Com. v. Conley

• Decision Date: 28 January 1993
• Docket Number: No. 91-P-545,91-P-545
• Citation: 606 N.E.2d 940,34 Mass.App.Ct. 50
• Parties: COMMONWEALTH v. Wayne CONLEY.
• Court: Appeals Court of Massachusetts

Page 940

606 N.E.2d 940

34 Mass.App.Ct. 50

COMMONWEALTH v. Wayne CONLEY.

No. 91-P-545.

Appeals Court of Massachusetts Suffolk.

Argued Sept. 14, 1992.

Decided Jan. 28, 1993.

Elliot R. Levine, Quincy, for defendant.

Roger L. Michel, Jr., Asst. Dist. Atty., for the Com.

Before KASS, SMITH and PORADA, JJ.

SMITH, Justice.

The defendant was indicted for the following offenses: (1) aggravated rape, (2) armed burglary, (3) assault and battery by means of a dangerous weapon, and (4) intimidation of a witness. After a jury trial, he was found not guilty on the indictments charging aggravated rape (and the lesser included charge of rape), armed burglary, and assault and battery by means of a dangerous weapon; he was found guilty of the lesser included offense of assault and battery and of intimidation of a witness. He was sentenced to a term of four to five years at M.C.I., Cedar Junction, on the intimidation of a witness conviction and a term of two and one-half years in a house of correction on the assault and battery conviction, to be served from after the Cedar Junction sentence.

On appeal, the defendant has raised several issues. They include, among others, that the judge erred (1) in the instruction to the jury on the intimidation of a witness charge and (2) in not instructing the jury on the right of self-defense in regard to the lesser included offense of assault and battery. The defendant also claims that the trial judge deprived him of a fair and impartial trial by repeatedly demeaning his counsel in the presence of the jury.

We briefly summarize the testimony of the complainant and of the defendant as background for our analysis of the issues. We shall summarize additional facts as we address each particular issue.

The complainant and the defendant had had a long-standing relationship during which two children were born. According to the complainant, the defendant was abusive, and the relationship broke up. The complainant testified that on July 7, 1989, she was sleeping at her mother's home when she awoke to find the defendant standing over her, nude, and holding a fork to her throat. The defendant then proceeded to rape her. Following the struggle in the bedroom, the pair wound up in the kitchen, where the defendant grabbed scissors, stuck them in the complainant's back, and told her to "get back into the room, I'm not done with you yet." The complainant ran, reached her mother's bedroom door, and screamed for help, but was grabbed and thrown to the floor by the defendant. The defendant got on top of her and tried to hit her with the scissors. The complainant's mother came out of her room and yelled, "Get off of her. Get off of her." The defendant then jumped up, screamed, "I'm going to kill her one of these days. I'm going to kill her one of these days," and left.

The defendant's version of the events directly contradicted the complainant's testimony. He testified that he happened to meet the complainant at a lounge, and she invited him to her house. While there, they engaged in consensual sex. After making love for a half hour, the defendant became flaccid. That development caused the complainant to ask the defendant whether he had been seeing a young woman named Danielle. According to the defendant, when he admitted that he had been seeing Danielle the complainant became upset and attacked him with a fork.

The defendant testified that he took the fork away from the complainant and, in the process, cut his hand severely. The complainant then apologized, kissed the defendant's hand, and accompanied him to the kitchen, where he started to treat his wound. When he saw how deep it was, he became angry and pushed the complainant to the floor. The complainant's mother appeared and told the defendant to leave; he did so.

1. The judge's instructions on the charge of intimidation of a witness. General Laws c. 268, § 13B, as appearing in St.1970, c. 177, provides in relevant part as follows: "Whoever, directly or indirectly, willfully endeavors by ... intimidation, force or threats of force, to influence, impede, obstruct, delay or otherwise interfere with any witness ... in any stage of a ... criminal proceeding ... shall be punished...."

The complainant testified that she received a telephone call from the defendant on August 6, 1989, the day that she was to testify in District Court concerning the charges against him. According to the complainant, during that call the defendant told her that if she testified as scheduled, he would come after her.

In his testimony, the defendant admitted that he telephoned the complainant and asked her, for the sake of their children, not to pursue the charges against him. He denied threatening or otherwise intimidating the complainant in any way.

