Opinion
14-P-596
07-02-2015
COMMONWEALTH v. DEON A. ALLEN.
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
After a jury trial, the defendant was convicted of armed robbery, assault and battery by means of a dangerous weapon, and intimidation of a witness. On appeal, he claims there was insufficient evidence to support his intimidation of a witness conviction, and that a conviction of that crime requires an ongoing judicial proceeding at the time of the intimidation. We affirm.
1. Sufficiency of the evidence. The defendant claims there was insufficient evidence to support his intimidation of a witness conviction. We disagree. In the light most favorable to the Commonwealth, the jury were entitled to find that the defendant threatened to kill the victim as an effort to prevent him from contacting the police. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The defendant robbed the victim and menaced him with a knife in thrusting motions, accompanied by a promise to give him "stitches." Also, this provided ample evidence that the defendant acted as a principal in the crime, and it matters not that a codefendant, who was tried separately, was acquitted. Inconsistent verdicts in these circumstances is not a basis for relief. See Commonwealth v. Wood, 469 Mass. 266, 292-293 (2014).
2. Intimidation of a witness statute. The defendant also claims a conviction of intimidation of a witness requires the existence of a criminal investigation, grand jury proceeding, trial, or other criminal proceeding of any type at the time of the intimidation. We disagree.
The defendant's view of G. L. c. 268, § 13B, is too narrow. To support his claim, the defendant relies on Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998), which speaks in terms of an extant criminal proceeding. However, in that case, the 1970 version of the statute was at issue. See Hrycenko v. Commonwealth, 459 Mass. 503, 509 (2011) (defendant's claim based on earlier version of witness intimidation statute). In 2006, the statute was amended to broaden its scope considerably. St. 2006, c. 48, § 3. See Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 534 (2010) ("[T]he Legislature expressly expanded the scope of the statute"). One such change was to expand the class of those to be protected from intimidation to include "a witness or potential witness at any stage of a criminal investigation . . ." (emphasis supplied). G. L. c. 268, § 13B(1)(c)(i), as appearing in St. 2006, c. 48, § 3. This language was expressly included in the defendant's indictment.
The statute later was amended by St. 1990, c. 369.
Here, once the defendant robbed and committed an assault and battery by means of a dangerous weapon on the victim, the victim became, at the very least, a potential witness in the criminal investigation that followed. Indeed, the defendant's stated purpose in his threats was to prevent the victim from speaking to the police about the crimes the defendant had committed. There was no error.
Judgments affirmed.
By the Court (Meade, Hanlon & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 2, 2015.