*1 v. Mayfield. Commonwealth Mayfield. vs. Val Middlesex. February [1986] . November 1986. Lynch, & JJ. Liacos, Nolan, O’Connor, Present: Wilkins, Practice, Criminal, Indictment, jury, Instructions jury proceeding, Grand Evidence, Verdict, Venue, Jury. jury Grand jeopardy. Double Grand confessions, materiality, and Relevancy and proceeding, Admissions discretion, Recent invention. Homicide.
Judicial determining court in whether applied by of the standards this Discussion of testimony impairing integrity of a had the effect the the false witness grand jury’s proceedings. of a [620-622] in an integrity grand jury proceeding, The a which indictment for murder of returned, a impaired by police was certain false of was detective, given that medical examiner had a certain to the effect the in death and that semen had been found the victim’s cause the victim’s the vagina, the could be considered in cir- properly where statements intentional, nor for purpose reckless made the cumstances as neither nor J., dissenting. the indictment. procuring [622-624] Liacos, in murder integrity grand jury proceeding, of a which indictment for returned, a false impaired by police was not officer’s was discovered, “right the effect he had in the area where the that [victim’s] found,” lighter have in known to been the body cigarette certain occurred, shortly although, crime in possession defendant’s fact, police had found officer and farther lighter the been another indicated, challenged the tes- from the than the where given recklessly have either or intention- timony not shown to been where, circumstances, the false statements were not ally, grand jury’s decision to indict the defendant likely to have influenced J., dissenting. murder. for [624-626] Liacos, not in judge concluding A a criminal defendant was warranted and, accordingly, he custody at time made certain statements police argue was not entitled to failure of honor the defendant required the statements to request to have discontinued questioning from evidence. suppressed be [626-627] murder, following In of the retrial of defendant the circumstances on murder had been deadlocked indictment trial which charge arising defendant on a out rape acquitted incident, admitting of the defend- did not err evidence same *2 victim, alleged sexual ant’s assault on the and acted within his discretion excluding in of acquittal evidence the defendant’s of at the rape first trial. [627-628]
At the trial of a with charged year defendant the murder of an eleven old
girl, the judge excluding testimony acted within his discretion as to prosecution girl incident between a witness and a who refused date, witness, his invitation for a offered show that the rather than defendant, crime, might the have committed the and the judge was also admitting impeachment warranted in not for purposes. this [628]
The judge at a murder trial did in ruling not abuse his discretion that certain
testimony, police investigation offered to demonstrate that the the into victim’s murder had inadequate, probative been lacked worth. [628-629] trial, At a prosecution murder evidence of a prior witness’s consistent inference,
statements was properly admitted to rebut the raised the by defendant, that the witness’s had been influenced pressure. [629-630]
A judge’s response jury day to a the from on the third of their a
deliberations in criminal case did not trivialize the concept of reasonable
doubt. [630] A convicted showing defendant of murder made no that he had been prej- by pretrial publicity by change
udiced either venue preceded of which his second trial. [630] Where, murder, at the charged first trial of defendant with there had been guilty
no and verdict of not under open public any aspect of indict- ment, deadlocked, one, jury may fact have been eleven degree for conviction of murder in the second implicated no double jeopardy principle the defendant’s precluding subsequent trial and con- At a murder viction murder trial, it the first appropriate degree. for the [630] medical examiner to testify injuries that the victim’s were consistent with a particular cause. [630] Indictment found and returned in the Court De- Superior on October 1983. partment Prince,
The case was tried before Robert S. J.
John J. Bonistalli for the defendant. Melville, (Jane Steen
Margaret Assistant District Attorney A. Donohue & RonaldMoynahan, Assistant District Attorneys, her) for the Commonwealth. 2,
Wilkins, J. on About a.m. August eleven old Ann in a year was found wooded area Mary Hanley of Ronan Park in the Dorchester section of Boston. The victim dead, ankle, her shorts and underwear were down one and her face and bloodied. About genitalia two and one-half later, months on the basis of largely disclosed tes- recently of one Kevin timony who claimed to have been an Gallagher homicide, defendant, eyewitness Val Mayfield, indicted for murder in the first of a child degree under rape sixteen At his first trial in years age. April, jury found the defendant not and were unable to reach guilty rape a verdict on the murder indictment. At a second trial indictment, murder November, 1984, found the defendant of murder in the guilty first degree.
