Commonwealth v. Hamilton

• Decision Date: 15 April 2011
• Docket Number: SJC–10718.
• Parties: COMMONWEALTHv.Kenneth G. HAMILTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

459 Mass. 422
945 N.E.2d 877

COMMONWEALTH
v.
Kenneth G. HAMILTON.

SJC–10718.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Dec. 6, 2010.Decided April 15, 2011.

[945 N.E.2d 879]

Kathryn Hayne Barnwell, Boston, for the defendant.Anne Paruti, Assistant District Attorney (Kevin J. Curtin, Assistant District Attorney, with her) for the Commonwealth.Michael J. Fellows, Northampton, for Committee for Public Counsel Services, amicus curiae, submitted a brief.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.¹BOTSFORD, J.

[459 Mass. 423] After he left a voicemail message for a probation officer in which he implied that he could cause harm to her young daughter, the defendant, Kenneth G. Hamilton, was charged by complaint and subsequently convicted by a jury of threatening to commit a crime, in violation of G.L. c. 275, § 2, [459 Mass. 424] and intimidating a witness, in violation of G.L. c. 268, § 13B. For the reasons that follow, we affirm the defendant's conviction of threatening to commit a crime, and vacate his conviction of witness intimidation. We also conclude that the defendant's other challenges to his convictions do not entitle him to relief.²

1. Background. The evidence at trial would have warranted the jury in finding the following facts. In February of 2007 in the Cambridge District Court, the defendant was convicted of assault and battery on a person over sixty years old, assault and battery on a police officer, and disorderly conduct; he was sentenced to probation on all three convictions. He signed a probation contract on February 28, 2007. He violated the terms of his probation soon thereafter, and at a final probation surrender hearing on March 28, 2007, the probation officer assigned to supervise the defendant (probation officer), recommended that the defendant's probation be revoked and that he be committed to a one-year sentence in a house of correction. The judge found the defendant in violation, revoked his probation, and adopted the probation officer's sentencing recommendation. He sentenced the defendant to one year accordingly.

On January 3, 2008, after his release, the defendant left a message on the probation officer's voicemail at her office. The message stated in part:

“[T]his is Kenneth Hamilton. I'm giving you a call because back in March, you violated me on probation and I was put to jail ... and I was released on December 21. On my return, I noticed that you had cashed a check that I had written out for [ninety dollars] on March 7.

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At that time ... the judge ... waived all my fees because I was going to the house of correction. I'm calling because I spoke to the clerk's office and I informed them of this and I want my [ninety dollars] returned to me and, you know, I'd really love to say I thank you for sending me to where I was, you know, on February 28 ... you actually brought your daughter into the court house so I want to thank you for sending me where I was because as you know, there [459 Mass. 425] are very much predators there and I'm not a predator but I was able to talk about your beautiful daughter. Anyway, have a wonderful evening, okay?”

The probation officer understood the defendant to have made a threat to cause harm to her daughter in a physical or sexual manner. She was “upset,” “worried,” and “concerned for the safety of her daughter,” in light of the defendant's history, and she acted with “motherly instinct” in deciding to contact the police. She believed that the defendant had the ability to cause a “predator,” even though presently confined at a house of correction, to harm her daughter on such an individual's release. Before this incident, she had believed her office was a safe place for her children to visit, but after the incident she stopped bringing them to work with her.

On January 9, 2008, a criminal complaint issued against the defendant in the Cambridge District Court.³ Prior to trial, the defendant moved to dismiss the witness intimidation count of the complaint on the grounds that the defendant's message made no direct threat against the probation officer, and there was no criminal investigation or criminal proceeding pending at the time he left the message. A judge in the District Court (motion judge) denied the motion. With respect to the count of the complaint alleging a threat to commit a crime, the defendant filed a motion to compel the Commonwealth to specify the crime the defendant was alleged to have threatened to commit ⁴; the Commonwealth replied that the defendant threatened the probation officer with the sexual molestation of her daughter.

