Lead Opinion
About 2 a.m. on August 2, 1983, the body of eleven year old Mary Ann Hanley was found in a wooded area of Ronan Park in the Dorchester section of Boston. The victim
The defendant argues a variety of objections to his conviction and asks for relief under G. L. c. 278, § 33E (1984 ed.). The issue that attracts our particular attention concerns deficiencies in the presentation of evidence to the grand jury which indicted the defendant, deficiencies that the defendant argues undercut the integrity of the grand jury proceedings and require the dismissal of the indictment. We reject both this argument and those contentions urged as grounds for reversal of the conviction, and, after considering the defendant’s § 33E argument, we affirm the judgment.
We start with an outline of relevant circumstances known to the police prior to the time the eyewitness Gallagher came forth with his description of the homicide. The defendant, the father of a child by a half-sister of the victim, lived with the victim and her family on Mt. Ida Road in Dorchester, not far from Ronan Park, a large park with several baseball fields, a basketball court, and tennis courts. On August 1, 1983, about 7 p.m. , the defendant stole a gym bag belonging to one Ruiz. He took the bag to Ronan Park, removed from it sneakers, which he put on, and gave the bag and its remaining contents to others who were gathered in the area. Ruiz, who had discovered that Mayfield had taken his gym bag, went to the defendant’s residence, but the defendant was not there. He returned about 8:15 p.m., and spoke to the victim, who pointed out the defendant. Ruiz then confronted Mayfield, who surrendered the sneakers and told Ruiz what he had done with the bag and its contents.
In the following days the police obtained certain information that pointed to Mayfield as a suspect. The defendant told Detective Robert F. Aheam of the Boston police department shortly after the death that he had walked the victim part way home and then had left her when he recalled he had to meet a friend named John at a pizza shop. When pressed, the defendant said John’s last name was Vasquez. Investigation did not uncover a John Vasquez. Aheam noticed three vertical scratches on the defendant’s neck which the defendant said one Joey Doyle had given during a wrestling match. There was evidence that Doyle had bitten his nails to the degree that he could not have scratched the defendant. On August 9, 1983, the defendant gave an interview to the police. Toward the end of the interview when confronted with the accusation, “You did it. You did it. Why don’t you tell us about it,” Mayfield replied that he needed time to think.
Kevin Gallagher first spoke to the police on October 17, 1983, and testified before the grand jury four days later. Gallagher had acknowledged to a family friend that he had been present when the victim was killed, and the friend in turn told the police. Gallagher’s story of what happened on the night of August 1, 1983, was substantially the same before the grand jury and at trial.
When they arrived there the defendant asked the victim why earlier that night she had identified him to Ruiz. She replied that she had not done so. The defendant began to hit her about the face. She started to cry and called out for help. Gallagher tried to intervene but desisted when the defendant told him to remain where he was standing. He made no further effort to aid the victim.
The defendant knocked the victim to the ground, face down by a tree limb. When on his demand the victim did not get up, he grabbed her by the hair and smashed her face on the tree limb four times. The victim moved no more. The defendant turned her on her back and placed his fingers under her nose to see if she was breathing. He then took her pants down and raped her. He turned to Gallagher and said that he would kill Gallagher and his family if Gallagher told anybody what had happened. He also told Gallagher that he had killed the victim because she was a “rat” and that he had raped her to throw suspicion off himself. Gallagher then went home. Several days later, the defendant threatened him with death if he revealed that the defendant had killed the victim.
1. We consider first the defendant’s claim that a detective’s false statements to the grand jury impaired the integrity of the grand jury proceedings that led to his indictment. Our discussion starts with consideration of the standards to be applied in assessing such a challenge and concludes with consideration of the specific circumstances on which the defendant relies.
