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Commonwealth v. Belle Isle, 44 Mass.App.Ct.
226 (1998)
Appeals Court of Massachusetts,
No. 96‑P‑1586.
Pamela A. Morris,
[44 Mass.App.Ct.
227] Catherine Cappelli,
Assistant District Attorney, for the Commonwealth.
Before WARNER, C.J., and KASS and LENK, JJ.
LENK, Justice.
The
defendant appeals his conviction by a jury under the witness intimidation
statute, G.L. c. 268, § 13B. The defendant was also convicted of one
charge of assault and battery, which he does not appeal. The defendant was acquitted of additional
charges of assault and battery, assault with a dangerous weapon, and threats to
commit a crime against a police officer.
In appealing his conviction under c. 268, § 13B, the defendant challenges
the judge's denial of his motion for a required finding of not guilty, and
contends that the judge's instructions to the jury deprived him of a fair
trial.
1. Facts.
Viewing the evidence presented at trial in the light most favorable to
the prosecution, the jury could have found the following facts. Ralph Petraglia
lived with his wife Diane and their three children in the home of Ms. Petraglia's parents.
Ms. Petraglia's sister Janice and her husband,
defendant Geoffrey Belle Isle, also shared the family residence. On
After
trying unsuccessfully to stop the assault on her husband, Diane Petraglia stated that she was going to call the police,
went into the adjoining dining room, and picked up the telephone. Janice followed her sister into the dining
room and placed her finger on the phone hook to disconnect the call. The defendant temporarily stopped beating
Ralph Petraglia, entered the dining room, and severed
the phone cord from the wall. He then
returned to the living room, where he continued to attack Ralph Petraglia.
Diane Petraglia left the house with her two children and went to
a neighbor's house to call the police.
The defendant subsequently left the residence, departing just as the
police were arriving. The police entered
the residence and found Ralph Petraglia lying on the
floor in a fetal position, bleeding and bruised. Mr. Petraglia
stated that his brother‑in‑law, Geoffrey Belle Isle, had attacked
him. Two policemen followed the
defendant, and arrested him without resistance.
The
defendant admitted to attacking his brother‑in‑law and pulling the
phone cord from the wall with enough force to sever [44 Mass.App.Ct. 228] it. However, he denied
that he was trying to stop Diane Petraglia from
calling the police. He explained that
the Petraglias' older daughter had been making
trouble for him by telephoning his son from a former relationship, and that he
had disconnected the telephone to stop that contact.
2. Denial of a required finding of not guilty. The defendant contends that the judge erred
in denying his motion for a required finding of not guilty because (a) there
was no evidence of an ongoing criminal investigation at the time he pulled the
phone cord from the wall, and (b) there was insufficient evidence that he acted
with the requisite intent or used the requisite force to intimidate a witness.
[1] (a) Ongoing criminal proceeding. We have held that the purpose of the witness
intimidation statute, in part, is to prevent interference with the
administration of justice. (FN2)
Commonwealth v. Burt, 40 Mass.App.Ct. 275,
277, 663 N.E.2d 271 (1996). Commonwealth v. Rondeau,
27 Mass.App.Ct. 55, 59, 534 N.E.2d 797 (1989). To that end, the statute has two distinct
branches‑‑a "witness" branch and a "furnishing
information" branch. Commonwealth v. Burt, 40 Mass.App.Ct. at 275 n. 1, 277, 278, 663 N.E.2d 271.
In what is
essentially a grammatical argument, the defendant contends that because the
"witness" branch of the statute refers to a trial or other criminal
proceeding, the statute should not apply to him because there was no ongoing
criminal investigation at the time he severed the phone cord from the
wall. (FN3) Neither the plain language of the statute nor
the legislative history supports the defendant's interpretation.
[2][3] The
language of the witness intimidation statute has two distinct branches,
separated by the word "or."
The statute may be applied either to witnesses and jurors in ongoing
criminal proceedings, or to any
person furnishing information to a criminal investigator relating to a crime.
