Opinion
14-P-1237
06-11-2015
COMMONWEALTH v. KHAFRE NURSE.
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 two counts of intimidation of a witness. See G. L. c. 268, 13B. On appeal, he raises a variety of claims, none of which has merit. We affirm.
1. Jurisdiction. The defendant claims the court lacked jurisdiction because the crimes were committed outside the Commonwealth. We disagree. The defendant did not move to dismiss the indictments for lack of jurisdiction, but we glean from the indictments, grand jury minutes, and trial record that the victim was in Connecticut at the time he received the text messages and voice mail message from the defendant. Moreover, the record is silent as to where the defendant was located when he transmitted those messages, and it is possible he was not within the Commonwealth at that time.
The defendant is correct that his jurisdictional claim is not waived and may be raised even for the first time on appeal. See Commonwealth v. Fernandes, 430 Mass. 517, 521 n.13 (1999). Any defenses or objections to the institution of the prosecution or in an indictment, "other than a failure to show jurisdiction" (emphasis supplied), must be raised prior to trial. G. L. c. 277, § 47A, as appearing in St. 1979, c. 344, § 39. See Commonwealth v. Lamont L., 438 Mass. 842, 845 (2003).
In a prosecution for witness intimidation, jurisdiction is proper in the Commonwealth, regardless of where the crime was committed, if the harmful effects of the intimidation are intended to be felt here. See Commonwealth v. Hare, 361 Mass. 263, 265 (1972) ("[I]f the State succeeds in getting the defendant within its power, the law of this Commonwealth permits prosecution of the defendant for acts done outside its borders but intended to have effect within the Commonwealth"). Under the "effects" doctrine articulated by Justice Holmes over a century ago, "[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect . . . ." Strassheim v. Daily, 221 U.S. 280, 285 (1911), quoted in Vasquez, petitioner, 428 Mass. 842, 848-849 (1999). This is so because although the potential witness is obviously one victim of the defendant's criminal intimidation, the harmful effects of that crime are primarily intended to be suffered not by him, but by the court, the judicial processes of which are frustrated when a potential witness is intimidated, threatened, or coerced not to testify.
Here, the defendant understood that he and his friend faced a criminal investigation and serious charges stemming from the invasion of the victim's home and the assault and battery. He also understood that they would likely be prosecuted in Hampshire County, where the alleged crimes took place. Given the defendant's conduct of repeatedly attempting to contact the victim and offering him something of value, it could be concluded that he wanted to coerce the victim not to assist the criminal investigation or testify against him at trial. As such, the intent of the defendant's actions, as well as the effects of those actions, were to frustrate the processes of the courts in Hampshire County. Therefore, even if we assume that the defendant was not in Massachusetts at the time he committed the crimes, jurisdiction was nevertheless proper in the Commonwealth, where the defendant intended the ultimate effects of his crimes to be felt. See Vasquez, supra.
2. The validity of the convictions. The defendant was convicted of two counts of witness intimidation, which resulted from the defendant's repeated text messages and a voice mail message. After the close of evidence, the judge prepared two verdict slips which explicitly characterized one count as having been committed "by text messages" and the other "by voice mail message." Because the defendant acquiesced to both the indictments and verdict slips without objecting, we review the defendant's claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-296 (2002).
(a) Conviction based on the voice mail. The defendant claims the conviction based on the voice mail message he left on the victim's phone must be vacated. In his view, because the grand jury did not hear evidence of the voice mail's existence, the indictment and conviction could not have rested on that conduct.
The defendant does not challenge the validity of the indictment. He claims instead, pointing to the dates on the two indictments, that each indictment was based on at least one of the three text messages. However, "the time or date of an offense is not an essential element of the crime [of witness intimidation]." Commonwealth v. Lester, 70 Mass. App. Ct. 55, 70 n.16 (2007).
The defendant would be entitled to reversal if he showed that a material variance exists between the allegations supporting his indictment and the proof at trial. See Commonwealth v. Semedo, 456 Mass. 1, 16-19 (2010). However, he has not done so here. When discussing whether a variance is material, we ask if the essential elements of the crime have been correctly stated in the indictment, and if the defendant has been prejudiced by the variance. G. L. c. 277, § 35. Here, the defendant has neither established that a material variance exists, nor that he was prejudiced in his defense.
