Opinion
14-P-1618
05-18-2017
COMMONWEALTH v. Thomas F. PATCH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the judgment after his conviction of intimidation of a witness under G. L. c. 268, § 13B. , He claims there was insufficient evidence to support his conviction. We agree, and for the reasons below, we reverse.
For the statute in effect at the time of conviction, see G. L. c. 268, § 13B, as appearing in St. 2006, c. 48, § 3.
The defendant was charged with two counts of intimidation of a witness under § 13B. According to the application for criminal complaint, one count alleged intimidation of Dr. Joseph Doherty and the other alleged intimidation of Dr. Carlos Cuevas. The defendant was found not guilty of the count relating to Dr. Doherty.
Background. We summarize the relevant facts in the light most favorable to the Commonwealth. In March, 2006, a District Court judge ordered that the defendant be placed on supervised probation. One of the conditions of his probation required him to submit to a psychological evaluation and, if necessary, enter into treatment. The defendant completed the evaluation with Dr. Carlos Cuevas, a postdoctoral fellow, under the supervision of Dr. Joseph Doherty, a licensed psychologist. In his final report, Dr. Cuevas concluded that the defendant "would benefit from individual therapy to address his psychological issues." The defendant was upset about that recommendation and told his probation officer that he could not be ordered to attend additional counseling. Following a hearing at the end of August, 2016, a judge ordered the defendant to undergo treatment per Dr. Cuevas's recommendation.
Two weeks later, the defendant sent by facsimile a letter to the office of Dr. Doherty and Dr. Cuevas, as well as to a member of the licensing authority for practicing psychologists. In that letter, the defendant alleged the doctors' conduct was "outrageously unethical if not otherwise unlawful." He further stated, "Make no mistake that it is my position that [Dr. Doherty] and [Dr.] Cuevas are civilly liable, jointly and severally, to me for any and all damage I have suffered to date and hereafter suffer—including money I have to pay for the evaluation and to receive ‘treatment’, and lost income—because of [Dr. Doherty's] acts and omissions and those of [Dr.] Cuevas in this regard."
The letter, which was dated September 14, 2006, was sent by facsimile on September 14, 2006. In addition to that letter, the jury were presented with two letters dated May 23, 2006, and September 6, 2006. Because the bill of particulars, dated May 23, 2008, limited the charged incident to "[o]n or about September 14, 2006," we limit our review of the charged conduct to the letter sent by the defendant on that date. See Commonwealth v. Stuckich, 450 Mass. 449, 461 (2008) ("A defendant cannot be punished for uncharged conduct").
Discussion. We review the denial of a motion for a required finding of not guilty to determine whether in "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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979) (citation omitted).
To convict under the applicable version of G. L. c. 268, § 13B, the Commonwealth was required to prove beyond a reasonable doubt that the defendant "directly or indirectly, willfully (a ) threaten[ed], or attempt[ed] or cause[d] physical injury, emotional injury, [or] economic injury ... to; ... [or] (c ) ... intimidate[d] or harasse[d] another person who is: (i) a witness or potential witness at any stage of a ... criminal proceeding of any type." G. L. c. 268, § 13B, as appearing in St. 2006, c. 48, § 3. The statute also includes a specific intent element, requiring the Commonwealth to establish the defendant's actions were done "with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby with a ... criminal proceeding." Ibid.
The primary purpose of G. L. c. 268, § 13B, is to "counter[ ] the effect of witness intimidation on the successful prosecution of criminals." Commonwealth v. Morse, 468 Mass. 360, 367 (2014). Intimidation requires "putting a person in fear for the purpose of influencing his or her conduct." Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998). "Needless to say, to constitute a violation under G. L. c. 268, § 13, there must be a close nexus between a defendant's conduct and the discharge of a victim's responsibilities as witness or juror." Commonwealth v. Cathy C., 64 Mass. App. Ct. 471, 475 (2005).
Here, the Commonwealth claims that the defendant's letter, which essentially threatened a lawsuit and notified Dr. Cuevas's licensing authority of alleged ethical and legal violations, constituted intimidation. That argument requires that the defendant had sent the letter with the intent to influence Dr. Cuevas to alter his recommendation to the judge. See McCreary, supra. However, given the nature of the letter and its timing, the Commonwealth failed to put forward evidence upon which a rational jury could conclude beyond a reasonable doubt that the defendant had acted with the purpose of influencing Dr. Cuevas in such a manner.
At the time the defendant sent the letter, Dr. Cuevas, whose responsibility within the proceeding was to evaluate the defendant and provide a recommendation to the judge, had already completed such tasks. In addition, a hearing had been held and a judge had ordered the defendant into treatment. Furthermore, the defendant knew of the ultimate recommendation for nearly two months prior to the hearing. Thus, by the time the defendant sent the letter, Dr. Cuevas's responsibilities related to the proceeding were essentially finished. Accordingly, the evidence was insufficient for a rational jury to find beyond a reasonable doubt that the letter was an attempt to influence and therefore intimidate Dr. Cuevas so that he would change his recommendation, which had already been given and ordered, as opposed to a legitimate complaint or retaliatory measure. See Commonwealth v. Drumgoole, 49 Mass. App. Ct. 87, 92 (2000) ; Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 100-104 (2015).
Relying on that same analysis, even were we to assume that the defendant's letter was "threat[ing], or attempt[ing] or caus[ing] ... emotional ... [or] economic injury," or "harass[ing]," the Commonwealth failed to establish the defendant acted "with the [specific] intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby with ... [the] proceeding." G. L. c. 268, § 13B. See Morse, supra at 374-375 (absent additional evidence, misleading statement by itself is insufficient to establish specific intent to interfere with criminal investigation). See also Commonwealth v. Tejeda, 476 Mass. 817, 820 (2017) (requiring a prohibited act under § 13B to both mislead and impede).
We acknowledge here the words "harm" and "punish" within the specific intent prong of the relevant version of § 13B. However, we also note the defendant's conviction cannot stand if it was based solely on evidence that he acted with the intent to harm, punish, or retaliate against Dr. Cuevas for his recommendation. See Commonwealth v. Hamilton, 459 Mass. 422, 431-437 (2011). In Hamilton, the Supreme Judicial Court reversed a defendant's conviction under the same version of § 13B stating, "[T]he meaning of the verbs ‘harm’ and ‘punish’ in § 13B, as applied to a proceeding, is ambiguous, and we cannot interpret an ambiguous statute in a manner that disadvantages a criminal defendant." Id. at 436. Notably, during closing argument here, the prosecutor stated, "The defendant was doing this to punish these doctors because of their evaluation. Plain and simple."
Accordingly, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant.
Because insufficient evidence supported the defendant's conviction, we do not reach his other claims of error, including his constitutional arguments. See Commonwealth v. Vega, 449 Mass. 227, 234 (2007) (appellate courts generally decline to address constitutional questions where there is readily available alternative ground that renders such decision unnecessary).
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So ordered.
Judgment reversed, verdict set aside.