Opinion
13-P-900
10-14-2014
COMMONWEALTH v. DAVID P. PIERCE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his conviction of threatening to commit a crime against the person or property of Philip Theriault, in violation of G. L. c. 275, § 2. He argues: (1) the Commonwealth's evidence was insufficient to prove justified apprehension; (2) the alleged threat was protected speech under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights; (3) the judge erred by not giving a jury instruction on the concept and definition of "true threat"; and (4) the judge unduly restricted the defendant's right to cross-examine witness William Fay. We affirm.
The defendant was acquitted of a separate charge, arising from a subsequent incident, in which he allegedly threatened to commit a crime against William Fay.
Background. We summarize the relevant evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). At all relevant times, the defendant, Fay, and David Dufresne resided in the same rooming house in Holyoke. Fay was friendly with Theriault and helped out at Theriault's used appliance store. The defendant and Theriault knew each other but were not friends.
In March of 2013, the defendant approached Fay in the hallway of the rooming house and stated: "Tell Fat Boy I'm going to fire bomb his house and kill his family." Fay understood "Fat Boy" to be a reference to Theriault. Dufresne, who was present and overheard the defendant's statement, corroborated Fay's account. Fay took the threat seriously based on the defendant's "[v]ery strange" and "[m]entally disturbed" demeanor, as well as Fay's observations of how the defendant had been "acting lately." The next day, Fay reported the threat to Theriault. Theriault was "scared," because the defendant knew where he lived and worked, and Theriault did not know what the defendant was "capable of doing."
Discussion. 1. Sufficiency of the evidence. "The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Sholley, 432 Mass. 721, 724-725 (2000) (citation omitted). "Whether the defendant ultimately might not carry out the threat is not relevant to the question of the sufficiency of the Commonwealth's proof that a threat was in fact made." Commonwealth v. Strahan, 39 Mass. App. Ct. 928, 930 (1995).
The defendant claims that the Commonwealth's case was insufficient because there was no contextual evidence from which it reasonably could be found that the recipients' apprehension was justified. We disagree. The statement was threatening on its face. See Commonwealth v. Meier, 56 Mass. App. Ct. 278, 280-281 (2002). Furthermore, there was evidence that Fay credited the threat and reported it to Theriault because of the defendant's troubling demeanor and his other recent behavior. Theriault also credited the threat because he did not know what the defendant was "capable of doing." Theriault was "scared" that the defendant, who knew where he lived and worked, would act upon it. Viewed in the light most favorable to the Commonwealth, a reasonable trier of fact could find that the circumstances justified apprehension.
2. Protected speech. A conviction pursuant to G. L. c. 275, § 2, does not violate a defendant's First Amendment or art. 16 rights to free speech so long as the evidence is sufficient to satisfy each element of the crime. See Commonwealth v. Sholley, supra at 726-727. Because there was sufficient evidence in this case, the defendant's argument that his statement was protected speech is without merit.
3. Jury instruction. The defendant claims that the judge erred in failing to give an instruction on true threat. Because he raised no objection at trial, we review only to determine if any error created a substantial risk of a miscarriage of justice. Commonwealth v. Shea, 467 Mass. 788, 790-791 (2014). In so doing, we look at the instructions as a whole in the context of the totality of the evidence. Id. at 796. Here, the judge's instructions clearly and correctly conveyed the applicable law, including the specific elements of the crime. There was no error and hence no substantial risk of a miscarriage of justice.
4. Cross-examination of Fay. "A defendant's right to reasonable cross-examination of a witness is not necessarily infringed by curbing inquiry where the matters sought to be elicited have been sufficiently brought to the attention of the trier of fact." Commonwealth v. Traylor, 43 Mass. App. Ct. 239, 242 (1997) (citation omitted). Here, the judge allowed the defendant to elicit testimony that Fay had consumed alcohol in the twenty-four hours prior to trial, and to argue that this had a bearing on his ability to testify truthfully or to perceive, recollect, and recall. The judge did not abuse his considerable discretion in precluding further inquiry into Fay's drinking. See Mass. G. Evid. § 403 (2014).
Notably, the defendant did not take full advantage of the latitude that this ruling gave him.
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In any event, the defendant suffered no prejudice. The jury had ample opportunity to observe Fay as he testified and to assess his credibility. The absence of prejudice is further demonstrated by the fact that the defendant was convicted only of the charge where Fay's testimony was corroborated by Dufresne, and acquitted of the charge that rested on Fay's testimony alone.
Judgment affirmed.
By the Court (Cohen, Meade & Milkey, JJ.), Clerk Entered: October 14, 2014.