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Commonwealth v. Tejeda

Appeals Court of Massachusetts, Suffolk

June 24, 2016


          HEARD: April 14, 2016.

         Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on October 8, 2014.

         A motion to dismiss was heard by David Weingarten, J., and a motion for reconsideration was considered by him.

          Zachary Hillman, Assistant District Attorney, for the Commonwealth.

          David S. Victorson (Lia C. Monahon with him) for the defendant.

          Present: Kafker, C.J., Kinder, & Neyman, JJ.

          KINDER, J.

         The defendant was charged in the Roxbury Division of the Boston Municipal Court Department with possession of heroin, see G. L. c. 94C, § 34, and misleading a police officer, see G. L. c. 268, § 13B.[1] Prior to trial the defendant moved to dismiss both charges, arguing that the complaint application failed to establish probable cause. The motion was denied as to the heroin charge, but allowed as to the charge of misleading a police officer; the Commonwealth appealed.[2] This interlocutory appeal presents the question whether the concealment and destruction of evidence can mislead a police officer within the meaning of G. L. c. 268, § 13B. On the facts presented here, we conclude that it can. Accordingly, we vacate the order dismissing the charge of misleading a police officer.


         We summarize the facts set forth in the application in support of the complaint. On October 8, 2014, Boston police Officer David Crabbe was on patrol near Roxbury and Washington Streets, an area of Boston known for open drug dealing. His attention was drawn to a white male later identified as Christopher Willett. Earlier in the day Officer Crabbe had observed Willett attempting to trade food stamps for drugs. Officer Crabbe observed Willett walking briskly on Marvin Street toward Shawmut Avenue. Willett was accompanied by the defendant, known to Officer Crabbe as "Josefa Tejada [sic]." He lost sight of them briefly as he entered his cruiser to follow. Officer Crabbe next observed Willett and the defendant on Madison Park Court behind a parked car. They made eye contact with Officer Crabbe, turned, and began to walk away. Officer Crabbe then observed a third individual squatting behind the car. He recognized him as Jim Figueroa, known to Officer Crabbe as a heroin user. Figueroa appeared to be concealing something in his right hand and turned away from Officer Crabbe. Concerned that Figueroa might be holding a needle, Officer Crabbe demanded that Figueroa show his hands. When Figueroa did not comply, Officer Crabbe grabbed Figueroa's right arm, causing a small plastic bag of a light brown powdery substance to fall from his hand to the ground. Officer Crabbe then arrested Figueroa. Figueroa attempted to step on the bag as Officer Crabbe placed him in handcuffs. As Officer Crabbe pulled Figueroa away and placed him on the ground, Officer Crabbe observed the defendant return to their location, pick up the plastic bag, and place the item in her mouth. The bag and its contents were not recovered.


         In allowing the motion to dismiss, the motion judge reasoned that the charge of misleading a police officer required some act of deception and that the ingestion of the substance was not misleading conduct.

         "[A] motion to dismiss a criminal complaint for lack of probable cause is decided from the four corners of the complaint application, without evidentiary hearing." Commonwealth v. Huggins, 84 Mass.App.Ct. 107, 111 (2013). We review the judge's decision to allow the defendant's motion to dismiss de novo. Commonwealth v. Ilya I., 470 Mass. 625, 627 (2015). On review, we determine "whether the complaint application contains 'sufficient evidence to establish the identity of the accused . . . and probable cause to arrest [her].'" Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013), quoting from Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). For the reasons that follow, we conclude that the facts set forth in the complaint application, together with reasonable inferences drawn therefrom, established probable cause that the defendant concealed and destroyed evidence with the intent to interfere with a criminal investigation, and that such conduct was misleading pursuant to G. L. c. 268, § 13B(1)(c).

         The witness intimidation statute, G. L. c. 268, § 13B, was expanded in 2006 to cover a broad range of crimes against public justice. "As a result, § 13B for the first time outlawed 'mislead[ing]' and 'harass[ing]' conduct, in addition to the 'threaten[ing]' and 'intimidat[ing]' conduct that the prior version of the statute had proscribed."[3] Commonwealth v. Morse, 468 Mass. 360, 369 (2014). As relevant here, G. L. c. 268, § 13B(1) (c0, provides that "whoever directly or indirectly (1) wilfully misleads (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with a criminal investigation shall be punished." Morse, supra at 370.

         In Commonwealthv.Figueroa, 464 Mass. 365, 372 (2013), the Supreme Judicial Court adopted the definition of misleading conduct that was used in the Federal witness tampering statute, 18 U.S.C. § 1512 (2006).[4] Misleading conduct was defined in 18 U.S.C. § 1515(a)(3) (2006).[5] Pertinent here, it is knowingly using a trick, scheme, or device with intent to mislead. 18 U.S.C. § 1515(a)(3)(E) (2006). Because the Federal statute does not define "trick, scheme or device, " and Federal cases have not further interpreted these terms, [6] we "give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose." Commonwealthv.Zone Book, Inc., 372 Mass. 366, 369 (1977). "We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Ibid. A "trick" is "[a]n indirect, often deceptive or fraudulent means of achieving an end. A mischievous act." Webster's II New College Dictionary 1177 ...

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