HEARD: April 14, 2016.
received and sworn to in the Roxbury Division of the Boston
Municipal Court Department on October 8, 2014.
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
S. Victorson (Lia C. Monahon with him) for the defendant.
Present: Kafker, C.J., Kinder, & Neyman, JJ.
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. 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. 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.
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.
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.
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, §
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." 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.
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). Misleading conduct was defined in 18
U.S.C. § 1515(a)(3) (2006). 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,  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