Commonwealth v. Troy T.

• Decision Date: 16 April 2002
• Docket Number: 00-P-666
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH vs. TROY T., a juvenile. Docket No.: 00-MASSACHUSETTS COURT OF APPEALS County: Berkshire

COMMONWEALTH vs TROY T., a juvenile

Docket No.: 00-P-666

MASSACHUSETTS COURT OF APPEALS

County: Berkshire

December 11, 2001.

April 16, 2002

Delinquent Child. Juvenile Court, Delinquent child. Threatening. Evidence, Threat.

Complaint received and sworn to in the Berkshire County Division of the Juvenile Court Department on October 27, 1999.

The case was heard by Paul E. Perachi, J.

Jennifer Tyne for the juvenile.

Marianne Shelvey, Assistant District Attorney, for the Commonwealth.

Present: Brown, Lenk, & Cowin, JJ.

LENK, J.

After a jury-waived trial in March, 2000, the juvenile defendant was adjudicated delinquent by reason of threatening to murder a fellow student on October 27, 1999, in violation of G. L. c. 275, § 2. On appeal, the juvenile asserts two claimed errors: (1) that the judge erred in denying his motion for a required finding of not guilty where the Commonwealth's evidence was insufficient as to each element of the crime; and (2) that the judge erred in admitting evidence of prior bad acts. We reverse.

Facts. The Commonwealth presented the testimony of three witnesses: Amber, Tara (the alleged victim), and the school police officer to whom Tara first made complaint. The defense called as witnesses John, Adam, and the juvenile. Amber, Tara, John, and Adam are all juveniles¹ and were all students at the same high school in the fall of 1999, albeit in different grades and classes.

Amber, fourteen years old, testified that she was in the ninth grade that fall and was in the same English class as the juvenile, also a ninth grader. She testified to events involving the juvenile that occurred on three dates and at three locations: (a) on Friday evening, October 22, 1999, at the local shopping mall; (b) on Tuesday, October 26, 1999, in the hallway between classes at school; and (c) on Wednesday, October 27, 1999, in English class.

As to the Friday evening events at the mall, Amber testified that she was there with her school friend Chelsea, waiting together for Chelsea's mother to provide them a ride home. Also in the same area were her ninth-grade classmate John, his girlfriend Tara (an eighth grader whom Amber knew from French class), and an unnamed friend; the two groups were chatting amongst themselves. There was a third group nearby, consisting of the juvenile and his friend, and the two were talking to each other. Amber did not socialize with the juvenile, but he had said "hey" generally to the larger group there. While engaged with her own group, Amber nonetheless overheard the conversation between the juvenile and his friend, in which the juvenile said he wanted to get nitrogen to make a bomb, go to a football game on a weekend night, and "blow up, kill, blow up the jocks." Amber also testified, "[M]e and my friend Chelsea, she was like, and I was like, you know, 'You can't get nitrogen at the mall.'"² At the time, Amber thought the juvenile's remarks a joke and bantered about them with John, a "jock." Amber did not report these remarks to school authorities at the time and there is no indication in Amber's testimony that she conveyed the remarks to Tara that evening.

Between classes on the following Tuesday, October 26, 1999, Amber stopped in on a hallway conversation that her friend Chelsea was having with the juvenile and his friend Adam. The juvenile displayed petitions he was passing around headed "Bomb the Soviets" and "break treaty."³ Amber declined to sign. She also testified that, in the same conversation, the juvenile said to her and her friend Chelsea that, in the next few weeks, he wanted to go to even-numbered classrooms with a gun or shotgun and "gun them down like little dominos." There is no indication in Amber's testimony that she told Tara, who was not present for the conversation, of the petition or the remarks, or that she informed any school authorities of them at the time.

