Commonwealth v. Sullivan ( 2023 )

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SJC-13353
COMMONWEALTH vs. JOSEPH SULLIVAN
(and a companion case1).
Hampden. February 6, 2023. - May 16, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Misleading a Police Officer. Grand Jury. Constitutional Law,
Grand jury, Indictment.
Indictments found and returned in the Superior Court
Department on August 5, 2019.
Motions to dismiss were heard by Mark D. Mason, J.
The Supreme Judicial Court on its own initiative
transferred the cases from the Appeals Court.
Jared B. Cohen, Assistant Attorney General (Stephen J.
Carley & Dean A. Mazzone, Assistant Attorneys General, also
present) for the Commonwealth.
Daniel D. Kelly for Joseph Sullivan.
Edward B. Fogarty for Derrick Gentry-Mitchell.
1 Commonwealth vs. Derrick Gentry-Mitchell.
2
WENDLANDT, J. The allegations in this case center on an
alleged cover-up of an April 2015 altercation between off-duty
Springfield police department (SPD) officers and four Black men
(victims) near Nathan Bill's Bar & Restaurant in Springfield
(Nathan Bill's). The victims were injured, at least one
severely so; the Commonwealth contends that the off-duty
officers assaulted the victims following a verbal argument at
the bar. Investigations of the alleged misconduct of the off-
duty officers by local, State, and Federal authorities ensued;
but, the Commonwealth maintains, the investigators were hampered
by the false and misleading statements of responding SPD
officers, including the defendant Derrick Gentry-Mitchell, and
of other eyewitnesses, including the defendant Joseph Sullivan,
who co-owned Nathan Bill's. According to the Commonwealth, the
tangled web of deception by the defendants, and others, lasted
years and included misleading testimony before the grand jury.
This case presents the question whether, where the grand
jury were presented with numerous misleading statements made on
various dates spanning several years to different investigators,
an indictment charging a single count of misleading
investigators, in violation of G. L. c. 268, § 13B, is defective
under art. 12 of the Declaration of Rights of the Massachusetts
Constitution, insofar as it poses the possibility that the
defendants may be convicted of a felony for which the grand jury
3
did not indict. Because the indictments charge the essential
crime of willfully misleading investigators to impede the
investigation of the same underlying event -- the off-duty
police officers' alleged assault of the victim -- and because
the misleading statements constituted a continuing course of
conduct actuated by a single, continuing impulse or intent, or
general scheme to conceal that event, we conclude that the
indictments do not violate art. 12. Accordingly, we vacate the
motion judge's order dismissing the indictments.
1. Background. We recite the facts presented to the grand
jury in the light most favorable to the Commonwealth, reserving
some details for subsequent discussion. See Commonwealth v.
Stirlacci, 483 Mass. 775, 780 (2020) ("An appellate court
reviews the evidence underlying a grand jury indictment in the
light most favorable to the Commonwealth").
a. Assault. According to the Commonwealth, on the evening
of April 7, 2015, and into the early morning of April 8, 2015,
several off-duty SPD officers gathered at Nathan Bill's. After
midnight, the officers argued with the victims. The defendant
Joseph Sullivan, a co-owner and manager of Nathan Bill's,
intervened and asked one of the victims to leave the bar.
Shortly after 1 A.M., SPD officers responded to a report of
a disturbance outside of Nathan Bill's. Among the responding
officers were the defendant Gentry-Mitchell and his partner,
4
Jeremy Rivas, who together were on patrol that night. When the
SPD officers arrived, the victims were standing in the bar's
parking lot, and other bar patrons and staff, including several
off-duty SPD officers, were standing outside the bar's entrance.
Sullivan spoke with some of the responding officers. Following
a brief interaction, the victims walked away from the bar, the
other bar patrons and staff went back inside Nathan Bill's, and
the responding SPD officers left the scene.
Approximately one hour later, SPD officers responded to a
911 call outside a convenience store located down the street
from Nathan Bill's. The responding SPD officers, including
Gentry-Mitchell and Rivas, found the same victims there that
they had seen earlier that evening outside of Nathan Bill's.
