Commonwealth v. Floyd

• Docket Number: 23-P-461
• Decision Date: 03 July 2024
• Citation: Commonwealth v. Floyd, 23-P-461 (Mass. App. Jul 03, 2024)
• Parties: COMMONWEALTH v. LEWIS FLOYD.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH v. LEWIS FLOYD.

No. 23-P-461

Appeals Court of Massachusetts

July 3, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this case we are asked to consider whether the actions of the defendant, Lewis Floyd, constituted extortion within the meaning of G. L. c. 265, § 25. Concluding that the evidence at trial satisfied the statutory elements of the crime and finding no error, we affirm.

Background.

We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). On July 11, 2018, the defendant went to Tiverton Rhode Island, and demanded to see his son. The child's mother denied the defendant's demand. The next day, after not "getting anywhere with [Tiverton authorities]," the defendant called the Children's Advocacy Center of Bristol County (CAC) nineteen times between 8:46 A.M. and 11:38 A.M. In those calls, each of which displayed the defendant's name on the "caller ID," he demanded that the CAC help him address his concerns for his son. During the initial call, after he was told that the child's name "didn't come up" in the CAC database because the child had not previously received services in the CAC, the defendant's conduct "escalated," and he "started to yell." The defendant referred to the employee with whom he spoke, and other women, as "bitches," and stated that he was going to go to the family's home in Tiverton, "tie up the parents and make the bastard children watch while he puts two in the back of the head." Attempts to deescalate were unsuccessful, and the defendant made several more calls during which he threatened CAC employees with dismemberment, among other things.^[1]

Acting out of concern for the safety of the defendant's child, the family in Tiverton, and CAC personnel, the CAC employee with whom the defendant first spoke contacted the Tiverton and Fall River Police Departments. Officer Kevin Guerreiro of the Fall River Police Department arrived at the CAC first, followed by Lieutenant Jay Huard and other members of law enforcement. At the CAC, Officer Guerreiro answered one of the defendant's calls and told him to contact the Tiverton Police Department. Less than an hour after ending the telephone call and "clear[ing] the CAC," Officer Guerreiro was again dispatched to the CAC because the defendant had continued to contact the CAC.

The defendant told an employee that if the CAC "didn't do what he wanted [it] to do . . . by three or 4:00 P.M.[,] he was going to bring a group and come to [its] location," and "[a]t least one of [the employees] was going to be physically dismembered." The defendant demanded that the CAC "help him out and call either [Department of Children and Families] or [Department of Children, Youth & Families] in Rhode Island and help him, and they had until four o'clock or he was going to have his boys . . . 'light the place up and shoot into the building.'"^[2] After being told by Lieutenant Huard that his threats and calls were scaring the "females" at the CAC, the defendant stated:

"I know there's females there, and females need to fear me. They need to feel fear in their heart because women ruin this world, women's rights ruin this world, and women need to fear me."

Officer Guerreiro was subsequently directed to an address where he located and arrested the defendant.

At the jury trial held in the Superior Court, the judge denied the defendant's motions for a required finding of not guilty brought at the close of the Commonwealth's case and at the close of all evidence.^[3] The jury found the defendant guilty of extortion by threat of injury.^[4] This appeal ensued.

Discussion.

1. Sufficiency of the evidence.

The defendant claims that the judge erred in denying his motions for a required finding of not guilty because the evidence at trial failed to prove extortion where he merely requested unspecified assistance from government officials and did not seek pecuniary or financial payment. We apply the familiar test to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted). Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). "If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province." Commonwealth v. Lao, 443 Mass. 770, 779 (2005). See Commonwealth v. Nelson, 370 Mass. 192, 202-203 (1976) (evidence need not require jury to draw an inference; sufficient that evidence permits inference to be drawn).

General Laws c. 265, § 25,^[5] provides, in relevant part:

"[w]hoever . . . maliciously threatens an injury to the person or property of another . . . with intent thereby to extort money or any pecuniary advantage, or with intent to compel any person to do any act against his will, shall be punished . . . ."^[6]

By the statute's plain language, the elements of extortion are (1) a malicious threat, (2) made to a named person, (3) to injure someone's person or property, (4) with intent to extort money or any pecuniary advantage or compel any person to do any act against his will. In the present case, there is no dispute as to the sufficiency of the first three elements and, accordingly, the defendant only challenges the sufficiency of the fourth element. Specifically, he claims that there was no evidence to show an extortive intent -- i.e., that he intended to extort money or anything of value. For the reasons stated below, the claim is unpersuasive.

Pursuant to G. L. c. 265, § 25, extortion is committed "by making the threat with intent to compel the person so threatened to do an act" (quotation and citation omitted). Commonwealth v. Snow, 269 Mass. 598, 602 (1930). The plain language of the statute does not require a financial payment as the sole method of proving intent -- an "intent to compel any person to do any act against his will" is sufficient. G. L. c. 265, § 25. See Commonwealth v. Nichols, 134 Mass. 531, 534-535 (1883) (extortion by threatening false charge of adultery to compel release of victim's valuable rights).

The evidence here was sufficient to prove that the defendant extorted the CAC employees. Several witnesses detailed the repeated threats made by the defendant, combined with his "or else" ultimatum. The defendant cites no authority for the proposition that extortion requires proof of a demand for a financial payment. Indeed, that contention contradicts the plain language of the statute, which delineates the requisite mens rea as "intent thereby to extort money or any pecuniary advantage, or . . . intent to compel any person to do any act against his will." The use of "or" in the statute specifies that extortion may be shown by proving an intent to extort money, or by proving an "intent to compel any person to do any act against his will." In the present case, the defendant's conduct qualified as extortion because "[t]he emphasis in the crime . . . is on the wrongful use of fear to compel the alleged victim to surrender something of value to the extortionist" (emphasis removed). Commonwealth v. Cohen, 456 Mass. 94, 127 (2010). The evidence showed that the defendant used fear to compel the CAC employees to surrender agency services, which were of value to him, and therefore a reasonable trier of fact could have concluded that the defendant committed extortion. See Nichols, 134 Mass. at 534-535 (indictment "sufficiently alleges a conspiracy falsely to charge and accuse [the victim] of adultery, and thereby to extort from her a release of valuable rights, and to compel her to do acts against her will").

2. Specific unanimity instruction.

The defendant contends that the omission of a specific unanimity instruction constituted reversible error because the conduct at issue -- the various phone calls -- concerned successive, distinct acts. A specific unanimity instruction "is required when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged" (quotation and citation omitted). Commonwealth v. Palermo, 482 Mass. 620, 629 (2019). The instruction "indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged." Id., quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987). "[W]here the defendant requested a specific unanimity instruction and where there is a significant likelihood that the conviction resulted from different jurors concluding that the defendant committed different acts," the judge's failure to give the instruction constitutes reversible error. Commonwealth v. Conefrey, 420 Mass. 508, 514 (1995).

Here there is no significant likelihood that the conviction resulted from different jurors concluding that the defendant committed...