Commonwealth v. Paquette , 475 Mass. 793 ( 2016 )

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SJC-12028
COMMONWEALTH vs. RAYMOND ZACHARY PAQUETTE.
Hampshire. April 4, 2016. - October 27, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
Hines, JJ.1
Misleading a Police Officer. Practice, Criminal, Instructions
to jury.
Indictments found and returned in the Superior Court
Department on June 24, 2014.
The cases were tried before C. Jeffrey Kinder, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Thomas D. Frothingham for the defendant.
Steven E. Gagne, Assistant District Attorney, for the
Commonwealth.
Yale Yechiel N. Robinson, pro se, amicus curiae, submitted
a brief.
1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
2
LENK, J. This case considers whether any lie to police
during a criminal investigation "misleads" police in violation
of G. L. c. 268, § 13B, the witness intimidation statute. The
statute prohibits, as relevant here, "willfully . . .
mislead[ing] . . . [a] police officer." The defendant was
convicted by a Superior Court jury on two indictments charging
violations of that prohibition, at two separate interviews with
police, during their investigation of a fight at a party he
hosted in May, 2014. On direct appellate review, the defendant
argues primarily that the jury were not instructed correctly
regarding the elements of § 13B, and that his motions for
required findings of not guilty should have been allowed. We
conclude that the instruction regarding the "mislead[ing]"
element of § 13B was incorrect. We further conclude that, if
the jury had been instructed correctly, the evidence would have
been sufficient to allow the jury to find the defendant guilty
of violating § 13B at the first interview, but not at the second
interview. Accordingly, we vacate the judgment and remand the
matter to the Superior Court for entry of a required finding of
not guilty on the second indictment, alleging that the defendant
misled police at the second interview.2 The defendant may be
2
We acknowledge the amicus brief submitted by Yale Yechiel
N. Robinson.
3
retried on the first indictment, concerning statements he made
to police during the first interview.
1. Background. We recite the facts the jury could have
found, reserving certain details for later discussion. On the
night of May 3, 2014, the defendant and his sister hosted a
party at their father's house in Westhampton. Two of the
guests, Patrick Bousquet and Tyler Spath, became involved in an
argument in the kitchen after a remark by Spath that Bousquet
perceived as an insult to his girl friend. The argument turned
violent when Bousquet hit Spath over the head with a glass
bottle, shattering the bottle and slicing open Spath's head and
neck. A larger fight erupted, involving multiple other guests.
Soon afterwards, the defendant announced that the party was
over, and urged everyone to go home. As the bleeding Spath left
to go to the hospital, the defendant said to him, "[Y]ou weren't
here, don't tell anyone you were here, nothing happened."
State police troopers interviewed the defendant twice in
the course of the ensuing investigation. The first interview
took place at about noon on May 4, 2014, approximately ten hours
after the party ended. The defendant told the troopers that he
had hosted the party, and he provided them with the names of a
few friends who had attended. Believing that the defendant knew
more than he was saying, however, one of the troopers urged him
to be more forthcoming. The defendant then explained that he
4
was outside "picking up beer cans" at the time of the fight. He
claimed he "saw a bunch of commotion" and ran inside after the
fight had ended.
The defendant recalled seeing Spath and several other
people in the kitchen after the fight, but only identified one
person, a friend of Spath's, by name. He provided physical
descriptions of three other men who were in the kitchen and who,
he believed, might have been involved in the fight, and he noted
that Spath's girl friend also might have been present. He
emphasized, however, that these individuals were not his
friends, and that he only interacted with them "after the fact,"
while telling partygoers to leave. He added, "As far as I'm
concerned, if people are going to start fighting in my house, I
don't need anything to get broken. I don't -- I don't need, you
know, police officers coming to my house and doing this."
The troopers did not think the defendant's account
credible -- they believed that he was friends with some of the
people involved in the fight, and did not want to incriminate
those people. One of the troopers explained to the defendant
that they did not "want people impeding an investigation,"
noting that "there's all kinds of charges that are involved with
that." The interview ended shortly thereafter.
