Probation officer charged with intimidating witness

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 shall be punished . The Commonwealth, however, takes the position that § 13B clearly reaches threatening or intimidating Page 432 conduct intended by the actor to retaliate against or "punish" a probation officer on account of even past criminal proceedings. Section 13B criminalizes intimidating behavior intended to "impede, obstruct, delay, harm, punish " certain types of criminal proceedings (emphasis added).

." 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.

probation officer charged with intimidating witness-44probation officer charged with intimidating witness-31

Probation officer charged with intimidating witness

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. The jury also heard the probation officer testify that she feared that imprisoned sexual predators, once released, might be able to harm her daughter. [Note 13] However, "harm" [Note 14] and "punish" [Note 15] do not normally suggest possible types of interference with a "proceeding," whether Page 433 concluded or not. 109, 115 (2008) (where statute unclear, appropriate to look to statute's prior versions, development, and progression through Legislature).

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"). The jury heard the defendant say on the recording that he had talked to "predators" while incarcerated. [Note 12] As applied to a "proceeding," the earlier listed verbs -- "impede, obstruct, [and] delay" -- as well as the later verb phrase, "otherwise interfere with," would seem to apply meaningfully only to proceedings that have not yet concluded. The previous version of the section provided in relevant part: "[1] 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, and [2] whoever injures any person or damages his property on account of the giving of such information to a criminal investigator or on account of testimony given at a trial, grand jury or other criminal proceeding, shall be punished .

There was no error requiring reversal of the defendant's conviction of threatening to commit a crime.

The defendant, however, was not prejudiced, because the extra burden imposed by these instructions fell on the Commonwealth.

On January 3, 2008, after his release, the defendant left a message on the probation officer's voicemail at her office. On my return, I noticed that you had cashed a check that I had written out for [ninety dollars] on March 7. [Note 3] Prior to trial, the defendant moved to dismiss the witness intimidation count of the complaint on the grounds that the defendant's message made no direct threat against the probation officer, and there was no criminal investigation or criminal proceeding pending at the time he left the message.

The message stated in part: "[T]his is Kenneth Hamilton. A judge in the District Court (motion judge) denied the motion.

Consistent with these instructions, the prosecutor argued in closing that the defendant communicated to the probation officer an intent to harm her emotionally by causing her daughter to be the victim of an attack by "predators" -- that is, that the daughter would be the victim of 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 Page 431 defendant communicated a threat to the probation officer, but also that in so doing, he intended to inflict an injury to her or her property.

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.

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