Although generally the adequacy or competency of evidence before a grand jury is not a matter for judicial inquiry (Commonwealth v. Robinson,
We must deal with such a question case by case. It is unlikely that we could devise a satisfactory, comprehensive statement of what conduct does, and what conduct does not, impair the integrity of the grand jury process. We have recognized possible impairment if a prosecutor were to deceive grand jurors by presenting remote hearsay in the guise of direct testimony. Commonwealth v. St. Pierre,
In certain instances, the failure to disclose known information may impair the grand jury proceedings. For example, presentation of a defendant’s inculpatory statements recorded in a police report, distorted by the intentional failure to disclose the defendant’s exculpatory comments interspersed in that report, impaired grand jury proceedings and required dismissal of the indictment in Commonwealth v. O’Dell, 392 Mass. 445, 448-449 (1984). Similarly, we have indicated that a grand jury
To sustain a claim that the integrity of the grand jury proceeding has been impaired, not only must the evidence have been given with knowledge that it was false or deceptive, but the false or deceptive evidence must probably have been significant in the view of the grand jury and must have been presented with the intention of obtaining an indictment. Thus, a police officer’s knowing and intentional presentation of false but exculpatory testimony would not require dismissal of an indictment. Commonwealth v. Bongarzone,
In summary, it is not enough for dismissal of an indictment that false or deceptive evidence was presented to the grand jury. Two further elements normally must be shown. First, our cases have required a showing that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment. Although we have not heretofore had to decide the point (see Commonwealth v. Reddington,
We turn to the specific false statements of Detective Ahearn to the grand jury on which the defendant bases his claim that the grand jury proceedings were impaired. We shall discuss only those asserted misrepresentations to the grand jury that the defendant argued to the trial judge.
. The defendant complains that Aheam gave the grand jury the wrong cause of death. Aheam told the grand jurors that the medical examiner had certified the cause of death as “asphyxia caused by ligature,” but that the medical examiner had told him that death could have been caused by a severe blow to the neck. The medical examiner testified on voir dire during the first trial that the injuries to the victim’s neck could have been caused by a log and that he had told Aheam that the cause of death could have been a severe blow to the neck. The trial judge was fully warranted in concluding, as he impliedly did in denying the motion, that Aheam did not intentionally, or with reckless regard for the truth, misrepresent any fact concerning the cause of death.
The defendant’s second objection concerns Detective Aheam’s statement to the grand jury that semen was found in the victim’s vagina. This statement, as evidence at the trials indicated, was not correct. Aheam testified at the first trial on cross-examination that he made the statement because his superior had told him that semen had been found in the victim’s vagina and because he thought a laboratory report stating that “the substance characteristically in semen showed a trace amount” meant that semen was present. Although Aheam may have been negligent in his consideration of the laboratory report, no finding of a reckless or intentional misrepresentation has to follow in the circumstances.
The final misrepresentation made to the grand jury is Aheam’s testimony that he found at the scene (i.e., “right in the area where the [victim’s] body was found”) a brown cigarette lighter with a silver top that had been in Ruiz’s stolen gym bag. It is apparent from Aheam’s trial testimony that he did not find the lighter, but rather that another police officer had found it. It is also apparent that the other police officer had found the lighter in the vicinity of the body, but not “right in the area where the [victim’s] body was found.”
The defendant has not proved that Aheam knowingly testified falsely concerning the cigarette lighter, or testified in reckless disregard of the truth, on a matter that was probably significant to the grand jury’s deliberations. Of course, one may infer that Aheam knew that he had not found the lighter when he testified that he had, but the grand jury were not likely to have been influenced significantly by which police officer was said to have found the lighter.
2. There was no error in the denial of the defendant’s motion to suppress testimony concerning his statement and conduct during a police interrogation on August 9, 1983, at the District 11 station house in Dorchester. The defendant argues that the detectives failed to honor his right to cut off questioning. See Michigan v. Mosley,
The conclusion that the defendant was not in custody was fully warranted on the facts found by the judge. See Commonwealth v. Bryant,
3. The judge did not err in admitting evidence of the defendant’s alleged sexual assault on the victim, and the judge acted within his discretion in excluding evidence of the defendant’s acquittal of rape at the first trial. Testimony as to the defendant’s conduct at the time of the commission of the crime was admissible. See Commonwealth v. Harris,
The fact of the defendant’s acquittal on the rape charge was not relevant because he was not being tried for rape. It is, however, within a judge’s discretion to admit evidence of
4. The judge did not err in certain evidentiary rulings challenged by the defendant.
a. The judge excluded the testimony of Linda McDonald, a neighborhood girl of similar age to the victim. If permitted to testify, McDonald apparently would have told of an incident between Gallagher and her, in which after she refused his request for a date, he grabbed her arm forcefully, screamed at her, punched the doorbell of her house, and ran away. Gallagher had testified that the incident had not occurred. The testimony was offered to show that Gallagher, rather than the defendant, may have killed the victim, and to impeach Gallagher’s credibility.