Subsequent interviews during the investigation reinforced
the troopers' suspicions: five guests, including Spath,
5
specifically placed the defendant in the kitchen at the time of
the fight. Those interviews indicated that the defendant sought
unsuccessfully to mediate the verbal argument between Bousquet
and Spath before it came to blows. The interviews also led
police to identify Bousquet as the person who hit Spath. By the
third week of May, 2014, Bousquet had been arrested and charged
in connection with the incident.3
The second interview of the defendant took place on the
afternoon of May 29, 2014, after Bousquet had been charged. The
troopers (one of whom had been at the previous interview) told
the defendant that they had spoken with other people who were
present during the fight, and sought to "clear the air like
adults." They asked him to tell them again what he saw on the
night of the party. The defendant then revealed the names of
additional guests beyond those he had mentioned during his first
interview. He did not, however, name Bousquet or others police
understood had been present. One of the troopers warned the
defendant that if he continued to withhold information from
them, he was heading down a "bad road."
The defendant insisted that he had not noted who, aside
from Spath, had been present. He elaborated that he was on
3
The record does not contain the date or dates on which
Bousquet was arrested and charged, or the specific charges
against him. In December, 2014, he pleaded guilty to two counts
of assault and battery by means of a dangerous weapon resulting
in serious bodily injury, in violation of G. L. c. 265, § 15A.
6
sleep medication and "blackout drunk" during the party, and
reiterated his account from the first interview that he was
outside collecting cans at the time of the fight. Eventually,
however, the defendant stated that he had heard secondhand that
"Pat," an acquaintance of his, "got in a fight with somebody and
hit [him] with a bottle."
Over the course of the second interview, the troopers
repeatedly warned the defendant that he could face criminal
liability if he misled them in their investigation.
Nonetheless, the defendant maintained that he was not present
during the fight. The troopers informed the defendant that they
would be forwarding the recording of their interview to the
district attorney for "further review."
2. Procedural posture. On June 24, 2014, a grand jury
returned two indictments charging the defendant with misleading
a police officer, one for each interview, in violation of G. L.
c. 268, § 13B. The case was tried before a Superior Court jury
in March, 2015. The Commonwealth played audio recordings of
both of the defendant's interviews,4 and called a number of
witnesses who contradicted the defendant's account that he was
outside when the fight broke out.
4
Both interviews were audiorecorded using a hand-held
digital recording device. The defendant did not object to the
recording. The audio recording of the second interview was
incomplete, as the recording device reached its storage capacity
before the interview ended.
7
The defendant's theory of the case was that the
Commonwealth's witnesses misremembered his location at the time
of the fight because they had been drunk, and were otherwise not
credible. A friend of the defendant testified on his behalf,
stating that he had been outside with the defendant at the time
of the fight. The defendant did not testify.
The defendant's motions for required findings of not
guilty, at the close of the Commonwealth's case and at the close
of all the evidence, were denied. On March 11, 2015, the jury
found the defendant guilty of both charges. The judge imposed a
sentence of two and one-half years in a house of correction,
suspended on specific conditions of probation. The defendant
appealed, and we granted his application for direct appellate
review.
3. Discussion. Witnesses ordinarily have no obligation to
disclose information to police. See Commonwealth v. Hart, 455
Mass. 230, 238 (2009). When a witness does choose to speak with
police, however, § 13B makes it criminal to "mislead[]" them in
certain circumstances. The section provides, in relevant 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] proceeding
shall be punished."
G. L. c. 268, § 13B (1) (c) (iii), (v). The offense essentially
comprises four elements: (1) wilfully misleading, directly or
8
indirectly, (2) a police officer (3) with the intent to impede,
obstruct, delay, harm, punish, or otherwise interfere thereby
with5 (4) a criminal investigation. See id. The defendant
argues that the jury were not instructed properly regarding two
of these elements: wilfully misleading conduct (misleading
element), and the specific intent to impede, obstruct, delay,
harm, punish, or otherwise interfere with (impeding element).6
He further argues that the evidence was not sufficient to
establish these elements with respect to his statements at
either the first or the second interview. In addition, the
defendant argues that his convictions were impermissibly
duplicative.7
a. Jury instructions. The jury were instructed largely in
accordance with the model jury instructions regarding the
5
A defendant's reckless disregard of the possibility that
his or her conduct might interfere with the proceeding at issue
also is sufficient to establish this element of the statute.
See G. L. c. 268, § 13B (1) (c) (v). The indictments in this
case, however, only alleged that the defendant acted with
specific intent, not reckless disregard. See Mass. R. Crim.
