Opinion
No. 11–P–403.
2013-05-20
COMMONWEALTH v. WINTHROP W., a juvenile.
By the Court (CYPHER, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the juvenile guilty of a civil rights violation without bodily injury in violation of G.L. c. 265, § 37, and criminal harassment in violation of G.L. c. 265, § 43A( a ). On appeal, the juvenile's primary contentions are (1) that the evidence was insufficient to prove either offense, (2) that the Commonwealth's bill of particulars did not provide precise notice of the dates of the offenses, and (3) that the trial judge's supplemental instruction, in response to a jury question during deliberation, did not adequately explain that the force element pertained only to the civil rights violation. We affirm.
1. Factual background. The following is a summary of the trial evidence. The prosecution stems from a series of events in which the juvenile verbally and, eventually, physically, accosted the victim over a period of several years. These confrontations commenced in the summer of 2006 or 2007, and continued until 2009, including a particular incident which occurred on April 5, 2009. To provide further detail: In the summer 2006 or 2007, the juvenile confronted the victim as she was coming home from work, taunted her by yelling out that she was a “fucking nigger bitch,” a “nigger digger,” and that she had herpes. On one occasion, the juvenile spit in the victim's face. This taunting and harassment, which began that summer, continued through January, 2009. At various times during these years, the juvenile would encounter the victim on the streets of the South Boston section of Boston and would direct invectives at the victim, such as the ones quoted above. On April 5, 2009, the juvenile's tirades escalated into a physical confrontation as follows. The victim was walking near the corner of G Street and Broadway. The juvenile, accompanied by a group of three other youths, yelled, among other epithets, that the victim “fucks dirty nigger dick.” The victim responded, telling the juvenile to “leave [her] the fuck alone.” With the juvenile in the lead, the group crossed the street and positioned themselves in front and back of the victim, while leveling a continuing barrage of insults. The victim called the police on her cellular telephone. (She tried to cover the police call by pretending to call her boyfriend). At trial, the victim testified that, as a result of this incident, she was so upset that she was unable to hold a conversation with the police when they arrived. The police who responded confirmed that the victim was distraught, shaking, crying, and nearly unable to speak.
2. Criminal harassment. “To obtain a conviction under the criminal harassment statute, G.L. c. 265, § 43A( a ), the Commonwealth must ‘prove that (1) the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; (2) the defendant intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion; (3) the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim; (4) the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and (5) the defendant committed the conduct or speech, or series of acts, ‘willfully and maliciously.’ “ Commonwealth v. McDonald, 462 Mass. 236, 240 (2012), quoting from Commonwealth v. Kulesa, 455 Mass. 447, 452 (2009).
Viewing the trial evidence in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence to support all of the elements of criminal harassment. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). As summarized above, the evidence at trial included testimony that the juvenile intentionally targeted the victim while directing racially-based and humiliating taunts at her, that such taunts took place in a continuing pattern over a long duration, and, that on at least one occasion, the juvenile spat at her. The victim was seriously alarmed by these confrontations, which, taken together, constituted a pattern of criminal harassment. See generally Commonwealth v. McDonald, supra.
3. Civil rights violation.General Laws c. 265, § 37, states that “[n]o person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate or otherwise interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the commonwealth or by the constitution or laws of the United States.” The juvenile argues that the evidence regarding the April 5, 2009, incident was insufficient to support the force element of the civil rights charge. We are not so persuaded.
Verbal and nonverbal threats may constitute force or a threat of force, within the ambit of the civil rights statute. Commonwealth v. Pike, 52 Mass.App.Ct. 650, 654 (2001) (evidence sufficient to constitute force where defendant posted signs in yard decrying victim's sexuality, screamed homophobic slurs, and challenged victim to a fight). In this case, the Commonwealth's trial evidence reflected not only threatening verbal tirades, but also threatening physical acts as the juvenile led the group of the other youths across the street to surround the victim. These actions and verbal threats were sufficient to establish the element of force under G.L. c. 265, § 37, so as to prove a civil rights violation.
4. The bill of particulars. The juvenile argues that the Commonwealth's bill of particulars lacked specificity as to the dates of the charged acts of criminal harassment and that more detail was required where the crime charged required proof of a pattern of conduct. We disagree with the juvenile's assessment.
The bill of particulars stated that during the summer of 2006 or 2007, the juvenile spat on the victim and verbally harassed her; that in January, 2009, the juvenile yelled derogatory, racially-infused insults at the victim; and that on April 5, 2009, at 7:15 P. M., the juvenile yelled racial obscenities at the victim, causing her to fear for her safety. “All that is required is that the indictment or complaint, read with the bill of particulars, be sufficient to give the accused reasonable knowledge of the crime so as to enable him or her to prepare a defense.” Commonwealth v. Erazo, 63 Mass.App.Ct. 624, 627 (2005). The Commonwealth's bill of particulars satisfied this standard here.
5. Supplemental instruction. Finally, the juvenile argues that he was prejudiced by a supplemental jury instruction that failed to properly delineate the charges against him. The instruction came in the midst of jury deliberations, in response to the jury's question of whether “spat at another person” constitutes physical harm. The trial judge held a conference where, based on the jury's question, defense counsel expressed concern that the jury were confused by the trial evidence and perhaps unaware that the force element applied only to the civil rights charge, and not to the criminal harassment charge. Defense counsel requested that the judge explain this distinction in a supplemental instruction. The judge refused, stating that she would respond only to the question asked by the jury and, further, that she did not want to risk influencing the jury's interpretation of the trial testimony by adding additional commentary. Defense counsel ultimately agreed, and the judge simply restated the instruction on the force element of the civil rights charge.
Upon reviewing the supplemental instruction in context, we see no error in the judge's restatement of the force element, as was defined in the initial jury charge. “The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly.” Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998), quoting from Commonwealth v. Waite, 422 Mass. 792, 807 n. 11 (1996). Here, the judge correctly recognized that a jury question pertaining to spitting and physical harm was, in all likelihood, a reference to the force element of the civil rights charge. Accordingly, the judge limited her supplemental instruction to restating that force element. The judge also made it clear from the outset, in her original jury instructions, that the force element applied only to the civil rights charge. We see no error in the supplemental instruction, which was a direct and prudent response to the jury's question.
The parties also dispute whether defense counsel's initial disagreement with the judge over the proposed supplemental jury instruction constituted a proper objection. Because we discern no error in the judge's supplemental instruction, we need not dwell on the differing appellate standards of whether there was a substantial risk of a miscarriage of justice (lack of objection) or prejudicial error (objection).
Judgments affirmed.