The defendant does not claim that the essential elements of the crime of witness intimidation were incorrectly stated on the indictment. Instead, he contends that the allegations supporting that indictment, i.e., his recording of a voice mail message on the victim's phone, were not before the grand jury, and are materially at variance with the proof of this conduct at trial. We disagree. The grand jury did hear testimony from the victim that the defendant "text messaged me and then called me after text messaging me repeatedly." Although this point was more developed at trial than it was before the grand jury, the allegations were nonetheless sufficient for the grand jury to have returned an indictment based on this conduct. See Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). Indeed, "[w]e have never required that there be an exact match between the evidence presented at trial and that presented to the grand jury." Commonwealth v. Clayton, 63 Mass. App. Ct. 608, 612 (2005).
The defendant's reliance on Commonwealth v. Barbosa, 421 Mass. 547, 549 (1995), is misplaced. In that case, the grand jury heard evidence of two cocaine distribution schemes but only returned one indictment without specifying for which of the two events they had found that probable cause existed to believe that a crime had been committed. When the Commonwealth was nevertheless permitted (over the defendant's objection) to present both events at trial, the court reversed the defendant's conviction because the jury might well have convicted the defendant of the distribution for which he was not indicted. Here, the two events were sufficiently delineated before the grand jury and at trial.
Furthermore, even if we were to conclude a material variance existed in this case, the defendant has failed to show how he was prejudiced. As the record reflects, the defendant was aware of the existence of the voice mail message no later than the final pretrial conference, and defense counsel was afforded an opportunity to listen to it before trial. The voice mail message was the subject of extensive testimony at trial, and was played for the jury as part of the victim's testimony. Furthermore, after the close of evidence and before the jury were instructed, defense counsel agreed to the judge's proposed verdict slips which characterized one count as based on the voice mail message and the other based on the series of text messages. These factors, combined with the defendant's failure to request a bill of particulars or object at any stage of the proceedings below, establish that he was not prejudiced by any variance between the allegations and proof at trial. See G. L. c. 277, § 35.
Counsel did object on other unrelated grounds.
(b) Conviction based on the text messages. The defendant also challenges the conviction based on the text messages he sent to the victim. He claims the jury may have rested its verdict on one or two of the three messages that, in his view, were insufficient to support a conviction. We disagree. The three text messages, which were sent on December 18, 20, and 21, 2012, were put to the jury as a continuing course of conduct. "When a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents," specific unanimity is not required. Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995). Nor did the defendant object to the verdict slips, which characterized the charge as one committed "by text messages," i.e., a single incident. These were not, as the defendant claims, three distinct factual episodes, but rather a single course of conduct upon which the defendant's conviction properly rested.
The defendant also challenges the sufficiency of the underlying indictment. The appropriate time to have raised this claim was before trial, and the defendant did not do so. See Commonwealth v. Senior, 454 Mass. 12, 14 (2009) ("A challenge to the sufficiency of an indictment must be raised by a motion to dismiss prior to trial or it will be deemed waived"). See G. L. c. 277, § 47A; Mass.R.Crim.P. 13(c)(2), as appearing in 442 Mass. 1516 (2004). The argument is therefore waived.
3. Prosecutor's closing argument. For the first time on appeal, the defendant claims the prosecutor improperly characterized the role of defense counsel before the jury. In his closing statement, the prosecutor remarked that defense counsel will, "as he must as an advocate for his client, [attempt] to sow the seeds of doubt in your mind." Taken in the context of the prosecutor's entire argument, the remark was improper but isolated. In addition, the defendant's failure to object to the remark suggests it was not unfairly prejudicial. See Commonwealth v. Toro, 395 Mass. 354, 360 (1985). The judge subsequently instructed the jury that closing statements were not to be regarded as evidence, and informed the jury that they should not base their verdict on the opinions of counsel. These instructions also helped to cure any prejudice. See Commonwealth v. Mello, 420 Mass. 375, 381 (1995). Consequently, the defendant has not shown that the remark created a substantial risk of a miscarriage of justice. See id. at 379-381.
The defendant's reliance on Commonwealth v. Weaver, 400 Mass. 612, 616 (1987), in support of this argument is misplaced. Although the prosecutor's challenged remark in Weaver is similar to that in the present case, Weaver's counsel objected to the remark, thus preserving the issue for appeal. Even under the prejudicial error standard of review, the Weaver court still found the remark did not prejudice the defendant. Ibid.
4. Sufficiency of the evidence. Finally, the defendant claims there was insufficient evidence for the jury to find that he was the same person who sent the text messages to the victim. We disagree. The victim testified that the telephone number associated with the voice mail message left by the defendant was the same one that the defendant used to send the text messages. The victim, who knew and had spoken to the defendant in the past, immediately recognized his voice when the voice mail message was played in court. This evidence was sufficient for the jury to find the defendant was the man who sent the text messages to the victim. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979); Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011).
Judgments affirmed.
By the Court (Cypher, Meade & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 11, 2015.