Two of the victims were lying on the ground. One was
unconscious. He had suffered a concussion, broken leg,
dislocated ankle, torn ligaments, bruised head, and split lip;
four of his teeth were knocked loose. The other victims were
bruised; one had been shocked by a "taser" or "stun gun."
One of the victims told responding SPD officers: "We just
got jumped by [the] guys from the bar. They just walked back to
the bar." An emergency medical technician (EMT) at the scene
later testified that, within earshot of the responding officers,
including presumably Gentry-Mitchell, the victims were loudly
"going on about how they just got into a bar fight and had just
5
gotten beaten up by off-duty police officers." One of the
victims later testified before the grand jury that the off-duty
officers involved in the assault had used a racial slur before
attacking the victims; the victims were Black men.
Rivas also testified before the grand jury. Rivas
confirmed that he learned while responding to the scene outside
the convenience store that the victims had been attacked by the
same individuals with whom the victims had argued at Nathan
Bill's, that off-duty officers were at the bar, and that the
attackers "could have been police officers."
Rivas also testified that he and Gentry-Mitchell
accompanied one victim back to the Nathan Bill's parking lot.
When they arrived, they saw John Sullivan, a co-owner of the
bar,2 and Jose Diaz, an off-duty SPD officer. According to
Rivas, Diaz appeared to be drunk and stated that he had lost his
keys; Rivas and Gentry-Mitchell helped Diaz search for the keys
while walking back toward the convenience store. Along the
walk, Diaz stated that he and "some of the guys" had been
involved in a fight outside of Nathan Bill's, and that he had
been "knocked out cold" by one of the "[B]lack guys." Gentry-
2 John Sullivan and the defendant Joseph Sullivan are not
related, but they co-own and comanage Nathan Bill's. We refer
to Joseph Sullivan as "Sullivan" in this opinion.
6
Mitchell was within ten feet of Diaz when Diaz made these
statements.
Rivas further testified that, later during their shift, he
and Gentry-Mitchell spoke about the evening's events. Rivas
relayed to Gentry-Mitchell that off-duty officers may have been
involved in the assault on the victims.
b. Investigations. The victims repeatedly reported the
assault to the SPD. Two local investigations ensued. One
investigation was conducted by SPD's major crimes unit (MCU);
the other investigation was conducted by SPD's internal
investigations unit (IIU).3
In November 2016, one of the victims reported the incident
and alleged cover-up to the Federal Bureau of Investigation
(FBI).4 The FBI referred the matter to the Massachusetts
Attorney General's office (AGO), and the two entities continued
a joint investigation. In early 2018, the FBI and AGO brought
their investigation before a Statewide grand jury. Over the
course of grand jury proceedings lasting several months, more
3 The MCU referred the results of its investigation to the
office of the district attorney for the Hampden district, which
declined to bring criminal charges related to the April 2015
events.
4 After FBI agents in the Springfield regional field office
investigated the matter, the United States Attorney's Office
declined to pursue Federal criminal charges.
7
than three dozen witnesses testified, including, as explained
infra, Gentry-Mitchell and Sullivan.
c. Misleading conduct. i. Gentry-Mitchell. On July 22,
2015, Gentry-Mitchell submitted a report to MCU investigators;
on August 16, 2015, he submitted a report to IIU investigators.5
On February 22, 2018, he testified before the grand jury. On
these three occasions, the Commonwealth alleges, Gentry-Mitchell
falsely stated that he did not hear or see anything to indicate
that off-duty officers might have been involved in the assault.
Gentry-Mitchell did not disclose, in any of his three
statements, that he saw Diaz after the assault, or that he
learned any information from Diaz, Rivas, or any other source
about the off-duty officers' involvement in the incident. These
omissions, the Commonwealth alleges, were false and misleading,
and they hampered the investigations into the April 2015
assaults.
ii. Sullivan. The Commonwealth further alleges that
Sullivan also misled investigators. On June 19, 2015, in an
interview with an SPD detective, Sullivan gave a statement in
connection with the MCU investigation. On February 24, 2017,
and May 16, 2017, Sullivan was interviewed by FBI agents. On
March 15, 2018, he testified before the grand jury and made a
5 Gentry-Mitchell did not file a police report on the night
of the April 2015 incident.
