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Supreme Judicial Court Reverses Defendant’s Conviction for Witness Intimidation Due to Insufficient Evidence

mobile-in-hand-1239462-300x200In Commonwealth v. Fragata, the Supreme Judicial Court ruled that the evidence was insufficient to support the defendant’s conviction of intimidating a witness under G.L. c.268, §13B(1)(c)(i).

The background was as follows. “[T]o convict the defendant of witness intimidation under [the statute], the Commonwealth had to prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding.” In this case, the defendant and the alleged victim, who were in romantic relationship, “hosted a small gathering in [their] apartment…. After their guests left, the defendant screamed at the victim and called her ‘nasty names.’ The victim began to cry and told the defendant that she was going to telephone 911. The defendant immediately took the victim’s cellular telephone from her and begged her not to call the police. The victim told the defendant that she wanted to leave and that she was still going to call 911. As soon as she ran to the door to get out and call 911, the defendant stood in front of the door; grabbed the victim by the arms, causing them to bruise; and pushed the victim aside, again begging her not to call 911. Then, while the victim was sitting on a couch, the defendant approached her, grabbed her throat, and started choking her, hitting her head against the wall. After that attack, the victim sat on the couch and cried; the defendant had told her that he would not let her leave and she did not feel free to do so. Finally, after about thirty to forty-five minutes, the victim was able to grab her cellular telephone, leave the apartment, and call 911 from across the street.” At the defendant’s trial for intimidation of a witness, “[t]he Commonwealth’s theory … was that the defendant violated §13B(1)(c)(i) by taking away the alleged victim’s cellular telephone to prevent her from calling 911 for help after he had verbally assaulted her.” On appeal, “the defendant contend[ed] … that the evidence was insufficient to sustain his conviction of witness intimidation under §13B(1)(c)(i), because no view of the evidence would have allowed the jury to conclude that he had committed any crime before he took the victim’s cellular telephone.”

In its decision, the SJC “agree[d] that the evidence was insufficient to sustain [the defendant’s] conviction … on the theory argued by the Commonwealth at trial.” “The evidence did not permit a rational trier of fact to find that, at the point in time when the defendant took the victim’s cellular telephone, a possible criminal violation had occurred that would trigger a criminal investigation or proceeding in which the victim was likely to be a potential witness, and that the defendant intended to interfere with such an investigation or proceeding.” “There was sufficient evidence to convict the defendant of witness intimidation based on his [assaultive] conduct after he took the victim’s cellular telephone,” e.g., grabbing her arms and throat. “But this alternative ground was not argued by the Commonwealth, and we have no way of knowing whether the jury based their verdict on this alternative ground, for which the evidence was sufficient to convict, or on the theory argued by the Commonwealth, for which the evidence was insufficient to convict.” “In sum, the Commonwealth failed to present a case that the defendant engaged in anything more than abusive speech before he took the victim’s cellular telephone.”

Allegations of domestic violence related offenses are serious, as they carry substantial potential penalties and have numerous potential collateral consequences. If you or a loved one is facing such charges, you will need the assistance of a skilled attorney who will work hard to raise all possible defenses on your behalf, and who knows how to hold the Commonwealth to its burden of proof.  Attorney Daniel Cappetta is such an attorney – call him for a consultation today.

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