The defendant argues variety to his objections conviction *3 and asks for relief under § G. L. c. 33E (1984 ed.). The issue that attracts our attention concerns particular deficiencies of evidence presentation to the which indicted defendant, the deficiencies that the defendant undercut argues integrity and proceedings require dismissal of the indictment. We both this reject and argument those contentions as urged for reversal grounds of the convic- tion, and, after § defendant’s 33E considering argument, we affirm the judgment.
We start with an outline of relevant circumstances known to the to the time police prior the eyewitness came Gallagher forth with defendant, description homicide. The father of a child victim, aby half-sister of the lived with the victim and her Dorchester, on Mt. Ida Road family not far Park, from Ronan a large fields, several park baseball court, basketball and 1, 1983, tennis courts. On August about p.m. , the defendant stole a gym bag to one Ruiz. belonging Park, He took the to Ronan bag sneakers, removed from it on, which he and and its put gave bag contents remaining to others who Ruiz, were gathered the area. who had disco- vered that had taken his Mayfield went to the gym bag, defend- residence, ant’s but the defendant was not there. He returned p.m., about victim, 8:15 and who spoke out the pointed defendant. Ruiz then confronted who Mayfield, surrendered and sneakers told Ruiz what he had done with the and bag its contents. thereafter a victim,
Shortly group youths including Mayfield, on the of a Gallagher gathered house porch across from the About 9 most of the park. went group p.m., to see a motion left with the picture. Gallagher but did group to the movies. About go this time the victim and the direction, defendant headed toward home in the opposite the defendant shortly returned to the for a brief time. porch Later that when Ann was night, Mary reported missing, search of the was conducted. A found her park neighbor in a tunnel-like area of the created park by overhanding vege- tation and carried it to the of an embankment. She was dead. top
In the information obtained certain following days as a The defendant told De- pointed Mayfield suspect. tective Robert F. Aheam of the Boston police department after the death that he had walked the shortly victim part way home and then had left her when he recalled he had to meet a friend named John at a When the defend- pizza shop. pressed, ant said John’s last name was did not Vasquez. Investigation uncover a John Aheam noticed three vertical Vasquez. scratches on the defendant’s neck which the defendant said one Joey Doyle given during match. There wrestling was evidence that had bitten his nails to the Doyle degree 9, 1983, he could not have scratched the defendant. On August *4 the defendant an interview to the Toward the gave end police. accusation, of the interview when confronted with the “You it,” did it. You did it. don’t tell us about Why you Mayfield time that he needed to think.1 replied Kevin first on October Gallagher spoke 1983, and testified before the four later. Gal- days had to a friend that he had been lagher acknowledged family killed, when the victim was and the friend in turn told present of what on the police. Gallagher’s story happened night 1, 1983, August same before the substantially grand and at trial. jury 1There was evidence at trial that the had sought defendant assistance in arrest,
establishing an alibi and after his he made other admissions of guilt. v. Mayfield. who from the of youths that night group After separating to walk started Gallagher to a motion were headed picture, On to Ronan Park. home, his mind and went but changed and the victim. the defendant saw Gallagher entering park, said, and the defendant He them where were they going, asked Well, too.” do better come along, “I have to something. you’d area of the The three went to the tunnel-like park. arrived there the defendant asked the victim why
When they she had identified him to Ruiz. She replied earlier that night hit done The defendant her about began that she had not so. out Gallagher the face. She started to and called cry help. the defendant told him to tried to intervene desisted when He further effort to remain where he was made no standing. aid the victim. knocked the victim to the face down ground, defendant When on demand the victim did not get tree limb. his he her the hair and smashed her face on the
up, grabbed tree limb four times. The moved no more. The victim defendant turned her her back and his under her nose fingers placed to see if she was He then took her down and breathing. pants her. turned he He and said that would kill raped Gallagher if and his told what had Gallagher Gallagher family anybody he had He also told killed the victim happened. Gallagher she a “rat” and her to because that he throw raped off himself. then days went home. Several suspicion Gallagher later, him if he revealed the defendant threatened with death that the defendant had killed the victim. claim
1. We consider first the defendant’s that detective’s false statements to the integrity jury impaired indictment. Our led discus- proceedings be sion with consideration of the standards to starts applied concludes with such consideration assessing challenge circumstances on which the defendant relies. specific of evidence Although generally competency adequacy *5 (Common- before a not a matter for grand judicial jury inquiry Robinson, 591, [1977]), v. 373 Mass. we will wealth 592 evidence was sufficient warrant consider whether to (Commonwealth a cause v. McCarthy, finding probable 160, [1982]) Mass. and whether defendant has shown of the integrity grand jury proceedings impaired (Commonwealth O’Dell, 445, 392 Mass. [1984]). 449-450 a Because eyewitness to death purported victim’s testified we are grand concerned here jury, only claim that the integrity was im grand jury proceeding paired.
