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revision and are superseded by the advance sheets and bound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
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12028

            COMMONWEALTH    vs.   RAYMOND ZACHARY PAQUETTE.



         Hampshire.        April 4, 2016. - October 27, 2016.

  Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             Hines, JJ.1


Misleading a Police Officer.      Practice, Criminal, Instructions
     to jury.



     Indictments found and returned in the Superior Court
Department on June 24, 2014.

     The cases were tried before C. Jeffrey Kinder, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     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.




     1
       Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
                                                                    2


     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




     2
       We acknowledge the amicus brief submitted by Yale Yechiel
N. Robinson.
                                                                     3


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
                                                                      4


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,
                                                                       5


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

     3
       The record does not contain the date or dates on which
Bousquet was arrested and charged, or the specific charges
against him. In December, 2014, he pleaded guilty to two counts
of assault and battery by means of a dangerous weapon resulting
in serious bodily injury, in violation of G. L. c. 265, § 15A.
                                                                     6


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.

     4
       Both interviews were audiorecorded using a hand-held
digital recording device. The defendant did not object to the
recording. The audio recording of the second interview was
incomplete, as the recording device reached its storage capacity
before the interview ended.
                                                                      7


    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 (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
                                                                     8


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


     5
       A defendant's reckless disregard of the possibility that
his or her conduct might interfere with the proceeding at issue
also is sufficient to establish this element of the statute.
See G. L. c. 268, § 13B (1) (c) (v). The indictments in this
case, however, only alleged that the defendant acted with
specific intent, not reckless disregard. See Mass. R. Crim.
P. 4 (a), 378 Mass. 849 (1979) ("An indictment . . . shall
contain . . . a plain, concise description of the act which
constitutes the crime or an appropriate legal term descriptive
thereof").
     6
       The defendant does not contest that the statements at
issue in this case were made to a police officer, and that they
were made during a criminal investigation.
     7
       Because we conclude that the evidence was insufficient to
establish that the defendant misled police at the second
interview, we do not address this argument.
                                                                   9


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



     8
       With respect to the offenses charged, the jury were
instructed:

          "Now, let me turn to the specific charges in this
     case. The defendant is charged with two counts of
     misleading a police officer; one on May 4, 2014, and one on
     May 29, 2014.

          "In order for you to find the defendant guilty of this
     offense, the Commonwealth must prove the following three
     elements beyond a reasonable doubt. First, that the
     defendant directly or indirectly [misled] another person.
     Second, that the other person was a police officer
     conducting a criminal investigation. And third, that the
     defendant did so with the specific intent to impede,
     obstruct, delay or otherwise interfere with that criminal
     investigation.

          "To 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. However, objectively misleading conduct
     alone is not enough. The Commonwealth must also
     prove . . . the specific intent to impede, obstruct, or
     interfere with a criminal investigation. To prove this
     third element the Commonwealth, as I said, must prove
     beyond a reasonable doubt that the defendant specifically
     intended to impede, obstruct, delay, or otherwise interfere
     with a criminal investigation. That is, it must prove the
     purpose or objective of the defendant.

          "Obviously, it is impossible to look directly into the
     defendant's mind, but in our everyday affairs, we often
     decide from the actions of others what their state of mind
     is. In this case you may examine the defendant's actions
     or/and words and all of the surrounding circumstances to
     help you determine his intent at the time.
                                                                 10


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, "Bear in mind that the

Commonwealth need not prove that the defendant was successful in

misleading the police, so long as you are satisfied beyond a

reasonable doubt that the defendant made a false statement or

willfully omitted material information in his statement . . . ."



          "Bear in mind that the Commonwealth need not prove
     that the defendant was successful in misleading the police,
     so long as you are satisfied beyond a reasonable doubt that
     the defendant made a false statement or willfully omitted
     material information in his statement to the police with
     the specific intent to impede, obstruct, delay, or
     interfere with the criminal investigation."
     9
       In his written request for a jury instruction, the
defendant argued, "The [d]efendant requests that he be permitted
to argue that a mere denial of his presence in the kitchen while
the fight was happening, whether true or false is nothing more
than an attempt to exculpate himself and not an elaborate ruse
to induce action by someone else." The specific language that
he requested, however, addressed only the impeding element of
G. L. c. 268, § 13B.
                                                                   11


The defendant argues that that instruction incorrectly allowed

the jury to find any knowingly false statement "misleading"

within the scope of § 13B.   Because the defendant did not raise

this argument at trial, we review the challenged instruction for

a substantial risk of a miscarriage of justice.   See

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

    In our few prior cases involving § 13B, we adopted a

working definition of "misleads" from the description of

"misleading conduct" in 18 U.S.C. § 1515(a)(3), which defines

that term for purposes of the Federal witness tampering statute,

18 U.S.C. § 1512(b).   See Commonwealth v. Figueroa, 464 Mass.

365, 372 (2013).   "Misleading conduct" under the Federal

statutory scheme includes

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

Id., quoting 18 U.S.C. § 1515(a)(3).   This definition heretofore

generally has been adequate to the task of determining whether

defendants have "misled" investigators in violation of § 13B.

