Com. v. Cohen
| Decision Date | 17 February 2010 |
| Docket Number | SJC-10486 |
| Citation | 921 N.E.2d 906,456 Mass. 94 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | COMMONWEALTH v. David M. COHEN (No. 1).<SMALL><SUP>*</SUP></SMALL> |
v.
David M. COHEN (No. 1).*
[921 N.E.2d 910]
Wendy H. Sibbison, Greenfield, for the defendant.
Stephanie Martin Glennon, Special Assistant District Attorney (George R. Jabour, Special Assistant District Attorney, with her) for the Commonwealth.
David J. Nathanson, Boston, & Dan Horowitz, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
Timothy J. Cruz, District Attorney, & Mary Lee, Assistant District Attorney, for District Attorney for the Plymouth District, amicus curiae, submitted a brief.
Present: MARSHALL, C.J., IRELAND, SPINA, CORDY, BOTSFORD, & GANTS, JJ.
BOTSFORD, J.
A Superior Court jury found the defendant, David M. Cohen, an attorney and former Stoughton police sergeant, guilty of attempted extortion, G.L. c. 265, § 25; filing a false police report, G.L. c. 268, § 6A; and two charges of witness intimidation, G.L. c. 268, § 13B.1, 2 He brings this appeal
from his convictions and from the denial of his motion for a new trial. The defendant claims that his constitutional right to a public trial was violated during jury empanelment proceedings by the exclusion from the court room of members of the public, including his friends and supporters. Additionally, he claims that there was insufficient evidence to warrant his convictions of witness intimidation and filing a false police report, and that an error in the jury instruction on the charge of attempted extortion requires a new trial on that charge. We conclude that the jury empanelment in this case contravened the defendant's right to a public trial protected by the Sixth Amendment to the United States Constitution,
and that accordingly, he is entitled to a new trial. We further conclude that the evidence presented on the charges of witness intimidation and of filing a false police report was sufficient to support the jury's verdicts, and therefore that the defendant may be retried on all charges of which he was convicted. Finally, we find no error in the challenged jury instruction.
Background. a. The trial. The evidence at trial would have permitted the jury to find the following.3 At all relevant times the defendant worked as a lawyer by day and as a Stoughton police sergeant on the 4 P.M. to midnight shift. On April 22, 2002, Peter Marinilli, the younger brother of the defendant's close friend, contacted the defendant and told him that a man named Timothy Hills had "scammed" him. In particular, Marinilli told the defendant that Hills had solicited $10,000 from him, supposedly as an investment in a restaurant called "Pizzapalooza" that would generate a thirty per cent return by April 1, 2002. When Marinilli asked Hills for his money, Hills gave him only excuses. When Hills finally gave Marinilli a check, it did not clear.
On April 22 or 23, the defendant left Hills a telephone message stating that Hills could pay Marinilli back or face criminal charges.4 That same afternoon, Hills drove with Brian Sexton, an employee of Hills's company, to the defendant's law office to meet with him. Hills told the defendant that he was aware he owed Marinilli money, but that he needed to "make arrangements to try and get him his money back."
During the next few days, Hills and the defendant exchanged more telephone calls. On April 26, Hills delivered to the defendant, as "a deposit," a $1,000 money order made out to Marinilli. Hills agreed to
meet with the defendant at his law office on
April 30 to discuss the remaining $9,000 debt. The defendant was in a meeting when Hills arrived on that date, and Hills told the receptionist that he would return. The defendant, however, did not receive Hills's message about returning, and left the following voice mail message on Hills's telephone:
"Tim Hills, this is David Cohen at 12:30. As you can imagine, I'm not too happy with you right now. I told you— you told me you were going to be here by noon. And, Tim, I'm pretty much at the end of my rope as far as your story goes.... I guess I'm going to do what I have to do and it might not be pretty. So, get in touch with me."
