Opinion
11-P-279
05-14-2012
COMMONWEALTH v. MICHAEL J. NICHOLSON.
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
On appeal from a conviction of intimidating a witness, the defendant contends that the judge erred in (1) denying his motion for a required finding of not guilty, and (2) admitting the defendant's prior convictions in evidence. For substantially the reasons set forth in the Commonwealth's brief at pages eleven through thirty-six, we affirm.
The judge granted the defendant's motion for a required finding of not guilty on a charge of disorderly conduct; the jury acquitted the defendant of threatening to commit a crime; and the a charge of failing to stop for a police officer was dismissed at the request of the Commonwealth.
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and considered in context, the evidence and reasonable inferences sufficed to establish that the defendant's actions and statements to North Reading police Detective Michael McAuliffe were threatening or intimidating to a reasonable person and were intended to impede, obstruct, delay, or otherwise interfere with an ongoing criminal investigation. See G. L. c. 268, § 13B; Commonwealth v. Casiano, 70 Mass. App. Ct. 705, 708-709 (2007); Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010).
Less than two hours after McAuliffe questioned the defendant's wife about a criminal investigation involving the defendant, the defendant telephoned McAuliffe, and in response to McAuliffe's request that he come in for questioning, told McAuliffe that, 'if I come down there this afternoon I may not be fucken happy with you . . .,' and, 'if I come down there, you'd better have your fighting suit on.' See Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800-801 (1998) (intent to influence may be inferred from place, time, and circumstances of conduct); Commonwealth v. Gittens, 55 Mass. App. Ct. 148, 153- 154 (2002) (whether statement is threat depends on context, including timing and speaker's demeanor and tone). In speaking with McAuliffe, the defendant asserted that he was very angry, and his voice was 'yelling, loud, and angry-sounding.' As a result of speaking with the defendant, McAuliffe feared for his safety, and issued a 'be on the lookout' alert for the defendant.
The defendant's actions of driving to the station later that afternoon, proceeding past empty parking spaces to the portion of the lot where officers park their private vehicles, appearing to use his cellular telephone to take photographs, and driving off hurriedly when officers approached him gave further content to his words. See Commonwealth v. McCreary, supra; Commonwealth v. Casiano, supra (intent to intimidate and influence inferred from defendant's apparent use of cell phone to photograph undercover officer immediately prior to testimony). Considering the evidence as a whole, a reasonable finder of fact could conclude that the defendant's words and actions were intended to intimidate and impede, obstruct, delay, or interfere with McAuliffe's ongoing investigation into the defendant.
2. Prior convictions. We discern no palpable error, see Commonwealth v. Leonard, 428 Mass. 782, 786, (1999), in the admission of evidence of the defendant's prior convictions of crimes of violence for the limited purpose of establishing how the defendant's words and actions would cause McAuliffe alarm. See Commonwealth v. Chalifoux, 362 Mass. 811, 815-816 (1973); Commonwealth v. Hamilton, 459 Mass. 422, 438 (2011).
McAuliffe's knowledge of the defendant's record of assaultive behavior was relevant to an element of the threatening charge. See Commonwealth v. Hamilton, supra. The later acquittal on that charge did not render the evidence irrelevant or inadmissible at the time it was introduced. Nor did the judge abuse his discretion in concluding that the probative value of the evidence outweighed its prejudicial impact, especially in light of the limiting instruction that the jury could consider the evidence of the defendant's 'assaultive conviction' solely for the purpose of determining McAuliffe's state of mind on the threatening charge. Ibid. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997)(jury are presumed to follow instructions).
Moreover, given the jury's acquittal of the defendant on the threatening charge, neither the slight misstatement regarding the nature of the convictions (referencing assault and battery rather than assault by means of a dangerous weapon), nor staleness concerns (convictions from 1986, 1987, and 2003), provides reason for reversal of the defendant's conviction of intimidation. See Commonwealth v. Sosnowski, 43 Mass App. Ct. 367, 372 (1997).
Judgment affirmed.
By the Court (Grasso, Meade & Wolohojian, JJ.),