8
statement to State police officers, FBI agents, and AGO
investigators prior to his testimony. The Commonwealth alleges
that, on these four dates, Sullivan made false and misleading
statements to investigators about the April 2015 incident,
including about whether he could identify any patrons in Nathan
Bill's that evening; whether he was aware that an altercation
had taken place at the bar between two groups of patrons that
evening; whether he knew the off-duty officers at the bar that
evening; whether he noticed or was aware that any officers left
the bar after the victims had left or whether the officers
returned shortly thereafter; and whether he was aware that John
Sullivan also left the bar, with the off-duty officers, and
returned shortly thereafter.
The Commonwealth also alleges that Sullivan stated falsely
that he called a taxicab for the victims when they left the bar
and that he saw the victims enter and exit the taxicab (thereby
suggesting misleadingly that the victims chose to remain at the
scene instead of leaving). That factual account was not
consistent with video evidence from a security camera outside
Nathan Bill's, or with the testimony of multiple eyewitnesses,
including the taxicab driver.
d. Grand jury indictments. In 2019, the grand jury
returned indictments against sixteen individuals. Among those
indicted were Gentry-Mitchell and Sullivan. Gentry-Mitchell was
9
indicted on one count of perjury, one count of misleading
investigators,6 and one count of making a false police report.
Sullivan was indicted on one count of perjury and one count of
misleading investigators.7
e. Motions to dismiss. Relevant to the present appeal,
the defendants each filed a motion to dismiss the indictments
6 The indictment against Gentry-Mitchell for the offense of
misleading investigators, in violation of G. L. c. 268, § 13B,
provided:
"on or about the 22nd day of July in the year two thousand
fifteen at Springfield, in the County of Hampden, or on or
about the 16th day of August in the year two thousand
fifteen at Springfield, in the County of Hampden aforesaid,
or on or about the 22nd day of February in the year two
thousand eighteen at Worcester, in the County of Worcester,
[Gentry-Mitchell] did directly or indirectly, willfully
mislead a police officer, investigator, or grand juror with
the intent to impede, obstruct, delay, harm, punish or
otherwise interfere thereby with a criminal proceeding"
(emphases added).
7 The indictment against Sullivan for the offense of
misleading investigators, in violation of G. L. c. 268, § 13B,
stated:
"on or about the 19th day of June in the year two thousand
fifteen at Springfield, in the County of Hampden, or on or
about the 24th day of February in the year two thousand
seventeen at Springfield, in the County of Hampden
aforesaid, or on or about the 16th day of May in the year
two thousand seventeen at Springfield, in the County of
Hampden aforesaid, or on or about the 15th day of March in
the year two thousand eighteen at Worcester, in the County
of Worcester, [Sullivan] did directly or indirectly,
willfully mislead a police officer, federal agent,
investigator, or grand juror with the intent to impede,
obstruct, delay, harm, punish or otherwise interfere
thereby with a criminal proceeding" (emphases added).
10
charging them with misleading investigators; they contended that
the indictments violated art. 12.8 The Commonwealth opposed the
motions, maintaining that the indictments were proper because
they alleged that the defendants' misleading statements were
part of a general scheme or single course of criminal conduct to
mislead investigators regarding the April 2015 incident. In the
alternative, the Commonwealth moved to amend the indictments.
Following a nonevidentiary hearing, the motion judge
dismissed the indictments charging misleading investigators,
relying on Commonwealth v. Barbosa, 421 Mass. 547 (1995). In
particular, the motion judge concluded that, because the
indictments charged multiple acts in a single count, they
presented the possibility that the defendants might be convicted
of a felony offense without first being indicted of the same by
a grand jury. He declined to amend the indictments, concluding
that any amendment would not cure the defect.
The Commonwealth timely appealed. We transferred the
matters to this court sua sponte.9
8 Gentry-Mitchell and Sullivan each also filed motions to
dismiss the indictments for lack of probable cause; each motion
was denied. The motion judge also denied Gentry-Mitchell's
motion to dismiss the indictments for alleged loss or
destruction of exculpatory evidence.
9 The defendants' cases were consolidated for the purposes
of this appeal.
