Commonwealth v. Rivera

482 Mass. 145

121 N.E.3d 1121

COMMONWEALTH

v.Christopher RIVERA.

SJC-12605

Supreme Judicial Court of Massachusetts, Suffolk..

Argued January 7, 2019.

Decided May 1, 2019.

Jin-Ho King for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Eva G. Jellison, for Committee for Public Counsel Services & another, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GANTS, C.J.

The issue presented on appeal is whether a defendant who witnessed a killing may be found guilty as an accessory after the fact to murder, in violation of G. L. c. 274, § 4, where the only "aid" or "assistance" alleged is that the defendant made false and misleading statements to police detectives and refused to provide them with the telephone numbers they requested. We conclude that, where the defendant did not provide the police with a false alibi or comparable information that would exculpate the principal felon (here, the killer), a false narrative of the crime that would give the principal a defense, or false information to assist in the principal's escape, the defendant's false statements and refusal to cooperate alone do not constitute the "aid" or "assistance" required to find a defendant guilty as an accessory after the fact under the statute. Because the evidence was insufficient as a matter of law to sustain the conviction, we vacate the judgment of conviction and remand the matter to the Superior Court for issuance of a judgment of acquittal.¹

Background. Because the defendant challenges the sufficiency of the evidence to prove that he was an accessory after the fact, we summarize the facts that the jury could have found in the light most favorable to the Commonwealth. Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005), S.C., 450 Mass. 215, 877 N.E.2d 557 (2007) and 460 Mass. 12, 948 N.E.2d 1209 (2011).

Before dawn on October 16, 2011, the defendant, after visiting a friend's home to drink and socialize, was returning home with Hector Soto and Josue Santos in a motor vehicle driven by Santos. They stopped at a convenience store in the Jamaica Plain neighborhood of Boston on the way so that Santos could buy a drink. After Santos returned to his vehicle, Soto began arguing in the parking lot with Kenneth Soto (victim),² who was with a group of friends who were in a vehicle parked next to Santos's vehicle. The victim began to wrestle and exchange punches with Soto. The defendant then stepped outside the vehicle and joined the fight to assist Soto. During the course of the fight, Soto stabbed the victim. Soto and the defendant then returned to the vehicle, and Santos quickly drove away. In the vehicle, Soto and the defendant laughed together while talking about the fight. Santos then dropped the defendant and Soto off at the defendant's home. The victim later died from his stab wound.

On October 23, 2011, Detectives Garrett G. Mitchell and Michael T. Walsh of the Boston police department interviewed the defendant at his home about the incident; the interview was recorded. Mitchell told the defendant that they were there because they were investigating an incident "that happened over at [a convenience store] in Jamaica Plain" early on Sunday morning, October 16. The defendant said that he had seen the news on television and knew that a young man had been killed there.

When Mitchell asked the defendant where he was on Saturday night, October 15, he said he was at "Rashad's grandmother's house" in the Hyde Park neighborhood of Boston "until late," drinking, smoking, and watching television with some of his friends. He said that he had driven there alone, returned home alone, and did not stop anywhere on his way home. He told the detectives that he had "no idea" when he returned home.

When Mitchell asked whom he was with in Hyde Park, the defendant said that "people kept coming in and out." He initially said that he could not remember anyone who was there apart from Rashad, but later responded that he usually spends time with Joel,³ Paul, and Pat. Recognizing that "Joel" was a reference to Soto, the detectives pressed the defendant for more information about Joel. When asked where Joel lived, the defendant said that he lived "not too far from the baseball field" in the Roslindale neighborhood of Boston. When asked if Joel goes by another name, the defendant responded, "That's what I know him by." Soto's middle name is "Joel" but, at trial, all who knew Soto referred to him by his first or last name or his nickname, "Nemo."

When Walsh asked the defendant if he had the telephone numbers of Joel and the other persons who were there that night, the defendant said, "I have most of their numbers, yeah." When the detective asked the defendant if he would give them those numbers, specifically asking for Joel's telephone number, the defendant responded: "[I]t feels like the way you're doing it is, ... whoever I give you, that's who you're going to go after, no matter what.... I'm not into just involving other people ..., and this is serious." Walsh replied, "[I]f you don't want to give it to us, that's fine. That's up to you."

