Commonwealth v. Nordstrom

179 N.E.3d 593

COMMONWEALTH

v.Hilma NORDSTROM (and three companion cases ¹ ).

Nos. 20-P-119

20-P-1193

Appeals Court of Massachusetts, Bristol.

Argued September 15, 2021.

Decided November 23, 2021.

Adrian LeCesne for the defendants.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Blake, & Englander, JJ.

ENGLANDER, J.

After a jury trial in the District Court, the two defendants, Danell C. French and Hilma Nordstrom, were each convicted of impersonating a police officer and intimidation of a witness. Based on the evidence at trial, the jury could have found that French and Nordstrom knocked on the door of the victim's home, and when he answered the door, the defendants advised the victim that "they" were police officers, after which the victim brought them inside. Once inside, French and Nordstrom instead stated that they were the sister and mother, respectively, of the victim's former boyfriend (hereafter, French's brother), and that they wanted to talk to the victim about an allegation that the victim had made, nine years earlier, that French's brother had raped him. The defendants stated that French's brother would be appearing in court the following day on a different matter, and they implored the victim to admit that he had lied about the rape allegation, and to sign a paper to help French's brother in the impending proceeding. The victim refused. Much of this conversation was recorded by French, and the recording was played for the jury.

On appeal, the defendants primarily challenge the sufficiency of the evidence as to each conviction. Among other things, French argues that she cannot be guilty of impersonating a police officer because she was, in fact, a military police officer. And both defendants argue that they cannot be guilty of witness intimidation, because at the time they confronted the victim there was no active criminal investigation of the nine year old rape charges. We affirm the judgments.

Background. In October of 2005, the victim in this case, then age seventeen, reported to the Foxborough police that he had been raped by French's brother a few months earlier. The Foxborough police opened an investigation, but the case did not move forward. As of December 2014, when the events at issue in the case before us took place, there had been no activity in the investigation since 2005.²

On December 9, 2014, the victim was twenty-six years old and living at his parents’ home in Attleboro. He heard a knock at the door. He opened the door and saw the two defendants standing there; one of them held a notepad. The victim testified that "they" identified themselves as police officers. The victim could not recall which of the two defendants first made this statement. The defendants were not in uniform. The victim testified that he believed the defendants were police officers, and that as a result he invited them to come inside.

Once inside, the defendants instead told the victim that they were the sister and mother of French's brother. The victim testified that the defendants said that they "wanted [him] to sign some piece of paper saying that [he] lied about the statements that [he] made to the Foxboro[ugh] Police." The conversation went on for approximately ten minutes. Both of the defendants spoke to the victim. At some point, French began recording the conversation.

On the recording, both defendants can be heard questioning the victim's truthfulness and pressuring the victim to recant the rape allegation. French began by telling the victim that one of the victim's acquaintances had called the victim a liar, and had alleged that the victim "lied about everything." Nordstrom also asked the victim, "Do you realize the charges that you made, whether they're true or false, are serious charges, and you could put a man away for life ... that is something I would never want on my conscience, ever, if I was a liar."

The victim asked the defendants why the incident was "coming back up," and the defendants both told him that French's brother was being "charged" in court the following day. French said she was "trying ... to save [her] brother and his life," and Nordstrom again asked the victim to write a statement retracting his allegations. Toward the end of the recording, French said that she was a "police officer, I've been a police officer in the military for fifteen years."

French can also be heard confronting the victim in what the jurors could have found was an aggressive tone. At one point, for example, she said loudly, "I notice that you don't use the word rape.... Did he rape you? Did he rape you? Did he rape you?" The victim can be heard stating throughout the encounter that he had not lied, that French's brother had in fact raped him, and that he would not sign a document retracting his claims.

Both defendants testified, and denied that they had stated they were police officers prior to gaining entry to the home. The jury returned guilty verdicts, as described previously. These appeals followed.

