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SJC-12269

                COMMONWEALTH   vs.   PAUL MUCKLE.


                        October 6, 2017.


Intimidation of Witness. District Court, Jurisdiction. Boston
     Municipal Court. Practice, Criminal, Sentence, Mittimus.



     Paul Muckle was convicted in the Boston Municipal Court
Department (BMC) of intimidating a person furthering a court
proceeding, see G. L. c. 268, § 13B, and other offenses. The
alleged victim of Muckle's intimidation was opposing counsel in
a civil action commenced by Muckle in Federal court. His
posttrial motion to vacate the intimidation conviction was
allowed, and that charge was dismissed for lack of jurisdiction
in the BMC. On the parties' cross appeals, the Appeals Court
reversed the dismissal of the intimidation charge and affirmed
the convictions. Commonwealth v. Muckle, 90 Mass. App. Ct. 384
(2016). A dissenting Justice would have affirmed the dismissal.
See id. at 397-402 (Rubin, J., dissenting in part and concurring
in part). We granted Muckle's application for further appellate
review, 476 Mass. 1111 (2017), limited to the issue of whether,
under G. L. c. 218, § 26, the BMC and the District Court have
jurisdiction over prosecutions under G. L. c. 268, § 13B, for
intimidation of persons other than a witness or juror. For
essentially the reasons stated by the dissenting Appeals Court
Justice, we conclude that such jurisdiction was absent. We
therefore affirm the order dismissing the intimidation charge.

     The underlying facts of the case are fully set forth in the
Appeals Court's opinion and need not be repeated here. Muckle,
90 Mass. App. Ct. at 385-387. Before us is a purely legal
question concerning the correct interpretation of G. L. c. 218,
                                                               2


§ 26.1 We begin with the "general and familiar rule . . . that a
statute must be interpreted according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished." Meikle v. Nurse, 474 Mass. 207, 209-210 (2016),
quoting Lowery v. Klemm, 446 Mass. 572, 576-577 (2006). The
statute at issue provides that the BMC and the District Court
have jurisdiction, concurrent with the Superior Court, over
numerous offenses, including "intimidation of a witness or juror
under [G. L. c. 268, § 13B]." G. L. c. 218, § 26. General Laws
c. 268, § 13B, in turn, prohibits intimidation not only of a
witness or juror, but also of "a judge . . . , prosecutor,

    1
        In full, G. L. c. 218, § 26, provides:

         "The district courts and divisions of the Boston
    municipal court department shall have original
    jurisdiction, concurrent with the superior court, of the
    following offenses, complaint of which shall be brought in
    the court of the district court department, or in the
    Boston municipal court department, as the case may be,
    within which judicial district the offense was allegedly
    committed or is otherwise made punishable: —- all
    violations of by-laws, orders, ordinances, rules and
    regulations, made by cities, towns and public officers, all
    misdemeanors, except libels, all felonies punishable by
    imprisonment in the state prison for not more than five-
    years, the crimes listed in [G. L. c. 90B, § 8 (a) (1);
    G. L. c. 90, §§ 24 (1) (a) (1), 24G (a), and 24L (1); G. L.
    c. 94C, §§ 32 (a) and 32A (a); G. L. c. 94C, § 32J; G. L.
    c. 127, § 38B; G. L. c. 140, § 131E; G. L. c. 265, §§ 13K,
    15A, 15D, 21A, and 26; and G. L. c. 266, §§ 16, 17, 18, 19,
    28, 30, 49, and 127; and G. L. c. 273, §§ 1, 15, and 15A],
    and the crimes of malicious destruction of personal
    property under [G. L. c. 266, § 127], indecent assault and
    battery on a child under fourteen years of age,
    intimidation of a witness or juror under [G. L. c. 268,
    § 13B], escape or attempt to escape from any penal
    institution, forgery of a promissory note, or of an order
    for money or other property, and of uttering as true such a
    forged note or order, knowing the same to be forged. They
    shall have jurisdiction of proceedings referred to them
    under the provisions of [G. L. c. 211, § 4A]." (Emphasis
    added.)
                                                                   3


police officer, federal agent, investigator, defense attorney,
clerk, court officer, probation officer or parole officer," as
well as other persons involved in court proceedings and criminal
investigations. G. L. c. 268, § 13B (1) (c) (i)-(v).2 The

    2
        General Laws c. 268, § 13B, provides, in relevant part:

    "(1) Whoever, directly or indirectly, willfully

         "(a) threatens, or attempts or causes physical injury,
    emotional injury, economic injury or property damage to;

         "(b) conveys a gift, offer or promise of anything of
    value to; or

         "(c) misleads, intimidates or harasses another person
    who is:

         "(i) a witness or potential witness at any stage of a
    criminal investigation, grand jury proceeding, trial or
    other criminal proceeding of any type;

         "(ii) a person who is or was aware of information,
    records, documents or objects that relate to a violation of
    a criminal statute, or a violation of conditions of
    probation, parole or bail;

         "(iii) a judge, juror, grand juror, prosecutor, police
    officer, federal agent, investigator, defense attorney,
    clerk, court officer, probation officer or parole officer;

         "(iv) a person who is furthering a civil or criminal
    proceeding, including criminal investigation, grand jury
    proceeding, trial, other criminal proceeding of any type,
    probate and family proceeding, juvenile proceeding, housing
    proceeding, land proceeding, clerk's hearing, court ordered
    mediation, any other civil proceeding of any type; or