11
2. Analysis. We review determinations on issues of law in
motions to dismiss de novo. Commonwealth v. Ilya I., 470 Mass.
625, 627 (2015).
a. Article 12 framework. We have long construed art. 1210
to require "that no one may be convicted of a crime punishable
by a term in the State prison without first being indicted for
that crime by a grand jury." Barbosa, 421 Mass. at 549. See
Jones v. Robbins, 8 Gray 329, 344 (1857) (art. 12 right is
"justly regarded as one of the securities to the innocent
against hasty, malicious[,] and oppressive public prosecutions,
and as one of the ancient immunities and privileges of English
liberty"). See, e.g., Commonwealth v. Smith, 459 Mass. 538,
543-544 (2011) (vacating conviction as violating art. 12 because
indictment charged single count of armed home invasion, but did
not specify alleged victim or home, where grand jury and trial
jury were presented with evidence of two separate, unrelated
armed home invasions occurring on same specified date).
Accordingly, the offense as to which the grand jury have
found probable cause, and thus have charged in an indictment,
must be the same as the offense the Commonwealth seeks to prove
at trial. See Barbosa, 421 Mass. at 551, quoting Commonwealth
10 Article 12 provides, in relevant part, that "[n]o subject
shall be held to answer for any crimes or offence, until the
same is fully and plainly, substantially and formally, described
to him."
12
v. Dean, 109 Mass. 349, 352 (1872) ("It is the duty of the
Commonwealth to prove the identity of the offence charged in the
indictment with that on which it seeks to convict before the
jury of trials").
i. Unrelated, separate acts. In Barbosa, 421 Mass. at
551, we applied art. 12 in the context of an indictment charging
a single offense where the grand jury heard multiple, unrelated
acts, each of which separately could constitute the charged
offense. In particular, the grand jury had been presented with
evidence that the defendant had engaged in two cocaine
distribution transactions on the same date. Id. at 550. Other
than occurring on the same date, the two transactions were
unrelated, involving two different buyers and sharing neither a
common intent nor a common theme. Id. at 548, 550.
Problematically, the grand jury returned only one indictment
that failed to specify which of the two transactions formed the
basis for the charged offense; instead, "on its face, the
indictment appear[ed] to refer to a single act of distributing
cocaine." Id. at 551. Given that both incidents occurred on
the same day, the inclusion of a date in the indictment did not
clarify this ambiguity. See id. at 550 ("The result may be
explained one of two ways. First, the grand jury may have found
probable cause to indict the defendant for one of the . . .
transactions, but not the other. Second, they may have intended
13
the indictment to encompass both transactions"). See also
Campagna v. Commonwealth, 454 Mass. 1006, 1007-1008 (2009) (in
Barbosa, it "was impossible to tell which of the two incidents
gave rise to the indictment"). The defendant's pretrial motion
to dismiss the indictment in violation of art. 12 was denied.11
Barbosa, supra at 549, 553.
At trial, the jury found the defendant guilty of cocaine
distribution. Id. at 549. Like the grand jury, the jury were
presented with evidence of the defendant's two separate and
unrelated cocaine distributions, creating "the very real
possibility that the defendant was convicted of a crime for
which he was not indicted by a grand jury."12 Id. at 551. For
example, the jury could have convicted the defendant based on
11The defendant moved to dismiss the indictment on the
basis of "duplicity," which the court understood to preserve the
defendant's objection to the indictment on the basis that it
charged "several separate offenses in a single count." Barbosa,
421 Mass. at 553 & n.10, quoting R.M. Kantrowitz & R. Witkin,
Criminal Defense Motions § 9.7 (1991).
12The ambiguity could not be resolved by a bill of
particulars. Barbosa, 421 Mass. at 553. The defendant was
aware of the two incidents presented to the grand jury. Id. A
bill of particulars would not have told the defendant which of
the two formed the basis for the indictment. Id.Neither could the defect be cured by requiring the
Commonwealth to elect which of the two transactions it sought to
pursue. Id. at 553 n.7 ("In the case that the grand jury had
indicted on only one of the incidents, to require the
Commonwealth to choose one incident could still have resulted in
a trial for an unindicted offense").
