Court rules that cellphone picture taking was intimidation

By Globe Staff

Taking a picture with a cellphone of an undercover police officer can constitute witness intimidation, the state appeals court ruled today.

David Casiano was convicted last year of witness intimidation for a Dec. 1, 2004, incident in which he pointed his cellphone at an undercover officer who was in a Boston courthouse corridor, waiting to testify against Casiano in a drug case.

Casiano, 37, of Boston's Dorchester section appealed, arguing, among other things, that he did not show any hostility toward the witness prior to the action taken.

But the Massachusetts Appeals Court ruled that "an action does not need to be overtly threatening to fall within the meaning of intimidation. Although the defendant did not expressly threaten the officer's person, his action threatened the undercover officer's continuing safety."

Casiano also argued that there was no evidence that any photographs were ever taken.

"It is irrelevant whether any photographs were taken, as the police officer was made to believe that the defendant was taking pictures of him and could disseminate his likeness, an act intended to intimidate," the court ruled in a three-page opinion written by Justice R. Marc Kantrowitz.

Suffolk District Attorney Daniel F. Conley said the ruling was a victory for law enforcement authorities who still see witness intimidation as they try to bring criminals to justice.

"It doesn't matter that the defendant never raised a fist to the officer. It doesn't matter whether his camera could take pictures," he said. "Fear itself can be used as a weapon, and it's one that we will not abide – not on our streets, and certainly not in our courthouses."

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