We deal must with such a case It is case. by unlikely could a we devise statement satisfactory, comprehensive does, not, of what conduct and what conduct does impair have grand We integrity jury process. recognized possible if a were deceive to impairment prosecutor jurors grand remote of direct presenting hearsay guise testimony. Pierre, 650, Commonwealth v. (1979). St. 377 Mass. We have indicated that inaccurate statements made in faith good do not dismissal of an indictment. require Commonwealth v. (1985). We have never held Reddington, that an indictment be if a should dismissed witness prosecutor (a standard), should have known reasonably negligence know, did not that the witness’s was false. In such case, a and the witness would not have intended prosecutor indictment, to use false an and dismissal procure of an indictment as a measure to inten discourage prophylactic said, tional could have no have We wrongdoing application. however, that if the or one of its know agents indictment, uses false the indict ingly procure dismissed, be and learns of ment should who prosecutor false, use of the material evidence has duty knowingly Salman, Mass. come forward. See Commonwealth v. 166-167 instances, the
In certain failure to disclose known informa tion For jury example, may impair proceedings. of a statements recorded defendant’s presentation inculpatory to disclose in a the intentional failure distorted police report, in that re defendant’s comments exculpatory interspersed dismissal port, proceedings required impaired jury O’Dell, the indictment Commonwealth we indicated that grand have Similarly, *6 v. that would known evidence be told of exculpatory should an witness. See of the credibility important undermine greatly 838, Connor, Mass. v. Commonwealth jury proceed- that the integrity grand To sustain a claim the evidence have been not must has been only ing impaired, false but that it was or deceptive, with knowledge given have been significant evidence must false or deceptive probably must have been presented view the and of Thus, a an indictment. the intention of obtaining with ex- of false but and intentional officer’s knowing presentation of an indict- would dismissal not require culpatory testimony 326, v. 390 Mass. 338-339 ment. Commonwealth Bongarzone, whether, if a had been told grand jury question facts, not have the defendant the true it would indicted probably an of circumstances. See Common- assessment all the requires 743, McGahee, (1985) (“It is v. 746-748 wealth 393 Mass. that the withheld would of unlikely information] [disclosure 747). Id. at have affected the decision indict.” jury’s an indictment In it is not for dismissal of summary, enough false or to the that evidence presented deceptive First, Two must be shown. further elements jury. normally a or evi- our cases have false showing deceptive required dence was to the and for given grand jury knowingly purpose not of an indictment. we have heretofore obtaining Although (see had to decide the Commonwealth Reddington, point would that a [1985]), we showing accept truth of the Commonwealth’s reckless disregard leading of evidence could also false or deceptive presentation Second, the defendant warrant dismissal of indictment.2 evi- must show that the of false deceptive presentation influenced dence determination to grand jury’s probably hand an indictment. This showing only up requires Delaware, Franks (1978), concerning 2 See 438 U.S. 155-156 statements, knowing false either or made reckless intentional warrant; truth, disregard application for the in an for a search Dollars, Ninety-two (1981), v. Nine Hundred & evidence, rejecting, suppression negligent as a ground misrepresen cause, tations, necessary finding probable even set forth in of facts an affidavit search warrant. support the evidence was material cause probable record, on the entire grand the false or deceptive *7 made a difference. Thus the fact probably that inten- or false tionally or recklessly evidence deceptive concerns a material fact does not alone warrant dismissal of an indictment. The defendant must also show probable prejudice grand jury In with the proceedings. of dealing prejudice, we do not the “harmless adopt reasonable beyond doubt” standard which to constitutional errors applies occurring postindictment criminal stages See Chapman proceedings. v. California, 386 24 Commonwealth (1967); U.S. Gilday, (1980).3
