45 Mass. App. Ct. 797 | Mass. App. Ct. | 1998
Marcus McCreary, a fourteen year old boy, was to be tried in Juvenile Court in Springfield for trespass on May 25, 1995. His father, the defendant Michael McCreary, was convicted in District Court after a trial before a jury of six on a charge of interfering by intimidation with a witness in his son’s case. See G. L. c. 268, § 13B.
On the second floor of the Old Springfield Courthouse, outside a Juvenile Court session, Ronald Sheehan, a Springfield police officer, was waiting to testify for the government against Marcus McCreary. Sheehan was in plain clothes. The defendant, a man of imposing physical presence, approached Sheehan, who himself stood six feet, one inch tall and weighed 215 pounds, and asked him whether he was the officer who had arrested his son. Sheehan allowed that he was, whereupon the defendant moved close to Sheehan and said, “You threatened to kick my son in his head didn’t you. You want to kick somebody in the head, come look for me and try to kick me in my head. I’ll kick you in your head.” Another witness remembered the defendant as having said, “You kicked my son in the head; how would you like it if I kicked you in the head?” The defendant tensed up and, for his part, Sheehan grew “red and flush,” began to feel panic, and claimed to have been “petrified.” An assistant district attorney, Cheryl Rivera, who had observed the encounter, defused the situation by walking between the two men, taking Sheehan by the arm, and saying, “Can I speak to you for a moment officer?” She then led Sheehan downstairs to the first floor landing. The defendant was known to court officers as “extremely combative.”
So far as material, G. L. c. 268, § 13B, as appearing in St. 1970, c. 177, provides: “Whoever, directly or indirectly, willfully endeavors by means of . . . intimidation, force or threats of force, to influence, impede, obstruct, delay or otherwise interfere with any witness or juror in any stage of a trial or
Assuming intimidation by the defendant of Sheehan, for which there was ample evidence, the question remains whether the intimidation of Sheehan was by virtue of his role as a witness. Or, as the defense has urged, was the defendant McCreary simply venting his anger against Sheehan for something Mc-
In all those cases, it required no stretch of imagination to infer that the defendant was attempting to influence the target in a witness or juror capacity. Here what McCreary said and did is less obviously related to Sheehan’s functioning as a witness. The place, time, and circumstances of McCreary’s approach, however, bring his conduct within the scope of the statute. Sheehan was a witness and McCreary knew that, McCreary’s son having identified Sheehan. The place of approach was right outside the courtroom in which McCreary’s son was to be tried,
McCreary argues that the prosecutor misstated the evidence in his closing argument by stating that the trial of McCreary’s son had not gone forward that day. The prosecutor’s two isolated remarks to that general effect did not distort the evidence. Much of the trial concerned the fight between McCreary and various police and court officers. It was reasonable to infer that with Sheehan thus engaged, the trial of McCreary’s son did not proceed on schedule. Perhaps more to the point, whether the trial proceeded on schedule is material but not critical to a violation of G. L. c. 265, § 13B; the statute requires only that the defendant shall have endeavored to impede or interfere with a witness.
Judgment affirmed.
The defendant was also tried on two counts of assault and battery on two police officers, a count of assault and battery on a public servant, and a count of disorderly conduct. The jury returned verdicts of not guilty on the complaints of assault and battery and failed to reach a verdict on a charge of disorderly conduct. The trial judge declared a mistrial as to that count.
What happened next had both ugly and Keystone Cops aspects. Sheehan, not content to write off the defendant McCreary’s remarks and body language as the fulminations of an irate father, went down the rest of the stairs to the first floor and rounded up a posse to place McCreary under arrest. McCreary resisted formidably. One of the officers gave McCreary a whiff of mace but that caused McCreary to bolt rather than submit. There was a furious struggle during which one officer, attempting to put McCreary in leg irons, managed in the confusion of limbs to manacle Officer Sheehan instead. Before the arrest of McCreary was over, he had been severely beaten and injured. That is the background of the assault and battery and disorderly conduct charges on which the jury did not convict the defendant.
The statute was further amended by St. 1990, c. 369, and St. 1996, c. 393, §§ 2 to 4. The 1990 amendment dealt with the sanctions for violation of the statute; the 1996 amendments introduced matter not material to the case before us and, in any event, do not apply to it because the events occurred before the 1996 amendments.
The Federal provisions analogous to those which appear in G. L. c. 268; § 13B, now appear in 18 U.S.C. § 1512(b) (1994). Section 13B of c. 268 also proscribes interference with witnesses through gift, offer, promise of anything of value, or through misrepresentation, i.e., bribery. A Federal analog appears as 12 U.S.C. § 1510.
We reversed the conviction in that case because the jury instructions on § 13B were not correct.
Indeed, in the Gordon case, the defendant admitted an intent to influence the target, but he denied intimidation.