Opinion
10-P-1683
11-01-2011
COMMONWEALTH, v. EDWARD WILSON.
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
A jury found the defendant guilty on one count of assault by means of a dangerous weapon, in violation of G. L. c. 265 § 15B(b), and three counts of threatening to commit a crime, in violation of G. L. c. 275, § 2. On appeal, the defendant's sole argument is that the judge gave incomplete instructions to the jury on the threat charges. Because the defendant did not object to the instructions, we review only to determine whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
The defendant had been charged with four counts of intimidating a police officer, pursuant to G. L. c. 268, § 13B. He was acquitted on one count, and on each of the other three counts was convicted of the lesser included offense of threatening to commit a crime.
The Commonwealth adduced evidence that, at the time of the defendant's arrest for assault with a knife, the defendant stated to the arresting officers, 'I'll remember your faces. I'll get you'; and 'I'm going to get you.' The defendant contends that the instruction was deficient because the judge did not specifically tell the jury that the Commonwealth was required to prove that the defendant had the ability to commit the threatened crimes. See generally Commonwealth v. Melton, 77 Mass. App. Ct. 552, 557-558 (2010). However, viewing the charge as a whole, there was no 'substantial danger that the jury were misled by the . . . instruction[s].' Commonwealth v. Freeman, supra at 564.
The judge informed the jury that '[i]t is required that the threat be made in circumstances that would reasonably justify apprehension on the part of an ordinary person.' Because apprehension on the part of an ordinary person would not reasonably be justified unless it was apparent that the defendant was able to make good on his threats, the failure to refer to the defendant's ability to do so was essentially inconsequential.
There is no merit to the defendant's contention that, because he was handcuffed and surrounded by many police officers when he made the threats, the jury may well have acquitted him had they been instructed specifically on the issue of his ability to carry them out. Those very facts demonstrate that the defendant's ability to do immediate harm to the officers was not a genuine issue in the case. The defendant's threats were phrased in the future tense and directed towards a later time when the defendant, who would 'remember' the officers' 'faces,' would 'get' the officers. As the judge correctly explained, the jury were entitled to convict the defendant if they found that the defendant intended to inflict harm in the future. See Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005 (1985); Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 407 & n.6 (2009).
In short, given the specific circumstances and issues presented, the charge gave sufficient guidance to the jury and created no substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Rapoza, C.J., Cohen & Agnes, JJ.),