The judge was acting well within his discretion in ruling that the alleged incident between McDonald and Gallagher was not sufficiently similar to the crime of murder to warrant its admission as having a tendency to implicate Gallagher and to exculpate the defendant. See Commonwealth v. Graziano,
b. The defendant also claims error in the exclusion of proffered testimony of one George Gagnon. By offer of proof, the
Although a police report was prepared incorporating Gag-non’s statement, voir dire testimony indicated that no investigation of the hitchhiker was undertaken. Gagnon’s testimony was offered to demonstrate that the police investigation into the victim’s murder was inadequate. See Commonwealth v. Bowden,
c. The judge permitted Anne Baker to testify as to statements Gallagher made in her presence in October, 1983. According to Baker, Gallagher revealed that he had seen the defendant murder the victim, and he reenacted the details of the crime for her benefit. As recalled by Baker, this version of the criminal incident was essentially identical to the one which Gallagher recited at trial. Although Baker’s testimony was clearly hearsay, it was admitted as a prior consistent statement for the nonhearsay purpose of rehabilitating Gallagher’s trial testimony. A limiting instruction was given.
Normally, prior consistent statements are not admissible to rehabilitate a witness whose testimony has been impeached by the introduction of inconsistent pretrial testimony. Commonwealth v. Zukoski,
5. The judge did not minimize the importance of reasonable doubt in his response to a question from the jury on the third day of their deliberations. One of the jury’s questions asked for the definition of reasonable doubt in writing. In complying with that request, the judge hardly trivialized the importance of reasonable doubt. It was not error in the circumstances then to tell the jury not to focus on any particular aspect of the charge “because the whole thing was important.”
6. The defendant has not shown that he was prejudiced by pretrial publicity or by the change of venue for the second trial from Suffolk County to Middlesex County rather than to Hampden County. Nor has the defendant shown that the prosecution was the source of improper pretrial publicity or that, if the prosecution had been, the conviction should be upset in the absence of a showing of prejudice.
7. The defendant argues that he should not have been retried for murder in the first degree because, based on posttrial information his counsel obtained from one juror, the first jury were deadlocked, eleven to one, for conviction of murder but only in the second degree. The claim is that in effect the first jury acquitted the defendant of murder in the first degree and that double jeopardy principles bar his retrial for murder in the first degree. There was no open and public verdict of not guilty under any aspect of the murder indictment. There was no error. A Juvenile v. Commonwealth,
8. The defendant’s claim, raised for the first time at oral argument, that testimony of the medical examiner was improperly admitted is meritless. Testimony that particular injuries were consistent with a particular cause was entirely appropriate. Commonwealth v. A Juvenile,
9. The defendant argues for relief under G. L. c. 278, § 33E, relying on the cumulative effect of the asserted errors with which we have dealt in this opinion. He does not contend that the circumstances of the crime or matters relating to the
Judgment affirmed.
Notes
There was evidence at trial that the defendant had sought assistance in establishing an alibi and that, after his arrest, he made other admissions of guilt.
See Franks v. Delaware,
The issue of the impairment of the grand jury proceedings does not become irrelevant simply because sufficient evidence was presented at trial to submit the case to the jury. Preservation of the integrity of the grand jury process requires an independent analysis of the propriety of the grand jury proceedings. Our rules guiding the proper presentation of evidence to a grand jury have not been expressed in constitutional terms, but the right to a grand jury indictment as to a serious crime is constitutionally based. Art. 12 of the Massachusetts Declaration of Rights. See DeGolyer v. Commonwealth,
The opinion of the Supreme Court in Costello v. United States,
Further alleged flaws in the grand jury proceedings, argued on appeal for the first time, are not generally before us because they were not seasonably asserted. It is inherent in Mass. R. Crim. P. 13 (a) (2),
The author of the laboratory report, of which Aheam was aware when he testified before the grand jury, testified at the second trial (but not at the first trial) that he had told Aheam that he could not give an opinion that semen was present, but he could not remember when he did so. It would be wrong for us to find on this record that the author of the laboratory
If the false testimony had been more material to the indictments than it was, the prosecutor, who learned of the error at least from an F.B.I. report (presumably received after Aheam testified before the grand jury), might have had a duty to ask the judge to consider, after a hearing, whether the error required dismissal of either or both of the indictments.
