Commonwealth v. Mcgillivary

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21-P-679 Appeals Court

COMMONWEALTH vs. ROBERT E. MCGILLIVARY, JR.

No. 21-P-679.

Essex. December 13, 2022. – April 19, 2023.

Present: Sacks, Singh, & Brennan, JJ.

Threatening. Assault and Battery on Certain Public Officers and
Employees. Mental Impairment. Criminal Responsibility.
Practice, Criminal, Instructions to jury, Request for jury
instructions.

Complaint received and sworn to in the Newburyport Division
of the District Court Department on December 21, 2018.

The case was tried before Mary F. McCabe, J.

Adriana Contartese for the defendant.
Kayla Johnson, Assistant District Attorney, for the
Commonwealth.

BRENNAN, J. In January 2020, a District Court jury

convicted the defendant of threatening to commit an assault and
2

battery on a police officer under G. L. c. 275, § 2.1 On appeal,

the defendant challenges the sufficiency of the evidence and the

judge's instructions to the jury. We affirm.

Background. In the early morning hours of December 20,

2018, Salisbury police responded to a call from the defendant,

who told officers he was "mentally unstable" and needed

treatment.2 Once an ambulance arrived, the defendant decided not

to go to the hospital. After spending approximately twenty

minutes with the defendant, police determined that he did not

require involuntary hospitalization and allowed him to remain at

home.

Later that day, police and other emergency personnel went

to the defendant's home for a "well-being" check after a family

member called for assistance because of concerns about the

defendant's mental health. When police tried to get his

attention, the defendant screamed at them to get off his

property, claimed he was "armed to the teeth," and threatened to

shoot anyone who came to his door. The resulting standoff

between the defendant and police lasted over eight hours.

During the standoff, the defendant spoke to his cousin several

1 The judge entered a required finding of not guilty at the
close of the Commonwealth's case on an additional count that
alleged threatening to commit murder.

2 The police dispatcher believed the defendant wanted a
"voluntary psych eval."
3

times, telling her he "would come out and go in the ambulance,

but he wanted someone he trusted there." Ultimately, the

defendant was taken into custody by the State police special

hostage negotiation and tactical unit.

Discussion. 1. Sufficiency of the evidence. "The

elements of threatening a crime include an expression of

intention to inflict a crime on another and an ability to do so

in circumstances that would justify apprehension on the part of

the recipient of the threat." Commonwealth v. Hamilton, 459

Mass. 422, 426–427 (2011), quoting Commonwealth v. Sholley, 432

Mass. 721, 724–725 (2000), cert. denied, 532 U.S. 980 (2001).

Actual receipt of a threat by the intended victim is not an

element of threatening, nor is causing actual fear in the victim

required. See Commonwealth v. Kerns, 449 Mass. 641, 653 (2007)

("The Appeals Court also has recognized that a defendant may be

criminally responsible for making a threat to commit a crime,

even when the threat fails entirely to reach its intended

victim, so long as there is an intent to put the victim in

imminent fear"); Commonwealth v. Maiden, 61 Mass. App. Ct. 433,

436 (2004) ("There is no firm basis that we have found for

concluding that transmission of the threat to the victim --

i.e., actual receipt by the victim -- is a necessary element of

the crime of making a threat. . . . [T]he law seems to be

settled that a threat need not cause actual fear or apprehension
4

in the victim"); Commonwealth v. Hughes, 59 Mass. App. Ct. 280,

283 (2003) (affirming conviction for threats where judge

instructed jurors that "[the Commonwealth] must prove beyond a

reasonable doubt that the defendant intended the threat to be

conveyed . . . so it is necessary for the Commonwealth to prove

that he intended that threat to be conveyed to [the victim],

whether or not it was").3 The defendant does not contend that

the evidence fell short as to the required elements. Instead,

he argues that there was insufficient evidence produced by the

Commonwealth that he was criminally responsible. Although the

defendant failed to move for a required finding of not guilty

and raises the argument for the first time on appeal, "a

conviction premised on legally insufficient evidence always

creates a substantial risk of a miscarriage of justice."

Commonwealth v. DeJesus, 99 Mass. App. Ct. 275, 282 n.14 (2021),

S.C., 489 Mass. 292 (2022).

