Com. v. Potter
| Decision Date | 16 October 1995 |
| Docket Number | No. 94-P-999,94-P-999 |
| Parties | COMMONWEALTH v. Richard POTTER. |
| Court | Appeals Court of Massachusetts |
Daniel F. Manning, for defendant.
Kevin Connelly, Assistant District Attorney, for Commonwealth.
RESCRIPT.
After the defendant, at 4:00 A.M., telephoned and frightened the complaining witness (the victim) on a pending criminal complaint charging him with stalking, see G.L. c. 265, § 43, an additional complaint was brought against him for intimidation of a witness. On appeal from his conviction on the latter complaint under G.L. c. 268, § 13B, the defendant argues that, because the Commonwealth's proof showed only one more episode of consistently bizarre behavior toward the victim, he was entitled to a required finding of not guilty. We affirm the conviction.
1. The evidence. We recite the Commonwealth's case which rested entirely upon the victim's testimony. The victim testified that she worked at a donut shop. Her hours were from 11:00 P.M. to 6:00 A.M. She was alone during her shift except between 1:00 A.M. and 4:00 A.M., when the baker would also be working. The doors to the shop were locked from 11:00 P.M. to 5:00 A.M., and customers were served at a drive-through window.
At first, in April, 1992, the defendant would use the drive-through window and make bizarre remarks to the victim, who would not respond. Next, she would see him sitting in his car all hours of the night, staring into the donut shop and watching her. Sometimes he would enter the shop when it opened at 5:00 A.M., and ask for water or the use of the restroom. Additionally, the defendant began calling the victim at the donut shop. He would call her several times a night and make vulgar remarks of a sexual nature. Finally, in November, after a total of over forty calls, the victim went to the police and sought a criminal complaint charging the defendant with stalking.
On February 10, 1993, the victim appeared in court to testify against the defendant, who was also present, but the matter was continued. At about 4:00 A.M., on February 11, the defendant called the victim at the donut shop. The victim answered the phone, but no one replied. When she repeated her greeting, the defendant asked if she liked his stalking, if she liked what he was doing to her. She said nothing, and he began to laugh and spell out the word "stalking." Angry and frightened that the defendant was going to come to the donut shop where she was alone, the victim swore at the defendant, told him that she would see him in court, and then hung up the phone to disconnect his call so that she could dial for the police. It is the telephone call of February 11, 1993, which is alleged to constitute the violation of G.L. c. 268, § 13B. 1
2. Discussion. The first sentence of G.L. c. 268, § 13B, as appearing in St.1990, c. 177, provides, as relevant: "Whoever, directly or indirectly, wilfully endeavors ... by ... intimidation ... to influence, impede, obstruct, delay or otherwise interfere with any witness ... in any stage of a trial or other criminal proceeding ... shall be punished...." It is the defendant's claim that the Commonwealth failed to show that his statements were intimidating and made with the specific intent of influencing or otherwise interfering with the criminal proceedings against him. See Commonwealth v. Conley, 34 Mass.App.Ct. 50, 53, 606 N.E.2d 940 (1993).
Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989). A rational trier of fact...
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