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Massachusetts Supreme Judicial Court Limits Scope of Witness Intimidation Statute

In an interesting decision delivered today, the Massachusetts Supreme Judicial Court reversed a defendant’s conviction for intimidation of a witness because the defendant’s intimidating conduct occurred before a crime had been committed.  The name of the case is Commonwealth v. Fragata

The defendant and the victim had been dating when, on Christmas of 2015, they were involved in an argument.  The defendant yelled at the victim and referred to her by “nasty names.”  The victim started crying and said she was going to call 911.  The defendant took the victim’s cell phone away from her and pleaded with her not to call the police.  The victim tried to leave the apartment but the defendant grabbed her by the arms and pushed her.  The physical assault escalated and the defendant grabbed the victim by the throat, choked her, and slammed her head against the wall.  The defendant then told the victim he would not allow her to leave and it wasn’t until 30-45 minutes later that the victim was able to escape the apartment and call 911 from outside.  The defendant was charged with: intimidation of a witness; assault and battery with a dangerous weapon; assault; kidnapping; and strangulation or suffocation. A Fall River District Court jury convicted him of intimidation of a witness but acquitted him of the remaining charges, and the judge sentenced the defendant to serve two years in jail.

On appeal, the defendant argued the evidence was not sufficient for his conviction for intimidation of a witness and the Supreme Judicial Court agreed.  The witness intimidation statute prohibits several types of conduct, and in this case the Commonwealth’s theory of the case was that the defendant had intimidated the victim, who was the witness to a crime, by preventing her from calling the police.  In order to sustain the conviction, the Commonwealth needed to prove beyond a reasonable doubt that: (1) a potential crime had occurred that would cause the police to investigate; (2) the victim would be a potential witness in the investigation; (3) the defendant engaged in conduct that was intimidating as defined by the statute; and (4) the defendant intimidated the victim with the intent to interfere with the investigation.  In this case, the evidence established the defendant took the victim’s cell phone after he allegedly yelled at her and called her names.  The Court concluded that the defendant’s conduct prior to taking the phone did not amount to a potential crime.  Abusive speech without anything else is not a criminal offense, and even though the victim was upset and crying as a result of the defendant’s words, he had not committed a potential crime at that point.  Accordingly, the Commonwealth failed to establish the first element of the crime beyond a reasonable doubt and the defendant’s conviction was reversed.

Most witness intimidation cases in district court involve the defendant taking away the victim’s cell phone so she cannot call the police.  However, in most of these cases, the defendant has already committed a crime (usually an assault and battery), and so the victim would qualify as a witness to the potential crime.

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