COMMONWEALTH v. JOHAN MATOS (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following convictions on the charges alleged in several indictments after a jury-waived trial in the Superior Court, the defendant, Johan Matos, challenges the sufficiency of evidence for witness intimidation (G. L. c. 268, § 13B) and contends that a transcript of jail calls was inadmissible. We affirm.

Viewing the evidence of intimidation in a light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Witness intimidation under G. L. c. 268, § 13B, may be proved by showing that “the defendant (1) willfully; (2) threatened, intimidated, or harassed; (3) a witness [or potential witness] in a criminal or civil proceeding of any type; (4) with the intent to impede or interfere with” the proceeding (quotation and citation omitted). Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 304 (2023).

The evidence presented satisfied these elements. On May 8, 2014, the victim received threatening phone calls and text messages from the defendant, her ex-boyfriend. She called the Waltham police department, an officer responded, and an on-call judge issued an emergency abuse prevention order. Speaking by phone to the defendant, the officer read the terms of the order, including that he was “not to contact” the victim, and informed him that there would be a court hearing the next day. Later that evening, the defendant called the victim and sent her a text message saying, “what u doing is not right but u going fucking pay for that u dont do what u doing to me know but am going make u regret no matter how many time u put a restra[in]ing [order].” From this evidence including the ominous assurances to make the victim “fucking pay” and “regret” her actions, the judge could readily conclude that the defendant willfully threatened the victim in a misguided effort to discourage her testimony and thereby derail the court hearing that the defendant knew had been scheduled for the next day. Such overt threats to a witness on the eve of the court hearing constitute the essence of the crime -- “putting a person in fear for the purpose of influencing his or her conduct.” Commonwealth v. McCreary, 45 Mass. App. Ct. 797, 799 (1998).

We disagree with the defendant's further contention that the intimidation conviction was duplicative of his conviction for threatening to commit a crime under G. L. c. 275, §§ 2 and 4. The elements of each statute differ, and threatening to commit a crime is not a lesser included offense of witness intimidation. See Commonwealth v. Johnson, 45 Mass. App. Ct. 473, 479-480 (1998) (even where threat and violation of abuse prevention order premised on single act, convictions were not duplicative). We also note that the charged crimes have different factual bases; the intimidation indictment is limited to the text message referencing the restraining order that issued, but the threat indictment is not and appears to encompass a series of threats that preceded the victim obtaining the restraining order.

We also discern no error from the procedure used to admit, over objection, a certified court reporter's English-language transcription of the defendant's Spanish-language jail calls. The procedure to admit an English-language transcript requires that the Commonwealth “provide defense counsel an English-language transcript sufficiently in advance of trial to enable defense counsel to determine whether agreement can be reached regarding the transcript or whether a translator should be retained to prepare and defend a different English-language transcript.” Commonwealth v. Portillo, 462 Mass. 324, 330 (2012). If there is a disagreement as to the translation, each party may offer a transcript through expert testimony by a translator. Id. at 329. Here, the judge concluded that the Commonwealth followed the proper procedure having produced the transcript five months before trial and again (at defense counsel's request) two weeks before trial. As in Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 44 (2016), the defendant had ample time to object to the accuracy or reliability of the transcript, but by waiting until trial it was “too late to contest the transcript's accuracy or to permit the Commonwealth to produce an expert to verify it.” Thus, there was no error.

Finally, assuming the defendant also preserved objections based on hearsay and the right to confront witnesses, we discern no prejudicial error from the admission of the transcript. The transcript, recording the defendant's casual conversations (during five calls between May 19, 2014, and June 14, 2014) did not constitute hearsay. See Commonwealth v. Mendes, 441 Mass. 459, 467 (2004) (defendant's statement “was not hearsay” and was “admissible as the statement of a party opponent”). The defendant has cited no authority that would bar admission of a transcript of his own recorded statements on confrontation grounds. See Crawford v. Washington, 541 U.S. 36, 51 (2004) (right to confront witnesses “applies to ‘witnesses’ against the accused”). Moreover, none of the calls formed the basis of any of the convictions for events that occurred on May 8, 9, and 14. At best, the calls were arguably cumulative of other evidence. Thus, we discern no prejudicial error.

Judgments affirmed.