Commonwealth v. James Bellard.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-593
COMMONWEALTH
vs.
JAMES BELLARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial, the defendant was convicted
of violating G. L. c. 268, § 13B (b), by attempting to bribe an
anticipated witness in his upcoming trial. On appeal, the
defendant contends that the judge erred in denying his motion
for a required finding of not guilty because the evidence was
insufficient to support his conviction. We affirm.
Background. We recite the facts in the light most
favorable to the Commonwealth, reserving certain details for
later discussion. Commonwealth v. Latimore, 378 Mass. 671, 676-
677 (1979). This offense stemmed from an earlier one in which
the defendant was charged with domestic assault and battery on
his girlfriend and was detained pending trial. Less than two
weeks before the scheduled trial, the defendant called the
victim twice from the house of corrections.1 Based on the
recorded statements in those calls, the Commonwealth charged the
defendant with violating G. L. c. 268, § 13B, sometimes called
the "witness intimidation" statute, although its scope is much
broader.2
At trial on the § 13B charge, the Commonwealth pursued the
theory that the defendant "conveyed a gift, offer or promise
[of] anything of value" to the victim –- in other words, a
bribery theory.3 The judge heard from the Commonwealth's
witnesses, listened to the recordings in their entirety, and
denied the defendant's motion for a required finding of not
guilty,4 ruling, among other things, that the defendant was
"obviously attempting to convince the witness not to show up in
[c]ourt, [or] not to accept [the] summonses" and that the
defendant conveyed something of value to the victim,
specifically an "offer of marriage." This appeal followed.
1 Because neither party appealed the judge's findings that the
defendant and victim were the participants in the phone call, we
accept that the voice of the inmate was that of the defendant
and the other, female voice was that of the victim.
2 At the time the calls were made, the defendant's trial was
scheduled for August 2, 2016, about ten days later. The trial
was then rescheduled.
3 The complaint charged all theories of witness intimidation.
4 In his motion for a required finding, the defendant primarily
argued that he did not convey a thing of value to the victim and
that there was insufficient evidence that the female on the call
was the victim.
2
Discussion. 1. Standard of Review. We review this claim,
considering the evidence introduced at trial in the light most
favorable to the Commonwealth, to determine whether any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt, Latimore, 378 Mass. at 677-678,
bearing in mind that guilt may be established by circumstantial
evidence and that inferences drawn from such evidence "need only
be reasonable and possible and need not be necessary or
inescapable" (citation omitted). Commonwealth v. Lao, 443 Mass.
770, 779 (2005), S.C., 450 Mass. 215 (2007). "[F]indings drawn
partly or wholly from testimonial evidence are accorded
deference and not set aside unless clearly erroneous,"
Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018), but where
the judge's factual findings are "predicated not on the
assessment of witness credibility but rather on documentary
materials," Commonwealth v. Pugh, 462 Mass. 482, 495 (2012),
such as an audio recording, we review the evidence de novo. See
Tremblay, supra at 656.
A violation of G. L. c. 268, § 13B (b) (ii), requires proof
that the defendant (1) willfully; (2) conveyed a gift, offer, or
promise of anything of value; (3) to a witness or potential
witness in a criminal proceeding of any type; (4) with the
intent to impede or interfere with a criminal investigation or
3
proceeding.5 See G. L. c. 268, § 13B. As did the parties, we
direct our analysis at the second and fourth elements, i.e.,
whether the defendant promised anything "of value" and
specifically intended his words to influence the victim not to
testify at his upcoming trial. We are satisfied that the
evidence was sufficient to support the defendant's conviction.
2. Gift, offer or promise of anything of value. The
recordings and testimony support that the defendant conveyed an
offer or promise of a thing of value to the victim. Because the
term "value" is not defined in § 13B, we look at its "usual and
accepted meanings, as long as [those] meanings are consistent
with the statutory purpose" (citation omitted). Commonwealth v.
Paquette, 475 Mass. 793, 800 (2016). Dictionaries define
"value" as "[t]he significance, desirability, or utility of
something," Black's Law Dictionary 1864 (11th ed. 2019), or the
"[w]orth in usefulness or importance to the possessor; utility
or merit." The American Heritage Dictionary of the English
Language (5th ed 2022),
https://www.ahdictionary.com/word/search.html?q=value.
Something is "of value" for purposes of § 13B if the witness
would perceive it as so important or significant as to influence
5 Massachusetts courts have construed § 13B (b) (ii), as bribery.
See, e.g., Commonwealth v. Hamilton, 459 Mass. 422, 434 (2011)
("§ 13B applies to one who threatens, bribes, misleads,
intimidates, or harasses").
4
their participation in the proceeding. See Commonwealth v.