P. 4 (a), 378 Mass. 849 (1979) ("An indictment . . . shall
contain . . . a plain, concise description of the act which
constitutes the crime or an appropriate legal term descriptive
thereof").
6
The defendant does not contest that the statements at
issue in this case were made to a police officer, and that they
were made during a criminal investigation.
7
Because we conclude that the evidence was insufficient to
establish that the defendant misled police at the second
interview, we do not address this argument.
9
elements of misleading a police officer that were in effect at
the time of his trial, Instruction 7.360 of the Criminal Model
Jury Instructions for Use in the District Court (rev. May 2014).8
8
With respect to the offenses charged, the jury were
instructed:
"Now, let me turn to the specific charges in this
case. The defendant is charged with two counts of
misleading a police officer; one on May 4, 2014, and one on
May 29, 2014.
"In order for you to find the defendant guilty of this
offense, the Commonwealth must prove the following three
elements beyond a reasonable doubt. First, that the
defendant directly or indirectly [misled] another person.
Second, that the other person was a police officer
conducting a criminal investigation. And third, that the
defendant did so with the specific intent to impede,
obstruct, delay or otherwise interfere with that criminal
investigation.
"To mislead means to knowingly make a false statement,
to intentionally omit information from a statement causing
a portion of that statement to be misleading, or to
intentionally conceal a material fact and thereby create a
false impression. However, objectively misleading conduct
alone is not enough. The Commonwealth must also
prove . . . the specific intent to impede, obstruct, or
interfere with a criminal investigation. To prove this
third element the Commonwealth, as I said, must prove
beyond a reasonable doubt that the defendant specifically
intended to impede, obstruct, delay, or otherwise interfere
with a criminal investigation. That is, it must prove the
purpose or objective of the defendant.
"Obviously, it is impossible to look directly into the
defendant's mind, but in our everyday affairs, we often
decide from the actions of others what their state of mind
is. In this case you may examine the defendant's actions
or/and words and all of the surrounding circumstances to
help you determine his intent at the time.
10
The defendant argues that the instructions inaccurately
described both the misleading and the impeding elements of
§ 13B.
i. Misleading element. The defendant argues for the first
time on appeal that the jury were not instructed properly
regarding the misleading element of § 13B.9 The jury were
instructed that "[t]o mislead means to knowingly make a false
statement, to intentionally omit information from a statement
causing a portion of that statement to be misleading, or to
intentionally conceal a material fact and thereby create a false
impression." The judge added, "Bear in mind that the
Commonwealth need not prove that the defendant was successful in
misleading the police, so long as you are satisfied beyond a
reasonable doubt that the defendant made a false statement or
willfully omitted material information in his statement . . . ."
"Bear in mind that the Commonwealth need not prove
that the defendant was successful in misleading the police,
so long as you are satisfied beyond a reasonable doubt that
the defendant made a false statement or willfully omitted
material information in his statement to the police with
the specific intent to impede, obstruct, delay, or
interfere with the criminal investigation."
9
In his written request for a jury instruction, the
defendant argued, "The [d]efendant requests that he be permitted
to argue that a mere denial of his presence in the kitchen while
the fight was happening, whether true or false is nothing more
than an attempt to exculpate himself and not an elaborate ruse
to induce action by someone else." The specific language that
he requested, however, addressed only the impeding element of
G. L. c. 268, § 13B.
11
The defendant argues that that instruction incorrectly allowed
the jury to find any knowingly false statement "misleading"
within the scope of § 13B. Because the defendant did not raise
this argument at trial, we review the challenged instruction for
a substantial risk of a miscarriage of justice. See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
In our few prior cases involving § 13B, we adopted a
working definition of "misleads" from the description of
"misleading conduct" in 18 U.S.C. § 1515(a)(3), which defines
that term for purposes of the Federal witness tampering statute,
18 U.S.C. § 1512(b). See Commonwealth v. Figueroa, 464 Mass.
365, 372 (2013). "Misleading conduct" under the Federal
statutory scheme includes
"(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 other object that is misleading in a material
respect; or (E) knowingly using a trick, scheme, or device
with intent to mislead."
Id., quoting 18 U.S.C. § 1515(a)(3). This definition heretofore
generally has been adequate to the task of determining whether
defendants have "misled" investigators in violation of § 13B.
Yet it also is somewhat circular -- apart from "knowingly making
12
a false statement," each of the enumerated categories is
described using the word "mislead" or "misleading." Because of
the definition's inherent limitations, we take this opportunity
to clarify further the meaning of "misleads" as it appears in
§ 13B.
