BOTSFORD, J.
After he left a voicemail message for a probation officer in which he implied that he could cause harm to her young daughter, the defendant, Kenneth G. Hamilton, was charged by complaint and subsequently convicted by a jury of threatening to commit a crime, in violation of G. L. c. 275, § 2,
1. Background. The evidence at trial would have warranted the jury in finding the following facts. In February of 2007 in the Cambridge District Court, the defendant was convicted of assault and battery on a person over sixty years old, assault and battery on a police officer, and disorderly conduct; he was sentenced to probation on all three convictions. He signed a probation contract on February 28, 2007. He violated the terms of his probation soon thereafter, and at a final probation surrender hearing on March 28, 2007, the probation officer assigned to supervise the defendant (probation officer), recommended that the defendant's probation be revoked and that he be committed to a one-year sentence in a house of correction. The judge found the defendant in violation, revoked his probation, and adopted the probation officer's sentencing recommendation. He sentenced the defendant to one year accordingly.
On January 3, 2008, after his release, the defendant left a message on the probation officer's voicemail at her office. The message stated in part:
The probation officer understood the defendant to have made a threat to cause harm to her daughter in a physical or sexual manner. She was "upset," "worried," and "concerned for the safety of her daughter," in light of the defendant's history, and she acted with "motherly instinct" in deciding to contact the police. She believed that the defendant had the ability to cause a "predator," even though presently confined at a house of correction, to harm her daughter on such an individual's release. Before this incident, she had believed her office was a safe place for her children to visit, but after the incident she stopped bringing them to work with her.
On January 9, 2008, a criminal complaint issued against the defendant in the Cambridge District Court.
At trial, the Commonwealth presented the testimony of the police detective who had investigated the case and of the probation officer, and a copy of the recorded voicemail message was entered in evidence; the defendant presented his case through cross-examination and argument. At the close of the Commonwealth's case, the trial judge denied the defendant's motion
2. Threatening to commit a crime. The defendant bases his claim that the evidence was insufficient to sustain his conviction of threatening to commit a crime under G. L. c. 275, § 2, on the premise that for a valid conviction, the target of the threat must be the same person as the intended target of the threatened crime. In this regard, he argues that the only target of the threatened crime in this case was not the probation officer but her daughter, and that the Commonwealth therefore incorrectly designated the probation officer as the victim in the complaint and throughout trial. He further contends that while one may commit the crime of threatening by conveying a threat to a third-party intermediary with the intent that the threat will be communicated to the actual target, the evidence offered by the Commonwealth at trial was insufficient for a jury to find that the defendant intended that the alleged threat in the voicemail message reach the daughter. Accordingly, he asserts, the Commonwealth failed to provide the evidence necessary to support a conviction.
In reviewing a denial of a motion for a required finding of not guilty, we consider "whether the Commonwealth produced enough evidence, taken in the light most favorable to the Commonwealth, to satisfy any rational trier of fact beyond a reasonable doubt that each element of the crime was present." Commonwealth v. Hilton, 398 Mass. 63, 64 (1986), citing Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). We begin with the statute defining the offense of threatening to commit a crime. General Laws c. 275, § 2 (§ 2), provides:
"The elements of threatening a crime include an expression
By its terms, the language used in § 2 requires a threat (against
This construction is consistent with the court's interpretation of similar language in G. L. c. 265, § 25, a statute defining the crime of attempted extortion.
Id. at 601-602. See United States v. Mavroules, 813 F.Supp. 115, 120 (D. Mass. 1993), and cases cited (violation of G. L. c. 265, § 25, is shown by [1] malicious threat [2] made to named person [3] of personal injury to some one [4] with intent to extort money, but "`named person' to whom the threat is made and the `some one' to be injured need not be the same person").
Turning back to § 2, there was evidence presented at trial in this case to support a finding by the jury that the defendant meant to express to the probation officer his intention to commit a crime against her daughter, that he had the ability to commit such a crime, and that the circumstances reasonably warranted apprehension on the part of the probation officer. See Commonwealth v. Sholley, 432 Mass. at 724-725. In particular,
It is true that the judge's instructions to the jury did not make clear that the alleged victim of the threat and of the threatened crime need not be the same person; fairly read, they indicate the opposite. The judge stated:
While this instruction may have caused some confusion for the jury, we do not think it was detrimental to the defendant. The two elements laid out by the judge in this instruction were that (1) the defendant communicate an intent to injure the probation officer, the alleged victim; and (2) the defendant threaten her with an injury that, if inflicted, would qualify as a crime. The effect of the judge's description of the first element was to place a burden on the Commonwealth not only to prove that the
Following the judge's instructions, in order to find the defendant guilty, the jury in effect had to find that the probation officer was threatened with some type of harm or injury to herself distinct from the allegedly threatened crime against the person of her daughter. An intent to inflict a separate injury on the threat recipient is not required by § 2. The defendant, however, was not prejudiced, because the extra burden imposed by these instructions fell on the Commonwealth. There was no error requiring reversal of the defendant's conviction of threatening to commit a crime.
