NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-38
COMMONWEALTH
vs.
ANTHONY WINCHENBACH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2017, a Bristol County grand jury indicted the
defendant, Anthony Winchenbach, for misleading a police officer
in violation of G. L. c. 268, § 13B. The defendant was also
indicted on charges of possession of heroin and fentanyl, G. L.
c. 94C, § 34. The defendant moved to dismiss the indictment of
misleading a police officer, pursuant to Commonwealth v.
McCarthy, 385 Mass. 160 (1982), arguing that there was
insufficient evidence presented to the grand jury that the
defendant's statements could reasonably have caused an
investigating officer to change the course of the investigation
in a material way. After a nonevidentiary hearing, a Superior
Court judge allowed the motion and dismissed the indictment for
misleading a police officer. The Commonwealth appealed from the dismissal pursuant to Mass. R. Crim. P. 15 (a) (1), as amended,
476 Mass. 1501 (2017). For the reasons that follow, we conclude
that there was sufficient evidence to establish probable cause
and we therefore vacate the order dismissing the indictment for
misleading a police officer.
Background. We briefly summarize the evidence before the
grand jury. On May 18, 2017, at approximately 1 P.M., a
housekeeper of the Fairfield Inn in New Bedford discovered the
body of a deceased woman later identified as Rachel Golaski, the
defendant's fiancé, on the floor with a hypodermic needle beside
her. A cell phone next to her body on the floor had
communications from someone named "Anthony." Golaski was
twenty-two weeks pregnant. Based on bodily fluid located on the
rug and the body's lividity, police believed that someone had
moved Golaski's body after her death. None of the first
responders or the inn staff reported moving the body.
Police interviewed the inn staff and learned that the
defendant had arrived with Golaski at the inn the day before on
May 17th. Surveillance footage from a camera located above
their inn room showed the defendant, carrying a towel, exiting
his room on the morning of May 18 and making several trips
toward a garbage can. The defendant also went to the front desk
and got another card key for the room. In total, the defendant
2 made five trips in and out of his room over a thirty-minute time
period.
The next day, on May 19, after being summoned back from a
commercial fishing trip, the defendant was interviewed by New
Bedford police officers. He told the police that he and Golaski
had gone shopping before checking into the inn. He reported
that he and Golaski went swimming and then he had some drinks.
He informed them that Golaski may have had a small sip of
alcohol but that she could not drink because she was pregnant.
After falling asleep, the defendant claimed that Golaski woke
him around 8 or 9 P.M. and said she was going to the store or
somewhere. He said that she left the inn and claimed he did not
know where she went. The defendant told the police that when
she returned, Golaski seemed fine and they both went to sleep
because he had to wake up early in the morning. He claimed that
he got up in the morning, got all his belongings, gave her a hug
and kiss, told her he loved her, and then left the inn. The
defendant said that Golaski was mumbling but told him she was
really tired and to "[h]ave a good trip." He claimed that he
tried calling her a few times, but did not receive a response so
he texted her.
The police asked the defendant if Golaski being tired was
normal. The defendant responded that it was unusual and she
sometimes got like that when she was on drugs. However, the
3 defendant stated that Golaski was not using drugs and had been
clean "for a long time." He also stated that he had never seen
her taking heroin. The defendant also said that he had also
been clean for almost a year. Upon further questioning, the
defendant stated that even though Golaski left the inn for some
time, he did not use any drugs while she was gone, but did not
know what Golaski did during that time.
The police asked the defendant many questions about his
entering, leaving, and re-entering the inn in the morning. The
police directly confronted the defendant about whether he saw
Golaski overdose on drugs and he denied seeing it occur. He
claimed that if he had seen it happen, he would have called 911
or done cardiopulmonary resuscitation himself. The defendant
denied seeing Golaski with any needles.
Ultimately, after more questioning, the defendant changed
his story and admitted that he used drugs with Golaski,
overdosed, and at one point when he went back into the room, she
had died. He claimed he passed out next to her and when he woke
up, her lips were blue and she was dead. He admitted to moving
her body and putting her on her side at some point; he saw vomit
come out of her mouth. He claimed he then attempted to blow
into her nose and mouth. He then admitted to taking the spoon
and the other things she had been using to ingest drugs and
putting them into the spare tire wheel well in the trunk of her
4 car. He also told the police that he threw a number of trash
bags that he claimed Golaski had filled into the garbage.
Discussion. 1. Standard of review. Although, in general,
a "court will not inquire into the competency or sufficiency of
the evidence before the grand jury," Commonwealth v. Robinson,
373 Mass. 591, 592 (1977), a "grand jury must hear sufficient
evidence to establish the identity of the accused . . . and
probable cause to arrest him" for the crime charged. McCarthy,
385 Mass. at 163. A grand jury may indict when presented with
sufficient evidence of "each of the . . . elements" of the
charged offense. Commonwealth v. Moran, 453 Mass. 880, 884
(2009). "Our review of a judge's determination of probable
cause is de novo." Commonwealth v. Coggeshall, 473 Mass. 665,
667 (2016), citing Commonwealth v. Long, 454 Mass. 542, 555
(2009).