"When a statute does not define its words we give them
their usual and accepted meanings, as long as these meanings are
consistent with the statutory purpose" (citation omitted).
Bayless v. TTS Trio Corp., 474 Mass. 215, 219 (2016).
Dictionaries have defined "mislead" as "[t]o lead in the wrong
direction." The American Heritage Dictionary of the English
Language 1124 (4th ed. 2006), and "to lead or guide wrongly;
lead astray," Webster's New Universal Unabridged Dictionary 1230
(2003). These definitions indicate that to "mislead[]"
principally entails sending a person on a proverbial "wild goose
chase," by inducing the person to go somewhere materially
different from where he or she otherwise would have gone.
Our cases similarly have focused implicitly on whether,
given the information known to police at the time of the
defendant's alleged statements, the statements reasonably could
have led police astray, i.e., caused them to pursue a course of
investigation materially different from the course they
otherwise would have pursued. In Figueroa, 464 Mass. at 372-
373, for example, we affirmed a defendant's conviction under
13
§ 13B where the evidence indicated that the defendant, a
parolee, had presented a detailed false alibi to his parole
officer during her investigation into possible violations of the
conditions of his parole.10 Although that conduct did not
actually mislead the parole officer, we concluded that it
reasonably could have done so. See id. at 373. The Appeals
Court likewise has affirmed a conviction under § 13B of a
defendant who, after being shot, falsely told police that the
shooter had been a considerable distance away, although forensic
evidence indicated that the shooter had been within feet of him.
See Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 47, 50-51
(2011). The court noted specifically that "the statements that
the defendant made to the initial officer on the scene
were . . . sufficient to mislead a reasonable person in his
position." Id. at 51.11 In Commonwealth v. Morse, 468 Mass.
360, 361, 364, 372-373 (2014) (Morse), by contrast, we concluded
10
The conditions of the defendant's parole in that case
included "not go[ing] to areas where children under eighteen
years of age would congregate," and "not enter[ing] into a
relationship with someone who had children without informing his
parole officer." Commonwealth v. Figueroa, 464 Mass. 365, 366
(2013). The defendant told the officer that he had been at an
Alcoholics Anonymous meeting and that his global positioning
system monitor was broken, when in fact he had been trick-or-
treating with the children of a woman whom he secretly had been
dating. Id. at 372-373.
11
See also Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489,
506 (2015) (noting in dicta that defendant's false claim to
police that he had acquired money from drug theft by working as
fisherman would have violated G. L. c. 268, § 13B, if statement
had been made during enumerated criminal proceeding).
14
that a suspect's answer of "No" in response to a police
officer's question whether he had consumed any substances in
addition to alcohol before a boating accident "that could've
impaired [his] ability to . . . be aware of what was going on
around [him]" was not "misleading" within the meaning of § 13B,
because the answer was a subjective assessment of the suspect's
response to an intoxicating substance, and therefore did not
"rise to the level of a knowingly false statement or an
intentional omission of a material fact."
In Morse, supra at 372, we observed that each aspect of the
working definition of "misleads" suggests "a knowing or
intentional act calculated to lead another person astray." We
further observed that "intimidat[ing]" and "harass[ing]"
conduct, both of which are prohibited under the same subsection
of § 13B as "mislead[ing]" conduct, similarly involve "malicious
acts calculated to produce certain effects on a third party."
See id. at 375, citing G. L. c. 168, § 13B (1) (c). The Appeals
Court likewise has defined "intimidating conduct" for purposes
of § 13B as "acts or words that would instill fear in a
reasonable person." See Commonwealth v. Rivera, 76 Mass. App.
