The Massachusetts Appeals Court today affirmed the convictions of a Hyde Park man who may have shot himself shot himself in the leg but, when interviewed by Boston Police, blamed an unknown assailant, Suffolk County District Attorney Daniel F. Conley said.

The Appeals Court upheld PATRICK FORTUNA’s convictions for misleading a police officer with the intent to impede an investigation and making a false report of a crime, offenses of which he was found guilty at a 2009 jury trial in West Roxbury District Court. He received a one-year suspended sentence. The decision makes clear that a defendant has no reasonable expectation of privacy with regard to clothing cut off of him in a hospital emergency room and clarifies the laws surrounding false statements to police investigators.

Boston Police responded to the emergency room of Brigham and Women’s Hospital on Nov. 18, 2008, after receiving word that the victim of a gunshot injury was being transported there. On arrival, they found Fortuna (D.O.B. 5/18/87) suffering from a gunshot wound to his lower leg. Medical staff were cutting off the clothing surrounding that injury.

During the interview that followed, a detective asked Fortuna what had happened. Fortuna responded that he was walking in Hyde Park when he was shot by an unknown assailant from some distance away. Fortuna said he hadn’t seen a person or vehicle in the vicinity when he was shot.

The detective went to his cruiser to get a camera and photograph Fortuna’s injury. When he returned, the detective – a 34-year veteran of the force – saw “black soot or gunshot residue around the wound and on the clothing.” Based on his experience, the detective “concluded that the shooter had to have been in very close proximity to the defendant, or that the wound was self-inflicted,” the Appeals Court wrote.

When the detective expressed his skepticism in Fortuna’s story, Fortuna told him to “go [expletive] yourself.”

A chemist from the Boston Police Crime Laboratory would later testify at trial that Fortuna was shot from a distance of no greater than a foot and a half, in stark contradiction of Fortuna’s statements.

The hospital staff began packaging Fortuna’s clothes and offered them to the detective, who assisted them in bagging each article separately. He did not have a warrant, the court noted, and the defendant neither consented nor objected to these actions.

A West Roxbury District Court judge ruled in prosecutors’ favor at a pre-trial motion to keep the clothing out of evidence, finding that the clothes were in plain view of the detective, who was lawfully present in the emergency room in an investigative capacity. Fortuna acknowledged the finding that there was no “search” in the Constitutional sense but challenged the seizure of his clothing as unlawful. The Appeals Court found otherwise.

“[B]y the time the detective seized the clothing, the detective had come to appreciate its incriminating nature (not only as evidence of the shooting, but also as evidence of the defendant’s misleading police),” the court wrote. “With the police having discovered this incriminating evidence in a constitutionally permissible manner, they were justified in seizing the evidence under the plain view doctrine.”

The Appeals Court also clarified its interpretation of the laws surrounding false reports, addressing Fortuna’s convictions for lying to the detective with the intent to mislead him and making a false report of a crime.

“In light of the inconsistency between the defendant’s account and expert testimony … the jury could have inferred that the defendant lied to the police and that he did so both intentionally and with the intent to mislead them,” the court wrote of the former conviction. “The defendant argues that he can be convicted of such a violation only if his statements to police actually mislead them … We need not resolve this issue, because the statements that the defendant made to the initial officer on the scene were not only sufficient to mislead a reasonable person in his position, they did in fact mislead him. In reliance on the defendant’s account, the officer and others (including a canine unit) searched for ballistics evidence in the area from where the purported drive-by shooting occurred.”

Of the latter charge, the court noted that “The particular phrasing that the Legislature chose suggests that the speaker’s ‘report of’ a crime itself has to be ‘false’ …. That is, we believe that to violate the statute, the defendant has to have made a substantially inaccurate accounting of a crime, not just have reported some untrue detail related to it.”

A person need not fabricate a story about a non-existent crime to be charged with making a false report, the court said.

“We believe that someone could readily be said to have made a false report of a crime where, in reference to a crime that actually occurred, he intentionally misidentified the perpetrator,” the court wrote.

Assistant District Attorney Kathleen Celio of Conley’s Appeals Division argued in support of Fortuna’s conviction. Assistant District Attorney Lauren Bernath Moore, now assigned to the DA’s Gun Prosecution Task Force, prosecuted the case at trial.