COMMONWEALTH vs. JAMES BELLARD.
SJC-13475
Supreme Judicial Court of Massachusetts
August 8, 2024
Essex. December 4, 2023. - August 8, 2024.
Present: Budd, C.J., Gaziano, Kafker, Wendlandt, & Georges, JJ.
NOTICE: All sliр opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Intimidation of Witness. Witness, Intimidation, Victim. Bribery. Value. Evidence, Value. Practice, Criminal, Required finding.
Complaint received and sworn to in the Lynn Division of the District Court Department on September 30, 2016.
The case was heard by Ellen Flatley, J.
After review by the Appeals Court, 102 Mass. App. Ct. 1116 (2023), the Supreme Judicial Court granted leave to obtain further appellate review.
David M. Osborne for the defendant.
Kristen W. Jiang, Assistant District Attorney, for the Commonwealth.
BUDD, C.J. James Bellard was convicted under the witness intimidation statute,
Background. We summarize the facts based on the record and the evidence presented at trial in the light most favorable to the Commonwealth, leaving some details for later discussion.
In June 2016, the defendant was charged with assault and battery on a family or household member pursuant to
During the telephone calls, the defendant‘s fiancée expressed frustration that police had been coming to her home repeatedly in an effort to secure her cooperation in the prоsecution of the defendant. She also expressed concern that she would lose her housing and custody of her children due to the attention she was receiving from police and the Department of Children and Families (DCF). The defendant responded, “You know I go to court August 2nd, so don‘t answer the door or nothing for nobody.” Citing conversations with his attorney and others “in the same predicament,” the defendant advised his fiancée that the authorities were just “play[ing] hardball” and that “if [she is] not there [at his trial], they can‘t do too much[,] man, that‘s all I‘m saying[,] man. You know what I mean, it‘s common sense. Everybody knows that . . . .” He also repeatedly told her, “You need to listen to me.” For instance, at one point, the defendant stated, “You need to listen to me so I can tell you this is how it‘s going to go away, stop answering them, stop responding, stop opening the door.” Later in the conversation, the defendant stated, “I just need you to — you know what I mean — to actually listen, and do actually what I‘m telling you to do for this shit, you know what I mean, make this shit just go away, man. As your man, you should listen to the man that knows . . . .”
The defendant additionally affirmed their preexisting plan to marry, told her that he did “care about . . . [their] family,” and stated that she would not “be going through this” if he “was out there with [her].” At one point, the fiancée commented “all you keep telling me is what not to do” and asked, “What do you want me to do?” The defendant responded, “Girl, you do whatever you choose you want to do . . . . Whatever you think that‘s going to help you and benefit your situation.”
The fiancée appeared at the defendant‘s assault and battery trial in September 2016 only after the court issued a capias warrant to
Soon thereafter the Commonwealth charged the defendant with witness intimidation under
After a jury-waived trial, the judge denied the defendant‘s motion for a required finding and found him guilty.3
The conviction was affirmed by the Appeals Court. Commonwealth v. Bellard, 102 Mass. App. Ct. 1116 (2023) (memorandum and order pursuant to its rule 23.0). We granted the defendant‘s application for further appellate review.
Discussion. Although it is known as the witness intimidation statute,
“Whoever, directly or indirectly, willfully . . . conveys a gift, offer or promise of anything of value to . . . another person who is . . . a witness or potential witness . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such a proceeding shall be punished . . . .”
We review a denial of a motion for a required finding of not guilty to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Brown, 477 Mass. 805, 811-812 (2017), cert. denied, 139 S. Ct. 54 (2018), citing Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Because the Commonwealth charged the defendant with violating
The defendant argues that the Commonwealth failed to prove that he offered anything of value to his fiancée in the manner proscribed by
1. Personal relationship. Although the statute does not define the word “value,” neither party disputes that in this context, the term may refer to things (tangible or intangible) that are of
Due process requires “that a defendant be given notice of the charges against him and an opportunity to defend himself.” Commonwealth v. Walker, 426 Mass. 301, 305 (1997), quoting Commonwealth v. Eaton, 2 Mass. App. Ct. 113, 117 (1974). At a minimum, then, the Commonwealth must identify the thing that has been offered or promised. That is, in prosecuting any bribery offense, the government must account adequately for both the “quid” and the “quo.” See Scaccia, 431 Mass. at 355-356 & n.7, citing United States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 405-406 (1999).
