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What is a Threat to Commit a Crime?

The contours of the crime of threat to commit a crime are explored in Commonwealth v. Leonardo L. (a juvenile) (Massachusetts Appeals Court No. 20-P-645, August 4, 2021).

In Leonardo, the thirteen-year-old defendant, during a meeting with a school vice principal, stated of one of his teachers, while agitated and in a loud voice: “The teacher makes me so angry!  I want to kill that b**ch.” Leonardo was known generally to be quick to anger and difficult to diffuse. The teacher was fearful of Leonardo. Based upon the statement, Leonardo’s character, and the teacher’s apprehension, the authorities charged Leonardo with threat to commit a crime. The Appeals Court considered whether the allegations were sufficient to amount to threat to commit a crime. 

Note that the “threat” was a statement of desire rather than of intended future action (“I want to . . .”); the “threat” was not made to the intended target; and there was no suggestion that Leonardo was prepared actually to commit or attempt murder.

The Appeals Court explained: A criminal threat occurs “[one,] when someone expresses an intention to inflict a crime on another, [two,] has the ability to carry out that crime, [three,] causes the victim to fear harm, and [four,] does so in circumstances that make the victim’s fear justifiable  . . . In analyzing [whether a statement is a] threat, [a court] . . . consider[s] the entire context in which a statement is made, including the [speaker’s] actions and demeanor at the time, and prior communications between the [speaker] and the recipient.”

Intent: The court concluded that Leonardo did express an intent to inflict a crime upon his teacher: He was angry when he uttered words of harm and expected the assistant principal to communicate his words to the teacher.

Ability: The court concluded that the teacher’s apprehension was sufficient to establish that Leonardo was with the ability to at least attempt to carry out the crime of murder.

Fear of Harm: Here, the court explained that all that was required was the teacher’s actual apprehension that Leonardo might cause or attempt to cause her harm.

Fear is Justifiable: Here, the court explained that justifiable fear is fear that the speaker may attempt to commit the threatened crime, not necessarily fear that the crime will be accomplished. Here too, the teacher’s actual apprehension satisfied the requirement of justifiable fear.

It is interesting that the requirement that the government prove the speaker possesses “the ability to carry out th[e] crime,” seems to be a given--since murder can be accomplished in any number of ways, this element seemingly would be meaningful only if the speaker made a statement of the impossible (e.g., “I will kill you yesterday” or “I will kill you when we meet on Mars.”). 

The Moral of the Story: Be very careful of what you say when you’re angry. 

image courtesy: wayhomestudio

The Limits of an Automobile Stop

In Commonwealth v. Soriano-Lara (Massachusetts Appeals Court No. 19-P-1311, May 7, 2021), the defendant was stopped after failing to signal when moving to a left-turn only lane. The defendant produced a license and registration. A passenger explained that the car belonged to her mother. The defendant provided an address other than on the license (though nearby to the license address).

The trooper returned to the cruiser and confirmed that both the license and registration were valid and the car had not been reported stolen. 

When the trooper returned to the car, he asked the driver where he was coming from and during the questioning noticed that the car’s center console appeared to have been manipulated. From his experience, the trooper knew that the center console is frequently used to conceal drugs and drug paraphernalia. The trooper asked the defendant to step out of the vehicle and asked him questions about his identity that the defendant could not answer. He put the defendant in the cruiser and the then discovered drugs in the console.

The issue before the court was whether the trooper was justified--after returning the to car--in inquiring about the defendant’s recent whereabouts. The court explained that while the trooper was justified in continuing inquiry into the defendant’s identity, he was not justified in inquiring into the defendant’s recent activities--because that questioning was not related to the defendant’s identity--and it was during that questioning that the defendant observed the questionable console. In particular, the court explained:

Citizens do not expect that police officers handling a routine traffic violation will engage, in the absence of justification, in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure in the hope that, sooner or later, the stop might yield up some evidence of an arrestable crime.

In this instance, because the stop was unnecessarily prolonged and it was during the prolonged period that evidence was discovered, the evidence should be suppressed--that is--not used in prosecuting the defendant.

Interestingly, the court noted that had the trooper’s questioning been limited to the defendant’s identity and it was during that questioning that the manipulated console was discovered, perhaps the evidence would need not be suppressed.

Never Take an Arrest for Granted--Part the Second">Designed by macrovector
In Commonwealth v. Daigle (Massachusetts Appeals Court No. 19-P-1215, January 25, 2021), discussed below, a more or less benign encounter with the police turned into a rather nightmarish event for Ms. Daigle, given the extent to which government prosecutors sought to torment Ms. Daigle.

