Opinion
18-P-1130
09-30-2019
COMMONWEALTH v. Marvin MONTANO-MOLINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of witness intimidation following a jury-waived trial in the District Court. On appeal, he claims that the judge's failure to order the disclosure of a statement made by the defendant in Spanish (in addition to the English translation) was an abuse of discretion which deprived him of the opportunity to adequately prepare a defense. He also argues that the evidence was insufficient to support his conviction. We affirm.
Background. We summarize the evidence the judge could have found, viewing it in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On September 9, 2016, Revere police officers placed the defendant under arrest for an assault and battery on his wife. As the defendant was escorted to a police cruiser, he turned and yelled something in Spanish in the direction of his wife. After the defendant was charged with witness intimidation based on that statement, the Commonwealth provided the defendant with a police report, which indicated that a police officer translated the statement as, "If you say anything to them watch what happens."
Two months after that disclosure, on December 13, 2016, the defendant unsuccessfully moved to dismiss the witness intimidation charge for lack of probable cause. On the first trial date, February 28, 2017, the defendant filed a second motion to dismiss claiming that the Commonwealth failed to provide the full name and date of birth of a percipient witness. After the victim asserted her marital privilege and chose not to testify, the Commonwealth dismissed the assault and battery charges, and the trial of the witness intimidation charge was continued to May 4, 2017.
The second motion to dismiss was addressed in limine on May 4, 2017. At that time, the defendant, for the first time, asserted the Commonwealth's failure to disclose the threatening words in Spanish as a basis for the motion. In the alternative, the defendant requested disclosure of the Spanish words before the trial commenced. The judge denied the motion, noting the late request. However, the judge suggested a voir dire examination of the Spanish speaking police officer regarding her translation of the alleged threatening words.
The defendant amended the pending second motion to dismiss by adding, as grounds for the motion, the Commonwealth's failure to produce "[t]he alleged statement in front of the Revere [p]olice [o]fficer in Spanish."
At trial, Officer Arana, a native Spanish speaker, testified that she heard the defendant say to his wife in Spanish: "Don't say anything. If you say anything, watch what happens." Defense counsel did not request a voir dire examination of Officer Arana prior to her testimony and did not ask Officer Arana what Spanish words she heard the defendant use.
Discussion. 1. Disclosure of the defendant's statements. Rule 14 of the Massachusetts Rules of Criminal Procedure requires that "[t]he prosecution ... disclose to the defense, and permit the defense to discover, inspect and copy ... [a]ny written or recorded statements, and the substance of any oral statements, made by the defendant or a co-defendant" (emphasis added). Mass. R. Crim. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005). In this case there were no audio or video recordings of the defendant's statement and it was not in writing. Therefore, the Commonwealth's obligation under the rule was to provide the defendant with the "substance of any oral statements." In the absence of any authority to the contrary (and the defendant has provided none) we give this phrase its "plain and ordinary meaning." Olmstead v. Department of Telecomm. & Cable, 466 Mass. 582, 588 (2013), quoting Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637, 640 (2000). In this context, "substance" means "[t]he most important part ... of what is said or written; the essence or gist." American Heritage Dictionary of the English Language 1738 (5th ed. 2016).
Here, it is undisputed that the police report containing the English translation of the words spoken by the defendant was provided to the defendant at his arraignment on September 13, 2016. This translation disclosed to the defendant the gist, essence, or substance of his oral statement. Accordingly, we see no abuse of discretion in the judge's denial of the defendant's motions to dismiss and for disclosure of the Spanish words spoken, particularly when the defendant made the request for the first time on the second trial date, more than five months after his arraignment. Nor do we see prejudice to the defendant where the judge offered an opportunity to conduct a pretrial examination of Officer Arana and the defendant failed to pursue that opportunity.
The defendant's claim that there were numerous requests for the statement in Spanish throughout the pendency of discovery is not supported by the record.
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2. Sufficiency. We review the defendant's sufficiency challenge to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
At the time of the offense, G. L. c. 268, § 13B, provided that "[w]hoever, directly or indirectly, willfully ... threatens, or attempts or causes physical injury, emotional injury, economic injury or property damage to [or] ... misleads, intimidates or harasses another person who is ... a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type" shall be punished for witness intimidation. Where the evidence includes a threatening statement, the context of the statement, the surrounding circumstances, and the timing of the statement may be considered by the fact finder. Commonwealth v. Perez, 460 Mass. 683, 703 (2011). Here, viewing the defendant's statement in the light most favorable to the Commonwealth, the judge could have reasonably inferred that the statement was intended to intimidate the victim, a potential witness against the defendant. This evidence was sufficient to sustain the Commonwealth's burden of proof beyond a reasonable doubt.
Judgment affirmed.