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Massachusetts Witness Intimidation charge from Lawrence District Court vacated by Appeals Court

Witness Intimidation is a common charge that will often accompany a domestic assault and battery charge in Massachusetts.  In the case of Commonwealth vs. Jeffrey S. Wheeler, it was alleged that the charge was against the Judge and not a specific person.

The defendant was convicted of two counts of intimidation in violation of G. L. c. 268, § 13B (intimidation statute). The defendant placed a telephone call to case specialist in the Newburyport Division of the District Court Department clerk’s office and stated that he was going to go rogue on a judge, that the judge was not “going to be a Judge anymore,” and that “it was going to appear on the TV.” The defendant mentioned the name of someone he said was involved in a court case and said that he was going to serve the judge with paperwork, but the case specialist believed it sounded like he was going to “take things into his own hands and do it himself.” 

The Judge was made aware of the defendant’s telephone call to the clerk’s office and was immediately escorted to her office under the protection of a State trooper. The Judge was escorted home by State police at the end of the day.  The Judge was shocked by the threat because the defendant’s name “did not resonate” with her. 

Following that, the defendant was arrested and charged with two counts of intimidation and one count of threatening to commit a crime. At the close of the Commonwealth’s evidence and again at the conclusion of the case, the defendant moved for a required finding of not guilty on all counts. The motions were turned down. The defendant was found guilty on both counts of intimidation but not guilty on the count of threatening to commit a crime by the jury.

What are the elements of the Crime of Witness Intimidation in Massachusetts?  

The required elements of the intimidation statute in this case, where prior harassment prevention orders were issued, are that the defendant willfully threaten, intimidate, or harass a judge or clerk who participated in a civil proceeding, with the intent or reckless disregard for the fact that it may punish, harm, or otherwise retaliate against the judge or clerk who participated in that civil proceeding.

In determining whether a defendant has committed intimidation, “the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.” Because the focus is on the defendant’s actions and intentions the Commonwealth does not need to prove that the victim of witness intimidation was actually intimidated or frightened, or that the threat was actually communicated to its target. Thus, as with threats, the crime of intimidation is complete upon the communication of the threat to the intermediary.

Next, the defendant argues that his motion for a required finding of not guilty on the intimidation charge as to the case specialist should have been allowed. 

The fourth element of the intimidation statute is that the defendant’s statement was made with the intent to punish, harm or otherwise retaliate against a clerk who participated in the civil proceeding. Even assuming, without deciding, that the case specialist was a clerk for the purposes of this appeal, the Commonwealth failed to introduce any evidence that the defendant’s statements to the case specialist were made with the intent to retaliate against her for her participation in any proceeding involving the defendant. Additionally, the Commonwealth presented no evidence that the case specialist was a witness or potential witness, a person who is or was aware of information, records, documents or objects that relate to a violation of a criminal law, or a person who is or was attending or a person who had made known an intention to attend a proceeding. In fact, there was no evidence that the case specialist knew any information about the harassment prevention orders at all. Therefore, the motion for a required finding of not guilty on the count charging intimidation of the case specialist should have been allowed.

The Massachusetts Appeals Court found that based on the facts proven that this did not fit within the definition of the type of conduct that the Witness Intimidation statute was meant to prohibit.  Typically when Witness Intimidation is charged in the content of a domestic assault and battery, the defendant is alleged to have pulled a phone cord out of the wall or more commonly today, grabbed a cell phone and or destroyed the phone preventing the victim from calling the police.

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