rivera ruling

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1 NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 - 1750; (617) 557 Pemberton Square, Suite 2500, Boston, MA, 02108 - 1030; [email protected] - 12 SJC 605 vs . CHRISTOP COMMONWEALTH . HER RIVERA Suffolk. January 7, 2019. - May 1 , 2019. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Accessory and Principal . I ndictments found and returned in the Superior Court Department on March 30, 2012. tried before The case was Raymond J. Brassard , J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. 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. 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. alleged is c. 274, § 4 , where the only " aid " or " assistance "

2 2 that the defendant made and misleading statements to false to provide them with the telephone police detectives and refused the defendant where numbers they requested. We conclude that, did not provide the police with a false alibi or comparable information felon (here, the that would exculpate the principal killer) , a false narrative of the crime that would give the principal a defense, or false information to assist in the , the defendant's false statements and refusal principal's escape constitute the to cooperate alone do not "aid" or "assistance" required t o find a defendant guilty as an accessory after the Because the evidence was insufficient fact under the statute . as a matter of law to sustain the conviction, we vacate the judgment of conviction and remand the matter to the Superior 1 Court for issuance of a judgment of acquittal. Background . Because the defendant challenges the that he was an accessory sufficiency of the evidence to prove e summarize the facts that th e jury could have after the fact, w found in the light most favorable to the Commonwealth. Commonwealth v. Lao , 443 Mass. 770, 779 (2005) , S . C ., 450 Mass. 215 (2007) and 460 Mass. 12 (2011) . 1 We acknowledge the amicus brief submitted by the Committee for Public Counsel Services and the Massachusetts Association of Criminal Defense Lawyers.

3 3 on October 16, 2011, the defendant , after Before dawn eturning , was r visiting a friend's home to drink and socialize with Hector Soto and Josue Santos home in a motor vehicle driven They stopped at a convenience store in the Jamaica by Santos. of Boston on the way so that Santos could buy Plain neighborhood . a drink After Santos returned to his vehicle, Soto began 2 with Kenneth Soto (victim) , who was arguing in the parking lot were in a vehicle with a group of friends who parked next to Santos' vehicle. The victim began to wrestle s exchange and punches with Soto. The defendant then stepped outside the During the course vehicle and joined the fight to assist Soto . of the fight, Soto stabbed the victim. Soto and the defendant . In the vehicle, and Santos quickly drove away then returned to ghed the vehicle, while Soto and the defendant lau together about the fight . Santos then dropped the defendant and talking later died from Soto off at the defendant's home. The victim his stab wound . On Oct ober 23, 2011, D etectives 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 2 The record does not suggest that Kenneth Soto and Hector Soto are related. Because they share a surna me, we refer to Hector Soto as "Soto" and Kenneth Soto as "the victim."

4 4 because they were investigating an incident "that happened over in Jamaica Plain" early on Sunday at [a convenience store] seen the The defendant said that he had morning, October 16. knew that a young man had been killed news on television and there . Mitchell asked the defendant where he was on Saturday When October 15, he said he was at " Rashad's grandmother's night, " house in the Hyde Park neighborhood of Boston "until late," drinking, smoking, and watching television with some of his He said that he had dr iven friends there alone , . returned home alone , and did not stop anywhere on his way home . He told the had "no idea" when he returned home detectives that he . asked who m he was with in Hyde Park, t he Mitchell When said that "people kept coming in and out ." He defendant that he could not remember anyone who was there initially said apart from Rashad , but later responded that he usually spends 3 , Paul , and Pat . time with Joel Re cognizing 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 3 police interview The transcript of the October 23, 2011 , spells the name as "Joelle." In the trial transcript, the spellings "Joelle" and "Joel" are used interchangeably. We spell the name as "Joel" because that is Soto's middle name. Any difference in pronunciation is not discussed in the record.

