Commonwealth v. CohenCommonwealth v. Cohen
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A Superior Court jury found the defendant, David M. Cohen, an attorney and former Stoughton police sergeant, guilty of attempted extortion,
Background, a. The trial. The evidence at trial would have permitted the jury to find the following. 3 At all relevant times the defendant worked as a lawyer by day and as a Stoughton police sergeant on the 4 p.m. to midnight shift. On April 22, 2002, Peter Marinilli, the younger brother of the defendant’s close friend, contacted the defendant and told him that a man named Timothy Hills had “scammed” him. In particular, Marinilli told the defendant that Hills had solicited $10,000 from him, supposedly as an investment in a restaurant called “Pizzapalooza” that would generate a thirty per cent return by April 1, 2002. When Marinilli asked Hills for his money, Hills gave him only excuses. When Hills finally gave Marinilli a check, it did not clear.
On April 22 or 23, the defendant left Hills a telephone message stating that Hills could pay Marinilli back or face criminal charges. 4 That same afternoon, Hills drove with Brian Sexton, an employee of Hills’s company, to the defendant’s law office to meet with him. Hills told the defendant that he was aware he owed Marinilli money, but that he needed to “make arrangements to try and get him his money back.”
During the next few days, Hills and the defendant exchanged more telephone calls. On April 26, Hills delivered to the defendant, as “a deposit,” a $1,000 money order made out to Marinilli. Hills agreed to meet with the defendant at his law office on
“Tim Hills, this is David Cohen at 12:30. As you can imagine, I’m not too happy with you right now. I told you — you told me you were going to be here by noon. And, Tim, I’m pretty much at the end of my rope as far as your story goes. ... I guess I’m going to do what I have to do and it might not be pretty. So, get in touch with me.”
Hills and the defendant met later that day at a local restaurant. After the defendant threatened arrest if Hills did not pay Marinilli, Hills produced a $9,000 check. The defendant took the check to the bank to determine whether it would clear. When the bank teller, Jamie Kelly, informed him that it would not, the defendant drove in his police cruiser to Hills’s office. When the defendant arrived, he ran a registration check on Hills’s truck, found that the registration had expired, and called a private company for a tow. The defendant, who was armed and in his police uniform, then walked into Hills’s office and confronted him. He placed Hills in handcuffs and threatened to lock him up and keep his truck impounded if he did not bring the $9,000 to the police station by 4 p.m. the next day. The defendant removed the handcuffs before leaving Hills’s office, returned to the station, and wrote a police report about the incident. He also prepared applications for a criminal complaint against Hills, as well as an arrest warrant. The following day, the defendant submitted his police report and applications for complaints when Hills failed to bring the $9,000.
On May 3, 2002, an arrest warrant for Hills issued from the Stoughton Division of the District Court Department, along with a complaint charging larceny by false pretenses and two counts of uttering. Also on May 3, Hills went to the police station to complain about the defendant. The police lieutenant with whom Hills spoke left for a few minutes. When he returned, he told Hills that he had good news and bad news: Hills could get his truck back, but the defendant had obtained a warrant for his arrest. Hills was processed, fingerprinted, and put in a cell. He
b. Jury empanelment. A Norfolk County grand jury indicted the defendant in March of 2005, and also indicted Stoughton police Officer Robert Emmet Letendre. 5 The two men were tried together. Jury selection began the afternoon of June 18, 2007, and continued through June 25. 6 Before empanelment began on June 18, the judge explained:
“What I intend to do, once the defendants are placed at the bar, [is] to introduce myself, to give a description of the case, to have the attorneys introduce themselves and their clients [as] they desire. Read the list of prospective witnesses, give them the estimate of the length of the trial, and then proceed into the questioning. And once the questioning is completed, begin to fill the jury box, entertaining your objections or challenges for cause when they arise, calling to the sidebar those jurors who’ve raised their hand[s] for any reason.”
Jury selection began in the afternoon of June 18. Seventy-eight prospective jurors were brought to the court room, and the empanelment process went forward as the judge had described. Only a few jurors were seated before the end of the day on June 18. Empanelment continued over the next two days in the same manner as on June 18. At the beginning of the morning session on June 21, the fourth day, the defendant’s counsel stated to the judge at sidebar, “When I came in this morning I saw a sign on the door that says: ‘Jury empanelment Do not enter.’ ” 7 He continued:
“I have found out that the sign has been on the doorfrom the beginning of the trial apparently. Then, I did some more checking and I found out that people have been denied entry into the courtroom and told that the courtroom is closed by the court officers downstairs and have been denied entry into the courtroom. At least two people have told my client that, and I haven’t checked.”
Counsel moved for a mistrial, stating that the judge “never made findings on the record or had a hearing as to whether or not the courtroom ought to be closed.” The judge denied the motion. 8
A short while later, the defendant’s counsel made an offer of proof in which he stated that several of the defendant’s friends
Later that same morning, the defendant’s counsel raised the issue a third time, stating, “Your Honor, I want the record to reflect that someone just entered the courtroom and the court officers ushered him out. They told him to leave.” The judge responded, “I will inquire.” This exchange followed:
The judge: “[W]ho was that coming into the courtroom?”
Court officer: “It was one of the Stoughton police officers.”
The judge: “All right. That was a Stoughton police officer.” 9
Defense counsel: “And why is he not allowed in the courtroom?”
The judge: “Well, you registered your objection, so I will deal with it later. I just wanted to know who it was.”
Defense counsel: “I would like to move for a mistrial.”
The judge: “Denied.”
After a recess, defense counsel informed the judge that the man the court officers had removed from the court room was the defendant’s civilian friend, Peter Rappoli, not a uniformed Stoughton police officer, and that at the time Rappoli was removed, there was ample room for the public to sit in the court room, separated from the prospective jurors. Counsel again moved for a mistrial. The judge denied the motion.
At the conclusion of jury empanelment on June 25, 2007, the case proceeded to trial. On July 30, the jury returned guilty
The judge denied the defendant’s motion for a new trial on June 27, 2008. In her decision, the judge found that the largest court room in the Norfolk County Superior Court court house was used for this trial because the judge expected it to be lengthy, to be followed closely by the press and public, and to require an unusually large jury pool.