Ct. 530, 535 (2010). Given this, it seems evident that whether
a statement is "mislead[ing]" for purposes of § 13B depends on
whether it reasonably could lead investigators to pursue a
course of investigation materially different from the course
15
they otherwise would have pursued.12 In short, "He went that
way" may well be misleading, but "I don't know" likely is not.13
Understanding the definition of "misleads" to include only
those lies that reasonably could lead investigators to pursue a
materially different course of investigation is in keeping with
the statutory purpose of § 13B.14 In Morse, supra at 367-370, we
examined in detail the statutory history of § 13B and its
relationship to other crimes against public justice. We
concluded that § 13B is targeted specifically at "countering the
effect of witness intimidation on the successful prosecution of
12
Federal courts have interpreted the definition of
"misleading conduct" under 18 U.S.C. § 1515(a)(3) similarly to
entail conduct that reasonably could lead someone astray in a
material way. See, e.g., United States v. Kulcyzk, 931 F.2d
542, 548 (9th Cir. 1991) ("The statute . . . appears to require
that the defendant mislead the witness as to the substance of
his testimony" [emphasis added]); United States v. King, 762
F.2d 232, 237 (2d Cir. 1985) ("[T]he evidence failed totally to
support any inference that [government witness] was, or even
could have been, misled").
13
Cf. Commonwealth v. D'Amour, 428 Mass. 725, 744 (1999),
citing Commonwealth v. Giles, 350 Mass. 102, 111 (1966) (noting
in perjury context that "test for materiality is not whether
testimony did in fact influence pertinent determination, but
whether it had a reasonable and natural tendency to do so").
14
See Commonwealth v. One 1987 Mercury Cougar Auto., 413
Mass. 534, 537-38 (1992) ("While courts should look to
dictionary definitions and accepted meanings in other legal
contexts, . . . their interpretations must remain faithful to
the purpose and construction of the statute as a whole"
[citation omitted]).
16
criminals." See id. at 367.15 The prohibition against
misleading conduct in § 13B advances that purpose by
criminalizing conduct that reasonably could affect in a material
way the investigation culminating in such a prosecution.
The judge understandably instructed the jury in accordance
with the definition of "misleading conduct" that we adopted in
Figueroa, 464 Mass. at 372. That instruction, however,
indicated incorrectly that a defendant "misleads" police if he
or she knowingly makes any false statement to police, or omits
or conceals material information with the intent to mislead
police or give them a false impression.16 Because the
instruction allowed the jury to conclude that the defendant
"misled" police even if his false or incomplete statements could
not reasonably have led police to pursue a materially different
course of investigation, it created a substantial risk of a
miscarriage of justice.17 See Alphas, 430 Mass. at 13.
ii. Impeding element. The defendant also argues that the
jury were not properly instructed regarding the impeding element
of § 13B. Only some of the defendant's requested language
15
Although G. L. c. 268, § 13B, originally was enacted in
1969, the prohibition on misleading conduct first was added in
2006. See St. 2006, c. 48, § 3; St. 1969, c. 460.
16
The Commonwealth likewise suggested incorrectly during
closing argument that the defendant had violated the statute
simply because "he lied to the police."
17
The verdict slip did not ask the jury to specify what
kind of "misleading conduct" they found.
17
concerning this element was incorporated in the final jury
instruction: the jury were instructed that "objectively
misleading conduct alone is not enough" to establish the
offense, and that the Commonwealth also must prove "that the
defendant specifically intended to impede, obstruct, delay, or
otherwise interfere with a criminal investigation." They were
instructed further that they could "examine the defendant's
actions or/and words and all of the surrounding circumstances to
help [them] determine his intent at the time." Over the
defendant's objection, however, the judge declined to include
language to the effect that "when an individual denies his
guilt, either falsely or truthfully, without otherwise making
any affirmative misrepresentations or attempting to shift the
blame onto a third party, it generally would be in aid of
exculpating himself from liability, rather than of inducing
action by someone else." See Morse, supra at 375.
The judge's decision to omit such language was not
prejudicial error. See Commonwealth v. Kaeppeler, 473 Mass.
396, 406 (2015). It is possible that the defendant in this
case, like the defendant in Morse, supra at 374, intended only
to minimize his involvement in the events being investigated by
police out of concern that he might be exposed to criminal
liability, either for his involvement, however minimal, in the
circumstances surrounding the assault on Spath, or for his
18
involvement in other criminal activity that was not the primary
focus of the investigation by police, such as underage
drinking.18 Nonetheless, it was not necessary to instruct the
jury specifically regarding other intentions that the defendant
might have had during his conversations with police. In Morse,
supra at 374, we chiefly considered whether a suspect's short
exculpatory denial, on its own, allowed for an inference of
specific intent to interfere with the police's investigation.
We concluded the denial did not allow for such an inference,
because, unlike "a content-laden fabrication designed to send
police off course, thereby interfering with their
investigation," it left police "in the same position they would
have been in had the [suspect] instead remained silent." Id.
