Commonwealth v. Fragata

480 Mass. 121

101 N.E.3d 297

COMMONWEALTH

v.Joseph FRAGATA.

SJC-12330

Supreme Judicial Court of Massachusetts, Bristol..

Argued December 4, 2017.

Decided July 18, 2018.

Christopher DeMayo, Cambridge, for the defendant.

Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

LOWY, J.

A District Court jury convicted the defendant, Joseph Fragata, of intimidating a witness in violation of G. L. c. 268, § 13B, in connection with an incident of alleged domestic violence. ¹

The statute, as relevant here, provides:

"Whoever, directly or indirectly, willfully ... attempts or causes physical injury ... [or] intimidates ... another person who is ... a witness or potential witness at any stage of a criminal investigation, ... or other criminal 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 shall be punished ...."

G. L. c. 268, § 13B (1) (a ), (c ) (i), (v), as amended through St. 2010, c. 256, § 120.² The Commonwealth's theory at trial was that the defendant violated § 13B (1) (c ) (i) by taking away the alleged victim's cellular telephone to prevent her from calling 911 for help after he had verbally assaulted her. On direct appellate review, the defendant contends primarily that the evidence was insufficient to sustain his conviction of witness intimidation under § 13B (1) (c ) (i), because no view of the evidence would have allowed the jury to conclude that he had committed any crime before he took the victim's cellular telephone.

We hold that, to convict a defendant of witness intimidation under the central provision at issue here, G. L. c. 268, § 13B (1) (c ) (i), the Commonwealth must prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding. Applied here, we conclude that the evidence was insufficient to support the defendant's conviction on the particular theory argued by the Commonwealth at trial. There was sufficient evidence to convict the defendant of witness intimidation based on his conduct after he took the victim's cellular telephone. But this alternative ground was not argued by the Commonwealth, and we have no way of knowing whether the jury based their verdict on this alternative ground, for which the evidence was sufficient to convict, or on the theory argued by the Commonwealth, for which the evidence was insufficient to convict. Accordingly, we reverse.

1. Background. We summarize the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

The victim and the defendant met in May, 2014, and developed a romantic relationship. On Christmas Day, 2015, the victim and the defendant hosted a small gathering in the apartment where the two were living. After their guests left, the defendant screamed at the victim and called her "nasty names." The victim began to cry and told the defendant that she was going to telephone 911. The defendant immediately took the victim's cellular telephone from her and begged her not to call the police.

The victim told the defendant that she wanted to leave and that she was still going to call 911. As soon as she ran to the door to get out and call 911, the defendant stood in front of the door; grabbed the victim by the arms, causing them to bruise; and pushed the victim aside, again begging her not to call 911. Then, while the victim was sitting on a couch, the defendant approached her, grabbed her throat, and started choking her, hitting her head against the wall. After that attack, the victim sat on the couch and cried; the defendant had told her that he would not let her leave and she did not feel free to do so. Finally, after about thirty to forty-five minutes, the victim was able to grab her cellular telephone, leave the apartment, and call 911 from across the street.

The defendant was tried before a jury in the District Court on charges of intimidating a witness, strangulation or suffocation, assault and battery by means of a dangerous weapon, kidnapping, and assault on a family or household member. At the close of the Commonwealth's case, and again at the close of the evidence, the defendant moved for a required finding of not guilty on all charges, which the judge denied. In his final jury charge, the judge instructed the jury on the elements of the crime of witness intimidation as follows:

"In order to prove the [d]efendant guilty of [intimidation of a witness], the Commonwealth must prove three things beyond a reasonable doubt: First, that the [d]efendant directly or indirectly attempted to cause physical injury to [the victim], cause[d] physical injury to her, or intimidated her; second, that [the victim] was a witness or potential witness in any stage of a criminal investigation or criminal proceeding of any type; and third, that the [d]efendant did so willfully with the specific intent to impede, obstruct, delay, or otherwise interfere with a criminal investigation."