11
She made findings about the court’s
“According to [the acting chief court officer], it is the practice at Norfolk Superior Court to exclude the public (other than the media) from jury empanelment if there is no room for spectators. However, where there is room, spectators are placed in the seating areas on the sides of the courtroom. The media are routinely seated in the enclosure to the left of the judge’s bench. The intent of the policy is to insure that jurors are not intermingled with the public. All the court officers were instructed by [the acting chief court officer] that the courtroom would be ‘closed’ for this empanelment” (emphasis added). 12
The judge next found that there had been large numbers of potential jurors called for the first three days of empanelment: jurors appeared in panels of seventy-eight on June 18, eighty-eight on June 19, and seventy-nine on June 20. Because the empanelment process on some or all of these days did not reach every juror present, jurors who had not been reached returned the next morning, and the panels of new jurors came into the court room in the afternoon. She found that “although the crowd lessened at times during the morning, the courtroom would again fill in the afternoon on those dates.” She stated that the “venire was cautioned not to speak aloud in the courtroom” and “every exchange occurring between the court and individual prospective jurors was conducted at sidebar outside of public hearing and out of earshot of the defendant” because he had agreed to closed individual voir dire. However, the judge noted that she called jurors to the sidebar based on their responses to
The judge found that “the court was first advised of the [‘Do Not Enter’] sign and the access issue on June 21; there were no repeated objections to the exclusion of the public; and the court did take corrective action, including ordering the sign removed.” She found that while court officers removed Peter Rappoli later that day, they did so mistakenly and Rappoli “did not seek to determine the reason he was required to leave the courtroom” and “[b]y the time the court determined that he was not in police uniform, he had left the courthouse.” She added that at the time, “there were other members of the public present and undisturbed.” With respect to the reporters, she found that “a court officer asked Mr. Mucciarone to leave the courtroom for jury selection and separately asked Mr. Stein not to come in during jury selection.” However, she found that the two men did not identify themselves as press and that they had “complied [with the no entry order] without complaint.”
As to the defendant’s friends and supporters, the judge found that “Michael Cubell, Peter Rappoli, Roy Minnehan, Paul Williams, James O’Connor, and Richard S. Levine testified that they were deterred from entering the courtroom during [ejmpanelment by the sign on the courtroom door, or were asked by a court officer to leave the courtroom during the [ejmpanelment.” She did not discredit their testimony, stating only that “they failed to make themselves known to the court until late in the [ejmpanelment process when they were unavailable to come back to court.” She noted that John White, a spectator who was not among the defendant’s supporters, testified that he sat in the court room during empanelment on June 18 and June 20, seeing the sign but ignoring it. On June 18, he sat with a Stoughton couple (also members of the public) and on June 20, he sat “in the back where there were a couple of empty rows.”
Finally, the judge found that while she could not monitor the court room closely during empanelment, she “expected that members of the public who wished to observe . . . would be allowed entry” and that because “the issue was not raised until the fourth day of [ejmpanelment ... the court was unable to investigate and address the matter before that time.” She further stated that, “[ojn June 21, Officer Sullivan was directed by the
Based on her findings, the judge ruled that the court room was never closed, as the defendant’s family and some other members of the public were present and the “press was not excluded.” 14 She also concluded that the defendant in effect consented to closure by giving up his right to be present at closed individual sidebar voir dire examinations of prospective jurors and otherwise waived his right to claim a violation of his right to a public trial by waiting until the fourth day to object.
On appeal, the defendant argues that the judge failed to satisfy procedural requirements for court room closure, making only retrospective findings to support it; did not satisfy substantive requirements for closure because the record shows that the public was excluded by court policy, regardless of and despite available space; erred in giving constitutional significance to the excluded spectators’ failure to protest; and erred in her findings of fact. The defendant also claims that he did not waive his public trial right.
Discussion,
a.
Standard of review.
As the defendant’s “new trial claim is constitutionally based, this court will exercise its own judgment on the ultimate factual as well as legal conclusions.”
Commonwealth
v.
Tucceri,
412 Mass. 401, 409 (1992). We review to determine whether the defendant’s Sixth Amendment right to a public trial was violated, cognizant that such a violation “is a structural error and not susceptible to harmless error analysis.”
Commonwealth
v.
Baran,
74 Mass. App. Ct. 256, 296 (2009). See
Commonwealth
v.
Marshall,
356 Mass. 432, 435 (1969).
15
Nevertheless, we do look to whether the defendant raised this issue in a timely manner because “the
b. Public trial right. The closing of a criminal proceeding to the public may implicate rights guaranteed by both the First and Sixth Amendments to the United States Constitution. Commonwealth v. Martin, 417 Mass. 187, 192 (1994). The First Amendment implicitly grants the public, including the press, a right of access to court trials. 16 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-606 (1982). The Sixth Amendment expressly grants criminal defendants the right to a public trial. 17 Waller v. Georgia, 467 U.S. 39, 46 (1984) (Waller). See In re Oliver, 333 U.S. 257, 270 (1948) (“The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power”). The same constitutional analysis applies to a public trial claim brought under the First Amendment as one brought, as here, under the Sixth Amendment. Commonwealth v. Martin, 417 Mass. at 193 n.8.
The public trial right applies to jury selection proceedings,
Presley
v.
Georgia,
130 S. Ct. 721, 723-724 (2010), which are “a crucial part of any criminal case.”
Owens
v.
United States,
483 F.3d 48, 63 (1st Cir. 2007)
(Owens).
See
Commonwealth
v.
Gordon,
422 Mass. 816, 823 (1996). At that stage, “the primacy of the accused’s right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.”
Press-Enterprise
v.
Superior Court,
464 U.S. 501, 508 (1984)
(Press-Enterprise).
