Opinion
18-P-1524
09-03-2019
COMMONWEALTH v. James M. PERKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James M. Perkins, appeals from his convictions of assault and battery on a family or household member, witness intimidation, and threatening to commit a crime. We affirm.
1. Background. Based on the evidence, the jury were warranted in finding that on April 22, 2018, the victim, the defendant's wife, was driving a vehicle in which the defendant was a passenger. The victim stopped at a 7-Eleven store to buy the defendant a cup of ramen noodle soup. She saw two coworkers from the Massachusetts Bay Transportation Authority (MBTA) inside the store. The victim had bruises on her arms and neck which were visible because she was wearing a tank top. After buying the soup, the victim returned to her vehicle. As she handed the soup to the defendant, he asked her if she told her coworkers that he had hit her. When the victim denied this, the defendant threw the soup at her, getting it all over her hair and arms.
Prior to trial, the judge ruled that the Commonwealth was not permitted to present evidence that two days earlier the defendant physically beat and choked the victim and threatened to kill her. However, evidence that the defendant hit the victim two days earlier was elicited on cross-examination of the victim.
The victim became scared, ran back into the store, and asked for someone to call the police. She then returned to her vehicle. The defendant "threatened [the victim] not to say anything to the cops," and told her, "just get in the car ... you've got to get in the car, don't tell them anything." She did as she was told and drove away with the defendant. They argued as she was driving until she stopped for a red light, whereupon the defendant jumped out of the vehicle and yelled to a passenger in another car that the victim had been abusive towards him. Shortly thereafter, the State police arrived. The victim was crying and the defendant appeared agitated. The defendant, who had returned to the vehicle, was asked to step outside. When he was asked by a trooper what was going on, the defendant replied, "I plead the Fifth. I want nothing to do with this."
A second State police trooper approached the victim. He noticed that the victim was shaking, and "appeared extremely scared." He also noticed bruises on her arms. The trooper then approached the defendant, who was agitated, confrontational, and aggressive. The defendant had a cut under his left eye. Initially, the defendant told the trooper, "she hit me with the thing," but then said "I plead the Fifth. I want nothing to do with this." At trial, the victim testified that the cut under the defendant's eye was the result of an incident earlier in the day when she picked up her purse from the ground outside the 7-Eleven store and threw it back inside the vehicle, accidentally hitting the defendant in the face. She apologized to him and said it was an accident. The defendant became "very upset," kicked the car stereo, and said, "it's lucky it was the stereo and not you." One of the responding troopers noticed that the car stereo was damaged.
2. Variance between complaint and evidence at trial. The defendant's first argument is that his conviction for threatening to commit a crime in violation of G. L. c. 275, § 2, should be reversed because there was a fatal variance between the language of the complaint and the proof at trial. The complaint alleged that the defendant "did threaten to commit a crime against the person or property of another, to wit: Kill [the victim] in violation of G. L. c. 275, § 2." The police report accompanying the application for complaint, filed with the court to establish the factual basis for the charge, describes the purse throwing incident and makes no reference to a threat to kill. The "to wit" language in the complaint was "superfluous" and "constituted a nonfatal variance under our precedent." Commonwealth v. Prado, 94 Mass. App. Ct. 253, 262 (2018). See Commonwealth v. Harris, 9 Mass. App. Ct. 708, 710-711 (1980).
The defendant's reliance on Commonwealth v. Garrett, 473 Mass. 257, 268 (2015), is misplaced. In Garrett, the defendant was charged with three counts of armed robbery by indictments that were captioned "Firearm-armed and masked robbery, [G. L.] c. 265, § 17." Id. at 264. The body of the indictments alleged that the defendant was armed "with a handgun." Id. The court rejected the defendant's argument that the indictments failed to properly charge a crime because the caption and the contents together identified the statutory violation and gave the defendant fair notice that he was alleged to have used a firearm. See id. at 265. However, the court nonetheless determined that there was a fatal variance between the language of the indictment and the proof at trial because the evidence at trial was that the defendant committed the robberies by using a BB gun, which does not qualify as a firearm under Massachusetts law. See id. at 259-264.
The question whether a fatal variance exists in the case at bar is addressed by Chief Justice Gants's concurring opinion in Garrett. There, Chief Justice Gants indicated that, because the armed robbery statute includes conduct where a defendant, "being armed with a dangerous weapon, assaults another and robs [them]," if the indictment had charged the defendant with committing the offense while "being armed with a dangerous weapon" instead of while "being armed with a handgun," "the defendant would properly have been found guilty of armed robbery because the BB gun ... was a dangerous weapon, which under our case law includes a weapon that appears to be a firearm, even if not actually a firearm." Id. at 268 (Gants, C.J., concurring). In the case before us, the complaint alleges that the defendant "did threaten to commit a crime against the person or property of another." This put the defendant on notice that he was charged with making threats against the victim. Based on the evidence, the jury were warranted in finding that the defendant's statements and conduct constituted a threat to commit a physical assault against the victim if she cooperated with the police in circumstances in which the defendant had both the intention and ability to carry out the threat and in which the victim would be justifiably afraid that he would carry out the threat. See Commonwealth v. James, 73 Mass. App. Ct. 383, 385 (2008). Because there was no reference to a threat to kill the victim in the police report filed in support of the application for complaint, the evidence at trial, or the judge's instructions to the jury, there is no danger that the defendant was prejudiced by the surplusage in the complaint. See Commonwealth v. Grasso, 375 Mass. 138, 139 (1978).
3. Sufficiency of the evidence of intimidation of a witness. The defendant's second argument is that when the evidence is viewed in the light most favorable to the Commonwealth, it is insufficient to support a finding that the defendant intended to intimidate the victim into not speaking with the police. "Conviction of witness intimidation under G. L. c. 268, § 13B, requires the Commonwealth to prove beyond a reasonable doubt that (1) the target of the alleged intimidation was a witness in a stage of a criminal proceeding, (2) the defendant wilfully endeavored or tried to influence the target, (3) the defendant did so by means of intimidation, force, or threats of force, and (4) the defendant did so with the purpose of influencing the complainant as a witness" (quotation and citations omitted). Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 612-613 (2007).
The evidence permitted the jury to find that after physically assaulting the victim by throwing soup in her face, the defendant told her to get into her car and not talk to the police. Moreover, the jury were aware that two days earlier, the defendant had hit the victim, and that earlier that day he had broken the car radio by kicking it. This evidence was sufficient to permit the jury to find the essential elements of the crime. See Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 531, 537 (2010). "The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered." Commonwealth v. Sholley, 432 Mass. 721, 725 (2000). The jury could have found that in telling the victim not to "say anything to the cops," the defendant was implying that she would suffer physical harm if she did otherwise.
This is not a case like Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 104 (2015), upon which the defendant relies. In Ruano, following an initial outburst in which the defendant, a police officer, screamed at the victim for blocking his vehicle, he later approached the victim after learning she had gone to the police to complain and explained that he could lose his job and his pension, and asked her to recant, stating she would make many friends and have "the key to the city." Id. at 99. In that case, even though the defendant intended to influence the victim by his statement, "the Commonwealth's evidence did not allow the jury to find beyond a reasonable doubt that he was speaking in code, and intended to influence the testimony by intimidation." Id. at 104. That is not this case.
Judgments affirmed.