The jury convicted the defendant of intimidating a witness, but acquitted him of all other charges. The judge imposed a sentence of two years in a house of correction. The defendant appealed, and we granted his application for direct appellate review.

2. Discussion. General Laws c. 268, § 13B, offers far-reaching protection to five categories of protected persons delineated therein. See Commonwealth v. Morse, 468 Mass. 360, 367, 10 N.E.3d 1109 (2014) (noting that § 13B is "[o]ne of the broader statutes in the category of ‘crimes against public justice’ "); Commonwealth v. Hamilton, 459 Mass. 422, 434 n.16, 945 N.E.2d 877 (2011) (acknowledging legislative intent to proscribe broad range of conduct by "expanding the types of ‘proceeding’ covered by the statute"). The subsection at issue here specifically prohibits, in relevant part, intimidation of "a witness or potential witness at any stage of a criminal investigation, ... or other criminal proceeding of any type." G. L. c. 268, § 13B (1) (c ) (i).

The defendant argues that § 13B (1) (c ) (i) prohibits intimidation only of witnesses who have knowledge of actual crimes that have already occurred. The defendant thus contends that his motion for a required finding of not guilty should have been allowed because there was no basis for a reasonable jury to find that he had already committed a crime when he took the victim's cellular telephone to prevent her from calling 911. See Commonwealth v. A Juvenile, 368 Mass. 580, 589, 334 N.E.2d 617 (1975) ("abusive speech is not, without more, subject to criminal sanction"). Although we reject the defendant's construction of the statute as too narrow, we agree that the evidence was insufficient to sustain his conviction under § 13B (1) (c ) (i) on the theory argued by the Commonwealth at trial.

The language of § 13B (1) (c ) (i) does not require proof that an actual crime was committed before the act of intimidation, but rather, as stated, that the victim of the intimidation was "a witness or potential witness at any stage of a criminal investigation, ... or other criminal proceeding."³ We have previously observed that a " ‘criminal proceeding’ within the meaning of § 13B commences on the investigation of a possible criminal violation"—not an actual crime (emphasis added). Commonwealth v. Figueroa, 464 Mass. 365, 371, 982 N.E.2d 1173 (2013). To require proof that a predicate crime was committed before the act of intimidation would be contrary to the statute's plain language and the intent of the 2006 amendment that added this provision. See St. 2006, c. 48, § 3; Figueroa, supra at 368-369, 982 N.E.2d 1173 (noting 2006 amendments were intended to broaden scope of protections and prohibited conduct); Hrycenko v. Commonwealth, 459 Mass. 503, 508, 945 N.E.2d 915 (2011) (amendments "expressly expanded" scope of § 13B ).

Further, the statute's reference to a "potential witness at any stage of a criminal investigation" indicates that the investigation need not have already begun when the intimidation occurred. "Potential" means "[c]apable of being but not yet in existence; latent." American Heritage Dictionary of the English Language 1025 (New College ed. 1980). See Webster's Third New International Dictionary 1775 (1963) (defining "potential" as "existing in possibility: having the capacity or a strong possibility for development into a state of actuality"); Black's Law Dictionary 1357 (10th ed. 2014) (defining "potential" as "[c]apable of coming into being; possible if the necessary conditions exist"). See, e.g., Boelter v. Selectmen of Wayland, 479 Mass. 233, 239, 93 N.E.3d 1163 (2018), quoting Boylston v. Commissioner of Revenue, 434 Mass. 398, 405, 749 N.E.2d 684 (2001) ("We usually determine the plain and ordinary meaning of a term by its dictionary definition"). Consistent with these definitions, we have described a potential witness as, inter alia, a person who might observe further criminal activity or testify at a future proceeding. See Commonwealth v. Brown, 479 Mass. 163, 167-168, 92 N.E.3d 1189 (2018) (describing "potential witness" as witness to "further criminal activity"). See also Commonwealth v. Squires, 476 Mass. 703, 711, 71 N.E.3d 520 (2017) (Gaziano, J., dissenting) (describing "potential witnesses" as persons who might see crime occurring); Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800, 702 N.E.2d 37 (1998), citin...