14
the second transaction whereas the grand jury may have indicted
the defendant on the first transaction, and vice versa.13 Id. at
550.
Because "there [was] a substantial risk that the defendant
was convicted of a crime for which he was not indicted by a
grand jury," Barbosa, supra at 554, the convictions "violated
the requirement of art. 12 that punishment for 'infamous crimes'
only be imposed after indictment by a grand jury," id. at 549.
We concluded that we could not "apply a harmless error standard"
to such a constitutional violation. Id. at 554, quoting Stirone
v. United States, 361 U.S. 212, 217 (1960) ("depriving defendant
of 'right to be tried only on charges presented in an indictment
returned by a grand jury' is 'far too serious to be treated as
We considered whether a specific unanimity jury
13
instruction could cure the constitutional error. Barbosa, 421
Mass. at 552. A general unanimity instruction "informs the jury
that the verdict must be unanimous," and a specific unanimity
instruction "indicates to the jury that they must be unanimous
as to which specific act constitutes the offense charged."
Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995). See id. at
513 ("where evidence of separate incidents is offered to the
jury and any one incident could support a conviction, a general
unanimity instruction may not suffice to ensure that the jury
actually [do] reach a unanimous verdict"). We concluded that a
specific unanimity instruction would not cure the defect because
the intent of the grand jury remained unclear. Barbosa, supra.
The jurors at trial "may have reached unanimity only on a
transaction for which the defendant was not indicted," so "the
defendant still may have been 'held to answer' for a crime not
set forth in the indictment." Id. Compare Dean, 109 Mass. at
352 (where parties knew which of two assaults formed basis of
indictment, proper jury instruction could have cured defect).
15
nothing more than a variance and then dismissed as harmless
error'"). As such, we vacated the convictions. Barbosa, supra.ii. Continuing offenses occurring at divers times and
places. Critically, however, we differentiated the indictment
in Barbosa, which charged two separate, unrelated drug
distribution transactions and thus violated art. 12, from an
indictment charging a "continuing offense occurring at several
times and places over a period of time," which does not.
Barbosa, 421 Mass. at 550-551, citing G. L. c. 277, § 32.14
A. General practice offense. Such offenses include
"continuing" offenses, which comprise a crime that is "the
general practice, throughout the period of time alleged."
Commonwealth v. Stasiun, 349 Mass. 38, 44 (1965). See, e.g.,
Commonwealth v. Runge, 231 Mass. 598, 599-600 (1919) (practicing
medicine unlawfully); Commonwealth v. Peretz, 212 Mass. 253, 254
(1912) (deriving support from earnings of prostitute); Wells v.
14 General Laws c. 277, § 32, provides:
"An allegation that a crime was committed or that certain
acts were done during a certain period of time next before
the finding of the indictment shall be a sufficient
allegation that the crime alleged was committed or that the
acts alleged were done on divers days and times within that
period."
16
Commonwealth, 12 Gray 326, 327 (1859) (keeping house of ill
fame).15,16
B. Offense characterized by shared intent, pattern, or
scheme. As we noted in Barbosa, "continuing offense[s]
occurring at several times and places over a period of time"
also include sexual offenses based on several acts. Barbosa,
421 Mass. at 551 & n.6, citing Commonwealth v. Conefrey, 420
Mass. 508, 511 n.6, 514 (1995) (indictment charging one count of
indecent assault and battery on child "at divers times and dates
during" 1986 proper despite victim's description of eight
different acts of sexual assaults), and Commonwealth v. Comtois,
399 Mass. 668, 669-671 (1987) (affirming convictions for sexual
assault of one victim "on divers dates between September 21,
1982, and October 4, 1983," and another victim on "divers dates
between October 1, 1982, and February 27, 1983" where each
15For continuing offenses that comprise a general practice,
time is an essential component. Double jeopardy protects a
defendant from the government subsequently bringing an
indictment covering time periods that overlap with the alleged
time period, and at trial, only evidence of the offense from the
time period alleged in the indictment is permitted. See
Commonwealth v. Megna, 59 Mass. App. Ct. 511, 513-514 (2003)
("Since time is an essential element of a continuing offense,
the defendant can never again be punished for engaging in the
same criminal practice during the time period described in the
indictment").
