Supreme Judicial Court (April 15, 2011)

A conviction of threats to commit a crime, in violation of G.L. c. 275, § 2, does not require proof that the recipient of the threat is also the victim of the threatened crime.

The statute that criminalizes witness intimidation, G.L. c. 268, § 13B, is ambiguous. It is the legislature's province to clarify the law, particularly as it relates to retaliatory conduct.

The defendant left a voicemail message for his probation officer implying that he could harm her young daughter physically or sexually. The probation officer contacted police, saying that she was worried and concerned for her daughter's safety. The police charged the defendant with threats to commit a crime, in violation of G.L. c. 275, § 2, and witness intimidation, in violation of G.L. c. 268, § 13B.

The defendant moved to dismiss the complaint of witness intimidation. He claimed that his message made no direct threat against the probation officer, and that, at the time he left the message, there was no ongoing criminal investigation or proceeding. A District Court judge denied the motion to dismiss.

The defendant also moved to compel the Commonwealth to specify the crime he allegedly threatened to commit; the Commonwealth replied that he had threatened the probation officer with the sexual molestation of her daughter. At trial, the judge denied the defendant's motion for a required finding of not guilty on both charges, and the jury found him guilty of both crimes. The defendant appealed, and the SJC granted the defendant's application for direct appellate review.

Threats to commit a crime, G.L. c. 275, § 2:
"If complaint is made to any court or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant."

The defendant argued that, for a valid conviction under G.L. c. 275, § 2, the recipient of the threat must be the same person as the intended target of the threatened crime. He alleged that the Commonwealth failed to present sufficient evidence to sustain the conviction because, in the complaint and at trial, the Commonwealth designated the probation officer as the target of the threat and the daughter as the target of the threatened crime.

The Court noted that, while in many cases the target of both a communicated threat and threatened crime are the same, the Appeals Court has found "that the threat may be communicated to an intended target by way of a third-party intermediary, but only where it is shown that the defendant intended the threat to reach the target." Commonwealth v. Maiden, 61 Mass. App. Ct. 433 (2004). In this case, however, the Commonwealth did not pursue an "intermediary" theory; instead it argued that the probation officer was the direct target of the threat.

The Court, as a matter of first impression, had to consider "whether the recipient of the threat must always be the victim of the threatened crime." The Court examined the language of the statute and concluded that it does not require "an identity between the target of the threat and the target of the threatened crime." The Court concluded there was sufficient evidence to support the jury's finding that the defendant threatened the probation officer.

Witness intimidation, G.L. c. 268, § 13B, in pertinent part:
"Whoever, directly or indirectly, willfully (a) threatens…or (c)…intimidates or harasses another person who is:…(iii) a…probation officer…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 defendant argued that there was no criminal investigation or proceeding pending at the time he left the voicemail message (he had just been released from serving a one-year sentence for a probation violation). The Commonwealth argued that section 13B includes conduct intended to retaliate against a probation officer for past criminal proceedings.

After reviewing section 13B (as well as a prior version of that section, which was in effect until 2006), the Court concluded that the statute is ambiguous as it relates to the question of retaliatory conduct. Noting that the Court "cannot interpret an ambiguous statute in a manner that disadvantages a criminal defendant," the Court reversed the defendant's witness intimidation conviction and invited the legislature to clarify the ambiguity.