This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the dismissal without prejudice of three counts of an indictment that charge the defendant with misleading, among others, a judge, prosecutor, or a police officer in violation of G. L. c. 268 § 13B. On appeal, the Commonwealth asserts that the Superior Court judge who dismissed those counts erred in concluding that for a defendant to be in violation of the statute he must actually mislead a person designated in the statute. The Commonwealth argues that a defendant need not in fact mislead another to be criminally liable so long as his conduct was calculated to have that effect.
On August 24, 2010, the defendant and a companion reported to a Fall River police officer that they had been robbed by two men. The defendant told the officer that one of the men was named Charles Mendes, and he identified Mendes through a photo array. One month later, the defendant recanted his identification of Mendes at the Fall River District Court, where the Commonwealth intended to request the revocation of Mendes's bail. The defendant approached an assistant district attorney and recanted his identification of Mendes, apparently stating that he did not know who had robbed him. He also explained that, before speaking to the prosecutor, he had been approached by a friend of Mendes, who was standing in a courthouse corridor while the defendant recanted.
In early October, two Fall River detectives asked to speak to the defendant about the robbery. On this occasion, the defendant altered his description of the event, stating that he had been intoxicated at the time and never saw a gun. This was different from his previous statement in which he had stated that Mendes was armed. During this meeting with the detectives, the defendant became nervous, started shaking, and vomited repeatedly.
In late November, the defendant appeared before the Bristol County grand jury in response to a subpoena, but told two assistant district attorneys that he did not remember the robbery. During the same meeting, he later admitted that he really did remember what had taken place, and eventually agreed to testify before the grand jury. He was arrested at the conclusion of his grand jury testimony.
Motion to dismiss.
The defendant successfully moved to dismiss the charges against him on the ground that the evidence presented to the grand jury that indicted him was insufficient to establish that any of his statements had in fact misled the authorities. The Commonwealth argues on appeal that the motion judge erred in his interpretation of the word " misleads" in the statute under which the defendant was charged. G. L. c. 268, § 13B, as amended through St. 2010, c. 256, § 120, reads in part:
" (1) Whoever, directly or indirectly, willfully . . . misleads. . . a judge, juror, grand juror, prosecutor, police officer. .. or a person who is furthering . . . criminal proceedings, including criminal investigation, grand jury proceeding, . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby, or do so with reckless disregard, with such proceeding shall be punished . . . ."
The judge who allowed the defendant's motion noted that in Commonwealth v. Fortuna, 80 Mass.App.Ct. 45, 951 N.E.2d 687 (2011), we left open the question whether a statement must actually mislead another for it to come within the statute. Finding that the defendant's statements had not in fact misled the authorities, the judge concluded that they fell outside the scope of G. L. c. 268, § 13B.
Although the judge properly stated the issue to be resolved, his conclusion as to the scope of the statute did not have the benefit of the analysis in Commonwealth v. Figueroa, 464 Mass. 365, 982 N.E.2d 1173 (2014). In Figueroa, the Supreme Judicial Court acknowledged that " [t]he word 'misleads' is not defined in § 13B, and we have not before had the opportunity to define it." Id. at 371. In defining the word, the court adopted the definition of the term " misleading conduct" found in 18 U.S.C. § 1515(a)(3)(2006) which does not require that a defendant's conduct in fact mislead another. Consequently, the court concluded that in circumstances where a defendant attempted to mislead a person designated in § 13B, " it does not matter that he failed to succeed in misleading her." Figueroa, supra at 373. Applying that definition to the case before us, in which the defendant's various recantations evidently did not mislead the authorities as to the identity of the person who robbed him, the grand jury that indicted the defendant had a sufficient basis to indict him, and the motion to dismiss should not have been allowed.
We note that although the motion to dismiss should not have been allowed on the stated grounds, for a charge to be brought successfully under G. L. c. 268, § 13B, " [o]bjectively misleading conduct, as defined, is not enough . . . to establish the offense." Commonwealth v. Morse, 468 Mass. 360, 372, 10 N.E.3d 1109 (2014). " [A] statutory violation is not established unless there is also proof of a defendant's specific intent to 'impede, obstruct, delay, harm, punish, or otherwise interfere thereby' with a criminal investigation" Ibid., quoting from G. L. c. 268, § 13B (1)( c )(v). Indeed, in support of the defendant's motion to dismiss, counsel filed an affidavit that stated, in part, " [t]he Grand Jury did not hear sufficient evidence of a specific intent to violate the statute."
Whether or not the evidence before the grand jury was sufficient as to the specific intent element of the offense was not addressed by the motion judge, however, in light of his conclusion that the defendant's actions were not misleading within the meaning of the statute. ...