Commonwealth v. Fortuna

• Decision Date: 09 August 2011
• Docket Number: No. 10–P–185.,10–P–185.
• Citation: 951 N.E.2d 687,80 Mass.App.Ct. 45
• Parties: COMMONWEALTHv.Patrick FORTUNA.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 45

951 N.E.2d 687

COMMONWEALTH

v.Patrick FORTUNA.

No. 10–P–185.

Appeals Court of Massachusetts, Suffolk.

Argued April 1, 2011.Decided Aug. 9, 2011.

Jeremy Cohn for the defendant.Kathleen Celio, Assistant District Attorney (Lauren Bernath Moore, Assistant District Attorney, with her) for the Commonwealth.Present: WOLOHOJIAN, MILKEY, & HANLON, JJ.MILKEY, J.

After he sustained a gunshot wound, the defendant spoke with police officers who were investigating the shooting. Based on his statements to them, he was convicted, after a jury trial in Boston Municipal Court, of misleading a police officer with intent to impede or interfere with an investigation, G.L. c. 268, § 13B, and making a false report of a crime, G.L. c. 269, § 13A. On appeal, he argues that his motion to suppress evidence seized from him in the hospital should have been granted. He also asserts that the evidence presented at trial was insufficient to support either conviction, and he makes several additional arguments. We affirm.

Motion to suppress. “In reviewing the denial of a motion to suppress, we accept the judge's findings of fact absent clear error.” Commonwealth v. Mubdi, 456 Mass. 385, 388, 923 N.E.2d 1004 (2010), quoting from Commonwealth v. Damian D., 434 Mass. 725, 726, 752 N.E.2d 679 (2001). We begin by summarizing those findings.

On November 18, 2008, a Boston police detective responded to Brigham and Women's Hospital after receiving a report that a gunshot victim was en route there. See G.L. c. 112, § 12A, as amended through St.1998, c. 358, § 2 (requiring hospitals to report gunshot victims to police “at once”). Hospital security allowed the detective into the emergency department, where he found the defendant being treated by hospital personnel. The defendant had a gunshot wound in his lower calf or ankle area, and hospital personnel were cutting off his clothing (including pants and long underwear), a portion of which had been removed before the detective arrived. As the nurses and physicians were treating the defendant, the detective interviewed him about the shooting. The defendant said he had been shot while he was walking home, but that he did not know by whom or how, and that the shooter was far away. The detective then left to retrieve a camera from his vehicle, and when he returned, he photographed the wound. Upon observation of the defendant's clothing, the detective noticed black soot or gunshot residue around the wound and on the clothing. Based on his experience—he was a thirty-four-year veteran of the police force, including ten years as a detective in the firearms unit—he concluded that the shooter had to have been in very close proximity to the defendant, or that the wound was self-inflicted. He confronted the defendant, pointing out the soot on his clothes and saying that he did not believe his account of the shooting. The defendant became agitated and told the detective to “go fuck yourself.”

Meanwhile, hospital personnel had begun to place the defendant's clothes in a bag and offered it to the detective, who accepted it.¹ The detective asked that each article of clothing—the defendant's soiled, cut-up pants, long underwear, socks, a sandal, and other clothing—be placed in separate paper bags to prevent contamination, and he assisted in this process. The detective did not have a warrant to seize the clothing, and the defendant neither expressly consented nor objected to the seizure.

The motion judge denied the defendant's motion to suppress, ruling that the seizure of the clothing was justified under the plain view doctrine. He concluded that the detective had a right to be in the emergency room cubicle and to access the defendant's clothing because he was acting pursuant to his investigative duties and because the defendant had no reasonable expectation of privacy. The judge further concluded that the detective's discovery of the soot on the clothing was inadvertent and that its connection to the crime of the unlawful shooting justified its seizure.

We begin by observing that the defendant expressly agreed below with the motion judge that he had “no expectation of privacy ... in clothing that's been ripped off him as he's receiving medical attention.” With the defendant having no expectation of privacy in the items the detective examined, there was no search in the constitutional sense. See Commonwealth v. Bly, 448 Mass. 473, 490, 862 N.E.2d 341 (2007), citing Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991) (defendant must have subjective expectation of privacy for “search” or “seizure” to occur). The defendant's arguments that the extent of the search exceeded the contours of the plain view doctrine are therefore unavailing.