Hills and the defendant met later that day at a local restaurant. After the defendant threatened arrest if Hills did not pay Marinilli, Hills produced a $9,000 check. The defendant took the check to the bank to determine whether it would clear. When the bank teller, Jamie Kelly, informed him that it would not, the defendant drove in his police cruiser to Hills's office. When the defendant arrived, he ran a registration check on Hills's truck, found that it had expired, and called a private company for a tow. The defendant, who was armed and in his police uniform, then walked into Hills's office and confronted him. He placed Hills in handcuffs and threatened to lock him up and keep his truck impounded if he did not bring the $9,000 to the police station by 4 P.M. the next day. The defendant removed the handcuffs before leaving Hills's office, returned to the station, and wrote a police report about the incident. He also prepared applications for a criminal complaint against Hills, as well as an arrest warrant. The following day, the defendant submitted his police report and applications for complaints when Hills failed to bring the $9,000.
On May 3, 2002, an arrest warrant for Hills issued from the Stoughton Division of the District Court department, along with a complaint charging larceny by false pretenses and two counts of uttering. Also on May 3, Hills went to the police station to complain about the defendant. The police lieutenant with whom Hills spoke left for a few minutes. When he returned, he told Hills that he had good news and bad news: Hills could get his truck back, but the defendant had obtained a warrant for his arrest. Hills was processed, fingerprinted, and put in a cell. He
was released shortly thereafter on twenty-five dollars' bail. The charges against him were later dismissed because he cooperated with an internal police department investigation of the defendant.
b. Jury empanelment. A Norfolk County grand jury indicted the defendant in March of 2005, and also indicted Stoughton Officer Robert Emmet Letendre.5 The two men were tried together. Jury selection began the afternoon of June 18, 2007, and continued through June 25.6 Before empanelment began on June 18, the judge explained:
"What I intend to do, once the defendants are placed at the bar, [is] to introduce myself, to give a description of the case, to have the attorneys introduce
themselves and their clients [as] they desire. Read the list of prospective witnesses, give them the estimate of the length of the trial, and then proceed into the questioning. And once the questioning is completed, begin to fill the jury box, entertaining your objections or challenges for cause when they arise, calling to the sidebar those jurors who've raised their hand[s] for any reason."
Jury selection began in the afternoon of June 18. Seventy-eight prospective jurors were brought to the court room, and the empanelment process went forward as the judge had described. Only a few jurors were seated before the end of the day on June 18. Empanelment continued over the next two days in the same manner as on June 18. At the beginning of the morning session on June 21, the fourth day, the defendant's counsel stated to the judge at sidebar, "When I came in this morning I saw a sign on the door that says: `Jury empanelment Do not enter.'"7 He continued:
"I have found out that the sign has been on the door
from the beginning of the trial apparently. Then, I did some more checking and I found out that people have been denied entry into the courtroom and told that the courtroom is closed by the court officers downstairs and have been denied entry into the courtroom. At least two people have told my client that, and I haven't checked."
Counsel moved for a mistrial, stating that the judge "never made findings on the record or had a hearing as to whether or not the courtroom ought to be closed." The judge denied the motion.8
A short while later, the defendant's counsel made an offer of proof in which he stated that several of the defendant's friends
and supporters would testify that they were denied entry. The judge responded that the defendant's motion for mistrial had already been denied.
Later that same morning, the defendant's counsel raised the issue a third time, stating, "Your Honor, I want the record to reflect that someone just entered the courtroom and the court officers ushered him out. They told him to leave."
The judge responded, "I will inquire." This exchange followed:
THE JUDGE: "[W]ho was that coming into the courtroom?"
COURT OFFICER: "It was one of the Stoughton police officers."
THE JUDGE: "All right. That was a Stoughton police officer."9
DEFENSE COUNSEL: "And why is he not allowed in the courtroom?"
THE JUDGE: "Well, you registered your objection, so I will deal with it later. I just wanted to know who it was."
DEFENSE COUNSEL: "I would like to move for a mistrial."
THE JUDGE: "Denied."
After a recess, defense counsel informed the judge that the man the court officers had removed from the court room was the defendant's civilian friend, Peter Rappoli, not a uniformed Stoughton police officer, and that at the time Rappoli was removed, there was ample room for the public to sit in the court room, separated from the prospective jurors. Counsel again moved for a mistrial. The judge denied the motion.
At the conclusion of jury empanelment on June 25, 2007, the case proceeded to trial. On July 30, the jury returned guilty
verdicts on four of the seven charges against the defendant. On August 10, the defendant filed a motion...
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