to perpetrate this fraud upon all of you.”
We agree with the defendant that these arguments were improper under Commonwealth v. Thomas, 401 Mass. 109, 116 (1987), for suggesting that the Commonwealth's witnesses must have engaged in a conspiracy to lie for the defendant's testimony to be true. See Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010); Commonwealth v. Costello, 36 Mass.App.Ct. 689, 697 (1994) (remarks regarding prosecution witness conspiracy were improper). However, in light of the strong evidence against the defendant on the negligent operation count and the curative instruction from the judge,
the error was not prejudicial. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 556 (2011).
We disagree with the defendant that the misstatement by the judge as to which party had suggested witnesses were lying in her curative instruction negated or reversed its impact.
The judgment on the charge of intimidation is reversed, the verdict is set aside, and judgment shall enter for the defendant. The judgment on the charge of negligent operation of a motor vehicle is affirmed.
So ordered.