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18-P-1466 Appeals Court

COMMONWEALTH vs. JOSE MARTINEZ.

No. 18-P-1466.

Essex. April 6, 2020. - October 2, 2020.

Present: Sullivan, Kinder, & Singh, JJ.

Cellular Telephone. Evidence. Attempt. Constitutional Law, 

Indictment. Practice, Criminal, Indictment, Required 

finding.

Indictment found and returned in the Superior Court 

Department on January 14, 2016.

The case was tried before Paul D. Wilson, J.

The case was submitted on briefs.

Thomas C. Foley for the defendant.

Helle Sachse, Special Assistant District Attorney, for the 

Commonwealth. 

SULLIVAN, J. After a jury trial, the defendant, Jose 

Martinez, was convicted of attempting to conceal or destroy 

evidence with the intent to interfere with an official 

proceeding. See G. L. c. 268, § 13E (b). On appeal, he 

contends that the indictment charging him with that crime was 
2

defective and that the evidence presented at trial was 

insufficient to support his conviction. We affirm.

Background. At the time of the initial indictments, the 

defendant was a court officer working in the Lawrence Division 

of the District Court Department. He was indicted, as relevant 

here, on eleven separate counts of rape, assault with intent to 

rape, and indecent assault and battery on a person age fourteen 

or over.1 See G. L. c. 265, § 22 (b), § 24, § 13H. Eight months 

later, the defendant was indicted on the charge of attempting to 

conceal or destroy evidence (hereafter, we refer to this as the 

indictment). Following a jury trial, the defendant was 

acquitted of the underlying charges but convicted of attempting 

to conceal or destroy evidence in an official proceeding.

At trial, a fellow court officer testified that after

receiving a sexual assault complaint against the defendant from 

a woman in custody, and after the defendant was arraigned on the

underlying charges, the defendant called the court officer and 

requested that he find and "take," "smash," and "throw . . . in 

the river" a second cell phone that the defendant kept in the 

court house. The cell phone contained pornographic images that 

included the defendant's penis and the breasts and vaginas of 

 

1 We refer hereafter to the charges in these eleven 

indictments as the underlying charges.
3

unknown women. The court officer reported the request to his 

superiors. At trial, the defendant admitted that he had made 

the request, but denied that he harbored any intent to obstruct 

criminal prosecution, claiming instead that he made the request 

to spare his wife and children embarrassment.

Discussion. 1. The indictment. The defendant contends, 

for the first time on appeal, that because the indictment did 

not allege an overt act, it was facially defective. "Although a 

challenge to the sufficiency of an indictment ordinarily is 

deemed waived unless raised by a motion to dismiss prior to 

trial, whether an indictment fails to allege an offense is a 

matter of jurisdiction, which may be raised at any time." 

Commonwealth v. Garrett, 473 Mass. 257, 264 (2015).

An overt act is an essential element of the crime of 

attempt. See Commonwealth v. LaBrie, 473 Mass. 754, 764 (2016) 

("The elements of attempt . . . are [1] the specific intent to 

commit the substantive crime at issue, and [2] an overt act 

toward completion of the substantive crime"). See also 

Commonwealth v. Gosselin, 365 Mass. 116, 121 (1974) ("A charge 

of an attempt should set forth in direct terms that the 

defendant attempted to commit the crime, and should allege the 

act or acts done towards its commission"). The indictment, 
4

which is set forth in full in the margin,2 alleged that the 

defendant "did attempt to conceal or destroy an object, to wit: 

a cellphone."

The defendant maintains that the indictment is deficient 

because it did not place him on notice of the overt act of 

destruction or concealment in which he was alleged to have 

engaged. Specifically, the indictment did not state whether he 

engaged in an overt act to destroy the cell phone, and if so, 

whether his actions exceeded mere preparation and came close 

enough to completion to constitute an attempt, or whether he 

asked another person to do so under circumstances where the 

request would have been the last act the defendant needed to 

 

2 The indictment alleged as follows: 

"Jose Martinez of Lawrence, in said County of Essex, on the 

fourth and ninth days of March, in the year of our Lord two 

thousand fifteen, at Lawrence in the County of Essex 

aforesaid did attempt to conceal or destroy an object, to 

wit: a cellphone, with the intent to impair its integrity 

or availability for use in an official proceeding involving 

a violation of a criminal statute, against the peace of the 

Commonwealth aforesaid, and contrary to the form of the 

statute in such case made and provided."