2. Misleading a police officer. The witness intimidation
statute, G. L. c. 268, § 13B, was expanded in 2006 to cover a
broad range of crimes against public justice. See G. L. c. 268,
§ 13B, as amended through St. 2006, c. 48, § 3. "As a result,
§ 13B for the first time outlawed 'mislead[ing]' and
'harass[ing]' conduct, in addition to the 'threaten[ing]' and
'intimidat[ing]' conduct that the prior version of the statute
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-38
COMMONWEALTH
vs.
ANTHONY WINCHENBACH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2017, a Bristol County grand jury indicted the
defendant, Anthony Winchenbach, for misleading a police officer
in violation of G. L. c. 268, § 13B. The defendant was also
indicted on charges of possession of heroin and fentanyl, G. L.
c. 94C, § 34. The defendant moved to dismiss the indictment of
misleading a police officer, pursuant to Commonwealth v.
McCarthy, 385 Mass. 160 (1982), arguing that there was
insufficient evidence presented to the grand jury that the
defendant's statements could reasonably have caused an
investigating officer to change the course of the investigation
in a material way. After a nonevidentiary hearing, a Superior
Court judge allowed the motion and dismissed the indictment for
misleading a police officer. The Commonwealth appealed from the dismissal pursuant to Mass. R. Crim. P. 15 (a) (1), as amended,
476 Mass. 1501 (2017). For the reasons that follow, we conclude
that there was sufficient evidence to establish probable cause
and we therefore vacate the order dismissing the indictment for
misleading a police officer.
Background. We briefly summarize the evidence before the
grand jury. On May 18, 2017, at approximately 1 P.M., a
housekeeper of the Fairfield Inn in New Bedford discovered the
body of a deceased woman later identified as Rachel Golaski, the
defendant's fiancé, on the floor with a hypodermic needle beside
her. A cell phone next to her body on the floor had
communications from someone named "Anthony." Golaski was
twenty-two weeks pregnant. Based on bodily fluid located on the
rug and the body's lividity, police believed that someone had
moved Golaski's body after her death. None of the first
responders or the inn staff reported moving the body.
Police interviewed the inn staff and learned that the
defendant had arrived with Golaski at the inn the day before on
May 17th. Surveillance footage from a camera located above
their inn room showed the defendant, carrying a towel, exiting
his room on the morning of May 18 and making several trips
toward a garbage can. The defendant also went to the front desk
and got another card key for the room. In total, the defendant
2 made five trips in and out of his room over a thirty-minute time
period.
The next day, on May 19, after being summoned back from a
commercial fishing trip, the defendant was interviewed by New
Bedford police officers. He told the police that he and Golaski
had gone shopping before checking into the inn. He reported
that he and Golaski went swimming and then he had some drinks.
He informed them that Golaski may have had a small sip of
alcohol but that she could not drink because she was pregnant.
After falling asleep, the defendant claimed that Golaski woke
him around 8 or 9 P.M. and said she was going to the store or
somewhere. He said that she left the inn and claimed he did not
know where she went. The defendant told the police that when
she returned, Golaski seemed fine and they both went to sleep
because he had to wake up early in the morning. He claimed that
he got up in the morning, got all his belongings, gave her a hug
and kiss, told her he loved her, and then left the inn. The
defendant said that Golaski was mumbling but told him she was
really tired and to "[h]ave a good trip." He claimed that he
tried calling her a few times, but did not receive a response so
he texted her.
The police asked the defendant if Golaski being tired was
normal. The defendant responded that it was unusual and she
sometimes got like that when she was on drugs. However, the
3 defendant stated that Golaski was not using drugs and had been
clean "for a long time." He also stated that he had never seen
her taking heroin. The defendant also said that he had also
been clean for almost a year. Upon further questioning, the
defendant stated that even though Golaski left the inn for some
time, he did not use any drugs while she was gone, but did not
know what Golaski did during that time.
The police asked the defendant many questions about his
entering, leaving, and re-entering the inn in the morning. The
police directly confronted the defendant about whether he saw
Golaski overdose on drugs and he denied seeing it occur. He
claimed that if he had seen it happen, he would have called 911
or done cardiopulmonary resuscitation himself. The defendant
denied seeing Golaski with any needles.
Ultimately, after more questioning, the defendant changed
his story and admitted that he used drugs with Golaski,
overdosed, and at one point when he went back into the room, she
had died. He claimed he passed out next to her and when he woke
up, her lips were blue and she was dead. He admitted to moving
her body and putting her on her side at some point; he saw vomit
come out of her mouth. He claimed he then attempted to blow
into her nose and mouth. He then admitted to taking the spoon
and the other things she had been using to ingest drugs and
putting them into the spare tire wheel well in the trunk of her
4 car. He also told the police that he threw a number of trash
bags that he claimed Golaski had filled into the garbage.