Still, the public trial right is not absolute, and in limited circumstances a court may bar spectators from certain portions of a criminal trial. Commonwealth v. Martin, 417 Mass. at 193. To do so, a judge must make a case-specific determination that closure is necessary. Globe Newspaper Co. v. Superior Court, 457 U.S. at 608. That “determination must satisfy four requirements articulated by the Supreme Court: ‘[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.’ ” Commonwealth v. Martin, supra at 194, quoting Waller, 467 U.S. at 48. Waller and the four factors it sets out apply to the exclusion of the public from jury selection proceedings, at least when this occurs over the defendant’s objection. 18 See, e.g., Watters v. State, 328 Md. 38, 45 (1992), cert, denied, 507 U.S. 1024 (1993) (“whether objection to closure is made by the defendant or the press, the public may only be constitutionally excluded from a trial, including voir dire, pursuant to a narrowly tailored order necessary to protect an overriding state interest”); State v. Torres, 844 A.2d 155, 159 (R.I. 2004) (“The Waller analysis applies as well to the closure of jury-selection proceedings over an accused’s objections”).
In claiming that his Sixth Amendment right to a public trial was violated, “[t]he burden is clearly on the defendant to demonstrate that the public was excluded from his trial.”
Commonwealth
It has been stated that a defendant’s right to a public trial is not denied absent “some affirmative act by the trial court meant to exclude persons from the courtroom.” United States v. AlSmadi, 15 F.3d 153, 154 (10th Cir. 1994). Nevertheless, a court room may be closed in the constitutional sense without an express judicial order. See, e.g., Owens, 483 F.3d at 63; Watters v. State, 328 Md. at 44, 49 (defendant’s Sixth Amendment right to public trial was violated where deputy sheriff closed court room to public, including members of defendant’s family and press, for entire morning of jury voir dire and selection; court rejected State’s claim that no violation occurred because error was committed by deputy sheriff without knowledge of judge; new trial ordered). 19 Cf. Martineau v. Perrin, 601 F.2d 1196, 1198-1200 (1st Cir. 1979) (court room doors locked for at least three days of six-day trial, unbeknownst to judge, who ordered doors open on learning of misunderstanding; Sixth Amendment public trial right was violated, but defendant was found to have knowingly and intentionally waived right on facts of particular case).
Some courts have determined that a court room closure may be so limited in scope or duration that it must be deemed “de minimis” or trivial, and not in contravention of the Sixth or First Amendment public trial guarantees; whether the closure was “inadvertent” on the part of the judge is sometimes mentioned as one factor relevant to the analysis.
20
We agree with the principles discussed in the cases cited in note 20,
supra,
but those
We discuss briefly the additional reasons mentioned by the judge for her conclusion that no constitutionally implicated closure occurred: the defendant’s family members were present throughout; other members of the public were also present when there was room to accommodate them without the risk of tainting prospective jurors; and members of the press were not excluded from the court room. It is commendable that the judge and court officers made specific arrangements to ensure that the defendant’s family members could be seated in the court room throughout jury empanelment. Cf.
Owens
v.
United States,
517 F. Supp. 2d 570, 573 (D. Mass. 2007) (two of defendant’s family members sought entry but were excluded from court room for entire empanelment). It is also true that the judge found that three members of the public (John White and a couple from Stoughton) came into the court room during empanelment despite the sign. However, the presence of spectators who “saw the sign, but ignored it,” has little or no bearing on whether the court room was closed. See
Peterson
v.
Williams,
85 F.3d 39, 44 n.7 (2d Cir.), cert, denied, 519 U.S. 878 (1996) (“possible existence of some spectators brave or arrogant enough to seek admission does not convert the court room into an open one”). Furthermore, the judge’s findings also reveal that six individuals — who were, significantly, friends and supporters of the defendant — were denied entry by virtue of the sign or by the explicit statement of
We conclude the defendant has established that, for at least three days of the jury selection proceedings in his case, the court room was closed in the constitutional sense, at least to some degree. As just discussed, however, the record makes clear that there were family members and some other individuals beyond the parties and counsel present in the court room during empanelment. For that reason, there was a partial rather than a full or complete closure of the court room. See, e.g.,
Commonwealth
v.
Martin,
39 Mass. App. Ct. 44, 48-49 (1995) (exclusion of defendant’s mother during testimony of witness due to intimidation concern, but allowing press to remain, constituted limited closure).
23
It is therefore necessary to consider
“Although Waller addressed the complete closure of a trial to the public, federal and state courts have subsequently extended the Waller analysis to partial closures of trials ...” (emphasis in original). State v. Ortiz, 91 Haw. 181, 191 (1999). See, e.g., United States v. DeLuca, 137 F.3d 24, 33-34 (1st Cir.), cert, denied, 525 U.S. 874 (1998); Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992); State v. Mahkuk, 736 N.W.2d 675, 684-685 (Minn. 2007); People v. Jones, 96 N.Y.2d 213, 219 (2001). See also Commonwealth v. Martin, 39 Mass. App. Ct. at 48-49 (applying Waller factors to partial closure). We follow this lead, and therefore examine the four Waller factors in the context of the present case.
The first
Waller
factor — the proponent of closing the court room “must advance an overriding interest that is likely to be prejudiced,”
Waller,
467 U.S. at 48 — has been somewhat modified when applied to a partial closure. A majority of the Circuit Courts of the United States Court of Appeals and several State courts — including the Massachusetts Appeals Court
24
— have taken the approach that where a closure is partial, it is necessary to show a “substantial reason” rather than an “overriding interest” to justify the closing.
25
The judge here advanced two connected reasons for the court room’s partial closure to
We recognize that in court houses across the Commonwealth, insufficient space may well provide a valid reason for the exclusion of the public during at least some part of jury empanelment proceedings, because the number of prospective jurors in the venire are likely to fill all or almost all of the available seats. 30 It is not required that every seat not occupied by a prospective juror must be made available to the public; as noted, the possibility that jurors may be influenced or tainted by intermingling with spectators is a valid concern that may justify excluding members of the public until space permits them to sit apart from the prospective jurors. Moreover, the judge or court officers need not undertake an affirmative effort to seek out spectators when the departure of prospective jurors frees up seats. But the public trial right applies with full force during empanelment, Presley v. Georgia, 130 S. Ct. 721, 723-724 (2010), and if space in the court room is or becomes available, the judge must make sure that members of the public who wish to observe the proceedings are not prevented from doing so.