In Commonwealth v. Fahey (Massachusetts Appeals Court No. 19-P-1487, March 15, 2021), the facts were not so innocuous but the prosecutor’s behavior was similar.

Mr. Fahey was convicted of murder in the second degree and he appealed, contending that the prosecutor’s conduct was outrageous. 

The Fahey court began: “[W]e agree with the defendant that a new trial is warranted based on the cumulative effect of the prosecutor's improper cross-examination and inflammatory closing argument. We therefore vacate the conviction."

The court described the standard applicable to prosecutors as follows:

[I]t ordinarily is improper for a prosecutor to suggest that a defendant "tailored" his testimony to conform with the evidence he heard at trial. [I]t is a fundamental principle that a witness cannot be asked to assess the credibility of his testimony or that of other witnesses. [A] prosecutor may not ask a defendant a question for which the prosecutor cannot reasonably expect the defendant to provide an affirmative answer in order to communicate an impression by innuendo. [I]t is generally error for the prosecutor to cross-examine the defendant about his failure to contact police and tell them about his alleged self-defense before his arrest. Finally, a prosecutor may not subject a defendant to questions that serve merely to harass, annoy or humiliate. A prosecutor's staying within such boundaries helps to ensure that a defendant receives a fair trial in which the jury dispassionately determine his or her guilt or innocence based on the objective facts. 

Describing this prosecutor’s cross-examination of the defendant, the court observed:

Here, the prosecutor’s questions went beyond proper cross-examination in all of the ways described above. For example, the prosecutor asked the defendant to comment on the veracity of other witnesses and suggested that the defendant was tailoring his testimony to that of the other witnesses . . . [T]he prosecutor asked, "So, you’re telling the truth and no one else is?" After the defendant answered, “Absolutely,” the prosecutor then asked, “[Isn’t it] convenient that [your story is similar to what] two other witnesses described last week?" [¶] [T]he prosecutor improperly posed numerous rhetorical questions that assumed a factual premise that the prosecutor knew the defendant denied . . . [¶]The prosecutor asked additional rhetorical questions to badger the defendant . . .  The prosecutor also asked the defendant if he "underst[oo]d how unbelievable [his testimony] sounds." . . . [¶] . . . The prosecutor [also] asked, "How often did you rehearse that line, Mr. Fahey?"

As to closing arguments in general, the court noted: “It is improper for a prosecutor to use insulting names designed to evoke an emotional, rather than a rational, response from jurors . . . The problem with such name-calling is not whether the labels are accurate, but instead is whether it amounts to an improper appeal for sympathy that risks obscuring the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt.”

The court described the closing argument: "[In addition to calling the defendant a 'bully' 13 times], the prosecutor excessively mocked the defendant's defense . . . us[ing] excessive rhetoric.” 

The moral of the very recent cases of Commonwealth v. Diagle and Commonwealth v. Fahey is that the government will not play fair. 

You need a competent and diligent attorney to look out for your interests. 

The Police "Privilege"

In Commonwealth v. Garvey (Massachusetts Appeals Court No. 19-P-1018, February 2, 2021), MBTA police officer Jennifer Garvey arrested a witness to an arrest that Officer Garvey performed--but in the end Officer Garvey became the subject of criminal investigation.

Facts: On March 26, 2014, Officer Garvey was assigned to the Dudley Station bus terminal in the Roxbury neighborhood of Boston. That afternoon, an MBTA bus inspector requested Officer Garvey’s assistance with a passenger who appeared to be intoxicated and was causing a disturbance. Officer Garvey found and escorted the passenger off the bus and directed her to a nearby bench and then called for assistance. Assisting officers arrived and assessed the situation and concluded that the passenger did not pose a threat to officer safety.

At this time Mary Holmes was walking towards Dudley Station when she observed Officer Garvey leaning over a bench and yelling at the removed passenger. Holmes was familiar with the passenger from her (Holmes) daily commute and attempted to calm the passenger. Holmes watched Officer Garvey shove the passenger to the bench when she stood. When the passenger attempted to take a drink from a vodka bottle, Officer Garvey aggressively slapped the bottle away from the passenger’s hand and lips, picked the passenger by her coat, and with the assisting officers placed the passenger in handcuffs. 

