Com. v. Robinson

• Decision Date: 25 April 2005
• Citation: 444 Mass. 102,825 N.E.2d 1021
• Parties: COMMONWEALTH v. Stephen P. ROBINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

825 N.E.2d 1021

444 Mass. 102

COMMONWEALTH v. Stephen P. ROBINSON.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued November 1, 2004.

Decided April 25, 2005.

COPYRIGHT MATERIAL OMITTED

Jeanne M. Kaiser for the defendant.

Cynthia M. Pepyne, Assistant District Attorney, Northampton, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

A District Court jury found the defendant, Stephen P. Robinson, guilty of criminal harassment in violation of G.L. c. 265, § 43A, and of two counts of intimidation of a witness in violation of G.L. c. 268, § 13B. The defendant was acquitted of two other counts of witness intimidation and of making a criminal threat during one of the harassment incidents. He appealed, arguing as to the criminal harassment charge that the judge's instruction on substantial emotional distress constituted prejudicial error, and that there was insufficient evidence to warrant a finding that his actions would have caused substantial emotional distress in a reasonable person. As to the witness intimidation charges, the defendant claims that there was insufficient evidence of his intent to influence the behavior of a witness in a criminal proceeding. We transferred the case to this court on our own motion. While we conclude that the evidence of criminal harassment was sufficient for conviction, the jury were improperly instructed as to an element of that offense. However, as there was no substantial risk of a miscarriage of justice from the error, we affirm the conviction of criminal harassment, as well as the convictions for witness intimidation.

Facts. We summarize the evidence concerning the charges on which the defendant was convicted in the light most favorable to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). At the time in question, the victim lived with his wife and son in Northampton, across the street and about twenty feet away from the defendant, and about one-half mile from the downtown area. Each member of the victim's family was familiar with the defendant. The victim and the defendant both appear to have rented from the same landlord. In June, 2001, the victim spoke to the landlord about the fact that several tenants were "doing drugs," and the victim stated that he would do what it took to get rid of the defendant, and that if the landlord would not "do anything about it, that he [would] do something about it."

In June, 2002, the victim and his family visited their plot in the community gardens, one-half mile from their home. Shortly thereafter, they saw the defendant drive up in a large car, stopping roughly twenty yards from the family, as close as possible, as automobiles are not allowed to drive on the paths leading to the plots. The family recognized the defendant, who was glaring at them. The defendant remained there for almost thirty minutes. They waited for the defendant to leave, and when he did not, they finally tried to leave in their car. The defendant moved his car to block the road, and the family was forced to drive over a grassy area to leave. The victim found this incident "terrifying."

On July 18, 2002, the victim was sitting in front of a Starbucks coffee shop when the defendant came over to him, "stared menacingly" at him, and clenched his fists. The defendant "moved in" toward the victim's table and said, "I'm going to get a lease anyway, whatever you're doing with the landlord." The defendant also told the victim "about having lots of gay lovers," that he would "wipe the grin off" the victim's face, and that he knew the route the victim used to walk home at night. The incident "absolutely terrified" the victim. Another customer sitting close by, who heard only the end of the conversation, testified that the victim asked the defendant if he was threatening him and the defendant responded that the conversation was going nowhere and that he had to go to work. After the defendant left, the victim reported this incident to the police.

On July 21, 2002, the victim and his family were at the Smith College campus near a waterfall. The defendant parked his car at the top of a hill about forty feet from the victim and his son, and then moved his car down the hill, closer to the victim, and stopped again. The defendant "stared menacingly" at them, causing the victim to become upset and "shaken." His wife, who saw the incident from a distance, also felt frightened. The victim reported this incident to the police as well.

A show cause hearing on these matters was scheduled for October 1, 2002. See G.L. c. 218, § 35A. The three incidents described above appear to have formed the basis of the complaint. The victim, the defendant, the clerk, and Lori Spear, a Northampton police officer, attended the hearing. Spear described the defendant as "glaring" at the victim and acting aggressively during the hearing. At one point, the defendant pushed a table away and said to the victim in a "bloodcurdling way, `Are you sure you want to go on with this?'" The victim interpreted these words as a threat that the defendant would kill him if he testified. A complaint then issued.

Later that day, as the victim and his family got into their car and were pulling away after a regularly scheduled clinical appointment, one-half mile from their home, the defendant appeared, and, coming toward them from an area between the clinic and another building, photographed the victim's son. He moved to about ten to twelve feet from the car with a camera in his hand, focusing it on the son. This event left the victim shaken, and the family drove immediately to the police department and reported it.

As a result of these incidents, the victim felt vulnerable; his son's school grades dropped because he was nervous; the family sensed they were constantly under surveillance; and they moved to Easthampton in December, 2002.

Discussion. 1. "Substantial emotional distress" instruction. General Laws c. 265, § 43A (a), states in part: "Whoever, willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment. . . ." The judge's instruction on the criminal harassment charge with respect to the element of "substantial emotional distress" was as follows: "The second element requires that the acts were of such a nature that they would cause a reasonable person to suffer substantial emotional distress. `Substantial' is more than trifling or passing emotional distress." The defendant did not object, but now contends that this formulation erroneously defined the term "substantial" and made the Commonwealth's burden of proof too easy to meet on this element. Where there is no objection, we determine whether the alleged error created a substantial risk of a miscarriage of justice. Commonwealth v. Chapman, 433 Mass. 481, 489, 744 N.E.2d 14 (2001). Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967).

Section 43A does not define the words "substantial emotional distress," and we have not had occasion previously to interpret them. "When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. . . . We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." (Citations omitted.) Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369, 361 N.E.2d 1239 (1977). See, e.g., Commonwealth v. Walker, 442 Mass. 185, 194, 812 N.E.2d 262 (2004) (interpreting term "poison," undefined in statute, with aid of dictionary definition).

The common dictionary definition of "substantial" is "considerable in amount, value, or worth." Webster's Third New Int'l Dictionary 2280 (1993). Other courts, interpreting the same words, have concluded that "the offending conduct must be such as would produce a considerable or significant amount of emotional distress in a reasonable person; something markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living," Wallace v. Van Pelt, 969 S.W.2d 380, 386 (Mo.Ct.App.1998), and as meaning "something more than everyday mental distress or upset. In other words [it] entails a serious invasion of the victim's mental tranquility." People v. Ewing, 76 Cal. App.4th 199, 210, 90 Cal.Rptr.2d 177 (1999).

The judge's instruction could have been interpreted by the jury as meaning either that anything even slightly "more than trifling or passing emotional distress" would qualify as "substantial," or it could have been understood as a mere comparison between the two types of emotional distress from which they would understand that mere "trifling or passing emotional distress" would not suffice. To that extent the instruction was ambiguous and, if the first interpretation were adopted, erroneous. To describe "substantial emotional distress" as anything at all above "trifling or passing" gives the word "substantial" less than its traditional meaning i.e., "considerable in amount, value, or worth," Webster's Third New Int'l Dictionary, supra at 2280, or "[o]f real worth and importance; of considerable value. . . . Synonymous with material." Black's Law Dictionary 1428 (6th ed.1990).

While the judge's formulation of this portion of the instruction was error, it did not create a substantial risk of a miscarriage of justice because it did not affect the defense that the defendant chose to pursue. Defense counsel argued in her closing that none of these incidents had occurred in the manner testified to by the victim and his family, and that the victim fabricated these incidents in a...