The indictment tracked the language of G. L. c. 268, § 13E

(b), which provides:

"Whoever alters, destroys, mutilates, or conceals a record, 

document, or other object, or attempts to do so, with the 

intent to impair the record, document or object's integrity 

or availability for use in an official proceeding, whether 

or not the proceeding is pending at that time, shall be 

punished . . . ."
5

perform. See Commonwealth v. Peaslee, 177 Mass. 267, 273-274 

(1901).3

As a general rule "the absence of a required element in an 

indictment does not by itself establish that a crime is not

charged, even if acquittal is required if the prosecution were 

to prove only the allegations in the indictment." Commonwealth

v. Canty, 466 Mass. 535, 548 (2013). See Garrett, 473 Mass. at 

264-265. Under this general rule we ask whether there was "fair

notice of the crime charged, [as] [i]t is not necessary for the 

Commonwealth to set forth in the complaint or indictment every 

element of the crime to withstand a motion to dismiss" if the 

complaint or indictment otherwise provides fair notice

(quotation and citation omitted). Canty, supra at 547. See 

 

3 The following example best illustrates the two types of 

overt acts: 

"A mere collection and preparation of materials in a room 

for the purpose of setting fire to them, unaccompanied by 

any present intent to set the fire, would be too remote. If 

the accused intended to rely upon his own hands to the end, 

he must be shown to have had a present intent to accomplish 

the crime without much delay, and to have had this intent 

at a time and place where he was able to carry it 

out. . . . On the other hand, if the offence is to be made 

out by showing a preparation of the room and a solicitation 

of someone else to set the fire, which solicitation if 

successful would have been the defendant's last act, the 

solicitation must be alleged as one of the overt acts." 

Peaslee, 177 Mass. at 273-274.
6

G. L. c. 277, § 34 ("An indictment shall not be dismissed or be 

considered defective or insufficient if it is sufficient to 

enable the defendant to understand the charge and to prepare his 

defense; nor shall it be considered defective or insufficient 

for lack of any description of information which might be 

obtained by requiring a bill of particulars").

Under the Canty analysis, we would have no hesitation in 

declaring the defendant was on fair notice of the crime alleged. 

The indictment stated that on particular dates the defendant 

attempted to destroy or conceal his cell phone. It also alleged 

that he did so in order to avoid criminal charges, and eleven 

separate indictments alleging sexual assaults preceded the

indictment at issue here. The indictment tracked the language 

of the statute, see note 1, supra, and the defendant did not 

question the nature of the overt act. Indeed, in a pretrial 

motion to dismiss (on other grounds) the defendant stated of 

this indictment, "[e]ssentially, the Commonwealth alleged that 

the defendant directed his phone to be destroyed to conceal or 

destroy images and information on the phone that would be used 

at his trial of the underlying indictments alleging rape."4 In 

 

4 If the indictment is otherwise sufficient, in the event of 

uncertainty, the defendant may move for a bill of particulars. 

Canty, 466 Mass. at 548. See Mass. R. Crim. P. 13 (b) (1), as 

appearing in 442 Mass. 1516 (2004). However, a bill of 

particulars will not save a defective indictment. Commonwealth
7

these circumstances we are confident that the defendant was on 

actual notice of the overt act alleged.

Our cases, however, have treated attempt crimes 

differently, requiring that the overt act be stated with 

particularity in the indictment. This requirement finds its 

genesis in Peaslee, in which Justice Holmes restated "the 

familiar rule that preparation is not an attempt." Peaslee, 177 

Mass. 272. See id. at 274 ("The necessity that the overt acts 

should be alleged has been taken for granted in our practice and 

decisions . . ."). See, e.g., Commonwealth v. Shedd, 140 Mass. 