3. Intimidation of a probation officer. The defendant was also convicted of violating G. L. c. 268, § 13B, appearing in St. 2006, c. 48, § 3 (§ 13B).
As he did in his motion to dismiss filed before trial, the defendant argues that § 13B requires that the threatening, intimidating, or harassing conduct proscribed by the statute be intended to interfere in some way with an open or ongoing criminal proceeding. The Commonwealth, however, takes the position that § 13B clearly reaches threatening or intimidating
Section 13B criminalizes intimidating behavior intended to "impede, obstruct, delay, harm, punish or otherwise interfere thereby with" certain types of criminal proceedings (emphasis added). As a matter of statutory construction, "ordinarily the coupling of words denotes an intention that they should be understood in the same general sense." 2A N.J. Singer, Sutherland Statutory Construction § 47:16, at 352-353 (7th ed. 2007) (describing interpretive maxim of noscitur a sociis, i.e., "it is known by its associates"). "Otherwise," in its ordinary dictionary sense, means "in a different way or manner." Webster's Third New Int'l Dictionary 1598 (1993). To "otherwise interfere thereby with" therefore means to "interfere" but "in a different way or manner"; this meaning suggests that the preceding words in the statute — to "impede, obstruct, delay, harm, [or] punish" — must all be different ways of interfering with a criminal proceeding.
The language of § 13B that we have quoted here dates from revisions intended to reduce gang violence. See St. 2006, c. 48, preamble. The previous version of the section provided in relevant part:
G. L. c. 268, § 13B, as amended through St. 1996, c. 393, §§ 2-4.
Thus, prior to the 2006 amendment, § 13B separately criminalized two discrete types of misconduct: "(1) interference, actual or threatened, with a witness or juror during the pendency of a criminal proceeding, and (2) physical injury to person or property undertaken in retaliation for testimony given at a criminal proceeding, regardless of when such acts are carried out" (emphasis in original). Commonwealth v. Cathy C., 64 Mass.App.Ct. 471, 472 (2005). In this version of § 13B, it is clear from the sentence structure that the objects of the verbs, "influence, impede, obstruct, delay or otherwise interfere with," were "any witness or juror in any stage of a ... criminal proceeding, or ... any person furnishing information to a criminal investigator." This language has been interpreted to
As revised in 2006, § 13B applies to one who threatens, bribes, misleads, intimidates, or harasses anyone belonging to any of five categories of protected persons "with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby with a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type." § 13B (1) (c) (v).
The history of § 13B suggests that in revising it in 2006, the Legislature may have intended to combine the two previously discrete forms of misconduct as well as to broaden the classes of persons protected and the types of behavior to be criminally sanctioned. Along these lines, the Commonwealth argues that the section should be read to proscribe certain conduct specifically intended to "impede," "obstruct," "delay," "harm," or "punish" certain protected persons, and, separately, conduct intended to "otherwise interfere thereby with" a criminal proceeding. But, even if we can guess at the legislative intent, as a matter of statutory construction, we cannot supply words the Legislature chose not to include. See Brockton Edison Co. v. Commissioner of Corps. & Taxation, 319 Mass. 406, 411 (1946), quoting Ellis v. Paige, 1 Pick. 43, 45 (1822) ("It is a well settled rule, that when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled"). See generally Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 n.3 (1986) (function of court to construe statute as written and not to read into it provisions Legislature did not put there). We also will not adopt a reading of § 13B that renders the word "otherwise" entirely superfluous.
At best, as indicated at the outset of our discussion, the meaning of the verbs "harm" and "punish" in § 13B, as applied to a proceeding, is ambiguous, and we cannot interpret an ambiguous statute in a manner that disadvantages a criminal defendant. See Commonwealth v. Burton, 450 Mass. 55, 59-60 (2007) (where court is "unable to determine" what Legislature intended by amendment, "uncertainties in criminal statutes" may not be resolved in Commonwealth's favor). See also Commonwealth v. Rahim, 441 Mass. 273, 284 n.19 (2004), quoting Commonwealth v. Carrion, 431 Mass. 44, 45-46 (2000) (rule of lenity requires that defendant receive benefit of ambiguous statutory language). Cf. Commonwealth v. Spearin, 446 Mass. 599, 604 (2006) ("Criminal statutes, of course, are to be strictly construed").
4. Other claims. The defendant points to four other errors that either alone or in combination require reversal of his convictions. We find no error that warrants reversal.