Yet it also is somewhat circular -- apart from "knowingly making
                                                                   12


a false statement," each of the enumerated categories is

described using the word "mislead" or "misleading."   Because of

the definition's inherent limitations, we take this opportunity

to clarify further the meaning of "misleads" as it appears in

§ 13B.

    "When a statute does not define its words we give them

their usual and accepted meanings, as long as these meanings are

consistent with the statutory purpose" (citation omitted).

Bayless v. TTS Trio Corp., 474 Mass. 215, 219 (2016).

Dictionaries have defined "mislead" as "[t]o lead in the wrong

direction."   The American Heritage Dictionary of the English

Language 1124 (4th ed. 2006), and "to lead or guide wrongly;

lead astray," Webster's New Universal Unabridged Dictionary 1230

(2003).   These definitions indicate that to "mislead[]"

principally entails sending a person on a proverbial "wild goose

chase," by inducing the person to go somewhere materially

different from where he or she otherwise would have gone.

    Our cases similarly have focused implicitly on whether,

given the information known to police at the time of the

defendant's alleged statements, the statements reasonably could

have led police astray, i.e., caused them to pursue a course of

investigation materially different from the course they

otherwise would have pursued.   In Figueroa, 464 Mass. at 372-

373, for example, we affirmed a defendant's conviction under
                                                                   13


§ 13B where the evidence indicated that the defendant, a

parolee, had presented a detailed false alibi to his parole

officer during her investigation into possible violations of the

conditions of his parole.10   Although that conduct did not

actually mislead the parole officer, we concluded that it

reasonably could have done so.    See id. at 373.   The Appeals

Court likewise has affirmed a conviction under § 13B of a

defendant who, after being shot, falsely told police that the

shooter had been a considerable distance away, although forensic

evidence indicated that the shooter had been within feet of him.

See Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 47, 50-51

(2011).   The court noted specifically that "the statements that

the defendant made to the initial officer on the scene

were . . . sufficient to mislead a reasonable person in his

position."   Id. at 51.11   In Commonwealth v. Morse, 468 Mass.

360, 361, 364, 372-373 (2014) (Morse), by contrast, we concluded

     10
        The conditions of the defendant's parole in that case
included "not go[ing] to areas where children under eighteen
years of age would congregate," and "not enter[ing] into a
relationship with someone who had children without informing his
parole officer." Commonwealth v. Figueroa, 464 Mass. 365, 366
(2013). The defendant told the officer that he had been at an
Alcoholics Anonymous meeting and that his global positioning
system monitor was broken, when in fact he had been trick-or-
treating with the children of a woman whom he secretly had been
dating. Id. at 372-373.
     11
        See also Commonwealth v. Occhiuto, 88 Mass. App. Ct. 489,
506 (2015) (noting in dicta that defendant's false claim to
police that he had acquired money from drug theft by working as
fisherman would have violated G. L. c. 268, § 13B, if statement
had been made during enumerated criminal proceeding).
                                                                    14


that a suspect's answer of "No" in response to a police

officer's question whether he had consumed any substances in

addition to alcohol before a boating accident "that could've

impaired [his] ability to . . . be aware of what was going on

around [him]" was not "misleading" within the meaning of § 13B,

because the answer was a subjective assessment of the suspect's

response to an intoxicating substance, and therefore did not

"rise to the level of a knowingly false statement or an

intentional omission of a material fact."

    In Morse, supra at 372, we observed that each aspect of the

working definition of "misleads" suggests "a knowing or

intentional act calculated to lead another person astray."     We

further observed that "intimidat[ing]" and "harass[ing]"

conduct, both of which are prohibited under the same subsection

of § 13B as "mislead[ing]" conduct, similarly involve "malicious

acts calculated to produce certain effects on a third party."

See id. at 375, citing G. L. c. 168, § 13B (1) (c).    The Appeals

Court likewise has defined "intimidating conduct" for purposes

of § 13B as "acts or words that would instill fear in a

reasonable person."    See Commonwealth v. Rivera, 76 Mass. App.