Here, by contrast, the defendant's statements were more
extensive than a simple exculpatory "No," and in any event were
not the only evidence of his intent to interfere in some way
with the police's investigation. Other evidence included the
defendant's exhortations to Spath as he left the party not to
tell anyone that he had been at the party, and his suggestion to
police during the first interview that he had told partygoers to
leave after the fight in order to avoid a police investigation
18
The defendant was twenty-one years old at the time of the
party; not all of the guests, however, were of legal drinking
age. See G. L. c. 138, § 34 (criminalizing furnishing of
alcohol to minors).
19
into what had happened. Accordingly, a specific instruction
regarding the inferences that could be drawn from a short
exculpatory denial would not have been appropriate. It was
sufficient for the jury to be instructed, as they were, that the
defendant's mens rea could be inferred from circumstantial
evidence. See Commonwealth v. Stewart, 454 Mass. 527, 535
(2009). See also Commonwealth v. Robinson, 449 Mass. 1, 8
(2007) ("A judge need not use any particular words in
instructing the jury as long as the legal concepts are properly
described").
b. Sufficiency of the evidence. Although the jury were
not instructed correctly regarding the misleading element of
§ 13B, we consider whether, had a correct instruction been
given, the evidence would have been insufficient to allow the
jury to convict on either indictment. See Commonwealth v.
Lapage, 435 Mass. 480, 486 (2001). "[W]e apply the well-settled
and familiar Latimore standard: that is, viewing the evidence
in the light most favorable to the Commonwealth, we ask whether
the evidence and the inferences that reasonably could be drawn
from it were 'of sufficient force to bring minds of ordinary
intelligence and sagacity to the persuasion of [guilt] beyond a
reasonable doubt.'" Commonwealth v. Scott, 472 Mass. 815, 820
(2015), quoting Commonwealth v. Latimore, 378 Mass. 671, 676–677
(1979).
20
The evidence presented might have allowed a correctly
instructed jury to conclude that the defendant's statements at
the first interview violated § 13B. Although the Commonwealth
did not present any direct evidence of the effect of the
defendant's statements at that interview on the investigation by
police,19 the statements were made while the investigation still
was in its early stages. Accordingly, the jury might have
inferred that the defendant "misled" police within the meaning
of § 13B by lying about his location at the time of the fight,
or by misrepresenting that he did not know the identities of
certain people involved, if they found that such statements
reasonably could have influenced the investigation in a material
way. The jury also might have inferred from circumstantial
evidence that the defendant specifically intended to impede,
obstruct, delay, or otherwise interfere with the investigation.
By contrast, even if the jury had been instructed
correctly, no view of the evidence would have allowed them to
conclude that the defendant violated § 13B at the second
interview. As noted, statements are not misleading within the
meaning of § 13B unless, given the information known to police
at the time the statements were made, the statements reasonably
could have led police to pursue a materially different course of
19
Contrast Commonwealth v. Morse, 468 Mass. 360, 374-375
(2014) (summarizing evidence regarding alleged effect of
defendant's statements on course of investigation).
21
investigation. The Commonwealth presented no direct evidence,
however, that the defendant's statements at the second interview
reasonably could have led police astray in this manner. Nor was
the evidence that was presented sufficient to allow for an
inference to that effect. By the time of the second interview,
police already had conducted an extensive investigation, and
Bousquet had been arrested and charged. Furthermore, once
police asked the defendant to "clear the air," they presented
him with the unenviable choice between admitting that he had
lied and omitted information at his first interview, and
repeating his misstatements from the first interview, either of
which could expose him to potential criminal liability under
§ 13B. Given the timing of the defendant's statements and what
police already knew, and in the absence of other evidence
indicating that the statements reasonably could have affected
the police investigation in a material way, the evidence was not
sufficient to allow for the conclusion that the defendant
"misled" police, within the meaning of § 13B, at the second
interview. See Scott, 472 Mass. at 820. Therefore, the
defendant's motion for a required finding of not guilty with
respect to the second indictment, pertaining to the second
interview, should have been allowed.
4. Conclusion. The judgments of conviction are vacated
and set aside. The matter is remanded to the Superior Court for
22
entry of a required finding of not guilty with respect to the
second indictment, alleging that the defendant misled police at
the second interview, and further proceedings consistent with
this opinion.
So ordered.