A grand jury indicted Soto for the murder of the victim, also indicting the defendant for assault and battery in violation of G. L. c. 265, § 13A, and as an accessory after the fact to murder in violation of G. L. c. 274, § 4. Soto and the defendant were tried together in the Superior Court in April 2013. A jury found Soto guilty of murder in the second degree and the defendant guilty as an accessory after the fact; the jury acquitted the defendant of assault and battery. The defendant timely appealed, and we transferred his appeal to this court on our own motion.

Discussion. 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 gives such offender any other aid, knowing that he has committed a felony ... with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact ...."

The Commonwealth does not contend that the defendant "harbor[ed]," "conceal[ed]," or "maintain[ed]" Soto, or that he assisted Soto by allowing Soto to come to his home on the morning of the killing. Rather, the Commonwealth argues that the defendant was an accessory after the fact to murder because he lied to the detectives in his interview about his own actions and whereabouts on the morning of the killing; referred to Soto as "Joel," claiming no knowledge of his first or last name or his nickname; and refused to provide the detectives with Soto's telephone number. The Commonwealth contends that, by this conduct, the defendant "aided" or "assisted" Soto in evading capture or punishment for the killing, with the intent to help Soto evade capture or punishment.

The evidence at trial was sufficient to prove beyond a reasonable doubt that the defendant lied to the police when he said that he drove home alone on the morning of the killing, and when he claimed he knew Soto only by the name "Joel." The evidence also established that the defendant declined to provide the detectives with Soto's telephone number after they specifically requested him to provide that information. The question we must answer is whether that evidence suffices to prove the element of aid or assistance that is required to prove that the defendant was an accessory after the fact to murder. We conclude that it does not. Because the failure of proof of that element alone dooms the conviction, we do not reach the other issue argued by the parties -- whether the evidence was sufficient to prove the required element that the defendant specifically intended during his interview to help Soto evade capture or punishment.

"We have long recognized that the statute's definition of accessory after the fact ‘is in the common law form’ and ‘obviously has roots in the common law tradition.’ " Commonwealth v. Perez, 437 Mass. 186, 190, 770 N.E.2d 428 (2002), quoting Commonwealth v. Devlin, 366 Mass. 132, 137, 314 N.E.2d 897 (1974). Therefore, in determining the meaning of "aid" or "assist" in the codification of the common law accomplished by G. L. c. 274, § 4, we must determine what these words mean in the context of this common-law crime. See Perez, supra at 193, 770 N.E.2d 428 (because we are "constrained by our statute's common-law form," we must impose "the traditional common-law requirements").

The Commonwealth contends that, in defining these words, we should recognize that "[t]he gravamen of the crime of accessory after the fact is ‘the obstruction of justice,’ caused by individual's actions," and cites Commonwealth v. Sims, 41 Mass.App.Ct. 902, 903, 667 N.E.2d 1165 (1996), and Commonwealth v. Kelly, 1 Mass.App.Ct. 441, 448-450, 300 N.E.2d 443 (1973), in support. But that is simply not our law. As we noted in 2002 in Perez, 437 Mass. at 192-193, 770 N.E.2d 428, the "alternative ‘obstruction of justice’ approach" to accessory liability was incorporated in Model Penal Code § 242.3 (1980) as the offense of "hindering apprehension or prosecution," and that approach is now reflected in the law of many States. See, e.g., Conn. Gen. Stat. § 53a-165 (criminalizing "hindering prosecution" by way of, inter alia, "obstruct[ing], by means of ... deception ... any person from performing an act which might aid in the discovery or apprehension of [suspected offender]"); Mont. Code Ann. § 45-7-303 (same) ; N.H. Rev. Stat. Ann. § 642.3 (same). See also 2 W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 6.9, at 171 (1986) (in most jurisdictions, "accessory after the fact" offense "is characterized as ‘hindering’ apprehension or prosecution, or is otherwise described to reflect its true character as a crime involving interference with the processes of government"; collecting statutes [footnote omitted] ).⁴ This approach was also incorporated in the Proposed...