"Where a defendant asserts a defense of lack of criminal

responsibility and there is evidence at trial that, viewed in

3 We note that in Commonwealth v. Leonardo L., 100 Mass.
App. Ct. 109, 111 (2021), we initially discussed a formulation
of threatening that includes "caus[ing] the victim to fear
harm," (quoting language from Sholley, 432 Mass. at 727, that
was focused on threatening in the context of free speech
protections under the First Amendment to the United States
Constitution), but clarified that "[t]he law seems to be settled
that a threat need not cause actual fear or apprehension in the
victim." Leonardo L., supra at 114.
5

the light most favorable to the defendant, would permit a

reasonable finder of fact to have a reasonable doubt whether the

defendant was criminally responsible at the time of the offense,

the Commonwealth bears the burden of proving beyond a reasonable

doubt that the defendant was criminally responsible."4

Commonwealth v. Lawson, 475 Mass. 806, 811 (2016). "To meet

this burden, the Commonwealth [must] show beyond a reasonable

doubt either that [the defendant] had no mental disease or

defect or that he had the substantial capacity both to

appreciate the wrongfulness of his conduct and to conform his

conduct to the requirements of the law." Commonwealth v.

McLaughlin, 431 Mass. 506, 508 (2000). We "must examine the

evidence in the light most favorable to the Commonwealth and

determine whether the evidence and the inferences that

reasonably could be drawn from it were of sufficient force to

permit a rational finder of fact to conclude that the defendant

was criminally responsible beyond a reasonable doubt"

(quotations and citation omitted). Lawson, supra at 816.

The jury may consider "evidence of the defendant's words

and conduct before, during, and after the offense" in reaching

their conclusion on the defendant's sanity. Lawson, 475 Mass.

4 The Commonwealth correctly conceded at trial that the
defendant made the necessary showing to raise criminal
responsibility and does not argue otherwise on appeal.
6

at 816. Here, viewed in the light most favorable to the

Commonwealth, the evidence would permit a rational fact finder

to infer that (1) the defendant was aware of his own mental

health issues when he called police to request hospitalization

for a mental health evaluation hours before his confrontation

with police; (2) the defendant's threats to shoot anyone who

came to his door were motivated by police officers' refusal to

"get off [his] property" and "leave [him] alone"; (3) the

defendant knew that his threats and conduct toward police were

wrong when he refused to leave his house despite multiple

attempts by police to negotiate with him to come outside; and

(4) the defendant possessed the ability to control his behavior

because, while he was described as "agitated," "angry," and

"yelling" during interactions with the police, he was "calm"

when speaking with his cousin during the standoff. We are

satisfied that this evidence was sufficient for a rational juror

to conclude that, at the time of the offense, the defendant "had

the substantial capacity both to appreciate the wrongfulness of

his conduct and to conform his conduct to the requirements of

the law."5 McLaughlin, 431 Mass. at 508.

5 The defendant's argument that "the jury fail[ed] to
adequately consider the substantial evidence [the d]efendant
presented that he was mentally ill at the time of the offense"
is unavailing. As we have consistently held, "[t]he weight and
credibility of the evidence is the province of the jury."
7

2. Jury instructions. The defense centered on the

defendant's mental state at the time of the offense. The

defendant requested that the judge instruct the jury on both

lack of criminal responsibility and mental impairment short of

insanity. He now argues that the judge combined the

instructions in a manner that was confusing and may have misled

the jury. We disagree.

"Judges have broad discretion in framing jury instructions,

including determining the appropriate degree of elaboration."

Commonwealth v. Toolan, 490 Mass. 698, 708 (2022). Here, the

judge first instructed the jury, consistent with the Criminal

Model Jury Instructions for Use in the District Court (Model

Jury Instructions), that the crime of threatening to commit a

crime consisted of four elements, as follows:

"First, that the defendant expressed an intent to injure a
person, now or in the future. Second, that the defendant
intended that his threat be conveyed to a particular
person. Third, that the injury that was threatened, if
carried out, would constitute a crime. And, fourth, . . .
that the defendant made the threat under circumstances
which could reasonably have caused the person to whom it
was conveyed to fear that the defendant had both the
intention and the ability to carry out the threat."

See Instruction 6.700 of the Model Jury Instructions (2013).

Commonwealth v. Dubois, 451 Mass. 20, 28 (2008). We decline to
substitute our judgment for that of the jury.
8

Immediately following that instruction, the judge moved on

to lack of criminal responsibility. Once again relying on

Instruction 6.700, the judge stated in relevant part:

"A person is lacking in criminal responsibility if he has a
mental disease or defect; and, as a result of that mental
disease or defect, either is substantially unable to
appreciate the criminality, the wrongfulness, of his
conduct, or he is substantially unable to conform his
conduct to the requirements of the law. The defendant's
mental condition must have been such that he was unable to
realize that his behavior was wrong or was unable to make
himself behave as the law required."6

