Heard: January 7, 2019.
case was tried before Raymond J. Brassard, J. The Supreme
Judicial Court on its own initiative transferred the case
from the Appeals Court.
King for the defendant. Cailin M. Campbell, Assistant
District Attorney, for the Commonwealth.
Jellison, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
issue presented on appeal is whether a defendant who
witnessed a killing may be found guilty as an accessory after
the fact to murder, in violation of G. L. c. 274, § 4,
where the only "aid" or "assistance"
alleged is that the defendant made false and misleading
statements to police detectives and refused to provide them
with the telephone numbers they requested. We conclude that,
where the defendant did not provide the police with a false
alibi or comparable information that would exculpate the
principal felon (here, the killer), a false narrative of the
crime that would give the principal a defense, or false
information to assist in the principal's escape, the
defendant's false statements and refusal to cooperate
alone do not constitute the "aid" or
"assistance" required to find a defendant guilty as
an accessory after the fact under the statute. Because the
evidence was insufficient as a matter of law to sustain the
conviction, we vacate the judgment of conviction and remand
the matter to the Superior Court for issuance of a judgment
the defendant challenges the sufficiency of the evidence to
prove that he was an accessory after the fact, we summarize
the facts that the jury could have found in the light most
favorable to the Commonwealth. Commonwealth
v. Lao, 443 Mass. 770, 779 (2005), S.C.,
450 Mass. 215 (2007) and 460 Mass. 12 (2011).
dawn on October 16, 2011, the defendant, after visiting a
friend's home to drink and socialize, was returning home
with Hector Soto and Josue Santos in a motor vehicle driven
by Santos. They stopped at a convenience store in the Jamaica
Plain neighborhood of Boston on the way so that Santos could
buy a drink. After Santos returned to his vehicle, Soto began
arguing in the parking lot with Kenneth Soto (victim),
was with a group of friends who were in a vehicle parked next
to Santos's vehicle. The victim began to wrestle and
exchange punches with Soto. The defendant then stepped
outside the vehicle and joined the fight to assist Soto.
During the course of the fight, Soto stabbed the victim. Soto
and the defendant then returned to the vehicle, and Santos
quickly drove away. In the vehicle, Soto and the defendant
laughed together while talking about the fight. Santos then
dropped the defendant and Soto off at the defendant's
home. The victim later died from his stab wound.
October 23, 2011, Detectives Garrett G. Mitchell and Michael
T. Walsh of the Boston police department interviewed the
defendant at his home about the incident; the interview was
recorded. Mitchell told the defendant that they were there
because they were investigating an incident "that
happened over at [a convenience store] in Jamaica Plain"
early on Sunday morning, October 16. The defendant said that
he had seen the news on television and knew that a young man
had been killed there.
Mitchell asked the defendant where he was on Saturday night,
October 15, he said he was at "Rashad's
grandmother's house" in the Hyde Park neighborhood
of Boston "until late," drinking, smoking, and
watching television with some of his friends. He said that he
had driven there alone, returned home alone, and did not stop
anywhere on his way home. He told the detectives that he had
"no idea" when he returned home.
Mitchell asked whom he was with in Hyde Park, the defendant
said that "people kept coming in and out." He
initially said that he could not remember anyone who was
there apart from Rashad, but later responded that he usually
spends time with Joel,  Paul, and Pat. Recognizing that
"Joel" was a reference to Soto, the detectives
pressed the defendant for more information about Joel. When
asked where Joel lived, the defendant said that he lived
"not too far from the baseball field" in the
Roslindale neighborhood of Boston. When asked if Joel goes by
another name, the defendant responded, "That's what
I know him by." Soto's middle name is
"Joel" but, at trial, all who knew Soto referred to
him by his first or last name or his nickname,
Walsh asked the defendant if he had the telephone numbers of
Joel and the other persons who were there that night, the
defendant said, "I have most of their numbers,
yeah." When the detective asked the defendant if he
would give them those numbers, specifically asking for
Joel's telephone number, the defendant responded:
"[I]t feels like the way you're doing it is, . . .
whoever I give you, that's who you're going to go
after, no matter what. ... I'm not into just involving
other people . . ., and ...