Whether a defendant intimidates a witness by making a threat after proceedings are closed; whether a defendant commits the crime of threat to commit a crime, where the threat is communicated only to the child victim’s mother.

The defendant, Kenneth Hamilton, was incarcerated after violating probation. After leaving prison he left a voicemail message with his former probation officer, blaming her for his incarceration and threatening to ask prison acquaintances to sexually assault her seven-year-old daughter.

Hamilton was convicted of witness intimidation, G.L. c. 268, § 13B, and threat to commit a crime, G.L. c. 275, § 2. He appealed, and the SJC granted his request for direct appellate review.

1. Requirement of ongoing proceedings in witness intimidation. The witness intimidation statute provides that “Whoever, directly or indirectly, willfully … threatens … 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 ….” G.L. c. 268, § 13B(1). At the time Hamilton made his threat, the probation officer was not a potential witness in any criminal proceeding against him. Hamilton argues that the statute is addressed only at interference with a proceeding, and therefore can have no application after the proceeding is over. The Commonwealth argued at trial that the word “punish” indicates that the statute is also designed to prevent retribution for a witness’s prior participation in a proceeding, and therefore may apply to threats made after the proceeding has ended.
2. Necessity for victim to hear of threat to commit a crime. G.L. c. 275, § 2 makes it a crime to “threaten[] to commit a crime against the person or property of another.” Hamilton argues that there must be a reasonable probability that the threat will be communicated to the victim of the crime, citing Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 434 (2004). Here there was no allegation or reasonable probability that the threat would be communicated to the probation officer’s daughter.

1. Requirement of ongoing proceedings in witness intimidation. Hamilton may have the better of the argument as to the witness intimidation statute. It is a stretch of language to suggest that a defendant may “interfere” with a criminal proceeding long after it has concluded. The statute is at best ambiguous, and ambiguity should be resolved in the defendant’s favor.
   
   With that said, a statute punishing retribution against witnesses in past proceedings is eminently wise, and the Court could well find intent on the Legislature’s part to provide one, thus avoiding the ambiguity. If not, the Legislature can be expected to remedy the oversight.
2. Necessity for victim to hear of threat to commit a crime. It is not clear that the threat-to-commit-a-crime statute, or the First Amendment, bar punishment for a threat communicated to the putative victim’s mother rather than the victim. However, it is not clear how far this reading should extend—would a credible threat to kill a pop star violate the law if it was communicated to the star’s ardent fan? If not, why should it violate the law if communicated to the star’s mother? If so, why should it not violate the law if communicated to someone who is indifferent?