We turn to the false statements of Detective specific Ahearn to the on which the grand defendant bases his claim that were grand jury proceedings We shall discuss impaired. those only asserted misrepresentations grand jury the defendant to the trial argued Of the three false judge.4 3The issue of the impairment grand of the jury proceedings does not become simply irrelevant because sufficient evidence was presented trial to submit the jury. case to the integrity grand Preservation of the of the jury process requires independent analysis propriety jury proceedings. rules guiding Our the proper presentation of evidence to grand jury terms, have expressed not been right constitutional but the grand jury to a to a indictment as serious crime constitutionally is based. Art. 12 of the Rights. DeGolyer Massachusetts Declaration of See v. Com monwealth, 314 Mass. States, opinion Court in Supreme Costello v. United 350 U.S. (1956), discourage has tended to challenges to the nature and quality grand jury rejected, evidence. The Court required by as not the Fifth indictment) Amendment to the United States (right Constitution to or warranted on supervisory grounds, a requirement that an indictment be supported by adequate competent or evidence. “An indictment returned face, a legally constituted and unbiased jury ... if valid on its enough to call for trial of the charge on the merits.” Id. at 363. “Defendants entitled, however, are not to a rule which would delay result in interminable but add nothing to the assurance of a fair trial.” Id. at 364. The Costello not, however, case did peijured involve pros- ecutor knew to be false. alleged 4 Further flaws in the proceedings, argued on appeal time, generally for the first are not they before us because were not season (a) (2), ably asserted. It is inherent in Mass. R. Crim. P. 13 (1979), ground that each for a presented motion to dismiss must be to relies, not detain two need which the defendant statements on motion in the defendant’s were set forth us long. They trial, which the filed before the first the indictments dismiss and fi- to its renewal denied without prejudice initially of the first trial. at the conclusion denied with nally prejudice the grand jury defendant that Aheam gave . The complains Aheam told the grand jurors cause death. wrong “as- cause of death as had certified the the medical examiner the medical examiner caused but that by ligature,” phyxia caused a severe blow told him that death could have been on voir dire during The medical examiner testified neck. victim’s neck could have trial that the injuries first Aheam that the and that he had told been caused by log *8 blow to the neck. The cause of death could have been severe as he impliedly trial was fully concluding, warranted motion, did not intentionally, did in the that Aheam denying truth, fact the or with reckless regard misrepresent any the cause of death. concerning Detective defendant’s second concerns objection
The the that found in Aheam’s statement to semen was grand jury statement, the the This as evidence at trials victim’s vagina. indicated, not at the first trial on was correct. Aheam testified he his cross-examination that made the statement because had that had been found in the victim’s told him semen superior that and because he vagina thought laboratory report stating “the in semen showed trace characteristically substance Aheam may amount” meant that semen was Although present. re have in his consideration of the been laboratory negligent of or intentional no a reckless finding misrepresentation port, has follow in the circumstances. ground presented the defendant and not judge, any the trial then known to grounds risk presents is deemed of new a substantial waived. None these 278, § miscarriage justice of a under L. c. 33E. of G. laboratory The author the of which Aheam was aware when report, (but at he the testified at the second trial not grand jury, testified before trial) give he told that he not an opinion the first had Aheam could he when he did so. It that semen was but could not remember present, laboratory author the wrong would be for us to find on this record that the concerning semen the vagina was much indictment,
more critical to viable, which is no rape longer than Moreover, to the murder indictment. had before them several that indicated forceful and photographs abusive of the victim which penetration tended corroborate Gallagher’s version facts. The or absence of presence semen in the victim’s not thus vagina important point for the murder indictment. We doubt that a would have finding been warranted that Aheam the facts misrepresented concerning semen for the the murder indictment. purpose procuring .6 no such Certainly the record finding required
The final made to the misrepresentation is (i.e., Aheam’s that he found scene “right the area where found”) a brown body [victim’s] cigarette with a silver lighter had been in Ruiz’s stolen top It gym from Aheam’s trial bag. that he apparent did not find the but rather that another officer lighter, police had found it. It is also that the other officer apparent found not lighter vicinity “right body, in the area where the was found.”7 [victim’s] report told this to Aheam before Aheam the grand jury. testified before Moreover, at least without having revived and renewed his motion to dis- miss, may rely presented defendant on evidence at the properly second in support trial of his from denial at the appeal of motion end of the first trial. *9 If the false had been more material to the than it indictments was, the prosecutor, report who learned the error least from an F.B.I. (presumably grand jury), might received after Aheam testified before the