Opinion
No. 11–P–1416.
2013-04-2
COMMONWEALTH v. Olivio C. BRAUN.
By the Court (GREEN, GRAHAM & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery, G.L. c. 265, § 13A, assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A( b ), three counts of violation of a protective order, G.L. c. 209A, § 7, and two counts of intimidation of a witness, G.L. c. 268, § 13B. On appeal, he argues that the judge improperly allowed the substantive use of hearsay under the forfeiture by wrongdoing doctrine and that the evidence was insufficient to sustain his conviction on one of the counts of intimidation of a witness. We affirm.
Background. On June 21, 2008, Officer Michael Scanlon of the Brockton police department responded to an emergency call and found the victim and her cousin. The victim reported that she had argued with the defendant, the father of her infant daughter, and that during the course of that argument, he had attempted to take her cellular telephone and pushed her to the ground, causing her to bite the inside of her cheek. The victim refused medical treatment, but said she would seek a restraining order against the defendant. Shortly thereafter, Officer Scanlon received another emergency call to a site within 150 yards of the first location. Officer Scanlon arrived to find the same victim being treated for three stab wounds to her chest and shoulder. The victim told Scanlon that the defendant approached her after the officer left the first scene, asked her whether she had told Officer Scanlon his name and address, and, when she answered affirmatively, stabbed her.
On July 15, 2008, the victim applied for and received an abuse prevention order prohibiting the defendant from contacting her. Despite the prohibition, the defendant spoke on the telephone with the victim
and exchanged letters with her while the defendant was being held at a house of correction, pending his trial.
The defendant was assigned a unique “PIN” number at the house of correction. Inmates must first dial their PIN number before dialing the number they intend to call. The phone calls are then recorded and downloaded to a database. While the defendant did not stipulate at trial that he was the speaker during the calls, the calls were made using the defendant's assigned PIN number and the speaker references the victim, the defendant's daughter, and the charges against the defendant.
During a conversation with the victim, the defendant told her multiple times to write a letter saying that she lied when she accused him of stabbing her, that she no longer wanted to pursue the charges, and that she is not afraid of him. In other conversations, the defendant instructed his mother, brother, and an unidentified friend to contact the victim and to instruct others to talk to the victim and urge her to write him, to recant her accusation, and to drop the restraining order against him.
The victim did not testify at trial, and instead asserted her privilege under the Fifth Amendment to the United States Constitution. As a result, the Commonwealth moved to admit the victim's hearsay statements substantively, based on the forfeiture by wrongdoing doctrine. The judge allowed the motion.
At trial, the Commonwealth entered, as substantive evidence, the victim's testimony before the grand jury that the defendant stabbed her, statements she made to Officer Scanlon when he responded to the emergency call, including that the defendant had stabbed her, and the victim's later handwritten statement that she did not know who stabbed her.
Discussion. Forfeiture by wrongdoing. The defendant argues that the judge erred by applying the doctrine of forfeiture by wrongdoing. The doctrine is properly applied when a judge finds that the witness is unavailable, that the defendant took some action in order to make the witness unavailable, and that he did so with the intent that the witness be unavailable. Commonwealth v. Edwards, 444 Mass. 526, 540 (2005). The defendant argues that the witness was not “unavailable” because she was not first offered immunity and then afterwards refused to testify. The defendant cites no case law to support this proposition, nor are we aware of any. In fact, Massachusetts statutory law establishes that grants of immunity are discretionary.
Therefore, we reject the defendant's argument on this point.
Massachusetts statutory law provides that a judge, at the request of the Commonwealth, and after a hearing, can grant immunity to a witness. G.L. c. 233, § 20E.
The defendant also argues that the doctrine was improperly applied because there was no causal link between the defendant's actions and the victim's unavailability. The causal link can be established when “a defendant puts forward to a witness the idea to avoid testifying, either by threats, coercion, persuasion, or pressure.” Id. at 541. Here, the defendant, in violation of an abuse prevention order,
repeatedly and through multiple persons told the witness not to testify and to recant her earlier accusation, applying “pressure” through persistent contact. The witness's unavailability is a “logical outgrowth” of the defendant's actions. Ibid. Therefore, we conclude that the doctrine was properly applied.
See Commonwealth v. Edwards, 444 Mass. at 536 (“The doctrine of forfeiture by wrongdoing, based on equitable considerations, contemplates some wrongful act on the part of the defendant”).
Sufficiency of the evidence. The defendant argues that the evidence at trial was insufficient to support his conviction on one count of witness intimidation because there is no evidence that he used “intimidation, force, or the threat of force” against the witness. Commonwealth v. Cruz, 442 Mass. 299, 309 (2004). 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. 676, 677 (1979).
Intimidation means “putting in fear for the purpose of compelling or deterring conduct.” Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474 (1994). Intimidation does not require that a victim is, in fact, frightened or put in fear of testifying; rather the Commonwealth must prove that the defendant “engaged in intimidating conduct, that is, acts or words that would instill fear in a reasonable person, and did so with the intent to impede or influence a potential witness's testimony.” Commonwealth v. Rivera, 76 Mass.App.Ct. 530, 535 (2010).
While in custody awaiting trial, and while a G.L. c. 209A restraining order was in force against him (which included a provision ordering him not to contact the victim), the defendant repeatedly violated the court order. He contacted the victim directly and also indirectly, by having friends and relatives telephone the victim and encourage her not to testify at trial.
We also find no merit to the defendant's claim that the evidence from which the jury could conclude that he attempted to influence a witness by means of intimidation was insufficient. “[A]n action does not need to be overtly threatening to fall within the meaning of intimidation.” Commonwealth v. Cohen (No. 1), 456 Mass. 94, 124 (2010) (quotations and citations omitted). “[T]he context in which [an] allegedly threatening statement was made and all of the surrounding circumstances” may also be taken into account. Commonwealth v. Sholley, 432 Mass. 721, 725 (2000), cert. denied, 532 U.S. 980 (2001).
Combined with the defendant's earlier physical abuse of the victim in which he shoved her to the ground (causing her to bite her cheek), then repeatedly stabbed her with a knife after learning that she identified him to the police as the person who shoved her to the ground, the evidence was sufficient to permit a rational juror to infer that the barrage of phone calls and letters were intended to intimidate the victim so that she would alter her testimony.
Judgments affirmed.