Commonwealth v. Martinez

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18-P-1466 Appeals Court
COMMONWEALTH vs. JOSE MARTINEZ.
No. 18-P-1466.
Essex. April 6, 2020. - October 2, 2020.
Present: Sullivan, Kinder, & Singh, JJ.
Cellular Telephone. Evidence. Attempt. Constitutional Law,
Indictment. Practice, Criminal, Indictment, Required
finding.
Indictment found and returned in the Superior Court
Department on January 14, 2016.
The case was tried before Paul D. Wilson, J.
The case was submitted on briefs.
Thomas C. Foley for the defendant.
Helle Sachse, Special Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. After a jury trial, the defendant, Jose
Martinez, was convicted of attempting to conceal or destroy
evidence with the intent to interfere with an official
proceeding. See G. L. c. 268, § 13E (b). On appeal, he
contends that the indictment charging him with that crime was
2
defective and that the evidence presented at trial was
insufficient to support his conviction. We affirm.
Background. At the time of the initial indictments, the
defendant was a court officer working in the Lawrence Division
of the District Court Department. He was indicted, as relevant
here, on eleven separate counts of rape, assault with intent to
rape, and indecent assault and battery on a person age fourteen
or over.1 See G. L. c. 265, § 22 (b), § 24, § 13H. Eight months
later, the defendant was indicted on the charge of attempting to
conceal or destroy evidence (hereafter, we refer to this as the
indictment). Following a jury trial, the defendant was
acquitted of the underlying charges but convicted of attempting
to conceal or destroy evidence in an official proceeding.
At trial, a fellow court officer testified that after
receiving a sexual assault complaint against the defendant from
a woman in custody, and after the defendant was arraigned on the
underlying charges, the defendant called the court officer and
requested that he find and "take," "smash," and "throw . . . in
the river" a second cell phone that the defendant kept in the
court house. The cell phone contained pornographic images that
included the defendant's penis and the breasts and vaginas of
1 We refer hereafter to the charges in these eleven
indictments as the underlying charges.
3
unknown women. The court officer reported the request to his
superiors. At trial, the defendant admitted that he had made
the request, but denied that he harbored any intent to obstruct
criminal prosecution, claiming instead that he made the request
to spare his wife and children embarrassment.
Discussion. 1. The indictment. The defendant contends,
for the first time on appeal, that because the indictment did
not allege an overt act, it was facially defective. "Although a
challenge to the sufficiency of an indictment ordinarily is
deemed waived unless raised by a motion to dismiss prior to
trial, whether an indictment fails to allege an offense is a
matter of jurisdiction, which may be raised at any time."
Commonwealth v. Garrett, 473 Mass. 257, 264 (2015).
An overt act is an essential element of the crime of
attempt. See Commonwealth v. LaBrie, 473 Mass. 754, 764 (2016)
("The elements of attempt . . . are [1] the specific intent to
commit the substantive crime at issue, and [2] an overt act
toward completion of the substantive crime"). See also
Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974) ("A charge
of an attempt should set forth in direct terms that the
defendant attempted to commit the crime, and should allege the
act or acts done towards its commission"). The indictment,
4
which is set forth in full in the margin,2 alleged that the
defendant "did attempt to conceal or destroy an object, to wit:
a cellphone."
The defendant maintains that the indictment is deficient
because it did not place him on notice of the overt act of
destruction or concealment in which he was alleged to have
engaged. Specifically, the indictment did not state whether he
engaged in an overt act to destroy the cell phone, and if so,
whether his actions exceeded mere preparation and came close
enough to completion to constitute an attempt, or whether he
asked another person to do so under circumstances where the
request would have been the last act the defendant needed to
2 The indictment alleged as follows:
"Jose Martinez of Lawrence, in said County of Essex, on the
fourth and ninth days of March, in the year of our Lord two
thousand fifteen, at Lawrence in the County of Essex
aforesaid did attempt to conceal or destroy an object, to
wit: a cellphone, with the intent to impair its integrity
or availability for use in an official proceeding involving
a violation of a criminal statute, against the peace of the
Commonwealth aforesaid, and contrary to the form of the
statute in such case made and provided."