Under the theory on which the Commonwealth presented its case, it was required to prove beyond a reasonable doubt that (1) the complainant was a witness in a stage of a criminal proceeding, (2) the defendant wilfully endeavored or tried to influence the complainant, (3) he did so by means of intimidation, force, or threats of force, and (4) he did so with the specific intent of influencing the complainant as a witness.

The judge gave the following instruction on the charge of intimidating a witness:

"The last indictment, which is the third indictment that you have before you, is Indictment 080762. That charges the defendant with what we call intimidation of a witness, which is a violation of General Laws Chapter 268, Section 13B. The part that refers to this indictment reads as follows:

" 'Whoever directly or indirectly willfully tries or endeavors by intimidation, force, or threat of force to influence any witness at any stage of a trial or other criminal proceeding shall be punished.' There is a lot more to the statute, but it is not relevant to this case.

"The Commonwealth must prove three things beyond a reasonable doubt: that the defendant attempted to influence another person, in this case, [the complainant]; that the person was a witness in any stage of a trial or other criminal proceeding; third, that the defendant did so with the specific intent of influencing that person as a witness. And specific intent means the same as it did under my prior instruction." (Emphasis added.)

Although the judge read the relevant portions of the statute correctly, he misspoke in regard to the elements that the Commonwealth was required to prove. He did not include the vital element--that the Commonwealth was required to prove that the defendant wilfully endeavored to influence or otherwise interfere with the witness (the complainant) by using intimidation, force, or threat of force. A wilful endeavor to influence a witness, by itself, is not a crime. Were it a crime, then a remark by a lawyer to a prospective witness to "tell the truth" would violate the statute. That surely was not the intent of the Legislature.

At the conclusion of the judge's charge, defense counsel approached the judge for the purpose of objecting to the judge's instructions. After an objection to a portion of the judge's charge not relevant to our analysis, the following exchange occurred:

DEFENSE COUNSEL: "I have other issues in terms of instructions."

THE COURT: "I have already ruled on that." ¹

The judge then ended the sidebar conference.

Not surprisingly, in view of the confusing instruction on the intimidation of a witness charge, the jury, after deliberating for some time, requested that the judge "define influence." The judge held a conference with the prosecutor and the defense counsel. He then gave the following instruction to the jury:

"Influence means to exert power over another. In the sense of this indictment, it refers to the act of intimidation. Remember the statute that I read to you. 'Whoever directly or indirectly willfully tries by intimidation,force, or threats of force to influence any witness.' So it is in that context that we talk about it."

Again, the judge quoted the statute correctly, but this time confused concepts by equating "influence" with "intimidation". The statute clearly states that in order for a violation to take place, the Commonwealth must show that a person willfully endeavored to influence a witness by certain means, including intimidation, force, or threats of force. "Influence" is not the same as "intimidation." The defendant, however, did not object to the supplemental instruction.

Because the judge cut off the defendant's objections to the main charge, we have ruled that the defendant did, in fact, object to the instruction concerning the intimidation of a witness offense (supra note 1). The defendant, however, should have objected to the supplemental instruction. Duff v. Webster, 315 Mass. 102, 105, 51 N.E.2d 957 (1943) ("If [defense counsel] felt that the charge as modified was still insufficient or incorrect he should have again called the judge's attention to the matter"). Commonwealth v. Barbosa, 399 Mass. 841, 844, 507 N.E.2d 694 (1987). Commonwealth v. Sousa, 33 Mass.App.Ct. 433, 436, 600 N.E.2d 1012 (1992). Because defense counsel did not object, we review the alleged error to determine whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Barbosa, supra. "In so doing, we are guided by the principle that we must view the instructions 'in their entirety, to determine the "probable impact, appraised realistically ... upon the jury's factfinding function." ' " Commonwealth v. Adorno, 407 Mass. 428, 430, 553 N.E.2d 942 (1990) (quoting from Commonwealth v. Richards, 384 Mass. 396, 399-400, 425 N.E.2d 305 [1981], quoting, in turn, from United States v. Wharton, 433 F.2d 451, 457 [D.C.Cir.1970] ).

In both the main charge and the supplemental instruction, the judge, by accurately quoting the relevant portions of the statute, set out the essential elements of the crime of intimidation of a witness. However, in his explanation of the meaning of the statute,...