One of the most common charges when a defendant is charged with a domestic assault and battery in Westborough, Massachusetts, is that the charge will also be accompanied by a charge of Witness Intimidation. The Massachusetts Appelals Court recently addressed the issue of what constitutes witness intimidation in the case of Commonwealth v. Rosario, decided on May 22, 2013. The case can be found by visiting the social law library website.

In the Rosario case, the defendant was facing charges of assault and battery with a dangerous weapon and four months after this incident confronted victim in the hallway of the courthouse. This encounter led to the additional charges of intimidation of a witness and threat to commit murder. Following a jury trial, the defendant was convicted of witness intimidation.

On appeal, the defendant concedes that the evidence was sufficient for the jury to find that he threatened the victim and that victim was to be a witness against him in a criminal proceeding. He claims that this motion for a required finding of not guilty should have been allowed because the Commonwealth failed to establish that he possessed requisite intent “to impede, obstruct, delay, harm, punish or otherwise interfere” with a criminal proceeding.

The defendant was ordered to say away from the victim, and given an afternoon curfew of 3 PM. Defendant was set to report to his probation officer at 1 PM for an approximately 10 minute meeting. However, Defendant remained at the Hall of Justice until 2 PM when he knew victim was set to appear. The defendant gestured at victim by putting two fingers to his temple and a thumb facing up, while mimicking the shooting of a gun and remarking “you are going to die.” The court held this was sufficient evidence to find the defendant guilty of intimidation of a witness.

The Superior Court judge ruled that the review of the evidence under the established standard is to view in the light most favorable to the nonmoving party, to the Commonwealth. This is to be proved such that the jury might properly draw inferences, not too remote the ordinary and conclude upon all the established circumstances and warranted inferences that the guilt of the defendant was proved beyond a reasonable doubt. The Appeals Court found that although the evidence was circumstantial, it was enough to support a conviction. Circumstantial evidence is often misunderstood as many charged with a criminal offense feel as though circumstantial evidence alone cannot support a conviction. While a circumstantial case is a weaker case for the Commonwealth, it still can be proven at trial.

Circumstantial evidence is competent to establish intent to prove a violation of the witness intimidation statute and it need only be reasonable circumstantial evidence. This evidence was sufficient to establish that the defendant acted both with the requisite intent for witness intimidation and in retaliation against victim as a result of the incident involving mother of his victims children.

The jury could have reasonably inferred that the encounter was not spontaneous but instead premeditated. The defendant was ordered to say away from the victim, yet stayed past his probation appointment, and even risked a violation of his 3 PM curfew. These circumstances do not suggest this was a chance encounter. The defendant knew victim would be testifying against him at trial, and when given the chance, threatened the victim. Therefore, it is apparent that the conduct at issue reasonably could be viewed as an attempt to interfere with a witness’s testimony.

For Westborough criminal defense lawyers handling a domestic assault and battery case, a witness intimidation charge can often accompany a domestic assault charge. Typically, the alleged witness intimidation is destroying a cell phone, ripping a phone from the wall to prevent the victim from calling the police. In these circumstances, the Commonwealth may bring a charge of witness intimidation which is a felony under Massachusetts law. If you have any questions about intent, circumstantial evidence or domestic assault and battery law, you may find more information by reviewing my You Tube video.