16We agree with the defendants that the indictments
charging the misleading of investigators do not allege a
continuing offense comprising a general practice.
17
victim testified to multiple incidents).17 Those types of
offenses are characterized by a shared intent, pattern, or
scheme, and thus are distinguishable from the two unrelated
cocaine distributions in Barbosa.18
C. Single criminal episode. Nor is the art. 12 violation
present in Barbosa mirrored where multiple acts are charged in
an indictment as part of a single, continuing criminal episode
occurring close in time. See Commonwealth v. Smiley, 431 Mass.
477, 479-480 (2000) (considering and rejecting art. 12 challenge
and holding that single indictment charging one count of armed
assault in dwelling was proper even though existence of two
victims would have permitted separate indictments); Commonwealth
v. Crowder, 49 Mass. App. Ct. 720, 721-722 (2000) (rejecting
art. 12 challenge to indictment alleging single count of
aggravated rape where grand jury heard evidence of four acts of
forcible penetration because there was "only a single episode
involving the same parties" and multiple acts of penetration
"are part of a continuing criminal episode").
17To be sure, neither Conefrey nor Comtois discussed art.
12. See Barbosa, 421 Mass. at 552-553.
At trial, such an indictment may require a specific
18
unanimity instruction to ensure the jury are unanimous as to the
particular act underlying the offense. See Conefrey, 420 Mass.
at 511-513 (vacating conviction where judge gave general
unanimity instruction, not specific unanimity instruction,
because "evidence of separate incidents [was] offered to the
jury and any one incident could support a conviction").
18
Our decision in Smiley is instructive. Smiley, 431 Mass.
at 479-480. There, the court considered a single indictment
charging that the defendant "being armed with a dangerous
weapon, namely a gun, did enter a dwelling house and while
therein did assault the occupants with intent to commit a
felony." Id. at 479. The record before the grand jury
supported that the defendant had committed the charged armed
assaults against two victims. Id. Relying on Barbosa, the
defendant contended that the Commonwealth was required to bring
two separate indictments, one for each victim who had been
assaulted. Id. at 479-480. The court acknowledged that the
Commonwealth could have sought two indictments. Id. at 480.
The offense, however, had transpired as one continuing criminal
episode whereby the defendant entered a dwelling and therein
assaulted both victims. Id. at 478-479. We rejected the
defendant's art. 12 challenge, concluding instead that the
Commonwealth was within its discretion in requesting and
receiving a single indictment for armed assault in a dwelling.
Id. at 480.
D. Single, continuing criminal impulse or intent, or
general scheme. Similarly, we have concluded that an indictment
is proper where it alleges discrete acts, occurring over a
period of time, that are "actuated by a single, continuing
criminal impulse or intent or are pursuant to the execution of"
19
a "general scheme." Stasiun, 349 Mass. at 43-45 (concluding
that indictment properly charged solicitation, in violation of
G. L. [Ter. Ed.] c. 268, § 8, where it stated that solicitation
occurred "at various times between January 31, 1959, and
July 31, 1959, the exact dates being . . . unknown"). Applying
this principle in Stasiun, we concluded that wrongful
solicitation, comprised of multiple requests for a bribe over
the course of months, could be charged as a single offense, id.
at 45; in so doing, we disagreed with the dissent that the
indictment violated art. 12, id. at 57 (Kirk, J., dissenting).
There, the victim desired to enter into a lease agreement
to rent space in his building to the registry of motor vehicles.
Id. at 40-41. Over the course of several months, the defendants
(one of whom was a State official) requested that the victim pay
a bribe to the official for the official's favorable vote on a
lease. Id. at 41-42. All told, several such requests were
made; the requests, which varied in the amount of the bribe
sought, were made in separate locations, at different times, and
by different combinations of the defendants. Id. at 41-42, 44.
Yet, despite the separate incidents, each of which constituted a
wrongful solicitation, in violation of the statutory
prohibition, a single indictment issued, charging the defendants
with one count of wrongful solicitation. Id. at 44.