The indictment tracked the language of G. L. c. 268, § 13E
(b), which provides:
"Whoever alters, destroys, mutilates, or conceals a record,
document, or other object, or attempts to do so, with the
intent to impair the record, document or object's integrity
or availability for use in an official proceeding, whether
or not the proceeding is pending at that time, shall be
punished . . . ."
5
perform. See Commonwealth v. Peaslee, 177 Mass. 267, 273-274
(1901).3
As a general rule "the absence of a required element in an
indictment does not by itself establish that a crime is not
charged, even if acquittal is required if the prosecution were
to prove only the allegations in the indictment." Commonwealth
v. Canty, 466 Mass. 535, 548 (2013). See Garrett, 473 Mass. at
264-265. Under this general rule we ask whether there was "fair
notice of the crime charged, [as] [i]t is not necessary for the
Commonwealth to set forth in the complaint or indictment every
element of the crime to withstand a motion to dismiss" if the
complaint or indictment otherwise provides fair notice
(quotation and citation omitted). Canty, supra at 547. See
3 The following example best illustrates the two types of
overt acts:
"A mere collection and preparation of materials in a room
for the purpose of setting fire to them, unaccompanied by
any present intent to set the fire, would be too remote. If
the accused intended to rely upon his own hands to the end,
he must be shown to have had a present intent to accomplish
the crime without much delay, and to have had this intent
at a time and place where he was able to carry it
out. . . . On the other hand, if the offence is to be made
out by showing a preparation of the room and a solicitation
of someone else to set the fire, which solicitation if
successful would have been the defendant's last act, the
solicitation must be alleged as one of the overt acts."
Peaslee, 177 Mass. at 273-274.
6
G. L. c. 277, § 34 ("An indictment shall not be dismissed or be
considered defective or insufficient if it is sufficient to
enable the defendant to understand the charge and to prepare his
defense; nor shall it be considered defective or insufficient
for lack of any description of information which might be
obtained by requiring a bill of particulars").
Under the Canty analysis, we would have no hesitation in
declaring the defendant was on fair notice of the crime alleged.
The indictment stated that on particular dates the defendant
attempted to destroy or conceal his cell phone. It also alleged
that he did so in order to avoid criminal charges, and eleven
separate indictments alleging sexual assaults preceded the
indictment at issue here. The indictment tracked the language
of the statute, see note 1, supra, and the defendant did not
question the nature of the overt act. Indeed, in a pretrial
motion to dismiss (on other grounds) the defendant stated of
this indictment, "[e]ssentially, the Commonwealth alleged that
the defendant directed his phone to be destroyed to conceal or
destroy images and information on the phone that would be used
at his trial of the underlying indictments alleging rape."4 In
4 If the indictment is otherwise sufficient, in the event of
uncertainty, the defendant may move for a bill of particulars.
Canty, 466 Mass. at 548. See Mass. R. Crim. P. 13 (b) (1), as
appearing in 442 Mass. 1516 (2004). However, a bill of
particulars will not save a defective indictment. Commonwealth
7
these circumstances we are confident that the defendant was on
actual notice of the overt act alleged.
Our cases, however, have treated attempt crimes
differently, requiring that the overt act be stated with
particularity in the indictment. This requirement finds its
genesis in Peaslee, in which Justice Holmes restated "the
familiar rule that preparation is not an attempt." Peaslee, 177
Mass. 272. See id. at 274 ("The necessity that the overt acts
should be alleged has been taken for granted in our practice and
decisions . . ."). See, e.g., Commonwealth v. Shedd, 140 Mass.
