By the Court (Grasso, Kantrowitz & Meade, JJ.), Clerk
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
The defendant, Michael Simeone, appeals from his conviction of intimidating a witness. He argues that the judge erred in not giving a supplemental jury instruction that would have prevented the jury from convicting him for statements that were constitutionally protected free speech. We affirm.
Background. The defendant was charged with assault by means of a dangerous weapon, threatening to commit a crime, and intimidating a witness, for a series of incidents involving the witness and her sons in a dispute over money. One year later, while the underlying case was pending, the defendant was charged with threatening to commit a crime and intimidating a witness after an incident when he encountered the witness while she was working in a grocery store. The cases were joined for trial. The judge allowed the defendant's motion for a required finding of not guilty on the witness intimidation charge from the first complaint. The defendant moved for a supplemental jury instruction on the remaining witness intimidation charge, which was denied over objection. Instead, the judge gave the standard instruction. The jury found the defendant guilty of the witness intimidation charge and not guilty of the remaining charges.
The incident, which forms the basis of the conviction before us in this appeal, occurred on March 22, 2011. The witness testified that the defendant called her obscenities, used several expletives, and stated, "You're dead tonight." She also testified that he said that he was "going to come to my house tonight" and that he said he would "shoot up my house." The defendant testified during his case-in-chief that he did not make such remarks, but that after she yelled, "Wait until [your] court date, [I'm] going to make sure [you] get screwed," he "told her when I was done with my case, I was going to sue her for her house."
Discussion. The defendant claims that the judge erred in failing to deliver the supplemental jury instruction to prevent the jury from convicting him for threatening to sue the witness, which he claims is constitutionally protected speech that does not violate the witness intimidation statute.
The statute protects witnesses against threats and attempts to cause "physical injury, emotional injury, economic injury or property damage." G. L. c. 268, § 13B(1)(a), as appearing in St. 2006, c. 48, § 3. Harassment of witnesses aimed at discouraging them from testifying falls within the scope of this provision.
"The purpose of the statute, rather obviously, is to protect witnesses from being bullied or harried so that they do not become reluctant to testify or to give truthful evidence in investigatory or judicial proceedings. The larger purpose is to prevent interference with the administration of justice."
Commonwealth v.
McCreary,
45 Mass. App. Ct. 797, 799 (1998). Intimidation under § 13B includes "putting a person in fear for the purpose of influencing his or her conduct."
Ibid. Here, the defendant's numerous threats -- including that he would travel to the witness's house and kill her -- were sufficient to support the jury's verdict, as the defendant acknowledged at oral argument.
Instead, the defendant asserts that the jury were free to reject the statements attributed to him by the witness, and that his remaining admitted-to statement regarding suing the witness was merely protected speech as to which the judge erred by not giving his requested jury instruction.
Statements that are otherwise lawful can fall outside the scope of constitutional protection depending on the context and purpose of the speech.
"While most speech is protected from government regulation by the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights . . . there are certain well-defined and narrowly limited classes of speech that are not protected because they are . . . of such slight social value as a step to truth that
whatever meager benefit that may be derived from them is clearly outweighed by the dangers they pose."
O'Brien v.
Borowski,
461 Mass. 415, 422 (2012) (quotation marks and citations omitted).
Under § 13B, "[t]he time, place, and circumstances" of the threats are highly relevant, and speech that would otherwise be lawful can fall within the scope of the witness intimidation statute. Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63-64 (2013) (defendant's statement, "I'll see you on the street," made to witness during courtroom proceedings, supported complaint for witness intimidation).
Assuming the jury rejected the witness's version of the defendant's comments, to find him guilty the jury would have to have found, as they were instructed, that the defendant uttered the lawsuit remark with the specific intent to "impede [or] obstruct" the witness from participating in the criminal proceeding. G. L. c. 268, § 13B(1). This determination placed the comment outside of the realm of protected speech.
For these reasons, and for substantially those in the brief of the Commonwealth, we affirm.
Judgment affirmed.
By the Court (Grasso, Kantrowitz & Meade, JJ.),
Clerk Entered: October 22, 2014.