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SJC-12187

                COMMONWEALTH   vs.   JOSEFA TEJEDA.



        Suffolk.     December 8, 2016. - April 20, 2017.

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


                   Misleading a Police Officer.



     Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on October 8, 2014.

     A motion to dismiss was heard by David Weingarten, J., and
a motion for reconsideration was considered by him.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Jason Shaffer (Robert E. Proctor & Colin Doyle also
present) for the defendant.
     Zachary Hillman, Assistant District Attorney (Alexandra I.
Halprin also present) for the Commonwealth.


    BUDD, J.   This case presents an opportunity to further

clarify the meaning of "misleads" in the context of G. L.

c. 268, § 13B, specifically as it relates to nonverbal conduct.

Here, a complaint issued charging the defendant, Josefa Tejeda,
                                                                     2


with misleading a police officer after she picked up a small bag

of what was believed to be heroin and swallowed it as the

officer watched.1    A Boston Municipal Court judge dismissed the

count.    The defendant sought further appellate review after the

Appeals Court vacated the dismissal.     See Commonwealth v.

Tejeda, 89 Mass. App. Ct. 625 (2016).     We affirm the order of

the trial court judge, concluding that the defendant's actions

were not misleading within the meaning of the statute.

     Background.    We summarize the facts included in the

application in support of the complaint against the defendant.

A police officer approached the defendant and a male whom the

officer had observed earlier trying to purchase heroin with food

stamps.    The two made eye contact with the officer and began to

walk away.     A third person, a known heroin user, was squatting

behind an automobile where the other two had been standing.

Concerned that the man behind the vehicle was concealing a

needle in his hand, the officer ordered him to reveal what he

was holding.    When the man refused, the officer grabbed his arm,

causing a small plastic bag of a light brown powdery substance

to fall from his hand to the ground.     As the officer began to

take the man into custody, he simultaneously observed the




     1
       The defendant was also charged with possession of heroin
pursuant to G. L. c. 94C, § 34.
                                                                    3


defendant return to the scene, pick up the plastic bag and place

it in her mouth.   The bag and its contents were not recovered.

    Discussion.    To sustain the complaint against the

defendant, the Commonwealth must provide sufficient evidence to

establish probable cause, that is, "reasonably trustworthy

information sufficient to warrant a reasonable or prudent person

in believing that the defendant has committed the offense."

Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013), quoting

Commonwealth v. Roman, 414 Mass. 642, 643 (1993).    General Laws

c. 268, § 13B (1) (c), provides in pertinent 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 investigation] shall be punished."

    Although § 13B does not define "misleads," in interpreting

the statute we have come to rely on the definition of

"misleading conduct" contained in the Federal witness tampering

statute:

    "(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
                                                                     4


    respect; or (E) knowingly using a trick, scheme, or device
    with intent to mislead."

18 U.S.C. § 1515(a)(3) (2012).    See Commonwealth v. Figueroa,

464 Mass. 365, 372 (2013).    This definition of "misleading

conduct" has its limitations:    apart from subsection (A),

"knowingly making a false statement," each of the other

subsections includes the term "mislead" or "misleading," making

the definition circular.     Commonwealth v. Paquette, 475 Mass.

793, 799-800 (2016).

    In Paquette, we recently clarified the meaning of

"misleads" in the context of false statements.     We noted that

"each aspect of the working definition of 'misleads' suggests 'a

knowing or intentional act calculated to lead another person

astray.'"   Id. at 801-802, quoting Commonwealth v. Morse, 468

Mass. 360, 372 (2014).     It follows that for any conduct to be

considered misleading under § 13B, the conduct must be

calculated to create in another a false impression or a belief

that is untrue.   We also observed that the ordinary meaning of

the term "mislead" is "[t]o lead in the wrong direction," The

American Heritage Dictionary of the English Language 1124 (4th

ed. 2006), or "to lead or guide wrongly; lead astray," Webster's

New Universal Unabridged Dictionary 1230 (2003).     Paquette, 475

Mass. at 800.   We reasoned that "[t]hese definitions indicate

that to 'mislead[]' principally entails sending a person on a
                                                                  5


proverbial 'wild goose chase,' by inducing the person to go

somewhere materially different from where he or she otherwise

would have gone."   Id.