20
We rejected the dissent's contention that the indictment
violated art. 12.19 The indictment was proper; we explained that
"whether the request was repeated in one meeting, or in several
meetings on a single day, or in meetings separated by days or
weeks rather than minutes, each separate request was an integral
part of the wrongful criminal solicitation, from one person, of
one payment for one favor." Id. "Solicitation of a bribe
[could] take the form of protracted negotiations," and "[a]n
offer to give or accept a bribe, while it is outstanding, has a
continuing effect." Id. at 45. Additionally, "the fact that
all the solicitations related to the approval of the . . . lease
. . . support[ed] the conclusion that there was one overall
scheme." Id. The "essential" charge of the indictment was that
the defendants on divers occasions solicited a bribe for the
State official's vote on the lease.20 Id. at 47. See
Commonwealth v. Lee, 149 Mass. 179, 184 (1889) (indictment
charging crime of obtaining goods "from time to time" by false
pretense was proper because "the false pretense was a continuing
19The court rejected the conclusion of the dissenting
justice that the indictment was "bad for duplicity in charging
more than one offence in the same count." See Stasiun, 349
Mass. at 57 (Kirk, J., dissenting).
20Accordingly, we concluded, any defendant tried on that
charge could not be tried again for that offense; if a
defendant, charged with a single wrong occurring on multiple
occasions, is acquitted on the charge, that "will end the matter
in all of its aspects as to him." Stasiun, 349 Mass. at 47.
21
one, and applicable to each delivery"); Commonwealth v. Megna,
59 Mass. App. Ct. 511, 514-515 (2003) (indictment properly
charged defendant with "a single wrong," namely extortion, "a
discrete crime, but with a continuing criminal impulse or intent
or in the pursuit of a general scheme").
b. Application to misleading investigators charge.
Similarly to Stasiun, 349 Mass. at 45, in the present action,
the record before the grand jury warranted the conclusion that
the defendants' discrete acts -- namely, their false or
misleading statements to investigators -- were "actuated by a
single, continuing criminal impulse or intent or . . . pursuant
to the execution of a general . . . scheme"; accordingly, the
acts may be charged pursuant to a single count of misleading
investigators, in violation of G. L. c. 268, § 13B, as amended
through St. 2010, c. 256, § 120.21 In particular, as presented
21General Laws c. 268, § 13B (1) (c) (iii), (iv), (v), as
amended through St. 2010, c. 256, § 120, made it a felony to
"willfully . . . mislead[] . . . a judge, . . . grand
juror, prosecutor, police officer, federal agent,
investigator . . . [or] a person who is furthering a . . .
criminal investigation, grand jury proceeding, trial, [or]
other criminal proceeding of any type. . . with the intent
to impede, obstruct, delay, . . . or otherwise interfere
thereby, or do so with reckless disregard, with such a
proceeding."
The statute was amended in 2018, in relevant part, to make it a
felony to
22
to the grand jury, the Commonwealth's theory was that the
defendants willfully misled investigators –- the MCU, IIU, FBI,
AGO, and grand jury –- to cover up the alleged misconduct of
off-duty SPD officers in connection with the April 2015 assaults
on the victims. The defendants, according to the Commonwealth,
made false and misleading statements that together wove an
inaccurate narrative in order to hide the truth from
investigators.22 Cf. Stasiun, 349 Mass. at 45. Although each
misleading statement could form a separate charge for misleading
investigators, the Commonwealth is not precluded by art. 12 from
proceeding under one indictment, charging the essential crime of
willfully misleading investigators to cover up the off-duty SPD
officers' role in the assault on the victims on April 2015.23
"willfully . . . mislead[] . . . another person who is a
. . . judge, . . . grand juror, . . . police officer, . . .
federal agent, [or] investigator, . . . with the intent to
or with reckless disregard for the fact that it may . . .
impede, obstruct, delay, prevent or otherwise interfere
with: a criminal investigation at any stage, [including] a
grand jury proceeding."
G. L. c. 268, § 13B (b), as appearing in St. 2018, c. 69, § 155.
22That the misleading statements are, in some particulars,
inconsistent with one another is of no moment. See, e.g.,
Stasiun, 349 Mass. at 43-45 (permitting one solicitation
indictment despite record showing three different bribery
requests).
