Opinion
14-P-102
07-30-2015
COMMONWEALTH v. GARY BROWN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of witness intimidation for wilfully misleading a police officer in a criminal investigation. He was sentenced to six months in the house of correction, suspended for one year.
At 12:45 A.M., a police detective responded to a telephone call asking for help with a well-being check of an infant. While sitting on the porch outside his house, the defendant was approached by the detective, who identified himself and stated he was investigating the well-being of the defendant's neighbor's baby. When asked by the detective whether he knew the whereabouts of his neighbor's baby, the defendant said, "No man, I don't know nothing." The defendant then turned and walked into his house.
The defendant argues first that the exculpatory denial rule is applicable here. But where the statement at issue is the operative unlawful act with which the defendant was charged, this rule does not apply. See Commonwealth v. Morse, 468 Mass. 360, 375 n.20 (2014).
The defendant next argues that the question to the defendant presented the same "Catch-22" as being asked to take a breathalyzer test, evidence of the response to which is inadmissible. See Opinion of the Justices to the Senate, 412 Mass. 1201, 1211 (1992). He argues that if he had said, "Yes," he would have implicated himself, and yet, by saying, "No," he also implicated himself, because of the statute's criminal prohibition against misleading a police officer during a criminal investigation.
The only crime in which the defendant suggests he might have implicated himself by an affirmative answer was under G. L. c. 119, § 63A, the child harboring statute. That statute, inserted by St. 2008, c. 176, § 102, provides criminal penalties for "[w]hoever is 19 years of age or older and: . . . (ii) knowingly and willfully conceals or harbors a child who has taken flight from the custody of the court, a parent, a legal guardian, the department of children and families or the department of youth services." The two month old baby in this case, however, could hardly have taken flight from anyone. Because the defendant has not shown that an affirmative answer to the police would have implicated him in any criminal wrongdoing, the issue he raises is not presented here.
Finally, the defendant argues that the phrase "criminal investigation" in the witness intimidation statute is unconstitutionally vague, noting that the jury asked about the definition, and the judge gave them no guidance. We disagree that the statute is unconstitutionally vague, at least as applied to the circumstances of this case, where a uniformed detective asked about the well-being and whereabouts of a two month old at 12:45 A.M. The detective's question was sufficiently part of a "possible" police investigation, Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013) (affirming judgment where "parole officer was investigating a possible violation" of parole conditions), to put the defendant on notice.
At oral argument the defendant asserted that the evidence against him was insufficient under the recent Supreme Judicial Court decision in Commonwealth v. Morse, 468 Mass. 360 (2014), decided after the defendant's brief was filed in this case. Like in Morse, this defendant argued that "there was no evidence of affirmative misdirection on the defendant's part. The defendant's statement, the simple word 'no,' was an exculpatory denial, not a content-laden fabrication designed to send police off course, thereby interfering with their investigation. After this negative response, police were in the same position they would have been in had the defendant instead remained silent." Id. at 374 (reversing judgment). Also like in Morse, this defendant argued the Commonwealth failed to present "additional evidence of specific intent," other than the denial, and our courts should "rarely . . . permit a reasonable inference that a defendant possessed the specific intent necessary to establish a violation of [the witness intimidation statute]." Id. at 374-375. Although in light of our conclusion -- that the defendant was not placed in a Catch-22 -- the defendant might be hard-pressed to characterize his denial as exculpatory, perhaps the import of Morse applies equally to a "leave me alone" denial as it does to an exculpatory one such that neither, without more, evinces an intent affirmatively to mislead. However, the argument was not raised in the defendant's brief, thus we decline to address it. Of course, should he choose to press this claim he may do so by way of a motion under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).
Judgment affirmed.
By the Court (Katzmann, Meade & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 30, 2015.