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
After a two-day bench trial, the defendant was convicted of misleading a police officer, in violation of G. L. c. 268, § 13B(1)( c )(iii)., The facts are largely undisputed. The defendant was interviewed by police officers on two occasions, several days apart, in relation to an arson investigation in which her brother was a suspect. Each time, she lied about her own and her brother's whereabouts a short time after the arson. Two days after the second interview, after learning that her brother was accused of arson, the defendant called one of the police officers and said that she wanted to " talk to him and tell him the truth." She admitted in a third interview that she had lied in the first two, and it appears that she presented a truthful version of the events at that time.
On appeal, the defendant argues that the statute should be construed to bar prosecution of a witness who misleads a police investigator if, while the investigation is still pending, the witness voluntarily comes forward, admits to having misled the police and gives truthful information, so long as the investigation was not substantially affected by the misleading statements. We affirm the judgment.
Essentially, the defendant asks us to import into G. L. c. 268, § 13B, the language of a related statute, G. L. c. 268, § 1, which was amended at the same time as part of " An Act Reducing Gang Violence." St. 2006, c. 48, § § 2, 3. General Laws c. 268, § 1, inserted by St. 2006, c. 48, § 2, provides for the prosecution of perjury with the following caveat:
" If, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits to such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed."
Although G. L. c. 268, § 13B, includes no such clause, the defendant urges us to read the statute to imply a similar bar to prosecution for persons making misleading statements during an investigation, who retract the misleading statements, so long as the statements have not substantially affected the investigation. The defendant argues that, since the two statutes were modified as part of the same act, the legislative intent would be satisfied by reading a similar bar to prosecution clause in G. L. c. 268, § 13B.
We are not persuaded. The language of G. L. c. 268, § 13B, is clear and it prohibits specifically the conduct that the defendant agrees she undertook -- twice lying to the police during an investigation. See Commonwealth v. Rahim, 441 Mass. 273, 274, 805 N.E.2d 13 (2004) (" The primary source of insight into the intent of the Legislature is the language of the statute" [quotation omitted]). See also Commonwealth v. Hubbard, 457 Mass. 24, 27, 926 N.E.2d 1178 (2010), quoting from Gurley v. Commonwealth, 363 Mass. 595, 598, 296 N.E.2d 477 (1973) (" Where the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words" ). In addition, since both statutes were modified as part of the same legislation, by adding a bar to prosecution clause to one of the statutes, but not to the other, the Legislature is presumed to have intended to sanction the two types of behavior differently. See Alves's Case, 451 Mass. 171, 179-180, 884 N.E.2d 468 (2008) (" [T]he Legislature is presumed to intend and understand all the consequences of its actions" ); Commonwealth v. Wynton W., 459 Mass. 745, 751, 947 N.E.2d 561 (2011) (" The fact that the Legislature simultaneously drafted two statutes does not necessarily indicate that the Legislature intended them to have identical meanings" ). See also Kourouvacilis v. American Fedn. of State, County & Mun. Employees, 65 Mass.App.Ct. 521, 535 n.22, 841 N.E.2d 1273 (2006) (" [C]ourts do not read into a statute a provision the Legislature did not see fit to put there" ).
We are not unsympathetic to the defendant's situation. However, for the foregoing reasons, we are constrained to affirm the judgment.
Trainor, Vuono & Hanlon, JJ.