Although a promise of an interpersonal relationship might constitute a thing of value for purposes of
The Commonwealth‘s account is particularly nebulous because the object of this purported bribe — i.e., the relationship — appears open ended and unstable, capable of offering the fiancée undefined things of value in the future. See C.O. v. M.M., 442 Mass. 648, 653 (2004) (“Dating is inherently personal and idiosyncratic, and relationships exist in endless variety“). Thus, the fact that the defendant spoke of maintaining a personal relationship, without more, is too amorphous to constitute a promise under
In the same manner, here, the Commonwealth hints at potential benefits that we might infer the witness could enjoy within the context of a supportive dating relationship. However, the Commonwealth has not demonstrated that the defendant promised his fiancée that anything more definite would materialize. Contrast Commonwealth v. Henderson, 434 Mass. 155, 156-157 & n.4 (2001) (defendant‘s “repeated pleas, some linked to promises of financial compensation or marriage proposals,” contained identifiable offers of things of value under
Moreover, notwithstanding whether the relationship could be construed as one definitive “thing” subjectively valued by the fiancée, the Commonwealth has not demonstrated that the relationship was being leveraged by the defendant in an attempt to strike a bargain. The text and structure of
Clearly, the defendant hoped that his fiancée would decide not to attend his trial and tried to convince her to help him and to follow his advice.6 However, at no point did the defendant offer to continue the relationship in exchange for his fiancée‘s noncooperation or suggest that his emotional
commitment to her hinged on the outcome of the case. Nor did he imply, even indirectly, that he would withhold or amplify his affections based on her decision.7 In this manner, the conversation differed significantly from
In sum, the Commonwealth failed to offer proof beyond a reasonable doubt of the basic elements of the charged offense.
First, the fact finder, provided with only a vague and amorphous concept of the thing of value offered by the defendant to his fiancée, “would necessarily have had to employ conjecture” to conclude that any of the defendant‘s statements to his fiancée about their relationship operated as a bribe.9 Commonwealth v. Ferguson, 384 Mass. 13, 18-19 (1981). Second, the Commonwealth failed to offer proof beyond a reasonable doubt that the defendant conditioned his emotional commitment on his fiancée‘s noncooperation. Therefore, the defendant‘s conviction cannot be sustained on the basis of the Commonwealth‘s contention that the defendant leveraged their relationship as a bribe.
2. DCF investigation. The Commonwealth also contends that the defendant violated
demonstrate that the defendant violated
First, the Commonwealth has provided no evidence that the defendant had the power to effectuate that outcome. For a promise to have any meaning, the promisor must have some conceivable ability to deliver.10 See Black‘s Law Dictionary 1304, 1466 (11th ed. 2019) (defining “offer” as “a display of willingness to enter into a contract on specified terms” and “promise” as “[t]he manifestation of an intention to act . . . conveyed in such a way that anothеr is justified in understanding that a commitment has been made“). Here, the defendant never had, nor could he reasonably have been expected to have, power to terminate the DCF investigation or even to
make that sought-after outcome marginally more likely to occur. In other words, the defendant had nothing to offer with respect to the DCF investigations of his fiancée‘s household; he had no perceptible basis on which to transact or scheme.11 Therefore, he was not in a position to propose a quid pro quo. See Scaccia, 431 Mass. at 356 (“[b]ribery” involves “an exchange, involving a two-way nexus” [emphasis added]). Cf. Percoco v. United States, 598 U.S. 319, 322, 331-333 (2023) (vacating honest services fraud conviction of
Nor has the Commonwealth pointed to any evidence demonstrating that the fiancée believed that the defendant had such power. The record indicates that both the defendant and the fiancée understood the discussion to center on the fiancée‘s
ability, not his, to achieve that outcome. Throughout their conversation, the defendant encouraged his fiancée to use her ability to impede both the criminal and DCF investigations.12 For instance, after his fiancée stated, “I need [DCF] to leave me alone,” the defendant stated that if she “listen[ed]” to him and “stop[ped] opening the door” for police, the investigation could not continue. By contrast, he referenced no action he planned on undertaking to providе her with that purported thing of value. In fact, the defendant did not contradict his fiancée when she indicated she believed that the defendant‘s release was likely to lead, if anything, to continued investigation by DCF.13
Both the Commonwealth and the dissent rightly urge this court to consider the context informing the defendant‘s conversation with his fiancée, especially the evidence that the defendant had committed violence against her, in our review of his conviction. We certainly look to the history of the relations between a defendant and witness to assess the
character of any communications between them per
Yet, we cannot disregard our mandate to assess only thаt which is within the scope of our review. Nor can we uphold the defendant‘s
Conclusion. Viewing the evidence in the light most favorable to the Commonwealth, there is an insufficient basis on which to conclude that the defendant willfully conveyed an “offer or promise” of “anything of value” to the witness in violation of
So ordered.