The third Waller requirement is closely connected to the second; it focuses on consideration of “reasonable alternatives to closing the proceeding.” Waller, 467 U.S. at 48. See United States v. Sherlock, 962 F.2d 1349, 1359 (9th Cir. 1989), cert, denied sub nom. Charley v. United States, 506 U.S. 958 (1992); Commonwealth v. Martin, 39 Mass. App. Ct. at 49. As discussed, the judge took meaningful steps in this direction, holding the empanelment proceedings in the largest available court room and reserving space for the defendant’s family and the press. However, additional alternatives should have been examined. There are ways to communicate to members of the public that the court room currently cannot accommodate them other than by placing a “Do Not Enter” sign on the door. The difficulty with such a sign is that it is too easy to forget to remove it when space does become available.
Finally,
Waller
requires “findings adequate to support the closure.”
Waller,
467 U.S. at 48. In a partial closure context such as this one, a reviewing court may examine the record itself to see if it contains sufficient support for the closure, even in the absence of formal or express findings by the judge. See
In sum, the empanelment process in the present case effected a partial closure of the court room in a manner that failed to satisfy the second, third, and fourth
Waller
requirements, violating the defendant’s Sixth Amendment right to a public trial. This conclusion does not end our inquiry, however, because, as noted, a defendant may waive this Sixth Amendment right.
Commonwealth
v.
Wells,
360 Mass. 846 (1971). Accord
Commonwealth
v.
Williams,
379 Mass. 874, 876 (1980). The judge found that the defendant did so here in two ways. The first relates to the defendant’s decision not to be present with his counsel at the private voir dire examinations of individual jurors by the judge at sidebar. The judge stated that the defendant “can hardly complain that his supporters were not present for the empanelment, when he was present, but elected not to hear [the individual voir dire examinations].” She explained that while the defendant’s “failure to object to the private sidebar voir dire may not strictly equate to a consensual closing of the courtroom for purposes of the Sixth Amendment, the practical ramifications ... are that the public will not hear the jurors’ responses and will not be able to observe their demeanor.” We
Individual juror voir dire examinations in this case were conducted out of hearing of the defendant and the public, but the voir dire examination process itself took place, as it should have, in open court. Commonwealth v. Horton, 434 Mass. 823, 831-832 (2001). Conducting such voir dire examinations in open court permits members of the public to observe the judge, as well as the prospective jurors. Even though the public cannot hear what is being said, the ability to observe itself furthers the values that the public trial right is designed to protect. See Waller, 467 U.S. at 46, quoting Gannett Co. v. De Pasquale, 443 U.S. 368, 380 (1979) (“ ‘The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.’ ... In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury”); Owens, 483 F.3d at 61 (“a trial is far more likely to be fair when the watchful eye of the public is present”). The defendant had a right to have the public present during these individual juror examinations, just as he had a right during the trial to have spectators present in the court room while sidebar conferences took place out of their earshot. Moreover, the jury selection proceedings also included voir dire questions publicly posed to the venire as a group, to which potential jurors gave substantive responses by raising their hands. The defendant had, and did not waive, the right to have the public hear the judge’s questions and witness the prospective jurors’ responses. See Commonwealth v. Horton, 434 Mass. at 832, quoting Commonwealth v. Gordon, 422 Mass. at 823 (“The guarantees of open public proceedings in criminal trials cover proceedings for the voir dire examination of potential jurors concerning their qualifications to serve”).
The second type of waiver identified by the judge was knowing inaction or delay. Specifically, she determined that the defendant waived his public trial right by waiting until June 21, 2007, the fourth day of jury empanelment, to object. The judge sug
The judge found that the defendant’s counsel “was aware that the public could not be accommodated in the spectators’ gallery because of the large number of jurors to be called and he wanted to make special arrangements for the defendant’s family.” Counsel’s awareness that the court room would be closed some of the time to accommodate large numbers of jurors — leading to his request to reserve seating for the family — would not itself support a finding that he was also aware that even when the court room did have available space, the public would be denied entry because of the policy that the court room would be closed throughout the empanelment process. 34
The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right.
35
Given the structural nature of this error, we do not
c.
Sufficiency of evidence claims.
The defendant argues that
(i)
Witness interference.
At all times relevant to this case,
The witness interference charges concerned two individuals, Jamie Kelly and Brian Sexton. Viewed in the light most favorable to the Commonwealth, the evidence relating to Jamie Kelly
With respect to Brian Sexton, the evidence showed that in April, 2002, Sexton, a salesman for Hills’s company, drove Hills to several meetings with the defendant and was at Hills’s office when the defendant went there to confront Hills. A few weeks later, Hills asked Sexton to prepare a statement for the court about what transpired in the office between Hills and the defendant.
39
Sexton told Hills that if Hills wrote an accurate statement, Sexton would sign it. In August, 2004, approximately one month before the grand jury proceedings in the defendant’s case began, Sexton was having dinner in a restaurant owned by a man named James Marathas. Marathas approached Sexton
Sexton went with the defendant to Marathas’s office in the basement of the restaurant, where the defendant sat down at a computer and began to type.
40
Sexton stated that what the defendant typed “didn’t make sense to me, so I asked him to remove what he was typing.” According to Sexton, the defendant told him “how the paragraphs in the statement made sense.” When the defendant and Sexton finally agreed on a statement, the defendant asked Sexton to sign it under pams and penalties of perjury. Sexton did not want to do so because “everytMng was happening too fast” and he “didn’t feel completely good about it.” Sexton asked for time to speak with Ms lawyer. At that point, the defendant, who had told Sexton at the begimring of the meeting that he knew Ms lawyer well, sent Sexton’s lawyer a copy of the second Sexton statement by electromc mail. Sexton then had a conversa
Sexton testified that when he signed the second statement, he was upset with Hills, who owed him money and had lied to him about a potential business partnership. Nonetheless, when the defendant’s counsel asked him, “Were you intimidated by David Cohen?” Sexton replied, “A little bit, yes.” Sexton said of the basement meeting, “I asked: Should we be doing this? Because I did not feel — I felt kind of a little intimidated.” Sexton later testified, “I felt a bit coerced, but he did not threaten me.” The prosecutor responded, “Okay. Did you feel duress?” Sexton replied, “Yes.” He later added, “I did not have plenty of time to talk to an attorney because [the defendant] wanted it done the next day. He was pushing me to get it done.”