5 5 field Roslindale neighborhood of Boston . When asked if " in the , " hat's what responded T Joel goes by another name, the defendant Soto's middle name is " Joel " I know him by." but, at trial, all or last name or his who knew Soto referred to him by his first nickname, Nemo . " " Walsh asked the defendant if he had the tele When phone 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 r Joel's numbers, specifically asking fo , the tele phone number defendant [I] t feels like the way you're doing it : " responded is, . . . whoever I give you, that's who you're going to go after, no matter what. . . . I'm not into just involving other Walsh replied, " [I] f you people . . . , and this is serious." That's up to you." don't want to give it to us, that's fine. , A grand jury indicted Soto for the murder of the victim also indict the defendant for assault and battery in ing 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 ; t he The jury acquitted the defendant of assault and battery .

6 6 defendant e transferred his appeal to this timely appealed, and w . court on our own motion . General Laws c. 274, § 4 , Discussion 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 acces . . . . " sory after the fact The Commonwealth does not contend that the defendant al[ed]," or "maintain[ed]" Soto , or that he "harbor[ed]," "conce Soto by allowing Soto to come to his home on the assisted Rather, the Commonwealth argues that morning of the killing. the defendant was an accessory after the fact to murder because about his own actions he lied to the detectives in his interview and whereabouts ; referred to Soto on the morning of the killing , " claiming no knowledge of his first or last name or as "Joel to provide the detective ; and refused s with his nickname Soto's tele phone number . The Commonwealth contends that, by this conduct, in evading the defendant "aided" or "assisted" Soto capture or punishmen t 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 and said that he drove home alone on the morning of the killing ,

7 7 he claimed he only by the name "Joel ." The when knew Soto evidence also established t hat the defendant declined to provide detectives with Soto's telephone number the after they specifically requested him to provide that information. The must answer is whether that evidence suffices to question we prove th that is required to prove e element of aid or assistance th at the defendant was an ac c essory after the fact to murder . We conclude that it does not. Because the failure of proof of that element alone doom s 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 intended during his interview to help Soto evade specifically 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.'" v. Perez , 437 Mass. 186 , 190 (2002) , quoting Commonwealth ss. 132 Devlin , 366 Ma v. , 137 (1974). Commonwealth refore, The 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 (because we are "constrained by our statute's common - law form," we must impose "the traditi onal common - law requirements").

8 8 The Comm onwealth 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 Commonwealth v. Sims , 41 Mass. individual's actions," and cites and Commonwealth v. Kelly , 1 Mass. , App. Ct. 902, 903 (1996) 441, 448 - 450 (1973) App. Ct. . But that is simply , in support not our law. noted in 2002 in Perez , 437 Mass. As we - at 192 193, h e " alternative t approach " to 'obstruction of justice' accessory liability was incorporated in Model Penal Code § 242.3 ( 1980 as the offense of "hindering apprehension or ) law of prosecution," and that approach is now reflected in the S tates . See, e.g., Conn. Gen. Stat. § 53a many 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 [su Ann. § 45 - 7 - spected offender]"); Mont. Code 303 (same); N.H. Rev. Stat. Ann. § 642.3 (same) . S ee 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

9 9 4 ; llecting statutes [footnote omitted] ) . co This of government" Proposed Criminal Code of approach was also incorporated in the 5 Massachusetts, c. 268, § 11 (1972) as this court noted in , 4 tate statutes reflect a broader approach to While some S accessory liability -- see, e.g., Ohio Rev. Code Ann. of dding "communicat[ion] § 2921.32(A)(5) (forbi " false " information to any person" with intent to "hinder the discovery, apprehension, prosecution, conviction, or punishment of another") -- it is noteworthy that the drafters of the Model Penal Code expressly proposed a statute with limited reach. Model Penal Code § 242.3(5), which prohibits "volunteer [ ing ] false information" to law enforcement officers, was not intended to cover "[m]ere failure to report crime" or "giving misleading or even false answers to inquiries initiated by the police." 242.3 comment 4, at 235 (1980). Rather, the Model Penal Code § choice of the word "volunteering" was intended to limit its reach only to "those who take the initiative in throwing the Id . The delicate balance stru police off the track." ck by the authors of this provision was premised "on the fear that a wider reach . . . would invite abusive charges by police against persons interviewed in the course of investigating crime." . Id 5 The Proposed Criminal Code of Massachusetts was drafte d by fifty the two members of the Criminal Law Revision Commission, - each of whom were appointed by the Attorney General on behalf of e c on l the Governor's ommittee nforcement and a dministration aw of c riminal j ustice . Proposed c. 268, § 11, states in relevant part: "§ 11. Hindering Apprehension or Prosecution. " a ) A person is guilty of hindering apprehension or ( prosecution if, with intent to hinder, prevent or delay the discovery, apprehension, prosecution, conviction or punishment of another perso n for the commission of an offense, he: . . . " (5) obstructs by force, intimidation, or deception anyone from performing an act which might aid in the discovery, apprehension, prosecution or conviction of such . . ." person