Amber testified that she also heard the juvenile say something in English class the next day, Wednesday, October 27, 1999. She, John, and the juvenile were in that class; Tara was not. Amber and the juvenile were seated some rows apart, she at the front, the juvenile behind and near John. Caitlin, a blonde female student, walked past Amber to speak with the teacher. As Caitlin passed, Amber heard the juvenile say to two nearby friends, "Oh, those dumb blondes, you know, they have to go too." Amber was not herself frightened by the statement and did not report it initially either to Caitlin or to school authorities. She was more afraid for Tara, who is blonde, and thereafter told her and John of it.

Tara, fourteen years old, testified that she had no classes with the juvenile and acknowledged that the juvenile had never said anything to her. When at the mall on October 22 with John and Bethany, she said that, after Amber came to her, drew her attention to the juvenile, and told her something, she felt concerned (but "like not to freak out") about John and what was going to happen at school. Tara then testified to a conversation she had with Amber in French class on Monday, October 25, that caused her to feel "more concerned for people," that "someone was going to get hurt." Two days later, on Wednesday, October 27, she spoke with Amber in the front lobby. Tara then felt "really freaked out... because of the statement that she had told me was directed toward me" and was afraid that the juvenile was going to hurt her.

Visibly shaken, Tara told a city police officer assigned to the school about her concerns. The officer testified that Tara was crying and highly emotional and that she told him that she and her boyfriend were going to be shot because of the juvenile's statements about blondes and jocks.⁴ After talking with Tara, the officer called the juvenile to his office and informed him of the allegation. The juvenile volunteered that he was joking and asked why he was being harassed. The juvenile had no weapons on him. In a consensual search of the juvenile's backpack, the officer discovered a spent.12 gauge shotgun shell and a CO2 cartridge which, the officer testified, was such as might be used in BB or paintball guns. No incriminating evidence was found in a later consensual search of the juvenile's bedroom. The officer did not interview Tara's boyfriend John. The juvenile was subsequently charged in juvenile court on the officer's complaint of the offense for which he later stood trial.

The defense witnesses were John, Adam, and the juvenile. John, fifteen years old, testified that he had neither heard nor been told of the juvenile's reported remarks and was not made afraid by the remarks once he later learned of them. Adam, the juvenile's fourteen year old friend, testified that he and the juvenile had found the spent shotgun shell and cartridge near local railroad tracks in the month or so before October 27. The fifteen year old juvenile testified that his petition to bomb the Soviets was a joke in view of the prior dissolution of the then nonexistent Soviet Union. He acknowledged having asked Amber to sign the petition but denied having made either the "gun [students] down like little dominos" or the "dumb blondes" comment. He testified that, when called to account for the remarks by authorities, he surmised that Amber or Tara was the source of the complaint because they were the only girls that he had had contact with in the prior week.

Motion for required finding of not guilty. We review the denial of such a motion using the familiar Latimore standard, Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), and 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 (1986). See Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979). Here, the crime at issue is threatening to commit the crime of murder. General Laws c. 275, § 2, provides:

"If complaint is made to any such court 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."

The term "threat" is not statutorily defined, but its elements have been held to "include an expression 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. Robicheau, 421 Mass. 176, 183 (1995). See Commonwealth v. Sholley, 432 Mass. 721, 727 (2000).⁵ The Commonwealth sought to prove that the juvenile, on October 27, 1999, expressed his intent to murder Tara and his ability to do so in circumstances justifying apprehension on her part as recipient of the threat.

The juvenile contends that he cannot be found guilty beyond a reasonable doubt because the Commonwealth failed to produce evidence that he communicated to Tara an intent to injure her; that the alleged threatened injury, if carried out, would constitute a crime; or that he made a threat in circumstances that could reasonably have caused Tara to fear that he had both the intent and the ability to carry out the threat.

As to the juvenile's initial contention, that the Commonwealth failed to prove he communicated to Tara an intent to injure her, two observations are in order. First, it is uncontroverted that the juvenile never made the "dumb blonde" comment directly to Tara or, for that matter, to Amber; he said it to a couple of nearby friends and Amber overheard it. It was she who later told Tara of it. Second, while the cases have never expressly articulated communication as an element of the crime of threatening, it is implicit in them that the subject threat be communicated in some manner by the defendant. See, e.g., Commonwealth v....