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Commonwealth v. Tejeda

Supreme Judicial Court of Massachusetts, Suffolk

April 20, 2017

COMMONWEALTH
v.
JOSEFA TEJEDA

          Heard: December 8, 2016.

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

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Jason 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, JJ.

          BUDD, J.

         This 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.[1] 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.

         Background.

         We 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.

         Discussion.

         To 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."

         Although § 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 ...

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