10 10 we , at 138 - 139, in 197 4 . But Devlin 366 Mass. recognized in as Perez su pra , - 194 : at 193 " Despite the suggestion of an alternative approach in at 138 Commonwealth Devlin , supra v. - 139, the Legislature has not amended the statute to transform the crime of being an accessory after the fact into the more modern articulation of the cr ime as an obstruction of justice. Our statute remains consistent with the common law approach - to the crime of being an accessory after the fact, and, unless and until the statute is amended, we must continue to construe it consistent with its common - law roots." , it Because G. L. c. 274, § 4 , has not subsequentl y been amended remains equally true today that we must adhere to the historical - common law approach in construing accessory after the fact liability. "At common law, the liability of an accessory after the fact was derived from the liability of the principal, the accessory being considered 'an accomplice in the original Perez , 437 Mass. crime.'" , quoting Devlin , 366 Mass. at at 190 136. The examples of accessory after the fact cited by William Blackstone all involved physical conduct that assisted the principal in hindering his apprehension or accomplishing his escape: "furnishing [the principal] with a horse to escape his pursuers, money or victuals to support him, a house or other Section 11 was drafted expressly to broaden and replace L. c. 274, § 4, see Proposed Criminal Code of Massachusetts, G. c. 268, § 11 & Revision Commission Note, at 151 - 152, but it was never adopted by the Legislature. See v. Perez , Commonwealth 437 Mass. , 423 - 194 (2002); Commonwealth v. Cataldo 186, 193 Mass. 318, 323 n.6 (1996).

11 11 shelter to conceal him, or open force and violence to rescue or W. *38 . , Commentaries In the modern protect him." 4 Blackstone ccessory after context, we continue to uphold convictions of a , for instance, where the defendants aided the the fact the scene of the crime, where they hid or principals in fleeing destroyed evidence, or where they assisted in the disposal of stolen goods. Commonwealth v. Valleca , 358 Mass. 242, 243 - See 245 (1970) ( attempt to sell stolen coins back to gallery from ich they were stolen in return for "reward" sufficient to wh conviction as accessory support to breaking and after fact entering); Commonwealth v. Eagan , 357 Mass. 585, 590 (1970) ("action in aiding [perpetrators] to leave the scene" sufficient conviction as to support , 41 Mass. accessory after fact); Sims App. Ct. at conviction as accessory after fact of 903 (affirming defendant who disposed of shooter's gun). The refusal to answer a police officer's questions or alone cannot constitute "a id" or provide requested information 4, 274, § L. c. because, unless a person "assistance" under G. is subpoena ed or ordered by a court to testify , no one has a legal obligation answer a police officer's questions or to to provide information in a criminal investigation . See Commonwealth v. Warren , 475 Mass. 530, 538 (2016) (" [O] ur law guards a person's freedom to speak or not to speak to a police A person also may choose to walk away, avoiding officer.

12 12 . here the defendant here altogether any contact with police") W was constitutionally entitled to refuse to provide the police , his failure to do so cannot be with Soto's telephone number deemed "aid" or "assistance" that would subject him to conviction as an accessory after the fact, regardless of his motive for the refusal. The defendant, however, did more than refuse to cooperate with the police by not revealing information ; he lied to them about his whereabouts at the time of the killing and about his knowledge of "Joel 's " other names. There is no constitutio nal protection for lies. A material false statement made under oath constitutes the crime of perjury. G. L. c. 268 , § 1 . fully Commonwealth , 105 Mass. 582, 585 - 586 (1870). Wil l Carel v. in violation of G. L. misleading a police officer is a crime 268, § 13 B , where the false statements "reasonably could lead c. investigators to pursue a course of investigation materially different from the course they otherwise would have pursued." Commonwealth v. Paquette , 475 Mass. 793, 801 (2016) . But the defen dant here could not be charged with perjury because his statements were not made under oath and he was not charged with , a violation of § 13 B , perhaps because the Commonwealth would be unable to prove that the defendant's false statements under the circumstances in this case reasonably could have led the to pursue a materially different course of investigators