First, the defendant argues that his motion in limine requesting preclusion of prior bad acts evidence should have been granted. The judge denied the defendant's motion after listening to oral arguments on the relevance of the prior bad acts as well as the potential prejudice to the defendant. The judge permitted the Commonwealth to identify the defendant's prior convictions but excluded evidence of the underlying facts in light of their "inflammatory value." In her testimony, the probation officer identified the convictions that gave rise to the defendant's probationary sentence. The judge later instructed the jurors that they could consider the prior convictions "only on the limited issue" of "what the defendant's intent was in making this call, and whether the defendant had the ability or intention to carry out any threats that ... you may find he made, if you find them." But in response to a question from the jury, the judge later clarified:
The defendant charges error in the admission of the prior convictions, and claims the judge's instructions compounded the error by encouraging jurors to consider his propensity to commit crimes.
The question is close. "Evidence of a defendant's prior or subsequent bad acts is inadmissible to demonstrate bad character or propensity to commit the crime charged." Commonwealth v.
We acknowledge that the line between considering prior convictions as evidence of a defendant's propensity for further criminal action, and considering such evidence on the question of a person's reasonable apprehension of a defendant's capacity to carry out a threatened crime, is indeed a thin one; the need for a judge to weigh the probative value of the evidence against its prejudicial potential is great. See Mass. G. Evid. § 403 (2011). Here, the judge appeared to follow such a course: in an effort to limit the prejudice to the defendant, he restricted the evidence to the fact of the defendant's convictions, and did not permit the Commonwealth to introduce evidence concerning the underlying crimes. The judge's initial instruction to the jury was erroneous, because it appeared to permit the jury to use the fact of the defendant's prior convictions to demonstrate capability and propensity to carry out his alleged threat. However, the judge's specific clarifying instruction, given in response to the jury's question, properly directed the jury to limit their use of the evidence to the probation officer's reasonable beliefs about the defendant's ability to carry out threats, not his propensity to commit crimes. Cf. Commonwealth v. Cormier, 427 Mass. 446,
Second, the defendant argues the probation officer was improperly permitted to testify concerning the defendant's prior convictions in the absence of a certified copy of them. See Commonwealth v. Puleio, 394 Mass. 101, 104 (1985) (conviction intended to impeach witness must be proved by court record or certified copy). The rule in the Puleio case, however, does not apply here. The prior convictions in this case were not intended to impeach a witness, but, as just discussed, went to the issue whether the defendant's threat occurred "in circumstances that would justify apprehension." Commonwealth v. Sholley, supra at 725.
The defendant's third claim is that both witnesses at trial, the investigating detective and the probation officer, improperly gave an opinion as to the ultimate issue of the defendant's intent. The defendant contends that it was solely the jury's province as fact finders to determine whether the defendant intended to threaten the probation officer or her daughter. We agree the detective should not have been allowed to testify that he "interpreted" the message to be a "threat."
With regard to the defendant's related argument concerning the probation officer's testimony, it is true that the probation officer at one point testified that she knew what the defendant's intent was. But the statement was made in response to a question put to her by defense counsel on recross-examination, and it did not concern the defendant's intent to threaten her but rather his intent in contacting her, supposedly, to complain about the probation fees. The probation officer answered, "No one knows what his intentions were but himself," to the follow-up question.
Last, the defendant argues that he was prejudiced by the probation officer carrying a file into the court room during trial and handing the file to the court officer.
5. Conclusion. With respect to the first count of the complaint, threat to commit a crime in violation of G. L. c. 275, § 2, the judgment of conviction is affirmed. With respect to the second
So ordered.
In memoranda and orders issued pursuant to its rule 1:28, the Appeals Court implicitly has assumed that a person might be threatened with a crime against another, typically a family member. See, e.g., Commonwealth v. Gega, 77 Mass.App.Ct. 1121 (2010) (communications, including electronic mail message stating, "At the end your nice children will pay," threatened victim and family); Commonwealth v. Dupont, 58 Mass.App.Ct. 1111 (2003) (threat adequately communicated where victim "heard the threat and was the intended recipient of a threat to commit a crime against his family").
General Laws c. 265, § 25, was revised in 1932 and again in 1953. See St. 1932, c. 211; St. 1953, c. 294. Neither amendment affected the portion of the statute that is quoted in the text, and that was at issue in Commonwealth v. Snow, 269 Mass. 598, 601-602 (1930).
In other words, the proposed statute would have criminalized certain actions taken with an "intent to influence, impede, obstruct, delay, harm, punish, or otherwise interfere with" certain proceedings or certain classes of people. During the reconciliation process, for reasons that are not apparent, the provision was amended to read:
2006 Senate J. 1497-1498. After this change, the proposed section would criminalize certain behavior against certain people with the intent to "impede, obstruct, delay, harm, punish or otherwise interfere thereby with" certain proceedings but not persons. Id. This amended version was enacted into law. See § 13B, as appearing in St. 2006, c. 48, § 3.
In 2009, this court interpreted § 13B as directed at proceedings within the criminal justice system only. See Commonwealth v. Gallant, 453 Mass. 535, 542 (2009). Presumably in response, the Legislature amended § 13B in 2010, expanding the types of "proceeding" covered by the statute to include a variety of civil and juvenile proceedings. See St. 2010, c. 256, § 120. See note 11, supra.