Commonwealth v. Occhiuto (Lawyers Weekly No. 11-159-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1123 Appeals Court COMMONWEALTH vs. NICHOLAS OCCHIUTO. No. 13-P-1123. Essex. April 13, 2015. – October 13, 2015. Present: Cohen, Wolohojian, & Maldonado, JJ. Larceny. False Pretenses. Evidence, Hearsay, Intent. Intent. Intimidation of Witness. Witness, Intimidation, Police informer. Unlawful Interference. Practice, Criminal, Confrontation of witnesses, Hearsay, Harmless error, Witness. Indictments found and returned in the Superior Court Department on June 9, 2010. The cases were tried before Howard J. Whitehead, J., and a motion for postconviction relief was heard by him. John M. Thompson for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. 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: The defendant: “Hello?” Olive: “What’s good?” The defendant: “Hey what up?” Olive: “Yo, I’m out here, I’ll be — meet me at the same spot in like fifteen minutes.” The defendant: “Um, instead come scoop me on Franklin.” Olive: “Franklin?” The defendant: “Yeah, Franklin Street. You know Franklin […]