In order to prove the crime of interference with a witness,
Turning to intimidation, the defendant’s “subjective intent is not relevant.” Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 236 (1998). “It is sufficient that a reasonable fact finder could have inferred from the circumstances that he did, indeed, intimidate [the witnesses].” Id. Additionally, an “action does not need to be overtly threatening to fall within the meaning of ‘intimidation.’ ” Commonwealth v. Casiano, 70 Mass. App. Ct. at 708, quoting Commonwealth v. Gordon, supra at 235-236. Calling Kelly ten times qualifies as intimidation. Kelly testified that she did not feel comfortable, and reported this to her manager. As for Sexton, a jury could reasonably conclude the defendant intended to intimidate him so that he would sign a new statement. The defendant’s application of time pressure and his show of authority, both formal (for example, while in uniform) and informal, warrants this inference. Moreover, “the timing of the defendant’s actions makes it more, rather than less, likely that he was trying to intimidate the witness.” Commonwealth v. Robinson, 444 Mass. 102, 109 (2005). See Commonwealth v. Casiano, 70 Mass. App. Ct. at 709. Although Sexton’s testimony suggests mixed motives for his decision to sign the second statement, he testified that he was, in fact, intimidated. “Jurors, of course, are free to believe or disbelieve the testimony of each witness in whole or in part.” Commonwealth v. Zanetti, 454 Mass. 449, 457 (2009). In sum, the judge properly denied the defendant’s motion for required findings of not guilty on both counts of witness intimidation.
The defendant points to the court’s interpretation of the term “material” in the perjury statute,
d.
Attempted extortion instruction.
“[A]ny police officer . . . who verbally or by written or printed communication maliciously and unlawfully uses or threatens to use against another the power or authority vested in him, 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.”
When the judge instructed the jury on this case, she explained the element of “malicious and unlawful” intent as follows: “Third, the Commonwealth must prove that the threatening communication was undertaken maliciously .... Maliciously means that the defendant intended to inflict injury without legal excuse.”
The defendant argues that the judge understated the Commonwealth’s burden on this element by failing to explain how the jury should evaluate the lawfulness of a police officer’s conduct. He contends that without such special guidance, the instruction criminalized a police officer’s lawful and discretionary act of giving a thief a choice between return of stolen goods and criminal prosecution. As the defendant objected to the instruction, we review for prejudicial error. Commonwealth v. Clemente, 452 Mass. 295, 319 (2008), cert, denied, 129 S. Ct. 1329 (2009).
The judge’s instructions included a statement that maliciously “means that the defendant intended to inflict injury or otherwise do wrong
without legal
excuse” (emphasis added). She added,
e. Prosecutorial misconduct. As a final matter, the defendant lists several allegations of prosecutorial misconduct. The “sampling of low blows” that the defendant cites does not rise to the level of appellate argument. Commonwealth v. Simpson, 434 Mass. 570, 577 n.3 (2001), citing Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
f. Conclusion. The order denying the defendant’s motion for a new trial is vacated. The judgments of conviction are reversed and the verdicts set aside. The case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
Notes
he events giving rise to these charges occurred in 2002. The jury acquitted the defendant of three other crimes arising out of the same set of facts: kidnapping,
The defendant received concurrent State prison terms of from two and one-half to three years on each witness intimidation charge, a concurrent year in a house of correction on the charge of filing a false police report, and three years’ probation on the charge of attempted extortion.
The trial evidence summarized here does not include the evidence relevant to the two charges of witness intimidation or the charge of filing a false police report. We summarize that evidence hereafter in connection with our discussion of the defendant’s legal claims concerning those three charges.
Timothy Hills testified at trial that he received a telephone call from “an attorney who said that he represented Marinilli” in which the caller stated, “You need to get in touch with me as soon as possible to resolve this matter for $10,000. Mr. Hill[s], we can either handle this through this office or my other job.” The defendant testified that he never represented Marinilli and that he left Hills the initial message in his capacity as a police officer. The jury appears to have believed the defendant, as it acquitted him of municipal employee conflict of interest,
Letendre was charged with being an accessory after the fact to a false arrest made by the defendant and with filing a false police report, both based on the 2000 incident that was the basis of separate charges against the defendant. See note 1, supra. The jury acquitted Letendre of both charges.
The court was not in session on Friday, June 22, 2007. Jury empanelment therefore took place over the course of five days: Monday, June 18, through Thursday, June 21, and on Monday, June 25, 2007.
In fact, the sign stated, “Jury Selection in Progress. Do Not Enter.” Nothing turns on the phrasing that actually appeared on the sign.
The following exchange took place in connection with the judge’s denial of the defendant’s motion for a mistrial, in which the judge explained the reasons for the “Do Not Enter” sign:
The judge: “The motion is denied. No one has been denied access. That sign, there is a particular issue of people coming and going through. If anyone wants to come into the courtroom as the relatives did, I’m sure it would have been brought to my attention and I would let them in.
“The problem initially has been the space for the venire. That is no longer a problem. But another concern is having the local district attorneys walk through the building, the Norfolk DA’s coming in inadvertently, and I don’t want there to be any issue raised by the appearance of a Norfolk district attorney in the courtroom. I don’t want spectators commingling with prospective jurors.
“That would take additional resources to shield them from prospective jurors. So, no one is denying access. This is a matter of accommodating the space and taking extra precaution. If there are individuals who want to come in, they can make that known and would be allowed in.”
Defense counsel: “They have made it — I would ask for an evidentiary hearing.”
The judge: “No, sir.”
Defense counsel: “The Court’s statement that no one has been denied entry is simply false, and you have not a shred of evidence to support that.”
The judge: “Thank you, sir. Now we will proceed with the empanelment. ...”
Before jury selection began, the judge asked the court officers to inform the Stoughton police department that officers were welcome to attend, but not in uniform. She based this order on the potential that a large number of officers would attend, with strong feelings about the case. Defense counsel objected, but knew of the order. The defendant does not challenge that order on appeal.