On appeal, the defendant seeks to resurrect a claim of privacy by citing to the statute known as “the patients' or residents' bill of rights,” G.L. c. 111, § 70E.² According to him, this statute provided him a statutorily-protected expectation of privacy that the detective violated. Because the defendant did not raise this theory at the suppression hearing below, however, he has waived it. See Commonwealth v. Johnston, 60 Mass.App.Ct. 13, 17–21, 799 N.E.2d 118 (2003), and cases cited.³

That leaves the defendant to argue that even if the detective was properly in his cubicle in the emergency room and even if there was no search of his clothing in a constitutional sense, the subsequent seizure of that clothing was invalid.⁴ For purposes of our analysis, we assume that the defendant neither abandoned his clothes nor consented to the police's taking of them. Compare Commonwealth v. Bly, 448 Mass. at 490–491, 862 N.E.2d 341 (where the defendant had abandoned the evidence [a used water bottle and cigarette butts], “no search or seizure occurred”), with Commonwealth v. Williams, 76 Mass.App.Ct. 489, 490–493, 923 N.E.2d 556 (2010) (patient did not forfeit his possessory interest in clothing bagged by hospital personnel to safeguard it). But by the time the detective seized the clothing, the detective had come to appreciate its incriminating nature (not only as evidence of the shooting, but also as evidence of the defendant's misleading police). With the police having discovered this incriminating evidence in a constitutionally permissible manner, they were justified in seizing the evidence under the plain view doctrine. Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 306–308, 930 N.E.2d 91 (2010).⁵ In sum, we conclude that the motion judge properly denied the motion to suppress.⁶

Sufficiency of the evidence. The defendant argues that his motion for a required finding should have been granted as to both counts. Applying the familiar standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 676–678, 393 N.E.2d 370 (1979), we conclude that the jury could have found the following facts.

On November 18, 2008, a Boston police officer received a radio dispatch that a man had been shot in Hyde Park. The officer arrived and found the defendant bleeding from a wound near his foot. The defendant told the officer that while he was walking from his house to a local store, he was shot by an unknown person in an unknown car, which then drove off. The officer cordoned off the area of the shooting, called in a canine unit to search for ballistics evidence, and he and other officers also searched the area for evidence. He called an ambulance for the defendant, who was taken to the hospital. The detective who interviewed the defendant in the hospital testified at trial, and his testimony there was consistent with that from the suppression hearing (although more specific about the defendant's account of the shooting). He said the defendant told him the shot came from a considerable distance, possibly from a bridge that crossed over the street, and that no person or car was near him. The Commonwealth also called a forensics expert from the Boston police crime lab. She testified that based on her chemical testing of the gunshot residue on the defendant's pants, he was shot from a maximum distance of eighteen inches.⁷ We proceed to review his sufficiency arguments in turn.

1. Misleading an officer with intent to impede an investigation. Section 13B of G.L. c. 268 criminalizes a number of actions that interfere with the operation of the criminal justice system. There is a good deal of case law regarding some aspects of the statute, such as those that prohibit the intimidation of witnesses, jurors, or judicial officers. See, e.g., Commonwealth v. Hamilton, 459 Mass. 422, 431–437, 945 N.E.2d 877 (2011) (intimidation of probation officer); Hrycenko v. Commonwealth, 459 Mass. 503, 945 N.E.2d 915 (2011) (judge); Commonwealth v. Rivera, 76 Mass.App.Ct. 530, 923 N.E.2d 1086 (2010) (witness). There do not appear to be any reported cases on the prong of the statute at issue in this case, prohibiting one from wilfully misleading a police officer with the intent to impede a criminal investigation.

As relevant here, under the plain language of the statute, the defendant must have (1) wilfully (2) misled (3) a person furthering a criminal investigation (4) with the intent to impede or obstruct an investigation. G.L. c. 268, § 13B, as appearing in St.2006, c. 48, § 3. In light of the inconsistency between the defendant's account and expert testimony that he was shot at from a distance of no more than one and one-half feet away, the jury could have inferred that the defendant lied to the police and that he did so both intentionally and with the intent to mislead them.⁸ The defendant argues that he can be convicted of such a violation only if his statements to police actually mislead them, while the Commonwealth suggests that the test should be an objective standard whether the statements would have misled a reasonable officer who heard them.⁹ We need not resolve this issue, because the statements that the defendant made to the initial officer on the scene were not...