Commonwealth v. Fortuna
80 Mass. App. Ct. 45
| Mass. App. Ct. | 2011Background
- Defendant was convicted in Boston Municipal Court of misleading a police officer with intent to impede an investigation (G.L. c.268, §13B) and making a false report of a crime (G.L. c.269, §13A) based on statements to police after a gunshot wound.
- Police seized the defendant’s clothing in the hospital without a warrant or explicit consent; the detective documented soot on clothes suggesting close-range shooting.
- Motion to suppress argued plain view seizure; judge held seizure valid given defendant’s lack of privacy expectation and incriminating nature of clothing.
- Court acknowledged no privacy in clothing ripped off during medical treatment and treated search as plain view; waiver of privacy claim under patients’ bill of rights was deemed waived.
- Evidence at trial included defendant’s inconsistent statements about the shooting and expert testimony on gunshot residue indicating close-range firing.
- Court affirmed both suppression ruling and defendant’s convictions after reviewing sufficiency and related issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the clothing seizure was lawful | Commonwealth | Milkey | Yes; plain view; no search/consent issue; incriminating evidence seized. |
| Sufficiency of 13B mislead-a-police-officer | Commonwealth | Milkey | Evidence sufficient; statements misled at least one officer. |
| Sufficiency of 13A false report | Commonwealth | Milkey | Evidence supports false-report conviction under substantial-inaccuracy theory. |
| Jury instruction on 13B and impact | Commonwealth | Milkey | Error (overbreadth) but not outcome-determinative; no miscarriage of justice. |
| Duplicative convictions | Commonwealth | Milkey | Not duplicative; each offense has elements the other does not. |
Key Cases Cited
- Commonwealth v. Bly, 448 Mass. 473 (Mass. 2007) (privacy in clothing; plain view and seizure standards considered)
- Commonwealth v. Sliech-Brodeur, 457 Mass. 300 (Mass. 2010) (plain view and conduct of police in hospital setting)
- Commonwealth v. Balicki, 436 Mass. 1 (Mass. 2002) (inadvertent discovery in warrant context; plain view considerations)
- Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (standard for sufficiency of evidence; Latimore rule)
- Commonwealth v. Saferian, 366 Mass. 89 (Mass. 1974) (standard for assessing ineffective assistance claims under guidance)