Seven of the defendant’s friends and supporters testified to this effect at the motion hearing. One of the seven had been listed as a potential trial witness, and would not have been allowed in the court room for empanelment in any event because of a witness sequestration order in the case.
The judge further found that the court room has two major seating areas, one on either side of a center aisle, that together seat approximately one hundred people; that two jury boxes seat another sixteen to twenty people each, although the court only uses one for seating due to the other’s proximity to sidebar; and that two additional enclosed seating areas, one on either side of the judge’s bench, each hold ten people. These findings indicate that a total of 136 to 140 seats were available in the court room for the potential jurors and spectators.
The lobby court officer for the defendant’s trial was a witness at the hearing on the new trial motion. In responding to questions on direct examination posed by the defendant’s attorney, the court officer elaborated on this jury empanelment policy:
Q.: “Is it your practice as a court officer in the Norfolk Superior Court to close the courtroom to the public during jury selection?”
A.: “Yes.”
Q:. “On each and every occasion?”
A.: “Yes.”
Q.: “And without exception?”
A.: “Yes.”
Q.: “And when you — when you close — when you say ‘close the courtroom’, that means you exclude all members of the public from the jury selection process, correct?”
A.: “Yes.”
Q.: “And you — and — and did you do that in the David Cohen case?”
A.: “Yes.”
The court officer answered some questions on cross-examination by the Commonwealth’s attorney that suggested he let, or was willing to let, members of the public into the court room whenever there was room to accommodate them. He also testified that he had followed the judge’s directive to do so beginning on June 21. On direct examination, however, the following exchange with the defendant’s counsel took place:
Q.: “[S]o there’s no mistake, on June 21, for the whole of that day — right — you did the best you could to exclude the public from the courtroom, right?”
A.: “Yes.”
Q.: “And that goes for the Monday, June 25, too, isn’t that right.”
A.: “Yes.”
The defendant’s trial counsel was a witness at the hearing on the motion for a new trial. He testified that prior to empanelment, he made special arrangements for the defendant’s family to be seated because “they were bringing in a lot of jurors.” However, he stated that the only limitation on court room access of which he was aware was the judge’s order that Stoughton police officers not attend the proceedings in uniform. He testified that he did not see the “Do Not Enter” sign until June 21, the day he objected.
The judge noted, “[M]embers of the press characteristically are vigilant in asserting their rights. From their conduct, the court concludes that the [e]mpanelment was not sufficiently important to them to seek entry. . . . Apart from Messrs. Stein and Mucciarone, there was at least one other reporter present in the courtroom on June 18.”
See also Arizona v. Fulminante, 499 U.S. 279, 310 (1991); Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007) (Owens). The United States Supreme Court has reasoned, “While the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real.” Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984) (Waller).
The First Amendment to the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The Sixth Amendment to the United States Constitution states in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”
We discuss the defendant’s objection in the present case infra.
See also United States v. Keaveny, 181 F.3d 81 (1st Cir. 1999) (remanding case for evidentiary hearing on defendant’s claim that Sixth Amendment violated where, he alleged, jury selection was closed for some hours by court security officer), cited in Owens, 483 F.3d at 63.
See, e.g., Peterson v. Williams, 85 F.3d 39, 44 (2d Cir.), cert, denied, 519 U.S. 878 (1996) (finding de minimis closure where public excluded for twenty minutes, unknown to judge); United States v. Al-Smadi, 15 F.3d 153, 154-155 (10th Cir. 1994) (same). See also Braun v. Powell, 227 F.3d 908, 917-920 (7th Cir. 2000), cert, denied, 531 U.S. 1182 (2001) (excluding one person did not violate public trial right; court applied analysis of Peterson v. Williams, supra).
The United States Court of Appeals for the First Circuit has declined to evaluate the exclusion of friends or family members under a different standard from the standard applied to the general public, noting that the “already stringent” Waller requirements “adequately safeguard a defendant’s interest in permitting his family to be present in the courtroom.” Martin v. Bissonette, 118 F.3d 871, 876 (1st Cir. 1997). See Owens, 483 F.3d at 62 n.12.
With respect to the press, as the evidence and the judge’s findings on the new trial motion indicate, there was a section of the court room reserved for the press, but at least two press members, who may not have identified themselves as such, were not permitted into the court room once empanelment began. It is not at all clear from the evidence whether any member of the press was actually in the court room during empanelment, and the judge’s findings on the point are somewhat inconsistent. Nevertheless, the defendant cannot, and does not, rest his claim of public trial right violation on the exclusion or the absence of any press in the court room. See Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 341 (1994). At the same time, the exclusion of the two reporters mentioned in the judge’s findings is clearly relevant to the defendant’s argument that members of the public generally were excluded.
See also United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir. 1989), cert, denied sub nom. Charley v. United States, 506 U.S. 958 (1992) (excluding defendants’ families during testimony of one witness constituted partial closure); Douglas v. Wainwright, 739 F.2d 531, 532 (11th Cir. 1984), cert, denied, 469 U.S. 1208 (1985) (case “entailed only a partial closure, as the press and family members of the defendant, witness, and decedent were all allowed to remain”); Ex parte Easterwood, 980 So. 2d 367, 376 (Ala. 2007) (“A partial closure usually entails the exclusion of the general public from the courtroom proceedings while allowing the defendant’s family, friends, and members of the press to remain, unless a specific reason exists for excluding the latter”); State v. Ortiz, 91 Haw. 181, 191 (1999) (partial closures include “closure of a segment of the trial during which the testimony of one or more witnesses is elicited and closure limited to particular members of the public”). Cf. United States v. DeLuca, 137 F.3d 24, 33 (1st Cir.), cert, denied, 525 U.S. 874 (1998) (security screening procedure requiring public to show identification to enter court room was “at most, a ‘partial’ closure”).
See Commonwealth v. Martin, 39 Mass. App. Ct. 44, 49 (1995).
