Appeals Court (April 7, 2010)

The witness intimidation statute amended in 2006, G.L. c. 268, § 13B(1)(c), as appearing in St. 2006, c. 48, § 3, does not require that the defendants' acts, words or intentions of intimidation actually frighten the potential witness and make the witness reluctant to testify.

A police officer observed the defendant and others punching the victim and demanding his money. As the officer approached, the defendant yelled to the victim in a "clear" and "decisive" tone, "we were just joking around right?" A jury found the defendant guilty of intimidation of a witness and assault. The defendant challenged the intimidation conviction, arguing that the victim was not made afraid and reluctant to testify. Specifically, the defendant argued that the 2006 amendments to G.L. c. 268, § 13B, which omitted the word "endeavors," now requires that the intimidating words or conduct be successful.

Prior to the 2006 amendments, G.L. c. 268, § 13B read in pertinent part: "Whoever, directly or indirectly, willfully endeavors by means of…intimidation…to influence, impede, obstruct, delay or otherwise interfere with any witness…shall be punished…." (Emphasis added). The amended statute reads in pertinent part: "Whoever, directly or indirectly, willfully…intimidates…another person who is…a witness or potential witness…shall be punished…." G.L. c. 268, § 13B(1)(c)(i)(v), appearing in St. 2006, c. 48, § 3.

In reviewing the statutory language and the Legislature's intent, the Court noted that the 2006 amendments were enacted in response to a "new wave" of gang violence and witness intimidation. Consequently, the 2006 amendments expressly expanded the scope of G.L. c. 268, § 13B - the methods of intimidation, the class of victims and the criminal proceedings covered by the statute were all enlarged. Additionally, the Court examined the prior statute's case law and found that it did not require that the intimidation be successful. The Court, therefore, found that it is not necessary "to establish that the intimidation was successful in the sense that the target of the intimidating conduct was actually frightened and made reluctant to testify."