13 13 See i d . at 801 - 802 investigation. 13B, "'He went that (under § 6 way' may well be misleading, but 'I don't know' likely is not"). U nder Federal law, making a materially false statement to a Federal law enforcement officer during a Federal criminal investigation is a crime in violation of 18 U.S.C. § 1001 . See , e.g., v. Wilson , 879 F.3d 795, 806 - 807 (7th Cir. United States 2018) (affirming conviction of making false statement s to F ederal investigators); United States v. Phillipos , 849 F.3d 464, 466 (1st Cir. 2017) , cert. denied, 138 S. Ct. 683 (2018) But our Legislature has not adopted a comparable law (same). criminalizing all material ly false statements made to State o r local criminal investigators. Under the common law, "[t]he accessory was defined by his direct, personal assistance as one who receives and comforts, or Devlin , 366 Mass. at 136. W e conceals the principal felon." conclude that a person may provide the principal felon with the "direct, personal assistance" necessary to be an accessory after the fact through words alone spoken to the police during an interview , but only where he or she " aids " or " assists " the 6 As earlier noted, the defendant claimed to have no personal knowledge of the killing. Also, the Commonwealth acknowledged in closing argument that the detectives who interviewe d the defendant knew that "Joel" was a reference to Soto. They repeatedly told the defendant that they knew he was not telling the truth because they had been engaged in the investigation for one week and "kind of [knew] the whole picture."

14 14 principal or by providing the police with a false alibi , that would exculpate the principal a comparable information the principal a false narrative of the crime that would give or false information to assist in the principal's , defense . escape This limiting principle is consistent with case law interpreting the common law of accessory after the fact v. . See, e.g., liability Clifford , 263 Or . 436, 442 State (1972) ("the lie [must], under the existing circumstances, [be] likely to aid the offender to escape arrest or punishment"); , 126 Tex. Crim. 439, 444 (1934) (false statement Tipton v. State must either "tend[] to raise any defense for [principal felon]" or "within itself indicat[e] an effort to shield or protect Stephens v. State , 734 P.2d 555, 557 (Wyo. [principal felon]"); 1987) (contrasting "an affirmative statement . . . such as supplying a false alibi" with "passive nondisclosure"). Cf. te v. Budik , 173 Wash. 727, 736 2d Sta - 737 (2012) (crime of rendering criminal assistance, which "embodies many of the same principles" as accessory after the fact, "requires an affirmative act or statement that raises a defense for [principal felon]"). And i t comports with our ordinary rules of statutory construction, which "require us to construe any criminal statute strictly against the Commonwealth." Devlin , supra at 137 - 138 .

15 15 In each of the Massachusetts cases where a defendant's was based in whole or conviction as an accessory after the fact in large part on his the defendant's false statements to police , false statements either provided the police with a false alibi that would exculpate the principal, or or comparable information a false narrative of the crime that would give the principal a Thus, in Commonwealth v. Wood , 302 Mass. 265, 269, defense. - 271 (1939), superseded on an 270 other ground as recognized in Commonwealth v. Hurley , 455 Mass. 53, 69 n.15 (2009), we conviction of accessory after the fact where the affirmed a , who resided in the home of a person who unlawful ly defendant abortions , falsely told the police that he had never induced had seen the woman who died as a result of the abortion (and who remained at the home for eight days) or the man who brought her 7 there . , 353 Mass. 197, Similarly, in Commonwealth v. Doherty 197, other ground by Connor v. an 203 (1967), overruled on Commonwealth , 363 Mass. 572, 574 (1973), the husband and wife s were convicted as accessor ies after the fact to defendant 7 v. The defendant in Commonwealth , 302 Mass. 265, 269 Wood (1939), superseded on other ground as recognized in an Commonwealth v. Hurley , 455 Mass. 53, 69 n.15 (2009), also assisted the principal by falsely telling the man who brought the woman to the house to obtain the abortion -- after the man found the woman exclaiming in pain on the day after the abortion -- that he was a doctor, that the pain was natural and nothing to worry about, and that the man should not call a doctor. When the woman finally went to a hospital, the defendant told her brother "to try to keep their names out of it." Id . at 270.