See United States v. DeLuca, 137 F.3d at 34 (government not required to show partial closure “furthered a ‘compelling’ interest but simply a ‘substantial’ one”); United States v. Osborne, 68 F.3d 94, 99 (5th Cir. 1995) (adopting “ ‘substantial reason’ test” to determine “if a partial closure meets the constitutional standards”); United States v. Farmer, 32 F.3d 369, 370-372 (8th Cir. 1994) (applying substantial reason test where court room closed to spectators other than witness’s family and psychologist); Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992) (applying “substantial reason” test to determine whether partial closure violated public trial right); United States v. Sherlock, 962 F.2d at 1357 (applying “substantial reason” test where court excluded defendants’ families during testimony of one witness); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.), cert, denied, 493 U.S. 957 (1989) (applying “less stringent test of a ‘substantial reason’ ” to partial closure); Douglas v. Wainwright, 739 F.2d at 533 (where proceeding not totally closed, “only a ‘substantial’ rather than ‘compelling’ reason for the closure was necessary”); Ex parte Easterwood, 980 So. 2d at 376 (party seeking partial closure need only advance “substantial reason,” but “court still must satisfy the three remaining requirements of the Waller test”); Feazell v. State, 111 Nev. 1446, 1448-1449 (1995) (same); State v. Garcia, 561 N.W.2d 599, 605 (N.D.), cert, denied, 522 U.S. 874 (1997) (substantial reason test applies to partial closure); State v. Drummond, 111 Ohio St. 3d 14, 22 (2006) (judge had “substantial reason” to order partial closure). But see State v. Mahkuk, 736 N.W.2d 675, 685 (Minn. 2007) (declining to apply “different tests to complete versus partial closures”); People v. Jones, 96 N.Y.2d 213, 219 (2001) (because screening procedure raised “the same secrecy and fairness concerns that a total closure does,” nothing less than “overriding interest” satisfies constitutional scrutiny).
Cf. Wilson v. State, 148 Md. App. 601, 626 (2002) (no closure where deputy sheriff denied access to spectators, as “seating capacity of the courtroom had been exceeded”). Contrast Watters v. State, 328 Md. 38, 45 (1992), cert, denied, 507 U.S. 1024 (1993) (“There was not even an attempt to fill the remaining seats impartially. Rather, after the venirepersons and witnesses had taken their places, the empty seats were left vacant, notwithstanding the early arrival of the defendant’s family members and their request for admission. The closure of the courtroom under these circumstances violated the defendant’s Sixth Amendment right to a public trial”).
The judge also mentioned the need to minimize disruption. By itself, this reason carries more weight in relation to the point near the end of a trial when the judge is instructing the jury. We, like many courts, have previously held that no “closure” of a court room occurs where a judge orders that no one may leave or enter the court room during the judge’s charge to the jury in order to prevent disruption or distraction of the jurors during the charge. See Commonwealth v. Dykens, 438 Mass. 827, 835-836 (2003), and cases cited.
The United States Supreme Court’s recent decision in Presley v. Georgia, 130 S. Ct. 721, 725 (2010), briefly addressed the concern about intermingling between prospective jurors and spectators. The Court cautioned:
“The generic risk of jurors over-hearing prejudicial remarks, unsubstantiated by any specific threat or incident, is inherent whenever members of the public are present during the selection of jurors. If broad concerns of this sort were sufficient to override a defendant’s constitutional right to a public trial, a court could exclude the public from jury selection almost as a matter of course.”
Id. Still, the Court recognized that “[t]here are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire,” emphasizing that in such cases “the particular interest, and threat to that interest, must ‘be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.’ ” Id.., quoting Press-Enterprise, 464 U.S. at 510. Presley addressed a full closure of the court room. However, the Supreme Court’s concern about the intermingling rationale appears to apply in the partial closure context as well; the record must still reflect a case-specific determination that the risk to the venire in the particular case from intermingling is a real one, and that the trial court satisfied its “obligation] to take every reasonable measure to accommodate public attendance.” Presley v. Georgia, supra (emphasis added).
This is not to say that there is an obligation to accommodate every spectator who can find a seat anywhere in the court room; it would be permissible to exclude some spectators if the only available seats for them were located right next to the seats occupied by prospective jurors, and the judge determines, on the record, that this close proximity creates a risk of juror contamination or taint in the particular case. See Presley v. Georgia, supra.
Where the venire will initially take up the entire court room, however, it may be appropriate for the judge to announce at the outset that, because of space limitations, it is not possible immediately to accommodate members of the public, but that individuals who wish to observe empanelment proceedings will be permitted to enter the court room as space becomes available.
The record does not indicate how much space became available. John White, whose testimony the judge referenced and credited in her findings, stated that on Wednesday, June 20, “[tjhere was an empty bench in front of me and, again, I sat in the last row.”
See also Bowden v. Keane, 237 F.3d 125, 131-132 (2d Cir. 2001) (while specific findings required before complete closure, “competent evidence from the record” can support partial closure); United States v. Farmer, 32 F.3d at 371 (“specific findings ... are not necessary if we can glean sufficient support for a partial temporary closure from the record”); State v. Garcia, 561 N.W.2d at 607 (for partial closure, “court need only articulate findings in terms specific enough for a reviewing court to determine the basis for the order”).
In her decision on the defendant’s motion for a new trial, the judge stated, “[t]he defendant moved for a mistrial despite the fact that the jury had not been empaneled. [The defendant’s attorney] never asked the court to dismiss the venire and recommence jury selection.” It seems reasonable to assume that in requesting a mistrial at the time he did, the defendant’s attorney was, in effect, requesting that jury empanelment begin again. In any event, given the defendant’s objection to the empanelment procedure that had taken place, recommencing jury selection would have been the appropriate response.
The defendant’s counsel expressly testified that he was not aware that a “blanket” closure would occur. Additionally, the court officer testified that on the fourth day of empanelment, June 21, 2007, the defendant’s counsel approached him and asked, “Has that sign been up?” The asking of the question suggests that counsel had only recently become aware of the sign.
