Opinion
No. 11–P–1494.
2012-11-15
COMMONWEALTH v. Ashley SMITH.
By the Court (BERRY, GREEN & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was found guilty of assault and battery in violation of G.L. c. 265, § 13A( a ), and intimidation of a witness in violation of G.L. c. 268, § 13B, as amended by St.2010, c. 92, § 11. On appeal, she claims that there was insufficient evidence to support her conviction of intimidation of a witness, and that the prosecutor's closing argument created a substantial risk of a miscarriage of justice. We affirm.
1. Sufficiency of the evidence. In the light most favorable to the Commonwealth, the evidence included the following. On August 21, 2010, the defendant and her boyfriend confronted the victim in the street. With a knife in her hand, the defendant told the victim she was going to kill her and proceeded to chase the victim around the victim's car. When the defendant failed to catch the victim, the defendant slashed the victim's tires. The victim reported this incident to the police, which led to a criminal complaint being issued against the defendant.
On October 28, 2010, the defendant again confronted the victim in the street. The defendant called her a “snitch bitch,” which the victim understood to be a reference to her having spoken to the police about the August 21 incident. The victim suggested the defendant “go on about [her] business,” to which the defendant responded, “You're taking me to court,” and punched the victim in the face. The victim was afraid and believed the defendant was stalking her. From this evidence, the jury were entitled to conclude that the defendant knew the victim was a witness or potential witness against her regarding the August 21 incident, and that the defendant specifically intended, through the use of physical violence, to wilfully intimidate the victim. See Commonwealth v. Rivera, 76 Mass.App.Ct. 530, 532–535 (2010); G.L. c. 268, § 13B.
The defendant claims that “in October of 2010, there was no criminal proceeding or investigation of any type, notwithstanding [the defendant's] apparent belief that [the victim] was ‘taking her to court.’ “ However, the victim specifically testified that she reported the August 21 incident to the police, that the police conducted an investigation, and that there was an open case in District Court in Dorchester because of the incident. In addition, Boston police officer Matthew Smith testified that he investigated the August 21 incident, completed a police report on the matter, and noted the pending case in Dorchester.
The defendant claims there was no evidence that established that the defendant intimidated the victim as a result of the August 21 incident as opposed to the car accident in July. We disagree. The victim testified that the defendant specifically mentioned a court case prior to punching the victim in the face.
There was no evidence that the car accident resulted in a court case. The only evidence of a pending court case was that from the August 21 incident. Therefore, it would not have been a permissible, let alone an equal, inference for the jury to conclude that the defendant intimidated the victim because of a lawsuit over the car accident.
2. Closing argument. The defendant claims, for the first time on appeal, that the prosecutor misstated the evidence in her closing argument when she argued that Stephanie Thompson, an alibi witness, arrived “home around 6:00 P. M., not 5:00 or 5:30 P. M.” We disagree. The defendant claims that Thompson never testified to this evidence. In fact, Thompson's testimony was equivocal on the precise time she got home on the day of the crime. On direct examination, Thompson said she had to be home at “5:30 or 6:00,” and later said she had to be “home by 5:30.” But on cross-examination, Thompson admitted that she told the police officer that she had to be home at 5:30 or 6:00 P.M. that day.
Given this testimony, Thompson put the latest time of her arriving home at 6:00 P. M., which allowed the prosecutor to argue, within the evidence, that the timeline for the alibi was not credible. The prosecutor also did not misstate the evidence when she argued that Thompson did not arrive home at 5:00 or 5:30 P. M., because Thompson's direct testimony put her arrival after 5:30 and at or before 6:00 P.M. The prosecutor was entitled to highlight the discrepancies in the alibi timeline, and “marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). There was no error, and thus, no risk that justice miscarried.
Judgments affirmed.