Holmes dialed 911 and asked officer Garvey for her badger number: Officer Garvey responded: “It’s 6-7-7, now get the f**k out of my way before I arrest you for impeding on an ongoing investigation.” Holmes moved somewhat but not sufficiently for Officer Garvey, who  began pushing Holmes and threatened to pepper spray Holmes if she did not move faster. While Holmes was walking backwards, Officer Garvey continued pushing her with one hand then pepper sprayed Holmes. A struggle followed. Officer Garvey used her baton to hit Holmes in the shins several times and ultimately forced Holmes to the ground. Holmes was taken to the MBTA police headquarters where she was charged with assault and battery on a police officer and held overnight until her court appearance the following morning. Officer Garvey prepared a police report “documenting” the events forming the basis for Holmes’ arrest and charges.

Unfortunately for Officer Garvey, the incident was captured by four MBTA public safety cameras located throughout the bus station and she ultimately lost her job over the incident and was convicted of two counts of assault and battery and two counts of filing a false police report.

Commentary: From a legal perspective, what is interesting about this case is that at trial, former Officer Garvey  argued that her use of force was justified by the “police privilege,” which the court explained “permits police officers to use reasonable and necessary force when carrying out their official duties.” If an officer is prosecuted for using excessive force, “the Commonwealth . . . [is] required to prove beyond a reasonable doubt that the [officer’s] use of force was not justified by this privilege.” According to the “police privilege,” if an officer commits an assault and battery “when carrying out his or her official duties,” the government must prove “beyond a reasonable doubt” that the assault and battery was unjustified.

When a civilian commits an assault and battery, the government need only prove beyond a reasonable doubt that the civilian committed an assault and battery. When a police officer commits an assault and battery, the government must prove beyond a reasonable doubt both that the officer committed an assault and battery and that the assault and battery was not permitted--that is--exceeded a “reasonable” amount of force under the circumstances.

Thoughts to Ponder

In Commonwealth v. Pearson (Massachusetts Supreme Judicial Court No. SJC-12930, February 12, 2021), the Massachusetts Supreme Judicial Court commented upon occasions when a police officer must testify to his or her intent at the time he or she took some earlier action. The court observed: 

"[Such occasions] could incentivize post hoc (viz. after-the-fact) attestations from police that they intended to [act appropriately despite their] . . . earlier unlawful conduct. The [United States] Supreme Court anticipated this concern in Murray v. United States, 487 U.S. 533, 540 n. 2 (1988), noting that "[t]o say that a . . . court must be satisfied that [officers later acted appropriately despite their earlier] illegal [conduct] is not to give dispositive effect to police officers' assurances on the point."

Never Take an Arrest for Granted

In Commonwealth v. Daigle (Massachusetts Appeals Court No. 19-P-1215, January 25, 2021), an officer stopped the defendant's car after the defendant failed to make a complete stop at a stop sign. Upon encountering the defendant the officer claimed to have detected an odor of alcohol and claimed to have  observed the defendant with  glassy eyes and slurred speech (the common trilogy). The officer asked the defendant to perform so-called field sobriety tests. The defendant advised the officer that she had had two prior knee surgeries (and at trial produced medical records documenting three knee surgeries).

The officer contended that--in attempting to walk a straight line heel to toe--the defendant permitted up to six inches between heel and toe and occasionally strayed from the straight line by one to two inches. The officer then asked the defendant to remove her high-heeled boot(s) and perform a one-leg stand--which the officer concluded the defendant was unable to perform (on the side of the road in bare feet in the cold).

The defendant was placed in handcuffs and--according to the defendant--she began to suffer a panic attack.

At the police station the defendant agreed to submit to a breath test but--perhaps due to the panic attack--was unable to deliver a sufficient breath sample. As the machine failed to read the samples she become more panicked and ultimately was unable to provide a sample sufficient to obtain a breath test result. She repeatedly asked to perform an additional test but the officer refused her requests.

At trial the Commonwealth offered the above evidence--and argued that the inadequate breath sample was an intentional attempt to conceal her inebriation and her agitation at being refused an additional opportunity to "take" the test was further evidence of inebriation. The Commonwealth also noted that the defendant's moon roof was open on a cold evening--evidence the Commonwealth contended was still further proof of inebriation.

For her part the defendant contended that the breath test machine the police used reported an unusually high number of refusals--suggesting that the issue was with the machine and not with the defendant.