451, 453 (1886); Commonwealth v. McLaughlin, 105 Mass 460, 463 

(1870); Commonwealth v. Sherman, 105 Mass. 169, 169 (1870); 

Commonwealth v. McDonald, 5 Cush. 365, 366-367 (1850).

Precisely because the line between preparation and near 

completion has been difficult to draw, see, e.g., Commonwealth

v. Bell, 455 Mass. 408, 412-413 (2009); Peaslee, 177 Mass. at 

271-272, our case law has required that the Commonwealth 

affirmatively plead the overt act.5 Since Peaslee our appellate 

courts have uniformly held that a complaint or indictment in an 

 

v. Cantres, 405 Mass. 238, 241 (1989), citing Commonwealth v. 

Ries, 337 Mass. 565, 580 (1958).

5 In addition, unlike knowledge or willfulness, which are 

"implicit" in the indictment, cf. Commonwealth v. Green, 399 

Mass. 565, 567 (1987), the overt act itself often is not.
8

attempt case which does not allege an overt act must be 

dismissed because it fails to state an offense. See

Commonwealth v. Gosselin, 365 Mass 116, 121 (1974) (only 

completed act was charged and "[o]vert acts not alleged may not 

be relied upon"); Commonwealth v. Anolik, 27 Mass. App. Ct. 701, 

711 (1989) (reversing conviction where indictment failed to 

allege overt act); Commonwealth v. Foley, 24 Mass. App. Ct. 114, 

115 (1987) ("The overt act is a requirement of the attempt 

statute, G. L. c. 274, § 6, and the overt act relied on must be 

set out in the indictment or complaint"); Commonwealth v. Burns,

8 Mass. App. Ct. 194, 196-197 (1979) ("The overt acts relied 

upon to support a charge of attempt must be alleged in the 

complaint charging the crime"). See also McDonald, 5 Cush. at

367.

The tension between the general rule and the specific has 

not gone unnoticed, however. In Commonwealth v. Lourenco, 438 

Mass. 1018, 1018 (2003), the Supreme Judicial Court questioned 

whether "the overt act requirement remains valid to describe 

fully and plainly the charge of attempt to the defendant, or if 

it reflects an anachronistic view of sufficient indictments and 

complaints." The court committed the matter to study and in the 

ensuing seventeen years there has been no further comment.

We therefore find ourselves in uncharted territory. The 

Commonwealth urges us to conclude that that indictment alleged 
9

an overt act. This would avoid the conundrum posed by Lourenco, 

but it would be incorrect. The indictment did not allege what 

step the defendant took or asked another to take to conceal or 

destroy the cell phone, or that the defendant's plans passed 

beyond mere preparation to imminent concealment or destruction. 

However, the crime of attempted destruction of evidence under 

G. L. c. 268, § 13E (b), is an independent statutory offense, 

and "is distinct from the crime of general attempt, G. L. 

c. 274, § 6." LaBrie, 473 Mass. at 760-761. Unlike the 

attempted murder indictment statute at issue in LaBrie, we have 

not construed § 13E (b), and have not treated it in the same 

manner as the general attempt statute. The Legislature has not 

prescribed the manner of pleading, as it has for other attempt 

offenses brought under G. L. c. 274, § 6. See G. L. c. 277, 

§ 79. While there can be no question that proof of an overt act 

is required for conviction, see Canty, 466 Mass. at 548, we are 

not persuaded that an inflexible particularity requirement 

remains valid as applied to a statute designed to prevent the 

obstruction of justice.

The Supreme Judicial Court has previously departed from a 

strict application of Peaslee and Gosselin with respect to 

attempts to suborn perjury. See Commonwealth v. Senior, 454 

Mass. 12, 15 (2009). While the specific reasoning of Senior may 
10

not be applicable here,6 the court's willingness, where 

obstruction of justice was charged, to consider alternatives to

strict adherence to the pleading of attempt complaints and 

indictments is instructive.

We conclude that with respect to complaints or indictments 

alleging attempt under G. L. c. 268, § 13E (b), the complaint or 

indictment need not allege an overt act if the indictment 

otherwise places the defendant on fair notice of the offense. 

