Commonwealth v. Paquette

475 Mass. 793

62 N.E.3d 12

COMMONWEALTH

v.Raymond Zachary PAQUETTE.

SJC–12028.

Supreme Judicial Court of Massachusetts, Hampshire.

Submitted April 4, 2016.

Decided Oct. 27, 2016.

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.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, HINES, JJ.¹

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 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 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, 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 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.

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, 914 N.E.2d 904 (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 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 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 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, ...