DocketNumber: No. 11-P-2005
Citation Numbers: 83 Mass. App. Ct. 640
Judges: Hanlon, Vuono
Filed Date: 5/22/2013
Status: Precedential
Modified Date: 6/25/2022
On appeal from a conviction of intimidation of a witness, the defendant contends that the judge erred in denying his motion for a required finding of not guilty. In the circumstances of this case, we conclude that the defendant’s act of pointing his fingers to his head as if he were shooting a gun while stating that the victim-witness “would die” constitutes intimidation of a witness. Consequently, we affirm the defendant’s conviction.
Background. The defendant, Angel M. Rosario, was initially charged with armed assault with intent to murder and assault and battery by means of a dangerous weapon in connection
Following a jury trial in Superior Court on all the charges, the defendant, who claimed that he had stabbed Alvarado in self-defense and in defense of another, was acquitted of all the charges except intimidation of a witness. On appeal, the defendant concedes that the evidence was sufficient for the jury to find that he threatened Alvarado and that Alvarado was to be a witness against him in a criminal proceeding. He claims, however, that his motion for a required finding of not guilty should have been allowed because the Commonwealth failed to prove that he possessed the requisite intent “to impede, obstruct, delay, harm, punish, or otherwise interfere” with a criminal proceeding.
Facts. We summarize the evidence presented at trial on the charge of intimidation of a witness in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On July 15, 2008, the defendant was arraigned in District Court on the charges which arose from the stabbing of Alvarado and was ordered to stay away from
On November 21, 2008, the defendant reported to his probation officer at 1:00 p.m. at the Superior Court probation office, which is also located in the Hall of Justice. The meeting lasted approximately ten minutes. Both Perez and Alvarado were also at the Hall of Justice that day. Alvarado, who was in custody, had been arrested for shooting at Perez’s car and was scheduled to appear in the District Court. Although the defendant had no other business at the Hall of Justice on that afternoon, he remained there until after 2:00 p.m. and was standing in the hallway when, at about 2:15 p.m., Alvarado was escorted by a court officer from the lockup facility to a District Court court room. The defendant gestured at Alvarado by putting two fingers to his temple and a thumb facing up, mimicking the shooting of a gun, and stated in Spanish, “you are going to die.” Alvarado became nervous and reported the incident to both the court officer and the judge. At the conclusion of Alvarado’s hearing in court, he was escorted back to the lockup. The defendant, who had remained in the hallway, approached Alvarado and the court officer from behind and repeated his threat to Alvarado. The court officer described an “outburst” between the defendant and Alvarado, but did not know what was said because he did not understand Spanish. However, he observed the defendant place two fingers to his temple while he was talking to Alvarado. According to the court officer, Alvarado was “very upset.”
Discussion. We review the sufficiency of the evidence under the established standard “whether the evidence received, viewed in a light most favorable to the Commonwealth, is sufficient so that the jury ‘might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law, and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt.’ ” Commonwealth v. Pope, 406 Mass.
As we have noted, the defendant challenges the Commonwealth’s evidence on the element of intent, about which there was no direct evidence. However, “[mjatters of intent are rarely proved by direct evidence and are most often proved circumstantially.” Commonwealth v. Riley, 73 Mass. App. Ct. 721, 730 (2009). Moreover, as the cases have frequently stated, “ [circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Commonwealth v. Merola, 405 Mass. 529, 533 (1989). “An inference drawn from circumstantial evidence ‘need only be reasonable and possible; it need not be necessary or inescapable.’ ” Ibid., quoting from Commonwealth v. Beckett, 373 Mass. 329, 341 (1977).
The defendant argues that, even if he threatened Alvarado, he did so as a result of his longstanding animosity toward Alvarado and not with the purpose of influencing Alvarado’s testimony. This argument ignores the principle that the evidence must be viewed in the light most favorable to the Commonwealth. Furthermore, the evidence of hostility between the defendant and Alvarado does not preclude an inference of an intent to intimidate. The defendant may have acted out of hostility and, at the same time, intended to intimidate Alvarado as a witness. See Commonwealth v. Lauzier, 53 Mass. App. Ct. 626, 630 (2002) (at a trial on an indictment charging breaking and entering a dwelling in the nighttime with intent to commit a felony, there was sufficient evidence upon which the trier of fact could rationally and justifiably find that the defendant’s intent at the time he broke into his parents’ home was not only to commit suicide, but also to commit felonious assaults upon the police who responded to the break-in).
Additionally, the evidence and reasonable inferences drawn therefrom were sufficient to establish that the defendant acted both with the requisite intent for witness intimidation and in retaliation against Alvarado as a result of the shooting incident involving Perez. We see no reason why the jury were compelled to accept, as the defendant suggests, that he had only the intent to retaliate. Here, the jury rationally could have concluded that the defendant acted with more than one intention. Thus, the fact
The defendant next argues that the timing of the incident made it less likely that he possessed the requisite intent to interfere with Alvarado’s future testimony. While the defendant is correct that time, place, and circumstances may be considered in determining whether sufficient evidence has been introduced to prove that threatening conduct falls within the parameters of the statute, see Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 800 (1998), we are not persuaded by the defendant’s argument. The fact that the intimidation occurred before the indictments were returned is not determinative of the issue.
Moreover, the jury could have reasonably inferred that the encounter was not spontaneous, but instead was planned. The defendant, who had been ordered to stay away from Alvarado, not only remained in the court house long after his appointment with his probation officer, but he lingered to the point of risking a violation of his curfew. These circumstances do not suggest, as the defendant contends, that this was a chance encounter. An inference that the jury were entitled to draw, and seemed to have drawn, is that the defendant knew Alvarado would appear in court and that he waited for the opportunity to confront and intimidate him.
Judgment affirmed.
Alvarado was seriously injured, and his wounds required surgery.
See G. L. c. 268, § 13B, as amended through St. 2006, c. 48, § 3, providing in pertinent part as follows: “(1) Whoever, directly or indirectly, willfully (a) threatens, . . . (i) a witness or potential witness at any stage of a . . . criminal proceeding of any type . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, with a . . . trial or other criminal proceeding of any type shall be punished . . . .” The statute was amended again in 2010. See St. 2010, c. 92, § 11; St. 2010, c. 256, § 120. The 2010 amendments do not apply to this case and would not affect the outcome if they did.
This is not the rare case where “the evidence tends equally to sustain either of two inconsistent propositions, [and] neither of them can be said to have been established by legitimate proof.” Commonwealth v. Eramo, 377 Mass. 912, 913 (1979), quoting from Commonwealth v. Croft, 345 Mass. 143, 145 (1962). Rather, in this case, the evidence supports more than one reasonable inference and, therefore, it was for the jury to determine where the truth lies. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
The record does not disclose an explanation for the delay between the defendant’s arraignment in District Court and the return of the indictments by the grand jury.