23For this reason, the use of the disjunctive "or" to
separate the dates on which the defendants' alleged misleading
statements were made does not alter the analysis. These dates
are not an essential element of the crime. See Megna, 59 Mass.
23The defendants mistakenly contend that because the alleged
misleading statements were made to different investigators, art.
12 requires that the Commonwealth proceed by separate
indictments. Their contention is unsupported by our
jurisprudence that allows indictments of continuing offenses
occurring at divers times and places, discussed supra, or by the
statutory language of the crime under which they were indicted.
The statute setting forth the offense of misleading an
investigator defined an "investigator"24 to include a "group of
App. Ct. at 514. By setting forth the dates in the indictments,
the Commonwealth provided notice to the defendants of the
misleading acts underlying the essential crime charged -–
namely, that the defendants misled investigators by continuously
telling a misleading narrative regarding the alleged assaults on
April 2015. Cf. Commonwealth v. Dingle, 73 Mass. App. Ct. 274,
277-282 (2008) ("or" in indictment did not create ambiguity
where indictment was sufficient to enable defendant to
understand charge and prepare his defense).
24During the relevant time period, the statute defined an
"investigator" as
"an individual or group of individuals lawfully authorized
by a department or agency of the federal government, or any
political subdivision thereof, or a department or agency of
the [C]ommonwealth, or any political subdivision thereof,
to conduct or engage in an investigation of, prosecution
for, or defense of a violation of the laws of the United
States or of the [C]ommonwealth in the course of his
official duties."
G. L. c. 268, § 13B (2), as amended through St. 2010, c. 256,
§ 120. The definition was modified slightly in 2018 to include
gender-neutral language. See G. L. c. 268, § 13B (a), as
appearing in St. 2018, c. 69, § 155 ("in the course of such
individual's or group's official duties").
24
individuals" authorized to perform the function of "conduct[ing]
or engag[ing] in an investigation" of "a violation of the
law[]."25 G. L. c. 268, § 13B (2), as amended through St. 2010,
c. 256, § 120. Thus, a violation of G. L. c. 268, § 13B, can be
based on conduct of misleading multiple investigators. Article
12's requirement is satisfied where the misstatements were
actuated by a single, continuing criminal impulse or intent or
pursuant to the execution of a general scheme; here, the
Commonwealth contends that the defendants' conduct underlay the
general scheme to conceal the alleged misconduct of the off-duty
SPD officers in April 2015.26 Nothing in art. 12 precludes the
Commonwealth from so proceeding. See, e.g., Smiley, 431 Mass.
at 480 (indictment could charge armed assault on multiple
25Contrary to the defendants' argument, neither art. 12 nor
G. L. c. 268, § 13B, requires a grand jury to indict for conduct
misleading State officials investigating a violation of State
law separately from conduct misleading Federal officials
investigating a violation of Federal law. The statute concerns
acts that impede "investigation[s]," regardless of whether an
otherwise unimpeded investigation might have led to a Federal or
State charge.
26Gentry-Mitchell's assertion, without citation to any
material in the record, that "the Commonwealth brought separate,
distinct indictable offenses and not a continuing offense" is
belied by the grand jury's decision to return one indictment for
the continuing actions of the defendants each aimed at hiding
the April 2015 events.
25
victims where offense could be characterized as occurring during
one criminal episode).27,28
3. Conclusion. Accordingly, we reverse the order allowing
the defendants' motions to dismiss the indictments and remand
for further proceedings.
So ordered.
27Given the Commonwealth's choice to proceed on this
theory, double jeopardy would limit any conviction that results
to one count of misleading investigators, even if multiple
misleading acts were found by the jury. See Commonwealth v.
Rollins, 470 Mass. 66, 74 (2014). Moreover, the Commonwealth
would be precluded from prosecuting the defendants again for the
same crime based on conduct preceding the indictments. See
Stasiun, 349 Mass. at 45, 47 (any defendant tried on charge of
soliciting bribery actuated with single, continuing criminal
impulse or intent, or under general scheme, "could not again be
tried for that offence").
28Because we conclude that the indictments were proper, we
need not reach the Commonwealth's alternative argument that the
motion judge erred in denying the Commonwealth's motion to amend
the indictments.