Discussion. 1. Impersonating a police officer. General Laws c. 268, § 33, sets forth the crime of impersonating a police officer:

"Whoever falsely assumes or pretends to be a ... police officer ... and acts as such or requires a person to aid or assist him in a matter pertaining to the duty of such officer, shall be punished...."

The statute has rarely been cited in our case law, but by its plain language it requires that a person (1) falsely assumed or pretended to be a police officer, and (2) acted as a police officer or required a person to aid or assist them in a matter pertaining to the duty of a police officer. See United States v. Roe, 606 F.3d 180, 186 (4th Cir.), cert. denied, 562 U.S. 1051, 131 S.Ct. 617, 178 L.Ed.2d 448 (2010) (interpreting similar Federal statute).

Here the defendants argue that the Commonwealth failed to prove the required elements of the crime. We review the sufficiency of the evidence to determine whether "there was enough evidence that could have satisfied a rational trier of fact of each ... element beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979). To do so, we consider the evidence "in the light most favorable to the Commonwealth." Commonwealth v. Kobrin, 72 Mass. App. Ct. 589, 597, 893 N.E.2d 384 (2008).

a. Proof of false assumption or pretense. We are not persuaded that there was insufficient evidence. As to defendant French, she first questions whether she could be found to have "falsely assume[d] or pretend[ed]" to be a police officer where she was in fact a military police officer. The answer to that question is yes -- a police officer can nevertheless violate the statute, if by words or conduct they state, or can reasonably be understood to represent, that they hold an office that they do not in fact hold. If, for example, French had said to the victim that she was an Attleboro police officer (that is, an officer of the town where he resided), the representation plainly would have been false, and would have met the requirement of a false pretense or assumption. We are of the view that the representation in this case was not materially different.³

Here, the defendants’ statement at the door that they were police officers could reasonably have been understood as a representation (at least, a jury could so find) that the defendants had some authority in the situation, such that the victim should give them deference, let them into his home, and speak with them. The jury also could have found that the defendants reinforced this false impression through their actions -- arriving unannounced at the victim's home early in the morning, notepad in hand, asking to talk. Even assuming French was a military police officer, as she stated on the recording, she had no authority with respect to the matter she wished to discuss, and no basis to gain entry to the victim's home. The jury thus could reasonably have found that she falsely pretended or assumed the role of a police officer.

The case law from other jurisdictions is in accord. In Roe, the United States Court of Appeals for the Fourth Circuit addressed a situation where the defendant activated his vehicle's emergency lights and pulled over another vehicle on the Baltimore-Washington Parkway, even though the defendant had no authority to do so, as he was a security officer with authority only over a certain property of the National Aeronautics and Space Administration. Roe, 606 F.3d at 182-183. The court rejected the defendant's argument that because he was in fact a Federal officer, he could not be found guilty of the Federal crime of impersonating a Federal officer. Id. at 186. The court concluded that "[t]he prohibition ... is on impersonating the officer or employee that the person is not, regardless of what the person's actual position may be" (emphasis added). Id. Cf. People v. Martinez, 197 A.D.2d 540, 541, 602 N.Y.S.2d 217 (N.Y. App. Div. 1994) (under New York statute prohibiting impersonation of police officer, correction officer could be guilty "not only when he misrepresents who he is, but also when he represents that he is acting with the approval or authority of a police department, thereby abusing his status and position of authority").

Defendant Nordstrom argues, separately, that the Commonwealth did not prove that she falsely pretended or assumed the role of a police officer, because French was the only one who identified herself as a police officer. We disagree. The victim testified at trial that "they said they were police" (emphasis added). Nordstrom presented herself with French, standing right next to her, with one of the defendants carrying a notepad. As a result of that representation, both defendants gained entry into the victim's home. The victim testified that after the representation was made, he believed that the defendants were police officers. The jury were entitled to weigh the evidence, and to credit the victim's testimony over...