     Thus, we concluded that to find the defendant guilty of

misleading a police officer with a lie, the jury would need to

find not only that the statement was false, but that it

reasonably could have led law enforcement officers to pursue a

materially different course in their investigation from one they

otherwise would have pursued because it sent them in the wrong

direction, i.e., a "wild goose chase."   Id. at 800-801.

Although Paquette dealt with false statements, its reasoning

applies equally to physical conduct.2

     Here, to determine whether the nonverbal conduct in which

the defendant engaged was misleading within the meaning of

§ 13B,   we must determine whether it was intended to create a

false impression in the mind of another and, if so, whether such

conduct was reasonably likely to lead the investigation in a

materially different, or wrong, direction.   Neither is true of

the defendant's conduct in this case.

     2
       The Commonwealth suggests that the defendant's conduct
fits within subsection (E) of the definition in 18 U.S.C.
§ 1515(a)(3), that is, conduct which is "a trick, scheme, or
device with intent to mislead," and therefore her actions were
"misleading" in the context of § 13B. We do not believe that
the conduct here was actionable under that somewhat circular
subsection, as it requires not just a "trick" but one that
misleads. The conduct here was neither such an artifice nor
misleading as we understand that term.
                                                                       6


    First, although the defendant's swallowing of the plastic

bag in full view of a police officer may have been an attempt to

keep potential evidence away from the officer, it was not an

attempt to create a false impression within that officer.       This

is so because she did not attempt to, nor did she, deceive the

officer as to where the bag went.    Second, the defendant's

conduct did not lead officers astray or send them on a "wild

goose chase."   Paquette, 475 Mass. at 800.   The officers knew

exactly where to find the plastic bag if they were so inclined.

    This interpretation of "misleads" within § 13B is in

keeping with the plain language of the statute, elements of

which include both an intent to mislead and an intent to impede,

obstruct, delay, harm, punish, or otherwise interfere with a

criminal investigation.   See id. at 797 (elements of § 13B are

"[1] wilfully misleading, directly or indirectly, [2] a police

officer [3] with the intent to impede, obstruct, delay, harm,

punish, or otherwise interfere thereby with [4] a criminal

investigation" [footnote omitted]).    The interpretation the

Commonwealth would have us adopt equates impeding conduct with

misleading conduct.   This construction reads the word "misleads"

out of the statute, and "[w]e decline to adopt an interpretation

that ignores words and phrases of the statute."    Commonwealth v.

Disler, 451 Mass. 216, 227 (2008).    It also overlooks our prior
                                                                    7


case law.   See Morse, 468 Mass. at 372 (§ 13B requires

prohibited act to both mislead and impede).

     We conclude that misleading conduct within the meaning of

§ 13B is conduct that is intended to create a false impression

such that it was reasonably likely to send investigators astray

or in the wrong direction.     Here, although there may have been

probable cause to believe that the defendant intended to

"impede, obstruct . . . or otherwise interfere" with a criminal

investigation, there was insufficient evidence that the

defendant's conduct was "willfully mislead[ing]" under § 13B.3

     Conclusion.     The trial court judge correctly allowed the

motion to dismiss.

                                      Judgment affirmed.




     3
       "There is no general obstruction of justice statute in
Massachusetts . . . . Instead, a patchwork of statutes
establishes various [crimes,] some of which involve uttering
false statements or interfering with governmental operations in
different capacities." Commonwealth v. Morse, 468 Mass. 360,
366 (2014). Here, the defendant's conduct may have been
prohibited by G. L. c. 268, § 13E, which criminalizes, among
other things, the destruction of objects with the intent of
interfering with criminal proceedings.