See Canty, 466 Mass. at 548.7 Due process under art. 12 of the 

Massachusetts Declaration of Rights has always been the 

touchstone of our cases regarding the sufficiency of 

 

6 Senior involved the attempted subornation of perjury, and 

a statute that bars "attempting to incite or procure another 

person to commit perjury." G. L. c. 277, § 44. By analogy to 

threats, see Commonwealth v. Sholley, 432 Mass. 721, 724-725

(2000), cert. denied, 532 U.S. 980 (2001), and solicitation, see 

Commonwealth v. Barsell, 424 Mass 737, 738 (1997), the court 

reasoned that incitement or procurement and attempt were 

coterminous. Senior, 454 Mass. at 15. Such congruence is not 

present here. Section 13E (b) prohibits attempts to destroy 

evidence, a criminal act which may be accomplished by defendants 

in a variety ways, and in circumstances where the temporal 

continuum between preparation and a "present intent to 

accomplish the crime without delay" is potentially far longer. 

Peaslee, 177 Mass. at 273.

7 Article 12 of the Massachusetts Declaration of Rights 

states that "[n]o subject shall be held to answer for any crimes 

or offence, until the same is fully and plainly, substantially 

and formally, described to him." To accomplish this end, the 

complaint or indictment must contain a "plain, concise 

description of the act which constitutes the crime or an 

appropriate legal term descriptive thereof." Mass. R. Crim. P. 

4 (a), 378 Mass. 849 (1979).
11

indictments, see Commonwealth v. Green, 399 Mass. 565, 566 

(1987), but the integrity of the administration of justice is 

the foundation of due process, without which all else founders. 

Where, as here, the indictment did place the defendant on fair 

notice, the preservation of the integrity of the judicial 

process takes precedence. The fair notice requirement of Canty,

supra, strikes an appropriate balance between notice of the 

crime charged and preserving the integrity of the judicial 

system. The indictment here was not defective.

We emphasize the narrowness of this holding, which is 

limited to cases brought under G. L. c. 268, § 13E (b). An 

attempt complaint or indictment brought under § 13E (b) must 

still meet the fair notice standards in Canty, 466 Mass. at 547. 

We do not depart from the rule that the overt act should be 

pleaded in the complaint or indictment for attempt under § 13E 

(b); a defendant should not have to file a bill of particulars 

in order to find out what overt act the Commonwealth relies 

upon. A complaint or indictment under § 13E (b) that fails to 

do so remains incomplete, but is not so fatally defective as to 

deprive the court of jurisdiction if it otherwise provides fair 

notice to the defendant. See Canty, supra.

2. Sufficiency of the evidence. The defendant maintains 

that the Commonwealth failed to prove that when he asked that 

the cell phone be destroyed, he did so "with the intent to 
12

impair the . . . object's integrity or availability for use in 

an official proceeding," and thus the trial judge erroneously 

denied the defendant's motion for a required finding of not 

guilty. G. L. c. 268, § 13E (b).

We review to determine whether the evidence, viewed in the 

light most favorable to the Commonwealth, would permit a jury to 

find "the essential elements of the crime beyond a reasonable 

doubt." Commonwealth v. Tejada, 484 Mass. 1, 2 (2020), quoting 

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). The 

defendant claimed that he was protecting his family but 

"[j]urors, of course, are free to believe or disbelieve the 

testimony of each witness in whole or in part." Commonwealth v. 

Zanetti, 454 Mass. 449, 457 (2009). See Commonwealth v. 

Spinucci, 472 Mass. 872, 878 (2015). The defendant had 

repeatedly shown the cell phone images to others at the court 

house, where his wife also worked. Upon learning of the 

investigation, he lied to investigators about the existence of 

the cell phone, and asked a fellow employee to get rid of it. 

The evidence was sufficient to permit a rational jury to 

conclude that the defendant sought to hide or destroy the cell 

phone in order to hinder prosecution. See Commonwealth v. 

Bonds, 445 Mass. 821, 831-832 (2006) (jury may draw inferences 

from conflicting testimony). The motion for a required finding 

of not guilty was properly denied.
13

Judgment affirmed.