Opinion
No. 12–P–1087.
2013-10-23
COMMONWEALTH v. Juan G. LOPEZ.
Ibid., quoting 18 U.S.C. § 1515(a)(3) (2006) (emphasis added). Accordingly, the defendant did not need to succeed in misleading the detective in order to run afoul of G.L. c. 268, § 13B. Figueroa, supra at 373 (“Where the defendant attempted to mislead his parole officer with the intent to obstruct her investigation of his possible violation of parole, it does not matter that he failed to succeed in misleading her”). Instead, all the Commonwealth needed to demonstrate was that the defendant “knowingly [made] a false statement” with the intention to mislead. Here, the record shows—and the defendant admits—that he lied to Detective Manning when he said Gonzales was not inside. The record also supports a finding that he attempted to mislead the detective with the intention of interfering with his efforts to apprehend Gonzalez. In sum, the record amply supports a determination by the requisite preponderance of the evidence needed to find a violation of probation, Commonwealth v. Wilcox, 446 Mass. 61, 65–66 (2006), that the defendant directly, willfully and knowingly made a false statement to an officer with the criminal investigation. Commonwealth v. Figueroa, supra at 373.
By the Court (COHEN, KATZMANN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a Superior Court judge's determination that he violated the terms of his probation by misleading a police officer in violation of the witness intimidation statute, G.L. c. 268, § 13B.
The defendant's underlying convictions were of two counts of assault and battery by means of a dangerous weapon. The trial judge sentenced the defendant to concurrent three-year terms of probation on each count with conditions including one year with an electronic monitoring bracelet. The defendant did not appeal from his convictions. At the defendant's first probation surrender hearing on June 15, 2010, the defendant stipulated that he was found with a dangerous weapon, in violation of his probation. The court sentenced the defendant to six months on one of the original counts of assault and battery by means of a dangerous weapon and reprobated the defendant on the additional count until January 22, 2013. The defendant did not appeal from this first violation. At a second probation surrender hearing on January 26, 2011, the court found the defendant in violation of probation for misleading a police officer in contravention of the witness intimidation statute, G.L. c. 268, § 13B, and for testing positive for marijuana. The court committed the defendant for two and one-half years. The defendant filed a timely notice of appeal and only contests the determination that he violated G.L. c. 268, § 13B.
Discussion. At the second probation surrender hearing, while contesting a violation charge, the defendant conceded the facts recited in a report by Detective Manning, which was based largely on the statements the defendant made to him. In summary, the report states that during the events in question, Detective Manning was following up on information that an individual—Jonathan Gonzalez—illegally possessed a firearm. The detective observed several males in the driveway of 49 Kelber Drive—including the defendant as well as Gonzalez. Before exiting his vehicle, Detective Manning waited for back-up to arrive. By the time that additional officers arrived on scene, the group of males that had initially congregated on the driveway had entered the home. Detective Manning approached the front door of the home, and the defendant stepped outside the house to meet him. Detective Manning told the defendant that he knew that Gonzalez was inside the home and that the defendant should tell Gonzales that the house was surrounded and that he should come out and surrender. The defendant then went back into the house and the Detective observed Gonzalez through a window. The defendant then told Detective Manning that Gonzalez was not inside. Detective Manning told the defendant that he had seen Gonzalez inside and that he would arrest the defendant for interfering with a police investigation if he did not cooperate. The defendant still refused. Soon thereafter, Detective Manning received a radio communication that other officers had placed Gonzalez in custody. The defendant was later charged with violating G.L. c. 268, § 13B, as he interfered with the police investigation involving Gonzalez.
On appeal, the defendant argues that the judge committed error in finding that he had violated G.L. c. 268, § 13B, because he was not successful in his attempt to mislead the investigating officer. The defendant contends that the police must have relied on his false statements for those statements to constitute misleading an officer in violation of the statute. He asserts that in this case, Detective Manning did not believe the defendant's statement that Gonzalez was not in the home.
In 2006, the legislature amended G.L. c. 268, § 13B, to prohibit interference with a criminal investigation, including conduct that “misleads” an officer. G.L. c. 268, § 13B, as appearing in St.2006, c. 48, § 3. In Commonwealth v. Figueroa, 464 Mass. 365, 371 (2013), the Supreme Judicial Court considered whether a defendant must succeed in misleading an investigating officer in order to be convicted of violating G.L. c. 268, § 13B. The Court found that “in defining what it means to ‘mislead’ another person under § 13B, we hereby adopt [the definition set forth in the federal witness tampering statute.” Id. at 372. The Figueroa court noted that the Federal statute defines misleading conduct as follows:
“(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.”
Ibid., quoting 18 U.S.C. § 1515(a)(3) (2006) (emphasis added). Accordingly, the defendant did not need to succeed in misleading the detective in order to run afoul of G.L. c. 268, § 13B. Figueroa, supra at 373 (“Where the defendant attempted to mislead his parole officer with the intent to obstruct her investigation of his possible violation of parole, it does not matter that he failed to succeed in misleading her”). Instead, all the Commonwealth needed to demonstrate was that the defendant “knowingly [made] a false statement” with the intention to mislead. Here, the record shows—and the defendant admits—that he lied to Detective Manning when he said Gonzales was not inside. The record also supports a finding that he attempted to mislead the detective with the intention of interfering with his efforts to apprehend Gonzalez. In sum, the record amply supports a determination by the requisite preponderance of the evidence needed to find a violation of probation, Commonwealth v. Wilcox, 446 Mass. 61, 65–66 (2006), that the defendant directly, willfully and knowingly made a false statement to an officer with the criminal investigation. Commonwealth v. Figueroa, supra at 373.
Order revoking probation and imposing sentence affirmed.