Opinion
14-P-891
08-25-2015
COMMONWEALTH v. ROBERT E. WIDBERG.
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 in the Roxbury Division of the Boston Municipal Court Department, the defendant was convicted of impersonating a police officer and threatening to commit a crime. He appeals only from the conviction of impersonating a police officer. We affirm.
Background. On the night of March 19, 2011, the victim, a college student, left her dormitory at Northeastern University to meet her roommate. As she walked past the Ruggles subway station, she saw a group of people standing about one hundred feet away from her. Although there were few other people around, the defendant was walking behind her at a close distance. She found this "strange," because the streets were so empty.
The victim crossed the street in order to put some distance between herself and the defendant. As she did, the defendant yelled, "I'm with the BPD. I need to ask you some questions." She understood "BPD" to mean the Boston police department, but did not believe that the defendant was actually a police officer. When the defendant followed the victim and crossed the street toward her, she became "afraid" and crossed the street again. The defendant followed her back across the street, and stated, "It doesn't matter which side of the street you go to, I'm coming after you." The victim became "terrified" and ran towards the group of people she had seen a few moments earlier. When she reached them, she asked if anyone was following her and then turned to see the defendant going into the Ruggles subway station.
Shortly thereafter, the victim saw a marked police cruiser occupied by two police officers. She ran over to the cruiser, and told the officers what had occurred. The officers had her get into the cruiser, and drove her slowly towards the Ruggles subway station, where she was able to identify the defendant. She then overheard the defendant tell the officers, "You guys don't know who you're messing with. I'm a bad guy."
1. Acting as a police officer. General Laws c. 268, § 33, as appearing in St. 1984, c. 110, provides, in relevant part, "Whoever falsely assumes or pretends to be a . . . police officer, . . . and acts as such or requires a person to aid or assist him in a matter pertaining to the duty of such officer, shall be punished." In view of its plain language and structure, we interpret the statute to mean that the Commonwealth must prove not only that the defendant impersonated an officer, but also that he took some action in keeping with the pretense.
This reading is consistent with the interpretation given to the statute's similarly worded, Federal counterpart, 18 U.S.C. § 912 (2006). See, e.g., United States v. Robbins, 613 F.2d 688, 692 (8th Cir. 1979); United States v. Tomsha-Miguel, 766 F.3d 1041, 1045-1046 (9th Cir. 2014). See also United States v. Barnow, 239 U.S. 74, 77 (1915), and United States v. Lepowitch, 318 U.S. 702, 703 (1943), decided under older versions of the law. We may look to these Federal cases for guidance. See Commonwealth v. Colon, 81 Mass. App. Ct. 8, 14 (2011), citing Commonwealth v. One 1986 Volkswagen GTI Auto., 417 Mass. 369, 373 (1994).
Here, the defendant argues that the Commonwealth did not prove that he "acted as" a police officer, but merely that he engaged in a pretense of being "with the BPD." We disagree. By stating that he "need[ed] to ask [the victim] some questions," and then following her, the defendant used the title and the authority of a Boston police officer in an attempt to get her to stop. These actions went "beyond 'mere bravado,'" and were imitations of "integral parts of the official routine" of the police. United States v. Robbins, 613 F.2d 688, 692 (8th Cir. 1979). Accordingly, the evidence satisfied the "act[ing] as such" element of the statute.
2. "False" representation of being an officer. The defendant also argues that the Commonwealth failed to demonstrate that he "falsely" assumed or pretended to be a Boston police officer. However, the victim testified that the defendant was not in uniform, did not show a badge, threatened her, and told the officers that he was a "bad guy." This evidence permitted the jury to draw the "reasonable and possible" inference that the defendant's representation that he was a police officer was false. Commonwealth v. Cohen, 412 Mass. 375, 380 (1992).
The Commonwealth argues that it did not have the burden of proving that the defendant was not, in fact, a police officer. We note, however, that G. L. c. 268, § 33, explicitly states that the criminal conduct encompassed by the statute includes "falsely" assuming or pretending to be an officer (emphasis supplied).
3. Sufficiency of the complaint. The defendant argues that the complaint was fatally defective because it failed to allege that he falsely assumed or pretended to be an "officer of this Commonwealth." We disagree. The complaint gave the defendant sufficient notice of the charges being brought against him, and "nothing would be gained by requiring the Commonwealth to make further allegations." Commonwealth v. Green, 399 Mass. 565, 567 (1987). See Commonwealth v. Militello, 66 Mass. App. Ct. 325, 339 (2006). The complaint referenced the date of the offense and the statute prohibiting the offense, and described the offense in the caption. See Commonwealth v. Sullivan, 82 Mass. App. Ct. 293, 297 (2012). Furthermore, even assuming that there was a missing element, "the absence of a required element in [a complaint] does not by itself establish that a crime is not charged." Commonwealth v. Canty, 466 Mass. 535, 548 (2013).
The defendant relies on Commonwealth v. Wolcott, 10 Cush. 61, 65 (1852). However, that case was decided under an earlier version of the statute, on different facts, and may reflect an antiquated view of sufficient indictments.
Judgment affirmed.
By the Court (Kafker, C.J., Berry & Cohen, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: August 25, 2015.