Criminal – Intimidation – Case specialist

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Where a defendant was convicted of two counts of intimidation based on evidence that he placed a telephone call to a case specialist in the Newburyport Division of the District Court Clerk’s Office and made threatening statements about a judge, the defendant’s motion for a required finding of not guilty on the intimidation charge as to the case specialist should have been allowed because 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.

“A District Court jury convicted the defendant of two counts of intimidation in violation of G.L.c. 268, §13B (intimidation statute), based on evidence that the defendant placed a telephone call to a 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.’ On appeal, the defendant argues that his motions for required findings of not guilty should have been allowed as to both counts. We reverse the judgment on the count charging intimidation of the case specialist and affirm the judgment on the count charging intimidation of the judge. …

“In the context of this case where prior harassment prevention orders were issued, the required elements of the intimidation statute are that the defendant must (1) willfully, (2) threaten, intimidate, or harass, (3) a judge or clerk who participated in a civil proceeding, (4) with the intent or with reckless disregard for the fact that it may punish, harm, or otherwise retaliate against the judge or clerk who participated in that civil proceeding. …

“The defendant’s statements that he was going to ‘go rogue’ and ‘it was going to appear on the TV’ could reasonably be construed as threats to harm the judge physically in retaliation for her involvement in the harassment prevention orders in which the defendant was involved, and that serving her the papers ‘in-hand’ underscored the defendant’s intention to carry out his threats against the judge in person. …

“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. We agree.

“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. …

“On the count of the complaint charging intimidation of the case specialist, the judgment is reversed, the verdict is set aside, and judgment shall enter for the defendant. The judgment on the count of the complaint charging intimidation of the judge is affirmed.”

Commonwealth v. Wheeler (Lawyers Weekly No. 11-033-23) (8 pages) (D’Angelo, J.) The case was tried before Debra DelVecchio, J., in District Court. Penelope A. Kathiwala on appeal for the defendant; Marina Moriarty for the commonwealth (Docket No. 22-P-443) (March 16, 2023).

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