451, 453 (1886); Commonwealth v. McLaughlin, 105 Mass 460, 463
(1870); Commonwealth v. Sherman, 105 Mass. 169, 169 (1870);
Commonwealth v. McDonald, 5 Cush. 365, 366-367 (1850).
Precisely because the line between preparation and near
completion has been difficult to draw, see, e.g., Commonwealth
v. Bell, 455 Mass. 408, 412-413 (2009); Peaslee, 177 Mass. at
271-272, our case law has required that the Commonwealth
affirmatively plead the overt act.5 Since Peaslee our appellate
courts have uniformly held that a complaint or indictment in an
v. Cantres, 405 Mass. 238, 241 (1989), citing Commonwealth v.
Ries, 337 Mass. 565, 580 (1958).
5 In addition, unlike knowledge or willfulness, which are
"implicit" in the indictment, cf. Commonwealth v. Green, 399
Mass. 565, 567 (1987), the overt act itself often is not.
8
attempt case which does not allege an overt act must be
dismissed because it fails to state an offense. See
Commonwealth v. Gosselin, 365 Mass 116, 121 (1974) (only
completed act was charged and "[o]vert acts not alleged may not
be relied upon"); Commonwealth v. Anolik, 27 Mass. App. Ct. 701,
711 (1989) (reversing conviction where indictment failed to
allege overt act); Commonwealth v. Foley, 24 Mass. App. Ct. 114,
115 (1987) ("The overt act is a requirement of the attempt
statute, G. L. c. 274, § 6, and the overt act relied on must be
set out in the indictment or complaint"); Commonwealth v. Burns,
8 Mass. App. Ct. 194, 196-197 (1979) ("The overt acts relied
upon to support a charge of attempt must be alleged in the
complaint charging the crime"). See also McDonald, 5 Cush. at
367.
The tension between the general rule and the specific has
not gone unnoticed, however. In Commonwealth v. Lourenco, 438
Mass. 1018, 1018 (2003), the Supreme Judicial Court questioned
whether "the overt act requirement remains valid to describe
fully and plainly the charge of attempt to the defendant, or if
it reflects an anachronistic view of sufficient indictments and
complaints." The court committed the matter to study and in the
ensuing seventeen years there has been no further comment.
We therefore find ourselves in uncharted territory. The
Commonwealth urges us to conclude that that indictment alleged
9
an overt act. This would avoid the conundrum posed by Lourenco,
but it would be incorrect. The indictment did not allege what
step the defendant took or asked another to take to conceal or
destroy the cell phone, or that the defendant's plans passed
beyond mere preparation to imminent concealment or destruction.
However, the crime of attempted destruction of evidence under
G. L. c. 268, § 13E (b), is an independent statutory offense,
and "is distinct from the crime of general attempt, G. L.
c. 274, § 6." LaBrie, 473 Mass. at 760-761. Unlike the
attempted murder indictment statute at issue in LaBrie, we have
not construed § 13E (b), and have not treated it in the same
manner as the general attempt statute. The Legislature has not
prescribed the manner of pleading, as it has for other attempt
offenses brought under G. L. c. 274, § 6. See G. L. c. 277,
§ 79. While there can be no question that proof of an overt act
is required for conviction, see Canty, 466 Mass. at 548, we are
not persuaded that an inflexible particularity requirement
remains valid as applied to a statute designed to prevent the
obstruction of justice.
The Supreme Judicial Court has previously departed from a
strict application of Peaslee and Gosselin with respect to
attempts to suborn perjury. See Commonwealth v. Senior, 454
Mass. 12, 15 (2009). While the specific reasoning of Senior may
10
not be applicable here,6 the court's willingness, where
obstruction of justice was charged, to consider alternatives to
strict adherence to the pleading of attempt complaints and
indictments is instructive.
We conclude that with respect to complaints or indictments
alleging attempt under G. L. c. 268, § 13E (b), the complaint or
indictment need not allege an overt act if the indictment
otherwise places the defendant on fair notice of the offense.