Commonwealth v. Burt, supra.
Where the statutory language is clear, the courts [44 Mass.App.Ct. 229] must impart to the language its plain and ordinary meaning. Enos v. Correia, 38 Mass.App.Ct. 318, 322, 647 N.E.2d 1215 (1995).
As
originally enacted G.L. c. 268, § 13B, specifically
prohibited interference "with any person furnishing information ... to a
person conducting a criminal investigation." St.1969, c. 460. However, the Legislature expanded the statute
the following year to prohibit interference with "any person furnishing
information to a criminal investigator relating to a violation of a criminal
statute of the commonwealth."
St.1970, c. 177. The amended
statute specifically defined criminal investigator as "an individual ...
lawfully authorized by a department or agency of the commonwealth ... to
conduct, or engage in, an investigation of, or prosecution for, a violation of
the laws of the commonwealth in the course of his official duties." This history indicates that the Legislature
intended the statute as amended to include furnishing information to a police
officer at any stage of a criminal investigation. The defendant's contention that the
"furnishing information" branch is inapplicable absent an ongoing
trial or criminal proceeding is not supported by the language of the statute or
the legislative history.
[4] (b) Sufficiency of the evidence. The defendant further contends that the
trial judge erred in denying his motion for a required finding of not guilty
because the evidence was insufficient to establish that he acted with the
requisite intent or used the requisite force to intimidate a witness.
[5] In
reviewing the sufficiency of the evidence at trial, we must look at the
evidence in the light most favorable to the Commonwealth to determine whether
any rational jury could have found the essential elements of the crime beyond a
reasonable doubt. Commonwealth v. Latimore,
378 Mass. 671, 677, 393 N.E.2d 370 (1979),
S.C., 423 Mass. 129, 667 N.E.2d 818 (1996).
All that is required is that the evidence and permissible inferences be
"of sufficient force to bring minds of ordinary intelligence and sagacity
to the persuasion of [guilt] beyond a reasonable doubt." Id.
at 676, 393 N.E.2d 370 (citations omitted).
[6][7] The
elements of the crime of attempting to intimidate a witness include endeavoring
to interfere with a person through the use of intimidation, force, or threat of
force; therefore, the Commonwealth has
the burden of production and persuasion as to those matters.
Commonwealth v. Rondeau, 27 Mass.App.Ct. at 55, 534 N.E.2d 797. The statute punishes a wilful
endeavor to intimidate a person through the use of force. We have previously observed [44 Mass.App.Ct.
230] that " 'endeavor' connotes
a somewhat lower threshold of purposeful activity than 'attempt.' " Id.
at 61, 534 N.E.2d 797 (citations omitted).
In Rondeau,
the defendant argued that the prosecution had failed to prove the requisite
intent because the defendant had approached the wrong person by mistake, and
had not actually approached the witness.
We held that the statute did apply because, by using the word
"endeavor," the Legislature had demonstrated its intent to punish any
wilful conduct that amounted to an effort to
interfere with a potential witness. Id. at 60, 534 N.E.2d 797.
In the
present case, the jury could have found that, in the course of witnessing and
unsuccessfully trying to stop a violent attack on her husband, Diane Petraglia announced her intent to call the police, and left
the room to go to a telephone. The jury
could further have found that Diane's sister followed her from the room to
attempt to prevent her from making the call.
Geoffrey Belle Isle's testimony confirmed that he interrupted his attack
long enough to follow the women into the adjoining room and rip the telephone
cord out of the wall. A reasonable jury
could have found that by following Diane Petraglia
from the room when she stated she was going to call the police, and using force
to sever the phone cord from the wall, Geoffrey Belle Isle forcefully
interfered with his sister‑in‑law's attempt to furnish information
to the police concerning a violation of a criminal statute of the Commonwealth.
[8] 3. Void for vagueness. The defendant claims that the statute is too
vague to permit a person of ordinary intelligence to know that the definition
of a criminal investigator includes a policeman who has been called to
investigate a crime in progress. We
disagree.