In the end the evidence was an equivocal heel-to-toe test followed by difficulty standing on one bare foot in the cold on the side of the road--all by one with a questionable lower leg. No breath test was presented. This was the evidence. The Commonwealth contended that the inadequate breath sample was the defendant's effort to evade detection--yet the Commonwealth may have been aware that the particular machine reported an unreasonably high number of refusals (calling its reliability into question) and the defendant requested an opportunity to provide an additional sample or samples. Then there was the open moon roof . . . The jury convicted the defendant.

The moral of the story is the Commonwealth--even in the absence of compelling evidence of intoxication--will throw everything at a defendant--even if the evidence is not necessarily reliable (breath test refusal) or reasonable (open moon roof).

Never take an arrest for granted.

An All Too Troubling, and Too Common, Occurrence

In Commonwealth v. Lopez (Massachusetts Supreme Judicial Court No.12-525, March 3, 2020), the defendant, Jean Carlos Lopez, was convicted--by a jury--of murder in the first degree, having committed murder by extreme atrocity or cruelty.

The facts of the case are troubling though a detailed description of the facts is not necessary to this discussion.

At the trial, after the Commonwealth finished presenting its evidence, the defendant asked the judge to find him not guilty, contending that the Commonwealth’s evidence was incapable of proving beyond a reasonable doubt that the defendant had committed murder (the jury thus incapable of finding him guilty). The judge denied the defendant’s request and proceeded to instruct the jury on the law that applied to the case, including what was necessary to prove murder and that the defendant was to be found guilty only if the jury, unanimously, were convinced beyond a reasonable doubt that the defendant had committed murder.

On appeal the defendant renewed his claim that the evidence was incapable of proving guilt beyond a reasonable doubt. 

The Supreme Judicial Court noted that its function was to “determine whether that evidence [was] sufficient to satisfy a rational trier of fact that [the defendant committed] the crime charged . . . beyond a reasonable doubt.”

In reviewing the evidence against the defendant, the court concluded that the evidence was insufficient to place the defendant at the scene of the murder, the jury perhaps persuaded by evidence of the defendant’s motive to harm the victim and his association with persons who were at the scene of the murder.

The trouble with this case is that the jury were instructed on what was required to establish murder and that before finding the defendant guilty of murder the jury must conclude, unanimously, not just that evidence of murder was presented but that the evidence of murder was convincing beyond a reasonable doubt. Despite the fact that the evidence was insufficient to prove murder, the jury found both that evidence sufficient to prove murder was presented and that that evidence was convincing beyond a reasonable doubt.

It is not an uncommon occurrence for a Massachusetts appeals court to conclude that a jury convicted a defendant when the evidence was insufficient--in each case the jury incorrectly evaluating the facts and|or applying the law. Recent cases where a jury convicted a defendant on insufficient evidence are:

Commonwealth v. Haltiwanger (Massachusetts Appeals Court, No. 20-P-517, May 11, 2021)
Commonwealth v. Condon (Massachusetts Appeals Court, No. 19-P-722, December 18, 2020)
Commonwealth v. Rijo (Massachusetts Appeals Court, NO. 19-P-1385, December 2, 2020)
Commonwealth v. Dunphe (Supreme Judicial Court No. SJC-12533, October 20, 2020)
Commonwealth v. Letendre (Massachusetts Appeals Court, No. 18-P-1445, July 10, 2020)
Commonwealth v. Klapman, 96 Mass. App. Ct. 1103 (2019)
Commonwealth v. Grayson, 96 Mass. App. Ct. 748 (2019)
Commonwealth v. Randall, 96 Mass. App. Ct. 1103 (2019)
Commonwealth v. Cueva, 94 Mass. App. Ct. 780 (2019)

In all of these cases a defendant was convicted despite the fact that the government failed to prove the defendant's guilt. While the convictions were set aside on appeal, it is conceivable, if not likely, that these defendant's experienced the consequences of the conviction prior to the correction of the conviction, perhaps incarceration, loss of driving privileges, revocation of a firearms license, loss of job, etc. Many may have incurred the legal expense of pursuing an appeal and all suffered the stress of a wrongful conviction. Some wrongful convictions may not have been appealed at all.

A jury's obvious difficulty with these basic concepts places a defendant in a difficult position: seemingly the jury needs impassioned commentary on the concepts of proof of a crime and proof beyond a reasonable doubt, but emphasizing the government's burden of proof to some extent conveys the notion that the defendant "did it" but the government can't prove it. 

These cases demonstrate the need for experienced trial counsel to address these difficult and sensitive matters.