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Massachusetts Appeals Court Reverses Lynn Police Officer’s Conviction for Intimidating a Witness

The Massachusetts Appeals Court today reversed the conviction of Lynn Police Officer Geovanni Ruano for intimidating a witness following an alleged road rage incident.  The name of the case is Commonwealth v. Ruano

Officer Ruano was charged with intimidation of a witness, assault and battery with a dangerous weapon, and assault and battery, but he was convicted only of intimidation of a witness.  The Commonwealth alleged that Officer Ruano lost his temper in 2010 after concluding that the witness’ car was blocking his SUV.  According to the prosecutor, Officer Ruano screamed and swore at the witness, told the witness he was a police officer, and used the SUV to shove the witness (resulting in the witness ending up on the hood of the SUV).

The day after the incident, Officer Ruano learned that the witness had filed a police report.  Officer Ruano’s girlfriend, who lived across the street from the witness, went to the witness’ house and asked if Officer Ruano could apologize.  The witness agreed, and Officer Ruano and his girlfriend appeared and were invited into the witness’ kitchen.  Officer Ruano and the witness sat on opposite ends of the kitchen table and had a conversation that was witnessed by Officer Ruano’s girlfriend and the witness’ roommate.  Officer Ruano reminded the witness that he was a police officer and said the case was endangering his career and his pension.  He also told the witness about his two daughters, one of whom was in college, and asked the witness to recant.  Officer Ruano told the witness that by recanting, he would “make 200 plus friends and… could have the key to the city….”  There are around 200 Lynn police officers.  At the end of the conversation, Officer Ruano and the witness shook hands.  There was a second meeting the same day, also held at the witness’ home, where Officer Ruano coached the witness how to lie to investigators.

The following day, police officers called the witness and the witness changed his original story (but did not say what Officer Ruano coached him to say).  At a later meeting at the police department, the witness confirmed the veracity of his first story and told the police about his subsequent meetings with Officer Ruano.

Officer Ruano was convicted of intimidation of a witness.  The Commonwealth argued two theories: that Officer Ruano had either (1) conveyed a gift or something of value to the witness; or (2) intimidated the witness with the intent to interfere with the criminal proceeding.  The jury convicted Officer Ruano only on the “intimidation” prong of the statute.  While saying this presents a “close case,” the Appeals Court ruled that the Commonwealth had introduced insufficient evidence to establish that Officer Ruano had intimidated the witness.

The Court acknowledged prior cases where appellate courts have ruled that “intimidation” does not require an overt threat.  Instead, a court (and a jury) is required to consider the context in which a statement is made to determine if it is threatening.  Here, the Appeals Court gave great weight to the lack of evidence regarding Officer Ruano’s tone of voice, gestures, or body language during the conversation with the witness.  They sat at opposite ends of a table during the conversation.  While he mentioned his employment as a police officer, Ruano did not suggest to the witness that he might suffer adverse consequences if he decided to testify.  The Appeals Court said that while the jury could have concluded that Officer Ruano intended to influence the witness’ testimony, there was insufficient evidence to establish that such influence was achieved by intimidation.

This is an awfully narrow reading of the intimidation statute, and it will be interesting to see if the Supreme Judicial Court reviews the Appeals Court’s opinion.  In any event, this case presents a good reminder that anyone who is charged with, or being investigated for committing, a crime should not talk to anybody except for an experienced criminal defense attorney.

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