Opinion
No. 11–P–905.
2012-07-27
COMMONWEALTH v. Derrick WOOD.
By the Court (KANTROWITZ, BERRY & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of intimidation of a witness, G.L. c. 268, § 13B, and acquitted of five related offenses. The charges stemmed from an altercation with two police officers who had been summonsed to testify at a probation surrender hearing in Brockton Superior Court. On appeal, the defendant claims that the Commonwealth's evidence was insufficient and that the jury instructions on the elements of the offense were erroneous. He also contends that the prosecutor impermissibly referred to facts which had not been established by the evidence in his closing argument. We affirm.
Discussion.General Laws c. 268, § 13B, requires the Commonwealth to prove that the target of intimidation was “a witness or potential witness at any stage of a ... criminal proceeding.” The defendant contends that this element of the offense was not proven. We disagree. The officers who were the target of the intimidation, Sergeant Horton and Officer Brady, both testified that they were “summonsed to appear” at the Brockton Superior Court “for a probation matter.” They were having coffee at the Dunkin' Donuts near the courthouse when they “saw the person (the defendant) that we had the probation matter with,” walk past the window of the coffee shop. The defendant appeared surprised to see them. A short while later, the officers were inside the courthouse when the defendant yelled at them, stating: “You're fucking me over. You guys are bitches. You guys are pussies. You guys are fucking me. Why are you doing this to me? You'll get yours .”
The probation officer testified he summonsed the officers for a “probation matter” with the defendant and that the officers had reported to the courthouse on the day in question. The defendant argues that because the verb “summons” was not defined for the jury and neither officer explained the purpose of the summons, the jury could not know that the officers were witnesses or potential witnesses at a criminal proceeding without engaging in speculation. To the contrary, viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the evidence provided a sufficient basis for the jury to find beyond a reasonable doubt that the officers were potential witnesses for a pending criminal proceeding.
Eventually, a physical altercation ensued, and the defendant was arrested.
The defendant next argues that the Commonwealth failed to prove that the officers were actually frightened. As we explained in Commonwealth v. Rivera, 76 Mass.App.Ct. 530, 535 (2010), where a similar claim was made, the statute does not require that the words or acts of intimidation actually frighten the prospective witness.
Our decision in Rivera also compels us to reject the defendant's argument that the judge erred by giving a jury instruction based on the version of the statute in effect before the 2006 amendment. The defendant did not object to the instruction even though the statute had been amended three years earlier. (This case was tried in January of 2010.) Although the judge erred, there were no substantial risk of a miscarriage of justice because the jury were adequately informed of the elements of the offense of intimidation of a witness as they appear in the amended statute. Ibid.
Finally, there is no merit to the claim that the prosecutor created a substantial risk of a miscarriage of justice by referring to the officers as witnesses.
Judgment affirmed.