At the first trial, in his testimony as to what he found in the area where the body was found, Aheam did not include a cigarette lighter. On cross-examination, Aheam stated that he did not see or find a brown lighter with a silver top in the vicinity of where the body was located. When pressed as to his grand jury testimony about the lighter, Aheam agreed that he had testified to finding the lighter “right in the area” where the body was found and admitted that he did not “personally” find the lighter. He testified further that an officer had told him within one week of the crime that a brown cigarette lighter had been found in the vicinity of the body, but he could not remember who had given him that information.
At the second trial, Ahearn listed the items he found and took from the scene of the crime. He made no reference in his direct testimony to his
As we have noted (see note 5 above), testimony at the second trial has no significance in a challenge to the denial at the end of the first trial of a motion to dismiss.
In fairness to Detective Aheam the prosecutor’s leading and somewhat figurative question may have prompted Aheam to say in effect that he found the lighter. The grand jury testimony was as follows:
Q.: “Okay, did you find anything at the scene there, Detective Aheam, that you were later able to put in the gym bag that was stolen from the Dorchester House that had the sneakers in it that Val Mayfield was wearing? ”
A: “Yes, I did. There was a small cigarette lighter. It was a brown lighter,
Federal cases involving claims of false representations to grand juries have generally concerned assertions of prosecutorial misconduct. To merit dismissal of an indictment in such a case, the prosecutorial misconduct generally must be not merely negligent but “outrageous or intentional” (United States v. Udziela,
The defendant’s argument that he was prejudiced by the judge’s failure to excise a detective’s question from the early portion of the interview is without merit. A detective asked Mayfield if he had heard the standard rights given on TV, if he had had them read to him, or if he had been in court. Mayfield answered affirmatively in an ambiguously general way. This colloquy, of course, was relevant to the voluntariness of the defendant’s waiver of his rights and admissible on that issue. It would have been better practice to have excised any references to the defendant’s previous experience with Miranda warnings.
Dissenting Opinion
(dissenting). I am persuaded that a new trial is required because this seventeen year old defendant was prejudiced by improper prosecutorial conduct during the procurement of indictments from the grand jury. I would order a new trial in the interest of justice. Accordingly, I respectfully dissent from the court’s conclusion affirming the judgment of conviction of murder in the first degree. I state my reasons; in doing so, I focus only on that aspect of the court’s opinion which discusses the issue of the impairment of the integrity of the grand jury proceedings leading to the indictment of the defendant. As my view of the facts shown in the record pertaining to that issue differs from that of the court, I state the relevant facts in some detail.
Kevin Gallagher and four other witnesses, among them Detective Robert F. Aheam
Prior to his first trial, the defendant moved to dismiss the rape and murder indictments based on the allegedly false grand jury testimony of Detective Aheam. The defendant took issue with two statements in particular. First, the detective testified
At the subsequent voir dire, Dr. Atkins stated that he had, in fact, told Detective Aheam that a severe blow to the neck could have caused the victim’s death. The judge again denied the motion to dismiss. The defendant indicated at that time that he might renew the motion as the trial progressed, based on the grounds previously articulated and, possibly, additional grounds.
At the close of his case, the defendant renewed his motion once more. He restated the original grounds for the motion. Moreover, he added reference to another portion of Detective Aheam’s grand jury testimony. The defendant asserted that the detective testified falsely before the grand jury in stating that in the early morning of August 2, 1983, he recovered the cigarette lighter stolen from Ruiz by the defendant “right in the area where the body was found.” Detective Aheam had
The judge denied for the third time the motion to dismiss the indictments, stating that his latest ruling was “based on all the evidence which has been presented to the Court in the way of both affidavit and evidence during this case.”