Hayes, 311 Mass. 21, 27 (1942) (key consideration in bribery
case was whether offer was valuable to person seeking or
obtaining it); Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 99,
101 (2015) (sufficient evidence that defendant police officer
conveyed offer or promise of value by telling witness he "could
make 200 plus friends[,] . . . have the key to the city[,] . . .
[and] could get out of trouble" if he recanted).
The recordings reflect the victim's frustration with the
police officers who kept "coming to the house," "banging on" the
door, and "threat[ening]" her to go to court. She voiced
concerns about "los[ing]" her children because of a "DSS case"
that had been initiated; complained about dealing with it "by
[her]self"; and explicitly told the defendant that she wanted
"it to stop," "to all go away," and for "DSS to leave [her]
alone." Viewed in the context of the frequent contact by law
enforcement officers and other state actors, the victim's
statements permit an inference that she valued an end to the
criminal proceedings and a return to normalcy. See Commonwealth
v. Pagels, 69 Mass. App. Ct. 607, 613 (2007) (factfinder "may
consider the context in which the allegedly threatening
statement was made and all of the surrounding circumstances");
Commonwealth v. Vazquez, 69 Mass. App. Ct. 622, 633 (2007)
(where corrections officer expressed desire to borrow inmate's
5
Jaguar vehicle, he solicited something "of substantial value"
for purposes of G. L. c. 268A, § 3 (b), by seeking temporary use
of vehicle in exchange for delivering contraband to inmate).
The evidence further permits an inference that the
defendant offered or promised the victim an end to the
proceedings in exchange for her noncooperation with the
authorities. The defendant assured her that "it" would all stop
and "go away" if she "stop[ped] answering them, stop[ped]
responding, and stop[ped] opening the door" for the authorities.
The defendant repeatedly pressured the victim to "stop" opening
the door and to "listen to [him]"; at one point, he purported to
describe his lawyer's advice that, if the victim did not
testify, the defendant did not need to worry, implying that his
promise was backed by professional judgment. See Weida v.
MacDougall, 300 Mass. 521, 524 (1938) (where defendant asked
plaintiff to come look at business opportunity because of
plaintiff's knowledge of the type of business, plaintiff's
advice was "of value" to defendant). Throughout the
conversations, the defendant played on the victim's insecurities6
and appealed to her emotions by, among other things, assuring
her that they were "still getting married," and telling her that
6 For example, knowing that the victim feared losing her children
if she did not cooperate, the defendant assured her that the
authorities "[didn't] know shit about [him] or [her]," and were
just "trying to play hardball" by "making shit up."
6
he "care[d] about [them] and [their] family."7 See Commonwealth
v. Nordstrom, 100 Mass. App. Ct. 493, 502 (2021) (defendant's
pressuring of victim and appeals to sympathy rather than fact
were evidence of intimidation). In this context, the judge
reasonably could have inferred the defendant was explicitly
offering the victim something of value by telling her that she
"[wouldn't] be going through this shit if [he] was out there
with [her]."
3. Specific intent to influence witness. "[A] statutory
violation is not established unless there is also proof of a
defendant's specific intent to 'impede, obstruct, delay, harm,
punish, or otherwise interfere thereby' with a criminal
investigation." Commonwealth v. Morse, 468 Mass. 360, 371
(2014), quoting G. L. c. 268, § 13B (1) (c) (v); Scaccia v.
State Ethics Comm'n, 431 Mass. 351, 356 (2000) (bribery requires
proof of "corrupt intent" to enter unlawful quid pro quo).
Here, the evidence supports that the defendant knew of the
victim's vulnerability; advised her to abandon the prosecution;
repeatedly referred to his upcoming trial date;8 relayed his
lawyer's purported advice not to talk to the authorities, and
7 We need not rely on the purported "offer of marriage" to affirm
the defendant's conviction.
8 At one point, the defendant told the victim not to "answer the
door or nothing for nobody" until then because "if [she's] not
there, they can't do too much."
7
appealed to the victim's emotions. Viewing the evidence in the
light most favorable to the Commonwealth, the judge reasonably
could have found that the defendant's purpose was to influence
the victim not to participate in the trial. See Commonwealth v.
Robinson, 444 Mass. 102, 111 (2005) (intent to influence may be
inferred from place, time, and circumstances of conduct);
Scaccia, supra at 357. We are satisfied that, in the context of
his upcoming trial for domestic abuse, the defendant's intent to
interfere with the proceeding was inferable from his statements
to the victim. Commonwealth v. Degnan, 91 Mass. App. Ct. 266,
271-272 (2017) (intent to solicit donation in exchange for
maintaining city contract inferable from words and actions).
Judgment affirmed.
By the Court (Wolohojian,
Henry & Hershfang, JJ.9),
Clerk
Entered: April 12, 2023.
9 The panelists are listed in order of seniority.
8