GEORGES, J. (dissenting). Less than two weeks before the trial for his alleged assault and battery of the victim — stemming from an earlier domestic violence incident — and while he was detained pretrial on dangerousness grounds, see
Eventually, the defendant switched tactics, taking a more conciliatory approach. He began telling the victim that it was in her
As a result of the defendant‘s conversations with the victim, the Commonwealth charged him under the witness intimidation statute,
The court concludes the evidence was insufficient to prove the defendant conveyed an “offer or promise” of “anything of value” to the witness for purposes of
1. Sufficiency of the evidence. On our review of the denial of the defendant‘s motion for a required finding of not guilty, “we must consider and determine whether the evidence, in its light most favorable to the Commonwealth, notwithstanding the contrary
The court contends there was insufficient evidence the defendant, either “directly or indirectly, . . . convey[ed] a gift, offer or promise of anything of value to” the victim.
it does not reach the defendant‘s other argument that he lacked the requisite mental state -- that is, “the intent to impede or interfere with the investigation or proceeding.” Commonwealth v. Fragata, 480 Mass. 121, 122 (2018) (interpreting intent requirement under
a. Promise of anything of value.
Turning first to the “[]thing of value,”
During the telephone calls with the defendant, the victim discussed these two forms of hardship. First, she described her distress from the persistent efforts by the authorities to secure her
Similarly, activities by DCF were also causing the victim distress.4 She informed the defendant she had “a [DCF] case open” and “need[ed] [DCF] to leave [her] alone,” fearing she could “[l]ose [her] fucking kids.” The victim punctuated her frustration with the DCF case, telling the defendant: “I‘m just sick of it and . . . for them to involve my children, that[] . . . ma[kes] me so fucking angry.” The victim‘s passionate language and repeated complaints indicate the DCF case -- which carried with it the possibility of losing сustody of her children -- was a significant issue to her. Further, her wish for “[DCF] to leave [her] alone” indicates she equally desired an end to the DCF case. Thus, like an end to the disruptions caused by the defendant‘s criminal proceedings, an end to the DCF case also was a “thing” that the victim “valued” for purposes of
b. Intent to interfere with criminal proceeding.
Second, there are several strong reasons for concluding there was sufficient evidence to show the defendant had “the intent to impede or interfere with the investigation or proceeding.” Fragata, 480 Mass. at 122. After the victim indicated she wanted the authorities to stop knocking on her door and reaching out to her, the defendant promised the victim an end to the disruptions. Specifically,
Additionally, the defendant repeatedly instructed the victim not to testify during their conversations. For example, after the victim referenced having to go to court or otherwise face arrest, the defendant warned her “[y]ou better not do that.” Additionally, the defendant instructed the victim to refrain from answering the door on the day of trial. The defendant stated:
“You gotta listen, you know what I mean. Don‘t answer your phone, don‘t go to the door, you know what I mean. You know the court date‘s on the second [of August], you know what I‘m saying. Chill out. Don‘t answer shit, don‘t respond to them.”
Later, the defendant told the victim:
“Well, you know, I go to [c]ourt -- I go to [c]ourt the second [of August], man, you know what I mean. Hopefully they throw that shit out, you knоw what I mean. I just need you to -- you know what I mean -- to actually listen, and do actually what I‘m telling you to do for this shit, you know what I mean, make this shit just go away, man” (emphasis added).