The issue before us, then, is whether Detective Abeam’s testimony before the grand jury relative to the cause of the victim’s death, the presence of semen in her vagina, and the
Ordinarily, “a court should not inquire into the adequacy or competency of the evidence upon which an indictment is based. . . . However, when it appears that the integrity of the grand jury process has been impaired, a defendant may attack the validity of the indictment by way of a motion to dismiss. . . . There can be no doubt that the knowing use by the Commonwealth or one of its agents of false testimony to procure an indictment is a ground for dismissing the indictment” (emphasis supplied). (Citations omitted.) Commonwealth v. Salman,
The Commonwealth contends that Detective Aheam’s grand jury testimony was based in good faith on information provided to him by others. This assertion is plausible only in so far as it concerns Detective Aheam’s statements about the cause of the victim’s death. Based on Dr. Atkins’s voir dire testimony, the judge was warranted in concluding that Detective Aheam testified truthfully when he stated that he was told by Dr. Atkins that the victim’s injuries were consistent with a severe blow to the neck. Nevertheless, a proper review of the record should convince us that the detective gave knowingly false testimony with respect to the presence of semen and the cigarette lighter.
Detective Aheam stated without equivocation at the grand jury proceeding that semen was found in the victim’s vagina.
On cross-examination at both trials, Detective Aheam professed to having little knowledge at the time of his grand jury appearance of the scientific principles underlying the acid phosphatase test for semen. He stated, in essence, that he was unaware that a positive finding for acid phosphatase was not equivalent to a positive finding of semen.
Bogdan testified that he spoke with Detective Aheam after the laboratory report was completed and told him that trace amounts of acid phosphatase were found on the swabs. He informed Detective Aheam that acid phosphatase is an enzyme found in high concentrations in semen, but noted that it is found in other body fluids as well. Most importantly, Bogdan testified, without contradiction, that he told Detective Aheam, based on his findings, he could not give an opinion that semen was present on the vaginal swabs. Thus, Detective Aheam’s statement to the grand jury was in direct contradiction to what he had been told by the person most competent to interpret the test results. A fair reading of this evidence is that Detective Aheam was aware of the falsity of his answer regarding the presence of semen in the victim’s vagina.
It seems clear to me that an agent of the Commonwealth made knowingly false statements before the grand jury who indicted the defendant. In Commonwealth v. Bongarzone,
Both of the false statements by Detective Aheam were material; each, to some degree, advanced the Commonwealth’s cause. The detective’s assertion that semen was found in the victim’s vagina lent credibility to Gallagher’s eyewitness account of the murder because it provided corroboration for his assertion that the victim had been raped. Detective Aheam’s testimony regarding the cigarette lighter was of even greater importance, for it provided the only physical evidence linking
Nevertheless, the court concludes that the murder indictment should not be dismissed because there has been no showing of actual prejudice to the defendant. To reach this conclusion, the court relies, without basis, on supposed implicit findings by the trial judge without considering whether the judge erred as matter of law as to the import of the uncontradicted and clear evidence of mendacious testimony given to the grand jury by Detective Aheam. One cannot help but feel that what the court really is holding is that, since there was a conviction by a trial jury, the impairment of the grand jury’s function should be ignored. Cf. Talamante v. Romero,
In my view, this court should condemn the deliberate presentation of false grand jury testimony, not just because such testimony impairs the grand jury’s ability to perform their historic function of “protecting citizens against unfounded criminal prosecutions,” Branzburg v. Hayes,
A conclusion that the indictment should be dismissed would not preclude the Commonwealth from obtaining a new indictment and proceeding to another trial. See Eubanks v. Louisiana,
In closing, I am mindful of the emotional hardships which the victim’s family, the trial witnesses, and the defendant himself already have endured through the course of two lengthy
The other grand jury witnesses were Guillermo Ruiz, Faustino Gomez, and Elizabeth Melendez. Ruiz related the incident involving the theft of his gym bag from the Dorchester House and his efforts to retrieve his belongings from the defendant. Gomez testified as to his fabrication of an alibi for the defendant at the request of the defendant’s girl friend, the half sister of the victim. Melendez, a neighborhood youth, testified that Gomez admitted to her that he had not seen the defendant on the night of the murder but had told police officers otherwise because the defendant needed an alibi.
Gallagher’s story, apart from its inconsistencies, is inherently suspect to the extent that he claimed that the defendant gratuitously invited him along to witness the murder and rape.
Doctor Atkins was not called to testify before the grand jury.
After performing an autopsy on the victim, Dr. Atkins gave a vaginal smear, vaginal swabs, and a rectal swab to the Boston police department crime laboratory for testing. The swabs were tested for the presence of acid phosphatase, an enzyme characteristically found in high concentrations in semen, and examined for sperm. The laboratory report indicates that the rectal swab tested positive for acid phosphatase, while the vaginal swabs showed only trace amounts of the enzyme. No sperm, was detected on the swabs or on the vaginal smear.
