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inquiring into the defendant's state of mind to determine if evidence was sufficient to support a conviction under the accessory after the fact statute
Summary of this case from Silva v. GarlandOpinion
09-P-2337
10-29-2014
COMMONWEALTH v. MANUEL J. CACHOPA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Manuel J. Cachopa, the former chief of police of the Stoughton police department, was convicted of being an accessory after the fact, pursuant to G. L. c. 274, § 4, to an extortion attempt made by his subordinate, Sergeant David M. Cohen. Cachopa appeals his conviction on two primary grounds. First, he appeals the denial of his motion for a required finding of not guilty due to an alleged insufficiency of the evidence. Second, he claims that there was prejudicial misconduct by the prosecutor at his indictment proceedings before an investigative grand jury, and that the Superior Court judge erred in denying his motion to dismiss the indictment. For the reasons that follow, we affirm.
General Laws c. 274, § 4, provides in relevant part:
"Whoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or accessory before the fact, or gives such offender any other aid, knowing that he has committed a felony or has been accessory thereto before the fact, with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact."
Cohen was convicted of attempted extortion pursuant to G. L. c. 265, § 25. An overview of the facts in the Cohen case can be found at Commonwealth v. Cohen (No. 1), 456 Mass. 94, 95-98 (2010). On appeal after remand, Cohen's conviction was affirmed. See Commonwealth v. Cohen, 84 Mass. App. Ct. 1123 (2013).
1. Facts. These are the facts as the jury could have found them. Cohen was both a sergeant in the Stoughton police department and an attorney. Peter Marinelli, one of Cohen's clients, had entrusted money to Timothy Hills as part of a business deal that did not turn out as promised. Cohen attempted to recover Marinelli's money from Hills by using his power and authority as a police officer to charge Hills with a crime and also attempted to extort Hills into giving Marinelli his money back.
Hills promptly complained directly to the Stoughton police department (and several other governmental organizations) of Cohen's extortion attempt. Cachopa's wife had previously been employed by Cohen, and Cachopa attempted to use his position as chief of police to protect Cohen from the resulting internal affairs investigation. In an attempt to undermine the process, Cachopa moved the investigation into Cohen's misconduct from person to person several times. Lieutenant David Chamberlin, Cachopa's second in command, asked Cachopa initially about investigating Cohen, but Cachopa wanted to "get rid of" the complaint. Cachopa asked Chamberlin to "hold off" on the investigation and turn it over to Cohen's friend, recently promoted Lieutenant Michael Blount, a novice internal affairs investigator. When Blount made requests for additional investigation support and said that he could not clear Cohen, Cachopa told Blount that "you're just trying to f--- . . . Officer [Cohen]." Cachopa called Blount's investigation "too in-depth" and queried, "Why are you digging so deep?" Cachopa demanded that Blount turn over the results of his investigation to Lieutenant Francis Wohlgemuth, who was to deliver it, in turn, to Cachopa. At some point after the materials were turned over to Cachopa, a key piece of incriminating taped evidence against Cohen disappeared. Furthermore, Cachopa told an outside attorney whom he had brought in to investigate the matter that Hills had moved out of the area (when he had not) and inquired whether there was any "need to continue with the internal affairs investigation."
The tape contained voicemail messages that Cohen had left for Hills, one of which expressed disappointment in Hills for missing an appointment with Cohen. Cohen continued, stating, "I guess I'm going to do what I have to do and it might not be pretty." Cohen (No. 1), supra at 97.
At one point Cachopa also tried to make the Cohen investigation go away by seeking a quid pro quo deal with Hills: Cachopa would get the criminal charges against Hills dropped if Hills would withdraw his complaint. The District Attorney's office eventually refused to prosecute Hills because of Cohen's police misconduct.
Cohen was tried and convicted of attempted extortion. Cachopa was tried and convicted of being an accessory after the fact. This appeal ensued.
2. Discussion. a. Sufficiency of the evidence. In addressing a sufficiency of the evidence claim in a criminal conviction, we apply the familiar standard from Latimore, asking "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. O'Connell, 438 Mass. 658, 661-662 (2003), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). There are three requirements that must be met for a conviction of accessory after the fact to stand. First, the principal in the crime must have committed a felony. Second, the accessory must have known about the felony. And finally, the accessory must have assisted the principal felon with the "intent that [the principal] shall avoid or escape detention, arrest, trial or punishment." G. L. c. 274, § 4.
The principal, Sergeant Cohen, was convicted of the felony of attempted extortion against David Hills. See note 2, supra. This satisfies the first requirement.
The second requirement is satisfied because the Commonwealth introduced ample evidence to prove Cachopa "to have been aware, by his observations or by information transmitted to him, of the substantial facts of the felonious crime." See Commonwealth v. Devlin, 366 Mass. 132, 136 & n.4 (1974). Hills promptly complained about Cohen to the Stoughton police department, and Cachopa was made aware of this complaint. Lieutenant Blount's internal affairs investigation suggested there might be merit to Hills's claims, and Cohen may have lied on a Board of Bar Overseers report about his interactions with Hills. Further, Blount had secured a copy of a tape with an incriminating voicemail of Cohen threatening Hills, and the jury could have made the reasonable inference that Cachopa was aware of the tape's contents in spite of his claim that he had never received or heard the recording.
Cachopa claims that he never believed Hills's allegations against Cohen, so that he could not have "known" about Cohen's felony. This, of course, is a credibility question for the jury. See Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978) ("Evaluations of credibility are, of course, within the exclusive province of the trier of fact"). There was more than sufficient circumstantial evidence to warrant a jury finding that Cachopa knew about Cohen's actions. See Commonwealth v. Berendson, 73 Mass. App. Ct. 395, 397 (2008), citing Commonwealth v. Degro, 432 Mass. 319, 325 (2000) ("To establish specific criminal intent, the Commonwealth may rely wholly on circumstantial evidence").
The third requirement for a conviction of accessory after the fact is also satisfied, because the jury could also have found that Cachopa was attempting to shield Cohen from being investigated for felonious activities. There was substantial evidence that Cachopa tried to stifle the investigation by moving it from investigator to investigator in an attempt to obtain the desired outcome. The jury could have also found that Cachopa was responsible for the disappearance of the taped evidence incriminating Cohen, misleading the outside investigator about Hills moving out of the area, and inappropriately trying to negotiate a deal whereby the criminal process against Hills would cease if Hills dropped his charges against Cohen.
b. Prosecutorial misconduct. Cachopa claims that there was prejudicial misconduct by the prosecutor at his indictment proceedings before an investigative grand jury, and the judge therefore erred in denying his motion to dismiss the indictment. Dismissal should, however, occur only when the "integrity of [the] grand jury . . . [was] impaired" by the prosecutor's misconduct. Commonwealth v. Ianello, 401 Mass. 197, 198 (1987), quoting from Commonwealth v. McJunkin, 11 Mass. App. Ct. 609, 613 (1981). Based on the record presented to us, we discern no such egregious misconduct. Further, "[t]he evidence presented to the grand jury . . . was so substantial that [any prosecutorial misconduct] would not have made a difference to the grand jury's decision to indict the defendant." Commonwealth v. Tassone, 83 Mass. App. Ct. 197, 201 (2013). In making "his findings of fact and rulings of law, [the trial judge] acted within his discretion in concluding that [the alleged misconduct] did not impair the integrity of the grand jury." Ianello, supra at 199.
Judgment affirmed.
By the Court (Berry, Kafker & Carhart, JJ.),
Clerk Entered: October 29, 2014.