The judge then instructed the jurors on mental impairment

short of insanity, or as she described it, "a mental impairment

that does not rise to the level of lack of criminal

responsibility." See Instruction 9.220 of the Model Jury

Instructions (2009). The judge told the jurors that the

instruction "may be relevant to your deliberations on the issue

6 The version of the Model Jury Instruction used by the
judge included an instruction that the jurors could infer that
most people are sane. See Instruction 9.200 of the Model Jury
Instructions (2009). The Supreme Judicial Court has ruled that
such an instruction should not be given. See Lawson, 475 Mass.
at 815 n.8 (given its "meager weight," judges "should not
instruct juries regarding this inference"). We note that the
most recent iteration of the instruction on lack of criminal
responsibility, Instruction 9.200 (2022), eliminates the
inference of sanity language and contains a reference in note 5
to the holding in Lawson but not a specific admonition not to
instruct jurors on the inference of sanity. As the defendant
neither objected at trial nor raised this issue on appeal, we
need not address it further. See Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019) ("The appellate court need
not pass upon questions or issues not argued in the brief").
9

of whether the defendant had the criminal intent that is

required for a conviction." By agreement of the parties, the

judge modified the instruction by replacing the language

regarding specific intent with a summary repetition of the

elements of threatening to commit a crime, followed by an

instruction on general intent.7

Mental impairment short of insanity may bear on a person's

ability to form specific intent, and thus it is relevant to

crimes that require specific intent, but it is not relevant

where a crime requires only general intent. See Commonwealth v.

McNulty, 458 Mass. 305, 325 (2010). Here, no instruction on

mental impairment short of insanity was required because

threatening is a crime of general intent. General Laws c. 275,

§ 2, which criminalizes "threaten[ing] to commit a crime against

the person or property of another," does not require a specific

intent that the object of the threat be placed in fear.

Instead, the elements of the crime require only the general

intent to communicate a threat. See Sholley, 432 Mass. at 724-

725 ("The elements of threatening a crime include an expression

7 With regard to the word "intentionally," the judge
instructed the jurors that they "should give that word its
ordinary meaning of acting voluntarily and deliberately and not
because of accident or negligence. It's not necessary that the
defendant knew he was breaking the law, but it is necessary that
he intended the act to occur which constitutes the offense."
See Instruction 3.120 of the Model Jury Instructions (2009).
10

of intention to inflict a crime on another and an ability to do

so in circumstances that would justify apprehension on the part

of the recipient of the threat" [citation omitted]);

Commonwealth v. Hokanson, 74 Mass. App. Ct. 403, 407 (2009)

("when a defendant utters a threat to a third party who 'would

likely communicate it to [the ultimate target],' . . . the

defendant's act constitutes evidence of [his] intent to

communicate the threat to the intended victim" [citation

omitted]).8 Compare Commonwealth v. Pfeiffer, 482 Mass. 110,

115, cert. denied, 140 S. Ct. 498 (2019) (specific intent crimes

require proof that defendant not only consciously intended to

take certain actions, but also consciously intended certain

consequences). Any possible flaw in the judge's instruction on

mental impairment short of insanity could not have prejudiced

the defendant, where he was not entitled to the instruction at

8 In Hokanson, our reference in dictum to "look[ing] at more
than a defendant's specific intent that his threats be made to
the target," Hokanson, 74 Mass. App. Ct. at 406 n.5, does not
contradict our conclusion here that threatening to commit a
crime requires only a general intent. The necessary intent is
to communicate a threat to a target, either directly or
indirectly, through a third party; communication is not a
consequence of the type that could make threatening a specific
intent crime. That communication is at times expressed in
passive language, particularly regarding threats made through
third parties (i.e., intent that the threat "be communicated")
does not convert intending the act of conveying a threat into
intending a particular consequence in the specific-intent sense.
See Commonwealth v. Pfeiffer, 482 Mass. 110, 115, cert. denied,
140 S. Ct. 498 (2019).
11

all; that the judge gave the instruction provided the defendant

"more protection than the law afforded him." Commonwealth v.

Simpson, 434 Mass. 570, 589-590 (2001).9

Ultimately, we are satisfied that "the judge's instructions

adequately distinguished between the concepts of mental disease

or defect and mental impairment," Toolan, 490 Mass. at 709, and

provided the jury with sufficient guidance on when and how to

apply each concept, without confusing the two. Although

instructing the jury on mental impairment short of insanity was

error, the defendant has failed to demonstrate a substantial

risk of a miscarriage of justice. See Commonwealth v. Leary, 92

Mass. App. Ct. 332, 342 (2017) (error in jury instruction

occasioned by defendant's own request reviewable only for

substantial risk of miscarriage of justice).

Judgment affirmed.

9 Although the defendant asserted at oral argument that
threatening to commit an assault and battery is a specific
intent crime, he agreed with the judge's instruction at trial
and wrote in his brief that it "is a crime of general intent or
specific intent." See Mass. R. A. P. 16 (a) (9) (A). "Such a
challenge does not rise to the level of adequate appellate
argument." Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 634
n.2 (2007).