The swabs were forwarded to the Federal Bureau of Investigation (F.B.I.) laboratory in Washington, D.C., and were tested again. The F.B.I. laboratory report states that the rectal swab tested trace positive for acid phosphatase, but negative with regard to the presence of sperm or prostatic antigen. It further states that no semen was found on the vaginal swabs.
As previously noted, witnesses testified that, except for Ruiz’s sneakers, the defendant cast the gym bag and its contents aside by the wall of the abandoned school yard. The bag contained sneakers, clothing, and various personal effects, including a disposable cigarette lighter. Some of the discarded items were taken by others, while other items were left undisturbed. Detective Seeley testified that he conducted a search of Ronan Park on August 2, 1983, and recovered, next to the school yard wall, a number of items that had been in Ruiz’s bag. He found the cigarette lighter in another location, however.
After the trial ended in an aquittal on the rape indictment and a mistrial as to the murder indictment, the defendant was retried on the original murder indictment before the same judge who presided over the first trial. The defendant did not renew his motion to dismiss the indictment at the second trial, nor, in the circumstances, do I think he was obligated to do so to preserve his appellate rights.
In addition to the alleged falsity of Detective Aheam’s grand jury testimony already outlined, the defendant now asserts that the grand jury presentation was fatally flawed in other respects. The defendant claims that Detective Aheam distorted the facts by testifying that the defendant avoided the investigating police officers after the murder, and by failing to inform the grand jurors of the many occasions on which the defendant spoke with various police officers. The defendant also complains that the prosecutor misled the grand jury by withholding presentation of certain facts which, in varying degrees, cast doubt on the veracity of Gallagher’s eyewitness testimony. Finally, the defendant contends that the prosecutor acted improperly in presenting Faustino Gomez’s testimony as to a contrived alibi without eliciting a disclaimer that the alibi was fabricated without the defendant’s knowledge or consent.
I agree that the court need not consider these additional grounds (see ante at 622 n.4) because the defendant has waived review of these grounds by failing to present them to the trial judge. See Mass. R. Crim. P. 13 (a) (2),
The court’s assumption, ante at 625, that the judge implicitly “found such facts in support of his ruling as the record would reasonably permit” disregards the clear import of the evidence, as well as overlooks the possibility that the judge’s ruling was based on error of law.
The F.B.I. laboratory report, which was dated October 20, 1983, the day before Detective Aheam appeared before the grand jury, clearly stated that no semen was present on the vaginal swabs. It is not apparent whether Detective Aheam examined that report before testifying before the grand jury. He stated at the second trial that he did not.
Some skepticism of this claim might arise from Detective Aheam’s status as a sixteen-year veteran of the police force.
In light of Bogdan’s testimony, this case is not factually similar to Commonwealth v. Reddington, supra. There, field tests conducted on two
Contrast the instant case. Here Detective Aheam claims that his superior told him that semen had been found on the vaginal swabs. The person who conducted the tests testified, without contradiction, that he told the detective that he could reach no such conclusion.
The Commonwealth theorized at oral argument that, when using the pronoun “I” in the relevant statement, Detective Aheam was referring to the Boston police department and its individual members as a unitary whole. This explanation is utterly implausible.
None of the police reports contained in the record detailing the items recovered from Ronan Park by police officers following the murder makes any reference to a cigarette lighter. Detective Seeley testified that the cigarette lighter which he found was not submitted to Bogdan for analysis, although he did submit a number of other items which were designated as having been found in the vicinity of the body.
There is a caveat to this generalization, based on the unique facts of Commonwealth v. Bongarzone, supra. In that case, although the police officer’s knowingly false grand jury testimony was material, it was also exculpatory. Consequently, we concluded that the false testimony was not intended to procure an indictment.
To do otherwise would effectively insulate the Commonwealth from accountability for knowing and deliberate improprieties at the grand jury stage of proceedings, provided those improprieties were not repeated at trial. To accept such a theory would render the protections against unjust indictments a nullity.
The defendant has charged the prosecutor with “playing an ignoble part” in the presentation of false testimony to the grand jury. See Commonwealth v. Lincoln,