Discussion. 1. Standard of review. Although, in general,
a "court will not inquire into the competency or sufficiency of
the evidence before the grand jury," Commonwealth v. Robinson,
373 Mass. 591, 592 (1977), a "grand jury must hear sufficient
evidence to establish the identity of the accused . . . and
probable cause to arrest him" for the crime charged. McCarthy,
385 Mass. at 163. A grand jury may indict when presented with
sufficient evidence of "each of the . . . elements" of the
charged offense. Commonwealth v. Moran, 453 Mass. 880, 884
(2009). "Our review of a judge's determination of probable
cause is de novo." Commonwealth v. Coggeshall, 473 Mass. 665,
667 (2016), citing Commonwealth v. Long, 454 Mass. 542, 555
(2009).
2. Misleading a police officer. The witness intimidation
statute, G. L. c. 268, § 13B, was expanded in 2006 to cover a
broad range of crimes against public justice. See G. L. c. 268,
§ 13B, as amended through St. 2006, c. 48, § 3. "As a result,
§ 13B for the first time outlawed 'mislead[ing]' and
'harass[ing]' conduct, in addition to the 'threaten[ing]' and
'intimidat[ing]' conduct that the prior version of the statute
had proscribed." Commonwealth v. Morse, 468 Mass. 360, 369
(2014). Section 13B (b) now provides in pertinent part:
5 "Whoever willfully, either directly or indirectly, . . . misleads . . . [a] police officer . . . with the intent to . . . impede, obstruct, delay, prevent or otherwise interfere with: a criminal investigation . . . shall be punished." G. L. c. 268, § 13B (b).
See Commonwealth v. Paquette, 475 Mass. 793, 794 (2016)
(reciting elements of misleading police officer).
In this case, it is beyond dispute that the defendant
changed his version of events to the police many times while
giving his statement. Although under Federal law making a
materially false statement to a Federal law enforcement officer
is a crime in violation of 18 U.S.C. § 1001, "our Legislature
has not adopted a comparable law criminalizing all materially
false statements made to State or local crime investigators."
Commonwealth v. Rivera, 482 Mass. 145, 152 (2019).
In order for the defendant's lies to be part of a
Massachusetts crime, they must be "misleading." A statement is
"misleading," for purposes of G. L. c. 268, § 13B, when the
statement not only "was false, but that it reasonably could have
led law enforcement officers to pursue a materially different
course in their investigation from one they otherwise would have
pursued because it sent them in the wrong direction, i.e., a
'wild goose chase.'" Commonwealth v. Tejeda, 476 Mass. 817, 819
(2017), quoting Paquette, 475 Mass. at 800.
Before applying these definitions to the facts here, we
iterate the familiar probable cause standard. Probable cause is
6 a "considerably less exacting" standard than that required to
support a conviction at trial. Commonwealth v. O'Dell, 392
Mass. 445, 451 (1984). To sustain the indictment against the
defendant, the Commonwealth must provide sufficient evidence to
establish probable cause, that is, "reasonably trustworthy
information sufficient to warrant a reasonable or prudent person
in believing that the defendant has committed the offense."
Commonwealth v. Humberto H., 466 Mass. 562, 565 (2013), quoting
Commonwealth v. Roman, 414 Mass. 642, 643 (1993). We review the
evidence underlying a grand jury indictment in the light most
favorable to the Commonwealth. See Commonwealth v. Catalina,
407 Mass. 779, 781 (1990).
Mindful of this standard, we conclude the facts set forth
to the grand jury gave rise to a reasonable inference that the
defendant's statements were made with the intent to mislead the
police. The defendant's statements about what he and Golaski
had done that evening and his lies about when the drugs were
used by Golaski and whether he was involved were clearly a
"content-laden fabrication designed to send police off course,
thereby interfering with their investigation." Morse, 468 Mass.
at 374. Obviously, any physical evidence found in the inn room
would be collected and analyzed by the police because of
Golaski's death. The various stories that the defendant gave
about where he put the garbage could reasonably "have led law
7 enforcement officers to pursue a materially different course in
their investigation from one they otherwise would have pursued
because it sent them in the wrong direction, i.e., a 'wild goose
chase.'" Tejeda, 476 Mass. at 819, quoting Paquette, 475 Mass.
at 800.
It is unclear based on the grand jury minutes presented to
the judge whether the police were actually misled or not. While
that fact may be indicative, it is not dispositive. The
relevant inquiry is whether the statements by the defendant
reasonably "could lead" the police on a wild goose chase and not
whether the defendant succeeded in actually misleading the
police. See Commonwealth v. Figueroa, 464 Mass. 365, 373 (2013)
("Where the defendant attempted to mislead his parole officer
with the intent to obstruct her investigation of his possible
8 violation of parole, it does not matter that he failed to
succeed in misleading her").
Since there was probable cause to believe that the
defendant's statements were misleading, the defendant's motion
to dismiss should have been denied.1
Order dismissing the indictment of misleading a police officer vacated.
By the Court (Blake, Hershfang & D'Angelo, JJ.2),
Clerk
Entered: February 28, 2023.
1 Since we determine that the motion to dismiss should not have been allowed on this basis, we need not, and do not, reach the issue whether the defendant's conduct prior to any law enforcement involvement could constitute "misleading conduct" as suggested by the Commonwealth. 2 The panelists are listed in order of seniority.