Opinion
13-P-964
06-01-2015
COMMONWEALTH v. SCOTT A. MATTSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of three counts of rape and one count each of incest, subornation of perjury, and intimidating a witness. On appeal, the defendant argues that the four offenses were improperly joined for trial. The defendant also claims that there was insufficient evidence to support his conviction of witness intimidation. We affirm.
1. Background. The following is a summary of the trial evidence. The victim was the defendant's daughter. After several years in foster care, in 2010, the victim, then eighteen years old, moved in with the defendant. At the time, as will be discussed further, the defendant was engaged to Mary Newbert.
The victim spent a great deal of time with the defendant, including at the garage where he worked. At trial, the victim testified that on occasion when she would visit her father at work "he would stick his tongue out and make faces at me or he would touch my thighs."
One night, the victim and the defendant attended a party at the home of the defendant's friend. After the party, the defendant and the victim drove home together. When they arrived home, the defendant parked the car in the driveway. As the victim went to exit the car, the defendant reached over her, locked the door, and said she "wasn't leaving." The defendant told the victim to "pull down [her] pants." Scared, the victim complied. Then, the defendant climbed over the victim, got on top of her, unzipped his pants and put the "head of his penis into [her] vagina." In addition, the defendant placed his tongue in or around her vagina.
At some point the victim told the defendant that she "had to go pee." The defendant "told [her she] wasn't allowed to get out of the car." The defendant had the victim exit the vehicle, walk around to the passenger side door, pull down her pants, and urinate in front of him.
Afterwards, the defendant and the victim went inside the house. Once inside, the victim attempted to go upstairs. However, the defendant asked her to go over to a couch. There, after sitting momentarily, the defendant again told the victim to remove her pants, and proceeded to rape her both vaginally and orally. After, the defendant began to cry, telling the victim that "he was sorry," and "that he didn't want [her] to say anything."
On another occasion, after a trip to New Hampshire, while in the car together, following an argument about the victim texting on her cellular telephone, the defendant told the victim that "[she] was going to scooch over to his side of the driver's seat and [she] was going to play with his penis and he was going to play with her vagina." The defendant had the victim rub his penis over his clothes and he in turn touched the victim's vagina over hers.
After briefly stopping at a gasoline station, the defendant drove to the garage where he worked and said that "he had to go inside real quick to get something," and "asked [the victim] to come along." Once inside, the defendant shut off the lights in the garage. He then had the victim sit down on a couch in the laundry room in the back of the garage and told her she was going to "suck his dick." According to the victim the defendant said he would "teach [her]" what to do, and "told [her] to open up [her] mouth and to put his penis inside [her] mouth." The victim also testified that the defendant put his hands down her pants and touched her vagina with his fingers. This entire incident lasted about ten minutes.
Afterwards, when the defendant and victim returned home, the victim went upstairs to her room and began to unpack her bag. The defendant came into her room and told the victim to come into his bedroom. The victim refused to follow the defendant. The defendant told the victim she "had two choices, either to get out of his house or to go in his room and suck . . . his penis." The victim packed up her belongings, texted her cousin, and left the defendant's house.
At some point after the victim moved out of the defendant's house, the defendant had a conversation with his then fiancée, Mary Newbert, in which he confided that the victim was going to accuse him of rape and that if Newbert wanted to leave him she could. In that conversation, the defendant admitted that he had touched the victim's "pussy" with his "mouth and his fingers."
In June, 2011, Newbert received a summons to testify before the grand jury. Either on, or very close to that same date, Newbert and the defendant had a conversation about her grand jury summons. In that conversation (which preceded her testimony) the defendant told Newbert, "don't break." At the defendant's trial, Newbert testified that she thought the defendant meant "stick to the story," and to testify that she did not know anything. Accordingly, when Newbert testified in front of the grand jury, she falsely testified that she "didn't know anything." At trial, Newbert testified that she provided false testimony to the grand jury because she "was scared of him" and because she "loved him."
Soon thereafter, although the underlying timeframe is unclear from the record, the defendant and Newbert had a subsequent conversation about her testimony to the grand jury. The defendant told Newbert that "[she] couldn't change [her] testimony because [she'd] be the one going to jail." In September, 2011, Newbert informed detectives that she had lied in front of the grand jury. Soon thereafter, Newbert appeared again in front of the grand jury. As discussed infra, on September 30, 2011, the defendant was indicted on additional counts of subornation of perjury and intimidation of a witness.