[9] First,
there is no indication that the defendant raised this argument below, although
he now argues that it was implied in his contention that the intimidation
statute is inapplicable in the absence of an ongoing criminal proceeding. To the extent that the defendant did not
raise the issue in the trial court, we do not consider it on appeal. See
Commonwealth v. Bibby, 35 Mass.App.Ct.
938, 942, 624 N.E.2d 624 (1993); Commonwealth v. Rondeau,
27 Mass.App.Ct. at 62‑63, 534 N.E.2d 797.
[10]
However, the defendant's argument must fail in any event because he has not
shown that the statute was vague either on its face or as applied to him. A law is void for vagueness if "persons
of common intelligence must necessarily guess at its [44 Mass.App.Ct. 231] meaning and differ as to its application." Doe
v. Superintendent of Schools of Worcester, 421 Mass. 117, 134, 653 N.E.2d
1088 (1995) (citations omitted). In the
present case, the language of the statute is clear, and the definition of
"criminal investigator" should have alerted a person of reasonable
intelligence that it would include a police officer receiving information from
an individual witnessing a crime in progress.
[11] 4. The jury instructions. The defendant contends that he is entitled
to a new trial because the judge's instructions concerning the witness
intimidation statute confused the jury.
There is no merit to this claim.
The trial
judge first instructed the jury on the relevant portion of the witness
intimidation statute, i.e., the branch concerning endeavors to interfere with a
person furnishing information to a criminal investigator. The defense objected, requesting that the
jury hear the entire statute, including the language concerning the intimidation
of a witness or a juror in a trial or criminal proceeding. The judge then read the statute to the jury
in its entirety. When, during
deliberations, the jury requested that the intimidation statute be re‑read,
the judge once again read it in its entirety.
The
defendant relies on Commonwealth v.
Conley, 34 Mass.App.Ct. 50, 606 N.E.2d 940
(1993), in which the judge's original instructions omitted the requirement that
the Commonwealth prove the use of intimidation, force, or threat of force to endeavor
to influence a witness. That is not the
case here, where the judge accurately read and explained the relevant portion
of the statute and then, at the defendant's request, read the statute to the
jury in its entirety. Unlike Conley, the jury in this case did not
receive conflicting information from the supplemental charge.
[12]
Furthermore, the defendant made no objection following the supplemental
instructions. By failing to object to
the supplemented charge, the defendant is "in no position to contend that
the further instructions were inadequate." Commonwealth v. Kelley, 21 Mass.App.Ct. 912, 914, 484 N.E.2d 106 (1985) (citations
omitted).
[13] Nor
do we perceive a substantial risk of a miscarriage of justice. The Commonwealth had not limited its
complaint to the "furnishing information" branch of the statute. When the defendant challenged the judge's
initial instructions, the judge read the entire statute to the jury, giving the
jury complete instructions on every element.
We must presume that the jury followed the judge's instructions.
Commonwealth v. Costello, 36 Mass.App.Ct.
689, 696, 635 N.E.2d 255 (1994).
[44 Mass.App.Ct.
232] The defendant's judgment of
conviction under the witness intimidation statute is affirmed.
So ordered.
(FN1.) The defendant's name was incorrectly
spelled "Belleisle" in prior proceedings.
(FN2.)
General Laws c. 268, § 13B, as appearing in St.1990, c. 369, states, in
pertinent part, "Whoever, directly or indirectly, willfully endeavors ...
by misrepresentation, intimidation, force or threats of force to influence,
impede, obstruct, delay or otherwise interfere with any witness or juror in any
stage of a trial or other criminal proceeding or with any person furnishing
information to a criminal investigator relating to a violation of a criminal
statute of the commonwealth ... shall be punished."
(FN3.)
The defendant was not charged with the common law crime of obstruction of
justice, which does require interference with a witness at a criminal trial.
Commonwealth v. Triplett, 426 Mass. 26, 686 N.E.2d 195 (1997).