At trial, the Commonwealth presented the testimony of the police detective who had investigated the case and of the probation officer, and a copy of the recorded voicemail message was entered in evidence; the defendant presented his case through cross-examination and argument. At the close of the Commonwealth's case, the trial judge denied the defendant's motion [459 Mass. 426] for a required finding of not guilty on both charges, and the jury found him guilty of both.

2. Threatening to commit a crime. The defendant bases his claim that the evidence was insufficient to sustain his conviction of threatening to commit a crime under G.L. c. 275, § 2, on the premise that for a valid conviction, the target of the threat must be the same person as the intended target of the threatened crime. In this regard, he argues that the only target of the threatened crime in this case was not the probation officer but her daughter, and that the Commonwealth therefore incorrectly designated the probation officer as the victim in the complaint and throughout trial. He further contends that while one may commit the crime of

[945 N.E.2d 881]

threatening by conveying a threat to a third-party intermediary with the intent that the threat will be communicated to the actual target, the evidence offered by the Commonwealth at trial was insufficient for a jury to find that the defendant intended that the alleged threat in the voicemail message reach the daughter. Accordingly, he asserts, the Commonwealth failed to provide the evidence necessary to support a conviction.

In reviewing a denial of a motion for a required finding of not guilty, we consider “whether the Commonwealth produced enough evidence, taken in the light most favorable to the Commonwealth, to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime was present.” Commonwealth v. Hilton, 398 Mass. 63, 64, 494 N.E.2d 1347 (1986), citing Commonwealth v. Latimore, 378 Mass. 671, 677–678, 393 N.E.2d 370 (1979). We begin with the statute defining the offense of threatening to commit a crime. General Laws c. 275, § 2(§ 2), provides:

“If complaint is made to any such court ⁵ or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant” (emphasis added).

“The elements of threatening a crime include an expression [459 Mass. 427] of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat.” Commonwealth v. Sholley, 432 Mass. 721, 724–725, 739 N.E.2d 236 (2000), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183, 654 N.E.2d 1196 (1995). Accord Commonwealth v. Milo M., 433 Mass. 149, 151, 740 N.E.2d 967 (2001). In many cases, including the three just cited, the Commonwealth alleges the victim is both the target of the communicated threat and the target of the threatened crime. The Appeals Court has concluded in several cases that a threat may be communicated to an intended target by way of a third-party intermediary, but only where it is shown that the defendant intended the threat to reach the target. See Commonwealth v. Maiden, 61 Mass.App.Ct. 433, 434, 810 N.E.2d 1279 (2004) (although bystander rather than defendant relayed threat to target, evidence showed defendant intended it to be heard by target, or reasonably should have known it would be conveyed to her); Commonwealth v. Meier, 56 Mass.App.Ct. 278, 282, 776 N.E.2d 1034 (2002) (defendant inferrably intended that intermediary communicate threat). Contrast Commonwealth v. Furst, 56 Mass.App.Ct. 283, 284–285, 776 N.E.2d 1032 (2002) (evidence of threatening to commit crime insufficient where defendant intended that third-party intermediary assist in murder plans, not that he communicate murder threat to intended victim); Commonwealth v. Troy T., 54 Mass.App.Ct. 520, 524–528, 766 N.E.2d 519 (2002) (no intent to communicate threat where intermediary merely overheard statements not intended for alleged victim). However, this line of cases is factually distinguishable from the present case, in which the Commonwealth's theory was that the probation officer was the direct target of the threat, and not an intermediary. The issue whether the recipient of the threat must always be the

[945 N.E.2d 882]

victim of the threatened crime is thus a matter of first impression for this court.⁶

By its terms, the language used in § 2 requires a threat (against [459 Mass. 428] someone) of a crime (against the person or property of another), but does not state that the threat be issued against the intended crime victim. When the Legislature wishes to require an identity between the target of the threat and the target of the threatened crime, it knows how to accomplish this result. Compare § 2 (crime committed where “a person has threatened to commit a crime against the person or property of another”), with G.L. c. 265, § 43 (crime committed where person “willfully and maliciously engages in a knowing pattern of conduct ... directed at a specific person which seriously alarms or annoys that person”). Because the Legislature has chosen, in §...