Opinion
13-P-1004
11-20-2014
COMMONWEALTH v. BENJAMIN ROSE.
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
The defendant appeals from his conviction of attempt to intimidate a witness, G. L. c. 274, § 6. He argues that the Commonwealth presented insufficient evidence to prove that he committed an overt act sufficient to establish criminal liability. We reverse that judgment and set aside the finding.
After a seven-day bench trial in the Superior Court, the defendant was convicted of attempt to intimidate a witness (MICR2011-01053-001), two counts of witness intimidation (MICR2011-00456-002, MICR2012-00142-001), and four counts of restraining order violation (MICR2011-00456-004 and 005, MICR2011-00510-002, MICR2012-00142-003). He was acquitted of charges of assault and battery (MICR2011-00456-006 and 007), a restraining order violation (MICR2011-00510-001), solicitation of a felony (MICR2011-01053-002), stalking (MICR2011-00456-001), and witness intimidation (MICR2011-00456-003, MICR2012-00142-002). The conviction of attempt to intimidate a witness (MICR2011-01053-001) is the only one challenged on appeal.
The crime of attempt requires three elements: (1) specific intent, (2) an overt act, and (3) nonachievement of the substantive crime. Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990). G. L. c. 274, § 6. The Commonwealth cannot establish the overt act element unless the defendant was reasonably close to realization of the offense. Commonwealth v. Hamel, 52 Mass. App. Ct. 250, 259 (2001). That is, "a defendant must have the present opportunity to commit the substantive crime." Commonwealth v. Bell, 455 Mass. 408, 415 (2009). "[W]hat the actor in fact did toward fulfilling the intention must have been dangerously close to the consummation of the object crime to serve as the crucial overt act." Hamel, supra at 257.
Whether "present opportunity" exists is determined in light of the particular offense, measured by the defendant's proximity to completion. Bell, supra.
"The necessary proximity between a defendant's actions and the completed offense varies with the circumstances; in determining whether a defendant's conduct came sufficiently close to accomplishing a crime so as to warrant punishment as an attempt, we weigh 'the gravity of the crime, the uncertainty of the result, and the seriousness of any threatened danger' to the victim."Commonwealth v. Buswell, 468 Mass. 92, 97 (2014), quoting from Bell, supra at 414.
Here, the defendant's actions did not come at all close to realization of the crime of witness intimidation. For his scheme to succeed, the defendant had to rely on the actions of not just one, but two, intermediaries. While the content of the note from the defendant intended for Jonas Nunez established a relationship between the two of them, the Commonwealth presented no evidence that the defendant and Nunez had ever discussed the matter or that Nunez had agreed -- or had any intent whatsoever -- to carry out the defendant's instructions.
Even if it could be inferred that the defendant's attempt would have come dangerously close to completion had the note reached Nunez, the defendant's actions were even further attenuated from the consummation of the crime due to the reliance on a third inmate, Dimitri Guerrez, to deliver the note to Nunez. The Commonwealth introduced no evidence whatsoever regarding Guerrez -- whether he knew the defendant, whether he knew Nunez, or whether he would have any inclination to act as the facilitator of both a crime and a violation of jail rules.
As in Hamel, Bell, and Buswell where the courts found the overt acts insufficient despite attempted crimes that were far more serious and came closer to achievement than in the present case -- the presence of intermediaries requires the defendant to be very close to consummating the substantive offense before the crime of attempt can be established. In addition, the gravity of the crime and the seriousness of the threatened danger to the victim in this case were relatively minor, narrowing the required proximity even further. The type of witness intimidation attempted here was not a threat of physical injury, property damage, or harassment, but rather, as the trial judge noted, was of the "mislead[ing]" variety. See G. L. c. 268, § 13B(1)(a), (c). "Although the evidence in the instant case is sufficient to show that the defendant intended and prepared for" the crime to occur, "it is not sufficient to show that he undertook an overt act that put him so near -- in time or ability -- to the completion of the crime as to be guilty of attempt." Bell, 455 Mass. at 416.
The result being so uncertain, the defendant's act of passing the note to Guerrez can hardly be characterized as a "last act" that "sets in motion natural forces that would bring [the substantive crime] about in the expected course of events." Commonwealth v. Peaslee, 177 Mass. 267, 271 (1901). Even such acts that "are expected to bring about the end without further interference on the part of the criminal" are insufficient if "the expectation is very absurd." Commonwealth v. Fortier, 56 Mass. App. Ct. 116, 122 (2002), quoting from Commonwealth v. Kennedy, 170 Mass. 18, 21 (1897). Here, it would be "very absurd" to expect that Guerrez and Nunez would have carried out the defendant's plan, especially where the defendant passed the note to Guerrez, in violation of the jail's policies, with correctional officers within just "[f]ive to seven feet."
For the foregoing reasons, we conclude that the evidence of the overt act was insufficient to satisfy the standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). A required finding of not guilty should have been entered on the charge of attempt to intimidate a witness.
The judgment on the indictment charging attempt to intimidate a witness (MICR2011-01053-001) is reversed, the finding is set aside, and judgment for the defendant shall enter on that charge. The remaining judgments are affirmed.
So ordered.
By the Court (Rapoza, C.J., Fecteau & Massing, JJ.),
Clerk Entered: November 20, 2014.