As to waiver, we repeat that the defendant raised his claim of Sixth Amendment public trial violation as soon as he said that he became aware of the “Do Not Enter” sign, and at a time when the violation could have been remedied by beginning the empanelment process anew. Cf. Commonwealth v. McDuffee, 379 Mass. 353, 359 (1979) (noting that “the rationale behind the requirement of a specific exception is to enable the judge to make any necessary correction”). Cf. also Commonwealth v. Reid, 384 Mass. 247, 257-258 (1981) (where defendant did not object to portion of jury charge challenged on appeal, she failed to preserve issue, given rule that party claiming error in charge must bring it to judge’s attention to permit judge to correct error, if any). There may well be tactical reasons — a favorable jury composition, for example — why a defendant and his counsel do not object to the exclusion of the public from his trial. See Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir. 1979) (finding waiver where “petitioner’s attorney was caught on the horns of a dilemma at the time he discovered that the [court room] doors were locked. He felt that the case was proceeding well and saw no harm suffered by the petitioner due to the closed court room. In fact, he felt that the effect was probably to petitioner’s benefit. If a motion for mistrial were made and granted, then what was perceived at the time as a good chance for acquittal would go down the drain. Counsel fully explained the situation to petitioner, told him what his decision was and then informed his client that ‘at any time he wanted to’ he could get up and object himself, which petitioner did not do”). Cf. Commonwealth v. Edward, 75 Mass. App. Ct. 162, 174 (2009) (remanding for hearing to determine whether counsel had sound tactical reason for declining to object to partial closure of court room during complainant’s testimony and whether defendant agreed). Failure of a defendant or his counsel to raise an objection when first made aware of an alleged public trial right violation is, at the very least, a strong indication of waiver. See Commonwealth v. Wells, 360 Mass. 846 (1971).
We find no indication in the record that the defendant moved for a required finding of not guilty with respect to the charge of filing a false police report. We discuss this point infra.
“Whoever, directly or indirectly, willfully endeavors by means of a gift, offer or promise of anything of value or by misrepresentation, intimidation, force or express or implied threats of force to influence, impede, obstruct, delay or otherwise interfere with any witness or juror in any stage of a trial, grand jury or other criminal proceeding or with any person furnishing information to a criminal investigator relating to a violation of a criminal statute of the commonwealth . . . shall be punished . . . .”
In 2006,
Neither the statement the defendant asked Kelly to adopt, nor a subsequent statement that Kelly prepared herself, was introduced in evidence at trial. Thus, our knowledge of the contents of those statements is limited to the testimony, which sheds little light, other than to indicate that Kelly believed the statement the defendant asked her to sign contained misrepresentations about what happened at the bank on April 30, 2002.
Sexton’s statements were not introduced in evidence, but were marked for identification. As with Kelly, our knowledge of the substance of the statements comes solely from Sexton’s testimony.
The defendant was not in uniform when he met Sexton at the restaurant and Sexton testified that he and the defendant agreed that the defendant was not meeting with him “as a police officer or as an attorney.” However, Sexton also testified that, at the time, he knew that the defendant was a Stoughton police officer.
The defendant does not challenge the sufficiency of the evidence regarding the “witness” element of this crime, i.e., that both Kelly and Sexton were to be witnesses against him.
The defendant claims that because the judge instructed the jury on two “theories” of witness interference — interference by means of intimidation and interference by means of misrepresentation — and the jury returned general verdicts, the evidence had to establish both that he (1) intended to intimidate and (2) made intentional misrepresentations to both Jamie Kelly and Brian Sexton. The defendant objected to the Commonwealth’s request to charge the jury on a misrepresentation theory, but he did not request a specific unanimity instruction. Even if he had, it is not at all clear that he would have been entitled to one. See, e.g., Commonwealth v. Santos, 440 Mass. 281, 289 (2003) (“While it may be difficult to construct a precise definition identifying those alternate ‘theories’ that will require specific unanimity, it is clear that the rule does not automatically extend to every alternate method by which a single element may be established. As here, those alternatives are often closely related, and no purpose would be served by requiring the jury to dissect the evidence and agree as to which related, or even overlapping, variant of the same element had been proved”). In any event, there was sufficient evidence in this case of both intimidation and misrepresentation.
As previously stated, there is no indication in the record that the defendant preserved his claim of error regarding the sufficiency of the evidence on the false police report charge, although the Commonwealth does not raise the point. We review the claim for a substantial risk of a miscarriage of justice. Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
In Sexton’s first statement he said he never saw a knife in Hills’s office. In his second statement, the one crafted with the defendant’s help, Sexton said, “I know for a fact that a knife referenced in David Cohen’s report was a black handled letter opener that did resemble a knife, and it was, in fact, in Mr. Hills pen holder, and if Mr. Hill[s] was standing beside his desk, it was placed on the left side of the desk.” From Sexton’s testimony, a jury could reasonably infer that the defendant falsely reported that Hills had a knife and tried to cover up that untruth by helping Sexton to “remember” seeing a letter opener that looked like a knife. An inference of intent drawn from circumstantial evidence “need only be reasonable and possible and need not be necessary or inescapable.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980).
HiIls testified that he did not become irate, that he did not have a knife in his office, and that the defendant did not at any time call for backup or unhook his mace can or gun.
The defendant claims the judge made matters worse by stating that a “malicious threat is criminal if it was intended to enforce the payment of a just debt.” Immediately after making that statement, the judge clarified what she meant, stating: “Again, a malicious threat is criminal even if it was intended to enforce the payment of a just debt; that is, money that the victim rightfully may have owed. If you find the threat to be malicious as I have just described, then such threat is criminal even if the alleged victim actually owed a debt to another person” (emphasis added). In the context of the entire instruction, the judge correctly stated the law. Cf. Commonwealth v. Coolidge, 128 Mass. 55, 59-60 (1880) (no error in instruction that “threat, made by one whose goods had been stolen, that he would prosecute the supposed thief . . . could not be considered as made maliciously, and with intent to extort property, unless there were other proofs of malice and intended extortion” [emphasis added]).
The defendant sought an instruction to the effect that in evaluating whether a police officer acted maliciously, the jury must “presume that the acts of [the defendant], being a police officer, were done legally, in good faith, and within the scope of his official duties.” Such an instruction would effectively immunize police officers from conviction. The judge did not err in declining to give it.