Ct. 530, 535 (2010).   Given this, it seems evident that whether

a statement is "mislead[ing]" for purposes of § 13B depends on

whether it reasonably could lead investigators to pursue a

course of investigation materially different from the course
                                                                  15


they otherwise would have pursued.12   In short, "He went that

way" may well be misleading, but "I don't know" likely is not.13

     Understanding the definition of "misleads" to include only

those lies that reasonably could lead investigators to pursue a

materially different course of investigation is in keeping with

the statutory purpose of § 13B.14   In Morse, supra at 367-370, we

examined in detail the statutory history of § 13B and its

relationship to other crimes against public justice.   We

concluded that § 13B is targeted specifically at "countering the

effect of witness intimidation on the successful prosecution of




     12
       Federal courts have interpreted the definition of
"misleading conduct" under 18 U.S.C. § 1515(a)(3) similarly to
entail conduct that reasonably could lead someone astray in a
material way. See, e.g., United States v. Kulcyzk, 931 F.2d
542, 548 (9th Cir. 1991) ("The statute . . . appears to require
that the defendant mislead the witness as to the substance of
his testimony" [emphasis added]); United States v. King, 762
F.2d 232, 237 (2d Cir. 1985) ("[T]he evidence failed totally to
support any inference that [government witness] was, or even
could have been, misled").
     13
       Cf. Commonwealth v. D'Amour, 428 Mass. 725, 744 (1999),
citing Commonwealth v. Giles, 350 Mass. 102, 111 (1966) (noting
in perjury context that "test for materiality is not whether
testimony did in fact influence pertinent determination, but
whether it had a reasonable and natural tendency to do so").
     14
       See Commonwealth v. One 1987 Mercury Cougar Auto., 413
Mass. 534, 537-38 (1992) ("While courts should look to
dictionary definitions and accepted meanings in other legal
contexts, . . . their interpretations must remain faithful to
the purpose and construction of the statute as a whole"
[citation omitted]).
                                                                     16


criminals."   See id. at 367.15   The prohibition against

misleading conduct in § 13B advances that purpose by

criminalizing conduct that reasonably could affect in a material

way the investigation culminating in such a prosecution.

     The judge understandably instructed the jury in accordance

with the definition of "misleading conduct" that we adopted in

Figueroa, 464 Mass. at 372.     That instruction, however,

indicated incorrectly that a defendant "misleads" police if he

or she knowingly makes any false statement to police, or omits

or conceals material information with the intent to mislead

police or give them a false impression.16    Because the

instruction allowed the jury to conclude that the defendant

"misled" police even if his false or incomplete statements could

not reasonably have led police to pursue a materially different

course of investigation, it created a substantial risk of a

miscarriage of justice.17   See Alphas, 430 Mass. at 13.

     ii.    Impeding element.   The defendant also argues that the

jury were not properly instructed regarding the impeding element

of § 13B.   Only some of the defendant's requested language

     15
       Although G. L. c. 268, § 13B, originally was enacted in
1969, the prohibition on misleading conduct first was added in
2006. See St. 2006, c. 48, § 3; St. 1969, c. 460.
     16
        The Commonwealth likewise suggested incorrectly during
closing argument that the defendant had violated the statute
simply because "he lied to the police."
     17
        The verdict slip did not ask the jury to specify what
kind of "misleading conduct" they found.
                                                                  17


concerning this element was incorporated in the final jury

instruction:   the jury were instructed that "objectively

misleading conduct alone is not enough" to establish the

offense, and that the Commonwealth also must prove "that the

defendant specifically intended to impede, obstruct, delay, or

otherwise interfere with a criminal investigation."   They were

instructed further that they could "examine the defendant's

actions or/and words and all of the surrounding circumstances to

help [them] determine his intent at the time."   Over the

defendant's objection, however, the judge declined to include

language to the effect that "when an individual denies his

guilt, either falsely or truthfully, without otherwise making

any affirmative misrepresentations or attempting to shift the

blame onto a third party, it generally would be in aid of

exculpating himself from liability, rather than of inducing

action by someone else."   See Morse, supra at 375.

    The judge's decision to omit such language was not

prejudicial error.   See Commonwealth v. Kaeppeler, 473 Mass.

396, 406 (2015).   It is possible that the defendant in this

case, like the defendant in Morse, supra at 374, intended only

to minimize his involvement in the events being investigated by

police out of concern that he might be exposed to criminal

liability, either for his involvement, however minimal, in the

circumstances surrounding the assault on Spath, or for his
                                                                  18


involvement in other criminal activity that was not the primary

focus of the investigation by police, such as underage

drinking.18   Nonetheless, it was not necessary to instruct the

jury specifically regarding other intentions that the defendant

might have had during his conversations with police.   In Morse,

supra at 374, we chiefly considered whether a suspect's short

exculpatory denial, on its own, allowed for an inference of

specific intent to interfere with the police's investigation.

