Opinion
09-P-2058
02-16-2012
COMMONWEALTH v. THOMAS A. DUCHESNEY.
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 convicted the defendant of one count of assault and battery (G. L. c. 265, § 13A), multiple counts of violation of an abuse prevention order (G. L. c. 209A, § 7), stalking (G. L. c. 265, § 43), and one count of intimidation of a witness (G. L. c. 268, § 13B). The defendant asserts error in the denial of his motion for a required finding of not guilty on one of the counts of violation of an abuse prevention order, as well as the convictions of stalking and intimidation of a witness. We affirm in part and reverse in part.
The jury acquitted the defendant of various other charges.
1. The abuse prevention order. The jury were entitled to find the following facts. The defendant's wife, D.P., applied for and received a restraining order at approximately 1:25 P. M. on January 6, 2008. The defendant came to the Barnstable police department, and was served with the order at approximately 2:47 P. M. that day. He was told to be in court the next morning. During the course of the day he visited D.P.'s mother, J.P., and said, 'I am going to be in court tomorrow. . . . Tell [D.P.] she better not be in court or she'll be sorry.' There was conflicting evidence as to whether this statement was made before or after the defendant was served with the abuse prevention order. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the statement to J.P., reflecting as it did the defendant's awareness of the court date, is sufficient to warrant a finding by the jury beyond a reasonable doubt that the defendant was served with and was aware of both the abuse prevention order and his obligation to refrain from contacting D.P., directly or indirectly, at the time he made the statement.
2. Stalking. The elements of stalking are that a defendant (1) willfully and maliciously; (2) engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person; (3) which seriously alarms or annoys that person; (4) which would cause a reasonable person to suffer substantial emotional distress; and, that the defendant (5) makes a threat with the intent to place the person in imminent fear of death or bodily injury. G. L. c. 265, § 43. The defendant argues that the Commonwealth failed to prove the subjective component of 'serious alarm,' that is, the Commonwealth failed to show that there were three or more separate occasions on which D.P. was 'seriously alarmed' by the conduct of the defendant. See Commonwealth v. Welch, 444 Mass. 80, 89-90 (2005) (a pattern of conduct or series of acts requires at least three separate acts); Commonwealth v. Braica, 68 Mass. App. Ct. 244, 247-248 (2007) (insufficient evidence of serious alarm).
Viewed in the light most favorable to the Commonwealth, the evidence showed that the defendant slashed at D.P. with a knife on January 6, 2008; she testified that she was so 'scared' that she ran away into the woods. She sought an abuse prevention order that day, after which J.P. told her of the defendant's statement that she would be 'sorry' if she came to court. D.P. attempted to avoid the defendant at the courthouse on January 7, 2008, but he saw her and told her that the proceedings were 'all done' and that she was not needed in court. She was 'scared' to see him and 'pretty much ran into the court' and applied for the order. She spoke to a detective that day who observed her to be 'trembling.' On April 17 or 18, 2008, the defendant called her and threatened her life. This call was observed and overheard in part by D.P.'s friend, who testified that D.P. was 'nervous' and 'scared.' D.P. testified that she programmed her cellular telephone so that the defendant's name appeared as 'Danger, Tom.' Finally, on April 22, 2008, after D.P. was assaulted by the defendant, bound with duct tape, and choked with a belt until she passed out, she testified that she was screaming, fighting, 'freaking out,' and that she expected to die. The next day, the defendant called D.P. again, and a witness testified that D.P. was 'very distraught and scared.'
Relying on Commonwealth v. Braica, supra, the defendant challenges the evidence concerning D.P.'s subjective state of mind with respect to these incidents because she did not testify to her mental state during the April 17 telephone call. We do not read Braica so narrowly. In that case, the only evidence concerning subjective state of mind was the testimony of the individual who was verbally harassed. In Braica, 68 Mass. App. Ct. at 247-248, this court found that the complainant's testimony did not rise to the level of 'serious alarm,' and there was no evidence from any other source to support the conclusion that she was seriously alarmed. Here, however, D.P. testified that she was afraid in early January, 2008, that she attempted to avoid the defendant after being threatened, and that there was thereafter an escalating series of events. D.P.'s friend testified to the impact of the April 17, 2008, telephone call on D.P., and D.P. herself testified to the impact of the January 6, 2008, threat, and April 22, 2008, assault, on her. The jury were entitled to draw inferences from her testimony and the testimony of others that she was seriously alarmed on three occasions.
The Commonwealth argued before the jury, and continues to argue on appeal, that the January 6 threat, the April 17 call, and the April 22 assault constitute the three separate acts. Accordingly, we need not consider the January 6 assault and battery, except as background to the threat made later that day.
We therefore need not decide the question whether the subjective test of serious alarm must be shown in each of these instances, or whether the showing may be cumulative. See Cook v. State, 36 P.3d 710, 721 (Alaska Ct. App. 2001); People v. Payton, 612 N.Y.S.2d 815, 818 (N.Y. Crim. Ct. 1994); Coombs v. Dietrich, 253 P.3d 1121, 1125 (Utah Ct. App. 2011); State v. Sveum, 220 Wis. 2d 396, 413-414 (Ct. App. 1998).
3. Witness intimidation. The indictment alleged that the defendant attempted to intimidate a witness during the course of a criminal proceeding on January 6, 2009. There was no pending criminal proceeding on that date, only the civil proceeding for an abuse prevention order. 'It is elementary in the criminal law . . . that '[t]he offence must not only be proved as charged, but it must be charged as proved." Commonwealth v. Ancillo, 350 Mass. 427, 430 (1966), quoting from Commonwealth v. Blood, 4 Gray 31, 33 (1855). Accord Commonwealth v. Collardo,
13 Mass. App. Ct. 1013, 1014-1015 (1982). The defendant was entitled to a required finding of not guilty.
It appears that the Commonwealth charged the defendant under the version of G. L. c. 268, § 13B, as appearing in St. 1990, c. 369, instead of the current version of the statute amended by St. 2006, c. 48. Since the indictment charged intimidation in a 'criminal proceeding,' the result is the same.
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The judgment on count I of indictment no. 2008-065-05 is reversed, the finding is set aside, and judgment is to be entered for the defendant.
The remaining judgments are affirmed.
By the Court (Rapoza, C.J., Cypher, Grasso, Kantrowitz & Sullivan, JJ.),