Heard: December 8, 2016.
motion to dismiss was heard by David Weingarten, J., and a
motion for reconsideration was considered by him.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Shaffer (Robert E. Proctor & Colin Doyle also present)
for the defendant.
Zachary Hillman, Assistant District Attorney (Alexandra I.
Halprin also present) for the Commonwealth.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd,
case presents an opportunity to further clarify the meaning
of "misleads" in the context of G. L. c. 268,
§ 13B, specifically as it relates to nonverbal conduct.
Here, a complaint issued charging the defendant, Josefa
Tejeda, with misleading a police officer after she picked up
a small bag of what was believed to be heroin and swallowed
it as the officer watched. A Boston Municipal Court judge
dismissed the count. The defendant sought further appellate
review after the Appeals Court vacated the dismissal. See
Commonwealth v. Tejeda, 89
Mass.App.Ct. 625 (2016). We affirm the order of the trial
court judge, concluding that the defendant's actions were
not misleading within the meaning of the statute.
summarize the facts included in the application in support of
the complaint against the defendant. A police officer
approached the defendant and a male whom the officer had
observed earlier trying to purchase heroin with food stamps.
The two made eye contact with the officer and began to walk
away. A third person, a known heroin user, was squatting
behind an automobile where the other two had been standing.
Concerned that the man behind the vehicle was concealing a
needle in his hand, the officer ordered him to reveal what he
was holding. When the man refused, the officer grabbed his
arm, causing a small plastic bag of a light brown powdery
substance to fall from his hand to the ground. As the officer
began to take the man into custody, he simultaneously
observed the defendant return to the scene, pick up the
plastic bag and place it in her mouth. The bag and its
contents were not recovered.
sustain the complaint against the defendant, the Commonwealth
must provide sufficient evidence to establish probable cause,
that is, "reasonably trustworthy information sufficient
to warrant a reasonable or prudent person in believing that
the defendant has committed the offense."
Commonwealth v. Humberto H., 466
Mass. 562, 565 (2013), quoting Commonwealth
v. Roman, 414 Mass. 642, 643 (1993).
General Laws c. 268, § 13B (1) (c0, provides in
pertinent part: "Whoever, directly or indirectly,
willfully . . . misleads . . . [a] police officer . . . with
the intent to impede, obstruct, delay, harm, punish or
otherwise interfere thereby . . . with [a criminal
investigation] shall be punished."
§ 13B does not define "misleads, " in
interpreting the statute we have come to rely on the
definition of "misleading conduct" contained in the
Federal witness tampering statute:
"(A) knowingly making a false statement; (B)
intentionally omitting information from a statement and
thereby causing a portion of such statement to be misleading,
or intentionally concealing a material fact, and thereby
creating a false impression by such statement; (C) with
intent to mislead, knowingly submitting or inviting reliance
on a writing or recording that is false, forged, altered, or
otherwise lacking in authenticity; (D) with intent to
mislead, knowingly submitting or inviting reliance on a
sample, specimen, map, photograph, boundary mark, or ...