We concluded the denial did not allow for such an inference,

because, unlike "a content-laden fabrication designed to send

police off course, thereby interfering with their

investigation," it left police "in the same position they would

have been in had the [suspect] instead remained silent."   Id.

     Here, by contrast, the defendant's statements were more

extensive than a simple exculpatory "No," and in any event were

not the only evidence of his intent to interfere in some way

with the police's investigation.   Other evidence included the

defendant's exhortations to Spath as he left the party not to

tell anyone that he had been at the party, and his suggestion to

police during the first interview that he had told partygoers to

leave after the fight in order to avoid a police investigation


     18
       The defendant was twenty-one years old at the time of the
party; not all of the guests, however, were of legal drinking
age. See G. L. c. 138, § 34 (criminalizing furnishing of
alcohol to minors).
                                                                  19


into what had happened.   Accordingly, a specific instruction

regarding the inferences that could be drawn from a short

exculpatory denial would not have been appropriate.   It was

sufficient for the jury to be instructed, as they were, that the

defendant's mens rea could be inferred from circumstantial

evidence.   See Commonwealth v. Stewart, 454 Mass. 527, 535

(2009).   See also Commonwealth v. Robinson, 449 Mass. 1, 8

(2007) ("A judge need not use any particular words in

instructing the jury as long as the legal concepts are properly

described").

    b.    Sufficiency of the evidence.   Although the jury were

not instructed correctly regarding the misleading element of

§ 13B, we consider whether, had a correct instruction been

given, the evidence would have been insufficient to allow the

jury to convict on either indictment.    See Commonwealth v.

Lapage, 435 Mass. 480, 486 (2001).   "[W]e apply the well-settled

and familiar Latimore standard:   that is, viewing the evidence

in the light most favorable to the Commonwealth, we ask whether

the evidence and the inferences that reasonably could be drawn

from it were 'of sufficient force to bring minds of ordinary

intelligence and sagacity to the persuasion of [guilt] beyond a

reasonable doubt.'"   Commonwealth v. Scott, 472 Mass. 815, 820

(2015), quoting Commonwealth v. Latimore, 378 Mass. 671, 676–677

(1979).
                                                                   20


       The evidence presented might have allowed a correctly

instructed jury to conclude that the defendant's statements at

the first interview violated § 13B.    Although the Commonwealth

did not present any direct evidence of the effect of the

defendant's statements at that interview on the investigation by

police,19 the statements were made while the investigation still

was in its early stages.    Accordingly, the jury might have

inferred that the defendant "misled" police within the meaning

of § 13B by lying about his location at the time of the fight,

or by misrepresenting that he did not know the identities of

certain people involved, if they found that such statements

reasonably could have influenced the investigation in a material

way.    The jury also might have inferred from circumstantial

evidence that the defendant specifically intended to impede,

obstruct, delay, or otherwise interfere with the investigation.

       By contrast, even if the jury had been instructed

correctly, no view of the evidence would have allowed them to

conclude that the defendant violated § 13B at the second

interview.    As noted, statements are not misleading within the

meaning of § 13B unless, given the information known to police

at the time the statements were made, the statements reasonably

could have led police to pursue a materially different course of

       19
       Contrast Commonwealth v. Morse, 468 Mass. 360, 374-375
(2014) (summarizing evidence regarding alleged effect of
defendant's statements on course of investigation).
                                                                    21


investigation.   The Commonwealth presented no direct evidence,

however, that the defendant's statements at the second interview

reasonably could have led police astray in this manner.       Nor was

the evidence that was presented sufficient to allow for an

inference to that effect.   By the time of the second interview,

police already had conducted an extensive investigation, and

Bousquet had been arrested and charged.     Furthermore, once

police asked the defendant to "clear the air," they presented

him with the unenviable choice between admitting that he had

lied and omitted information at his first interview, and

repeating his misstatements from the first interview, either of

which could expose him to potential criminal liability under

§ 13B.   Given the timing of the defendant's statements and what

police already knew, and in the absence of other evidence

indicating that the statements reasonably could have affected

the police investigation in a material way, the evidence was not

sufficient to allow for the conclusion that the defendant

"misled" police, within the meaning of § 13B, at the second

interview.   See Scott, 472 Mass. at 820.    Therefore, the

defendant's motion for a required finding of not guilty with

respect to the second indictment, pertaining to the second

interview, should have been allowed.

    4.   Conclusion.   The judgments of conviction are vacated

and set aside.   The matter is remanded to the Superior Court for
                                                                  22


entry of a required finding of not guilty with respect to the

second indictment, alleging that the defendant misled police at

the second interview, and further proceedings consistent with

this opinion.

                                   So ordered.
