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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-ortreating 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.