Commonwealth v. Occhiuto
| Decision Date | 13 October 2015 |
| Docket Number | No. 13–P–1123.,13–P–1123. |
| Citation | 88 Mass.App.Ct. 489,38 N.E.3d 783 |
| Parties | COMMONWEALTH v. Nicholas OCCHIUTO. |
| Court | Appeals Court of Massachusetts |
John M. Thompson for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
Present: COHEN, WOLOHOJIAN, & MALDONADO, JJ.
WOLOHOJIAN
, J.
Although hypothetical questions are the stock in trade of law schools, it is rare to find a criminal prosecution stemming from the world of make-believe. But such we confront
here. The questions raised are: (1) whether there was sufficient evidence that the defendant made a false statement of fact to an undercover cooperating witness so as to support his conviction of larceny by false pretenses; and (2) whether the defendant was properly convicted of misleading a police officer with the intent to impede or interfere with a criminal investigation where the investigation was a sham and the underlying crime was a ruse.1 We reverse.
Background.2 At some point in 2009, the defendant became the target of a drug investigation (code-named “Operation Cryptonite”) jointly conducted by Federal, State, and local law enforcement agents. A cooperating witness, code-named “Olive,” was enlisted to attempt to buy two ounces of “crack” cocaine and thirty grams of heroin from the defendant, using money supplied by the agents. A total of $4,000 was involved: $2,200 marked and wrapped with a rubber band for the crack cocaine, and $1,800 also marked and wrapped with a rubber band, for the heroin.
On October 21, 2009, in the presence of Federal Bureau of Investigation (FBI) Special Agent Jeffrey Wood, Olive placed a telephone call to the defendant, recorded and transcribed in its entirety as follows:
This apparently was not the first conversation Olive had had with the defendant that day. However, the content of that earlier conversation was—as the Commonwealth concedes—inadmissible hearsay because Olive did not testify and the Commonwealth sought to introduce it through Special Agent Wood. We therefore do not include the substance here, although we discuss it later.
Olive used an FBI-provided automobile, outfitted with a hidden camera and recording equipment, to drive to Franklin Street. Special Agent Wood and Detective Stephen Withrow of the Lynn police department followed in an unmarked car. Another FBI Special Agent, Darwin Suelen, followed separately. State police Trooper Jesse Sweet and Lynn police Detective Oren Wright drove directly to Franklin Street in order to observe from that vantage point.
When Olive arrived at Franklin Street, she saw to her surprise that the defendant was with a man she referred to as “Nuck.”3 This discovery prompted Olive to muse aloud:
The defendant got into the rear of the car;4 Nuck got into the passenger seat next to Olive. The following exchange ensued:
While Olive continued to drive following Nuck's directions, she and Nuck conversed about various personal matters.5 Eventually, Nuck instructed Olive to pull over and stop the car on Arlington Street. Nuck and Olive continued to converse for several more minutes. Then, the defendant (who until then had spoken only once or twice on immaterial matters) said:
The defendant can be heard to say next, “See you right back” while opening the back door of the car.6 Nuck, while getting out of the car, said “I am probably about to stay here.” The two men
then left the car and walked away. Olive, left alone in the car, said aloud, presumably for the benefit of the agents:
Left alone again in the car, Olive remarked to herself, She then waited for Nuck and the defendant to return.
Instead of returning to Olive's car, the defendant and Nuck emerged on a parallel street where Detective Wright observed them give each other a “high five.” They got into a black Jetta automobile and drove away with the defendant behind the wheel.
The agents concluded that they had observed a possible “rip”7 (i.e., theft) and a broadcast was made to that effect, to which State police Trooper Mario Millett, yet another member of the joint operation, quickly responded.8 Trooper Millett decided to stop the Jetta using a ruse in order to retrieve the cash, and elicit any other information that might be helpful, while preserving the confidentiality of the drug investigation.
Trooper Millett saw that a car (completely unrelated) was driving close behind the black Jetta. Using that fact, he stopped both cars on the pretext that he had observed an incident of road rage. To further the pretext, Trooper Millett first approached the unrelated car and obtained that driver's license and registration. He also asked the driver of that car to wait. Trooper Millett then approached the black Jetta. After obtaining the defendant's license and registration, Trooper Millett asked the defendant and Nuck to get out of the car, and pat frisked them. He removed the $2,200 wrapped with a rubber band from one of the defendant's pockets, plus $400 in loose cash from another. He removed the $1,800 wrapped with a rubber band from Nuck's pocket. Trooper Millett asked about the large amount of cash he had found, and the defendant told him that it was for rent. Nuck said that he intended to buy a vehicle. Trooper Millett returned the $400 to the defendant, but kept the two rubber-banded bundles of cash.
Agitation and invention ensued. According to Trooper Millett, both men became very concerned by the fact that he had taken the money. He explained to them that he “would just start a civil forfeiture proceeding for the money.” Because they continued to protest, Trooper Millett gave them a receipt, which he signed “Trooper J. Edgar Hoover.”9 When those steps were not enough to appease the defendant and Nuck, Trooper Millett told them that they could go to the State police barracks in Danvers to complain.10
Outrage overtaking caution, the defendant and Nuck accepted the trooper's invitation and went to the barracks to report what they believed was a “shake-down” by a rogue State police trooper. They were met by Lieutenant Hughes of the State police who had been alerted ahead of time to the situation by Trooper Millett. Lieutenant Hughes knew of the joint drug operation, and wanted to maintain its confidentiality. At the same time, he wanted to try to obtain information from the defendant that might be helpful to the drug investigation. The lieutenant, therefore, invented a sham investigation into Trooper Millett's conduct as a pretext to interview the defendant, and told the defendant that “we were looking into the—the seizure of the cash and the appropriateness of the Trooper's actions.” In fact, no such investigation was afoot or intended.
The defendant agreed to return to the barracks the next day to be interviewed as part of the supposed investigation. That interview was conducted by Lieutenant Hughes and FBI Special Agent Wood, and they together maintained the fiction that they were conducting an investigation into Trooper Millett. The interview lasted about one-half hour.11 After eliciting details about the stop, the frisk, the removal of the money, and the receipt, Special Agent Wood asked:
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