2. Joinder. "[T]o prevail on a claim of misjoinder, the defendant 'bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.'" Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). The defendant has failed to meet this burden.
Prior to trial, the defendant filed a motion to sever the indictments, arguing that the charges of rape and incest were not related to the charges of subornation of perjury and witness intimidation and that joinder of the offenses would unduly prejudice him. The judge denied that motion. As the judge reasoned, the offenses were related and involved a course of continuing criminal conduct by the defendant, comprising a series of connected criminal episodes, close in time, in which the defendant repeatedly raped his daughter, then made a number of attempts to cover up his guilt by attempting to persuade a witness, Newbert, from testifying truthfully before the grand jury. See, e.g., Commonwealth v. Cruz, 424 Mass. 207, 209-211 (1997).
Further, as the trial judge correctly observed, evidence of suborning perjury and interfering with a witness would have been admissible in a separate trial on the rape and incest charges as evidence of consciousness of guilt, an implied admission, or evidence of the defendant's state of mind. In addition, evidence of the charges of rape and incest would have been properly admitted in a separate trial on suborning perjury and interfering with a witness as evidence of the predicate offenses. "The appropriateness of joinder often turns on whether evidence of the other crimes would be admissible in a separate trial on each indictment." Commonwealth v. Gaynor, 443 Mass. at 260.
Finally, the defendant has failed to demonstrate, in our view, any prejudice from the joinder of the charges. "As discussed above, the incidents were sufficiently related and the evidence would be admissible at both trials . . . . Therefore, he has failed to satisfy his heavy burden of demonstrating prejudice from the joinder that was so compelling as to have prevented him from obtaining a fair trial." Commonwealth v. Zemtsov, 443 Mass. 36, 45 (2004).
3. Sufficiency of the evidence of witness intimidation. Taking the evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and giving due consideration to the timing, circumstances, and context of the defendant's actions, although not overwhelming, the evidence was sufficient for a reasonable juror to conclude that the defendant directly or indirectly, wilfully intimidated or harassed Mary Newbert with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with a criminal investigation. See G. L. c. 268, § 13B.
Under G. L. c. 268, § 13B, to prove witness intimidation, there must be sufficient evidence that the defendant "directly or indirectly, willfully . . . intimidate[d] or harasse[d] another person who is . . . a witness or potential witness at any stage of a criminal investigation . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby. . . ."
"The purpose of the statute, rather obviously, is to protect witnesses from being bullied or harried so that they do not become reluctant to testify or to give truthful evidence in investigatory or judicial proceedings." Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998).
"Words do not need to be expressly intimidating, threatening, or harassing" to fall within the meaning of intimidation. Hrycenko v. Commonwealth, 459 Mass. 503, 511 (2011). "The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered," and "the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances." Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 613 (2007), quoting from Commonwealth v. Sholley, 432 Mass. 721, 725 (2000).
Here, as to intimidation, either on, or very close to, the day Newbert received her grand jury summons, the defendant, who, from all that appears was aware of her pending testimony, made an explicit attempt to interfere with Newbert's grand jury testimony, telling her "don't break," i.e., to "stick to the story," and to tell the grand jury that she knew nothing. At the defendant's trial, when asked on direct examination why she provided false testimony before the grand jury, Newbert testified that she did so, at least in part, because she was scared of the defendant. "Intimidation . . . is putting a person in fear for the purpose of influencing his or her conduct." Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998).
Then, after her initial appearance before the grand jury, but while the criminal investigation into the defendant's conduct was ongoing, the defendant went back to Newbert and told her that "[she] couldn't change [her] testimony because [she'd] be the one going to jail." Proof of intimidation and the defendant's intent "may materialize from the fair inferences drawn from circumstantial evidence." See Commonwealth v. Pagels, supra. Additionally, "the timing of the defendant's actions makes it more, rather than less, likely that he was trying to intimidate the witness." Commonwealth v. Robinson, 444 Mass. 102, 109 (2005).
In light of this evidence, a rational jury could conclude that the defendant's statements to Newbert not to "break," coupled with his subsequent statement that if she changed her story she risked going to jail, were intended to intimidate her not to testify truthfully in front of the grand jury. "[T]he defendant's purpose to prevent [Newbert from testifying truthfully] by means of a threat seems clear, and such a finding by the jury was plainly warranted." Commonwealth v. King, 69 Mass. App. Ct. 113, 120 (2007).
Judgments affirmed.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 1, 2015.