See Canty, 466 Mass. at 548.7 Due process under art. 12 of the
Massachusetts Declaration of Rights has always been the
touchstone of our cases regarding the sufficiency of
6 Senior involved the attempted subornation of perjury, and
a statute that bars "attempting to incite or procure another
person to commit perjury." G. L. c. 277, § 44. By analogy to
threats, see Commonwealth v. Sholley, 432 Mass. 721, 724-725
(2000), cert. denied, 532 U.S. 980 (2001), and solicitation, see
Commonwealth v. Barsell, 424 Mass 737, 738 (1997), the court
reasoned that incitement or procurement and attempt were
coterminous. Senior, 454 Mass. at 15. Such congruence is not
present here. Section 13E (b) prohibits attempts to destroy
evidence, a criminal act which may be accomplished by defendants
in a variety ways, and in circumstances where the temporal
continuum between preparation and a "present intent to
accomplish the crime without delay" is potentially far longer.
Peaslee, 177 Mass. at 273.
7 Article 12 of the Massachusetts Declaration of Rights
states 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." To accomplish this end, the
complaint or indictment must contain a "plain, concise
description of the act which constitutes the crime or an
appropriate legal term descriptive thereof." Mass. R. Crim. P.
4 (a), 378 Mass. 849 (1979).
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indictments, see Commonwealth v. Green, 399 Mass. 565, 566
(1987), but the integrity of the administration of justice is
the foundation of due process, without which all else founders.
Where, as here, the indictment did place the defendant on fair
notice, the preservation of the integrity of the judicial
process takes precedence. The fair notice requirement of Canty,
supra, strikes an appropriate balance between notice of the
crime charged and preserving the integrity of the judicial
system. The indictment here was not defective.
We emphasize the narrowness of this holding, which is
limited to cases brought under G. L. c. 268, § 13E (b). An
attempt complaint or indictment brought under § 13E (b) must
still meet the fair notice standards in Canty, 466 Mass. at 547.
We do not depart from the rule that the overt act should be
pleaded in the complaint or indictment for attempt under § 13E
(b); a defendant should not have to file a bill of particulars
in order to find out what overt act the Commonwealth relies
upon. A complaint or indictment under § 13E (b) that fails to
do so remains incomplete, but is not so fatally defective as to
deprive the court of jurisdiction if it otherwise provides fair
notice to the defendant. See Canty, supra.
2. Sufficiency of the evidence. The defendant maintains
that the Commonwealth failed to prove that when he asked that
the cell phone be destroyed, he did so "with the intent to
12
impair the . . . object's integrity or availability for use in
an official proceeding," and thus the trial judge erroneously
denied the defendant's motion for a required finding of not
guilty. G. L. c. 268, § 13E (b).
We review to determine whether the evidence, viewed in the
light most favorable to the Commonwealth, would permit a jury to
find "the essential elements of the crime beyond a reasonable
doubt." Commonwealth v. Tejada, 484 Mass. 1, 2 (2020), quoting
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The
defendant claimed that he was protecting his family but
"[j]urors, of course, are free to believe or disbelieve the
testimony of each witness in whole or in part." Commonwealth v.
Zanetti, 454 Mass. 449, 457 (2009). See Commonwealth v.
Spinucci, 472 Mass. 872, 878 (2015). The defendant had
repeatedly shown the cell phone images to others at the court
house, where his wife also worked. Upon learning of the
investigation, he lied to investigators about the existence of
the cell phone, and asked a fellow employee to get rid of it.
The evidence was sufficient to permit a rational jury to
conclude that the defendant sought to hide or destroy the cell
phone in order to hinder prosecution. See Commonwealth v.
Bonds, 445 Mass. 821, 831-832 (2006) (jury may draw inferences
from conflicting testimony). The motion for a required finding
of not guilty was properly denied.
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Judgment affirmed.