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Massachusetts Supreme Judicial Court Limits Scope of Witness Intimidation Statute

In an important decision delivered today, the Massachusetts Supreme Judicial Court concluded a defendant who swallowed a baggie containing drugs to prevent its seizure did not violate the witness intimidation statute.  The name of the case is Commonwealth v. Tejeda

A police officer watched the defendant and her companion try to buy heroin with food stamps.  The cop approached a third person involved in the attempted drug deal and watched him drop a small plastic baggie containing a brown powdery substance that appeared to be heroin.  The defendant retrieved the baggie, put it in her mouth, and swallowed it.  Swallowing drugs is a common strategy of drug dealers and users who want to avoid being arrested.  The strategy is usually successful because if the drugs are not recovered and tested by the state laboratory, the Commonwealth cannot prove beyond a reasonable doubt that the substance was an illegal narcotic.  In this case, after the defendant swallowed the purported drugs, the cop placed her under arrest and charged her with violating the witness intimidation statute.  A Boston Municipal Court judge dismissed the case but the Appeals Court reversed.  The Supreme Judicial Court concluded the case was properly dismissed by the trial court judge.

The Massachusetts witness intimidation law prohibits several types of conduct, including threatening potential witnesses and offering a gift to a potential witness to procure his silence.  The statute also criminalizes misleading a police officer, which was the theory of prosecution in this case.  A recent SJC case held that a witness can be convicted of the statute when he makes a false statement to a police officer and the false statement could reasonably have misled the officer and caused him to pursue a materially different investigation as a result.  Therefore, a witness who wrongly identifies a criminal suspect on purpose is likely guilty of witness intimidation.  Instead of false statements, this case involved the destruction of potential evidence.  The question for the Court was whether the defendant’s actions in swallowing the baggie constituted misleading conduct.  The SJC said the defendant’s conduct was not misleading because it did not intend to create a false impression in the cop’s mind and it was not reasonably likely to cause the cop to engage in a materially different investigation (the proverbial “wild goose chase”).  It would have been obvious to the police officer exactly what the defendant was trying to do when she swallowed the baggie – there was no deception about where the baggie went.  And, as the Court noted, the cop knew precisely where the plastic baggie could have been located.  While the defendant’s conduct intended to impede, obstruct, or interfere with a police investigation, the absence of evidence that she misled the cop was fatal to the Commonwealth’s case.

The plain language of the statute dictated the result in this case.  The cops were overreaching because they were unable to charge the defendant with possession of the substance she swallowed.  Nevertheless, the Commonwealth will likely continue to charge defendants with witness intimidation when no other charges are possible, and the statute will likely be challenged in court in future cases.

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