It is naive to think the defendant did not intend to dissuade the victim from cooperating with the prosecution, particularly when the defendant held himself out as having superior knowledge of the legal system compared to the victim. Not only did the defendant tell the victim she “should listen to the man who knows,” and she “[didn‘t] know the system [or] how it works,” he fortified his intent by telling the victim his lawyer had said they would “both [be] good” if the victim did not testify. Regardless of whether the defendant‘s lawyer uttered these words, the defendant effectively signaled to the victim that his promises were backed by professional advice and thus were not merely his own predictions or aspirations. See Pinney, 479 Mass. at 1003; Latimore, 378 Mass. at 676-677.
As to the DCF investigation, the defendant‘s intent was equаlly palpable. During the telephone call, the defendant made the following statement to the victim: “Babe, you won‘t be going
2. Capability of fulfilling a promise.
The court claims the defendant‘s inability to actually control the actions of the investigating or prosecuting authorities -- or to end the DCF investigation -- renders his statements insufficient to sustain his conviction under
However, no such requirement appears in the statute‘s text, which does not limit “promise[s]” to include only those a defendant can personally fulfill, nor does it require proof of the feasibility of a “promise.” See
For the reasons discussed, I conclude the evidence was sufficient to allow a rational trier of fact to find the elements of
3. Domestic violence statistics and victim psychology.
I also take this opportunity to contextualize the court‘s decision within the broader domestic violence crisis in the Commonwealth and explain how the decision will increase the risk of witness intimidation in domestic violence cases specifically.
Assault and battery on a family or household member (domestic assault),
Here, the facts of the underlying domestic assault case are far from uncommon: In 2016, the police responded to a domestic violence call and found the victim bleeding from the mouth with injuries requiring an ambulance transport to the hospital. After the victim identified the defendant as the perpetrator, the defendant was arrested, charged with assault and battery on a household member, and detained pretrial on dangerousness grounds. At the defendant‘s trial, the victim -- the sole witness to the incident -
There is good reason why this story sounds all too familiar. Psychological research around intimate partner violence suggests victims of domestic abuse may be particularly susceptible to witness intimidation and coercive control.11 A theory for understanding why victims often remain in abusive relationships developed by psychologist Lenore Walker, known as “Battered Woman Syndrome” (BWS), outlines the methods abusers use to manipulate victims. Coleman, Battered Woman Syndrome, 10 Geo. J. Gender & L. 333, 333-334 (2009). BWS is prefaced on Walker‘s finding that domestic abuse usually occurs in a three-phase cycle of violence, including (1) the “tension-building” phase, which often involves verbal abuse; (2) the “battering stage” when physical abuse occurs; and (3) the “honeymoon phase.” Id. at 334-335.
During the “honeymoon phase,” which immediately follows instances of abuse, the abuser engages in “contrite loving behavior,” which may involve expressions of remorse, requests for forgiveness, and promises that the abuse will never occur again. Coleman, supra at 335. According to Walker‘s theory, this cycle causes survivors to develop “learned helplessness,” characterized by the belief that one “lacks control over her abusive situation” and that escape is “impossible.” Id. These feelings cause survivors to “become[] increasingly passive” and lose their “will to get out of the relаtionship,” thus becoming trapped in the cycle of violence. Id.
Walker‘s theory carries two significant implications in the context of intimidation and improper influence of domestic violence victims, i.e., potential witnesses. First, Walker‘s theory suggests domestic violence victims are particularly susceptible to influence by their abusers due to “learned helplessness.” Second -- and perhaps contrary to what one might expect -- Walker‘s theory suggests abusers are likely to use subtle manipulation tactics such as promises and reassurances about their relationships, rather than threats of violence, to convince victims not to go to the police or to testify against them after an incident of abuse. This is because abusers, during the “honeymoon phase,”
Armed with this knowledge, it becomes apparent that even seemingly “vague” and “amorphous” promises made by an abuser to a domestic violence survivor about their relationship, as the court frames it, ante at __, could be an effective means of silencing the victim. Concededly, such promises may sometimes fall short of the requirements of
I have no doubt some of the victims in the over 14,000 domestic assault cases that came before the community courts last year were trapped in the cycle of violence described by Walker. I fear the court‘s decision to narrow the scope of the witness intimidation statute by requiring a provable ability to effectuate a promised outcome will greatly undermine the Commonwealth‘s ability to prosecute witness intimidation in future domestic violence cases. For all the foregoing reasons, I respectfully dissent.