         "(v) a person who is or was attending or had made
    known his intention to attend a civil or criminal
    proceeding, including criminal investigation, grand jury
    proceeding, trial, other criminal proceeding of any type,
    probate and family proceeding, juvenile proceeding, housing
    proceeding, land proceeding, clerk's hearing, court-ordered
    mediation, any other civil proceeding of any type with the
    intent to impede, obstruct, delay, harm, punish or
    otherwise interfere thereby, or do so with reckless
                                                                  4


jurisdiction statute, G. L. c. 218, § 26, does not mention any
of these other potential victims, nor does it contain any
"catchall" language that would include them (such as
"intimidation of a witness, juror, or any other person under"
§ 13B). Under the maxim, "expressio unius est exclusio
alterius", the express inclusion of witnesses and jurors
excludes all other persons listed in § 13B (1) (c) who are not
expressly included. See, e.g., Skawski v. Greenfield Investors
Prop. Dev. LLC, 473 Mass. 580, 588 (2016) ("the expression of
one thing in a statute is an implied exclusion of other things
not included in the statute"). The plain language of G. L.
c. 218, § 26, thus confers jurisdiction in the BMC and the
District Court over intimidation of a witness or juror, but not
over intimidation of any other person.

     Our interpretation of this provision in G. L. c. 218, § 26,
is reinforced by other provisions in the same statute. See
Matter of a Grand Jury Subpoena, 447 Mass. 88, 93 (2006),
quoting Commonwealth v. Galvin, 388 Mass. 326, 328 (1983) ("When
the meaning of any particular section or clause of a statute is
questioned, it is proper, no doubt, to look into the other parts
of the statute"). Elsewhere in § 26, the Legislature conferred
jurisdiction in the BMC and the District Court over "the crimes
listed in" several statutes listed solely by citation, without
further description. Had the Legislature intended, as the
Appeals Court ruled, to confer jurisdiction over all offenses
defined in § 13B, it presumably would have simply included § 13B
in that list.3 It did not do so. Rather, the jurisdiction


    disregard, with such a proceeding shall be punished by
    imprisonment in a jail or house of correction for not more
    than [two] and one-half years or by imprisonment in a
    [S]tate prison for not more than [ten] years, or by a fine
    of not less than $1,000 nor more than $5,000, or by both
    such fine and imprisonment."
    3
       According to the dissenting Appeals Court Justice, the
Legislature considered doing exactly that. See Commonwealth v.
Muckle, 90 Mass. App. Ct. 384, 399-400 (2016) (Rubin, J.,
dissenting in part and concurring in part). The language with
which we are concerned was added by St. 1996, c. 393. The
original version of the bill that ultimately became that law
would have inserted a citation to G. L. c. 268, § 13B, into the
list of crimes identified solely by statute. If that version of
the bill had become law, c. 218, § 26, would have conferred
jurisdiction in the BMC and the District Court over all crimes
listed in § 13B. During the legislative process, however, the
                                                                   5


statute does not cite § 13B by chapter and section number only,
but identifies a subset of the offenses defined therein, namely,
intimidation of a witness and intimidation of a juror. It is
apparent that the Legislature did not intend to include all
offenses defined by § 13B within the jurisdictional statute.
Indeed, the Appeals Court's interpretation would render the
language "intimidation of a witness or juror" superfluous. Such
an interpretation is to be avoided. Matter of a Grand Jury
Subpoena, 447 Mass. at 92, citing Bynes v. School Comm. of
Boston, 411 Mass. 264, 267-268 (1991).

     We note, too, that the Legislature added the phrase
"intimidation of a witness or juror under [§ 13B]" in the same
act in which it increased the maximum penalty for the crime of
intimidation above five years in the State prison. St. 1996,
c. 393. Given this increased maximum penalty, the Legislature
may well have intended the crime of intimidation to be
prosecuted primarily in the Superior Court, but carved out an
exception for cases of intimidation of witnesses or jurors. It
is plainly the Legislature's prerogative to draw this line after
weighing the advantages and disadvantages of doing so. The
consequence is simply that cases of intimidation of any person
other than a witness or juror must proceed in the Superior
Court, not in the BMC or the District Court. We cannot say that
this is an absurd or illogical result. Cf. Commonwealth v.
Peterson, 476 Mass. 163, 167-169 (2017), and authorities cited
("we do not adhere blindly to a literal reading of a statute if
doing so would yield an 'absurd' or 'illogical' result," but
"absurd results doctrine must be used sparingly").

     In light of our disposition, we must briefly address a
sentencing issue. See Muckle, 90 Mass. App. Ct. at 394-395, 401
n.4. Originally, Muckle was sentenced to two years in the house
of correction, one year to serve and the balance suspended, on
the intimidation charge (count 1), and to suspended house of
correction sentences on the remaining convictions. After count
1 was dismissed, the judge vacated the sentence on that
conviction and did not modify the sentences on the remaining
convictions. The docket sheet and mittimus, however, stated
that Muckle was given a committed sentence on one of the
remaining counts of the complaint. The Commonwealth concedes



language was amended to include the "intimidation of a witness
or juror" language. The Legislature appears to have made a
deliberate choice not to include all § 13B offenses in the
jurisdiction statute.
                                                                 6


that this is inaccurate and that the docket sheet and mittimus
must be corrected.

     The order dismissing count 1 of the complaint for lack of
jurisdiction is affirmed. The matter is remanded to the Boston
Municipal Court for amendment of the docket sheet and mittimus
in accordance with this opinion.

                                   So ordered.

     Edward C. Gauthier, IV, for the defendant.
     Julianne Campbell, Assistant District Attorney, for the
Commonwealth.