16 16 where the wife directed the killer and his friend to "get murder [the victim] out of here" (resulting in their moving him from ) the sofa in her home to the front porch , where they were among those who agreed that they would falsely tell the police "that two guys came up her e and broke in and shot him," and where the husband falsely told the police that he had been in a fight, had run from the porch, and found the victim's body when he returned. See Commonwealth v . McQuade , 10 Mass. App. Ct. 894, 894 - 895 (1980) (defendant, who harbored bank robber at his apartment and concealed stolen goods and gun under his bed, lied to police that "he and [robber] had not left the apartment all , 6 Mass. App. Ct. 913, 914 afternoon"); Commonwealth v. Homsey (1978) (defendant "chauffeured [robber] to and from his hideout" in defendant's car and lied to police by claiming that , defendant was not person who purchased vehicle from him that was 8 used to commit robbery ). 8 The Commonwealth relies on Commonwealth v. Spezzaro , 250 Mass. 454 (1925), in arguing that a defendant may be found guilty as an accessory after the fact for a false statement that did not exculpate the defendant or provide a false narrative of Spezzaro , the defendant was standing near a the crime. In vehicle across the street from where the principal felon, who had just broken and entered a shop to steal fifty - eight rolls of cloth at approximately 2 A . M ., was bringing the cloth into a building from a Packard automobile that the principal jointly owned with the defendant. Id . at 45 4 - 457. When questioned by police at the scene, the defendant falsely told t he police that he did not know the principal and did not know who owned the Packard; he also said that he had not seen the principal "at any

17 17 Here, in contrast, the defendant's false statements about provided only driving home alone without stopping himself with a false alibi -- it did not Soto. And b y claiming no exculpate knowledge of the crime, apart from what he had heard on the news, and by sta ting that he knew Soto only by the name "Joel," he also did not give a false narrative of the crime (or, for that matter, any narrative regarding the crime) that could have . We therefore conclude that the provided Soto with a defense defendant's false and misleading statements to the police did not "aid" or "assist" Soto in any way that would suffice for the time that night." Id . at 456. In concluding that the evidence was sufficient to find the defendant guilty as an a ccessory after the fact, the court noted, " If these statements, made by the defendant at the time of his arrest, were intentionally false, they tended to show his guilt. . . . [E]vidence of this . at kind is an admission from which guilt may be inferred." Id 457. As the court's citations to Spezzaro in contemporaneous cases illustrate, the court viewed the defendant's false statements as evidence of consciousness of guilt, not as the aid or assistance that made the defendant an accessory after the See Commonwealth v. Cavedon , 301 Mass. 307, 315 (1938); fact. v. DiStasio , 297 Mass. 347, 360, cert. denied, 302 Commonwealth Commonwealth v. U.S. 683 (1937); Powers , 294 Mass. 59, 62 (1936); Commonwealth v. Vellucci , 284 Mass. 443, 446 (1933); Commonwealth v. Gentile , 255 Mass. 116, 118 (1926). Although not crystal clear from the opinion, the court appeared to conclude that the evidence indicated that the defendant was on the street in the early morning to aid the principal in his Spezzaro , supra getaway. See at 458 (" it could have been found that the defendant had knowledge that the felony was committed by [the principal], and that the defendant was in this place, expecting the arrival of the Packard car, and was aiding and assisting the principal to avoid de tention and arrest").

18 18 defendant to be found guilty of being an accessory after the 9 fact to the murder committed by Soto. Conclusion . The defendant's conviction as an accessory after the fact to murder is reversed. The of judgment conviction is vacated , and a judgment of acquittal is to be entered for the defendant. So ordered . 9 Having concluded that the defendant did not provide the police with a false alibi or give a false narrative of the crime that could have provided the principal with a defense, we need not consider whether a defendant could be foun d guilty as an accessory after the fact where the police would not be reasonably likely to be led astray by the false alibi or narrative because they knew it to be false when they heard it.

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