consider, duty have had a the judge hearing, to ask to after a whether the error required dismissal either or both of the indictments. trial, At the first he in the where in as to what found area found, the a body cigarette lighter. Aheam did include cross- not On examination, did lighter Aheam stated that he not see or find a brown vicinity silver the top body where was located. When pressed as grand jury testimony agreed to his the had lighter, about Aheam that he testified finding lighter “right the in the area” where the found lighter. and admitted that he did not find He “personally” the testified further that an officer had him one of the brown told within week crime that a cigarette lighter vicinity body, had found the of the but could been in he given not that remember who had him information. trial, At the he second Ahearn listed the items found and took from made to his scene the crime. He no reference in his direct misstatements about on Aheam’s did not rely The defendant to dismiss of his motion in the cigarette lighter support he included the first trial when until the end of indictments dis- misstatement, already with the misstatements along this The defendant cussed, that motion. his oral argument in he was that the Commonwealth previously had not advised dismiss, of his motion misstatement in on this support relying and the Common- considered the motion again, but the judge lack its claim that it was wealth does not now prejudiced the argu- We shall consider of this asserted ground. of notice and second but, between the first merits because ment on its on this did not file a new motion relying trials the defendant for or findings he did not move request and because ground found such we shall assume of fact from the judge, record would reasonably of his as the facts ruling support function it not an Certainly, appropriate appellate permit. inferences the evidence. from find facts or to draw uncompelled Aheam tes has not knowingly The defendant proved or testified tified concerning cigarette lighter, falsely truth, on a matter reckless disregard probably course, Of one deliberations. grand significant jury’s knew that he had not found lighter infer that Aheam may had, not were he testified that he grand when which been influenced police to have significantly likely r.8 said to have found lighte officer was cross-examination, that he did not he admitted finding lighter there. On him that the that a officer had told any lighter. find He testified enhance” the case denied that he so testified “to lighter had been found. He when he testified the defendant and testified against in the immediate lighter had not been found known that the jury, he vicinity body. (see above), the second trial has testimony at note 5 As we have noted the first trial of a at the end of challenge to the denial significance no to dismiss. motion somewhat leading Aheam the prosecutor’s In fairness to Detective in effect that he found say Aheam to may prompted have figurative question as follows: jury testimony was lighter. *10 Aheam, there, Detective at the scene “Okay, you anything did find Q.: from the bag that was stolen gym able to you put were later ” wearing? Mayfield Val was had the in it that House that sneakers Dorchester lighter, “Yes, lighter. It was a brown cigarette a A: I did. There was small
626 v.
The more serious is whether the integrity grand jury Aheam’s false tes proceeding impaired by that the was found timony in the area” lighter “right where was found. The defendant did evidence present requir that the ing finding knew this prosecution false at the time it was or that the given prosecution .9 reckless in not then of its Aheam testified at knowing falsity the first trial that between 3 and he learned August August 9 from a fellow officer that a brown had been cigarette lighter found in the He could not recall who had vicinity body. told him. The trial could credit this and con judge clude Aheam was although negligent testifying perhaps did, as he Aheam did not in this either testify falsely respect, or The could also have con intentionally recklessly. cluded on the record that the would have grand jury probably indicted the defendant even if it had known that the lighter was not found near the victim’s right body.
2. There was no error in the denial of the defendant’s motion his statement and conduct suppress testimony concerning 9, 1983, at the during interrogation District August 11 station house in Dorchester. defendant argues detectives failed to honor his to cut off See right questioning. 96, (1975); v. 423 U.S. Miranda v. Michigan Mosley, probably about an inch in width and two-and-a-half long, inches — — on, silver top top, I believe or black and later Mr. Ruiz identified being gym bag. right as That was found in the area where the body was found.” 9Federal involving grand juries cases claims of false representations generally have concerned assertions of merit prosecutorial misconduct. To case, dismissal of an prosecutorial indictment such a misconduct generally merely negligent “outrageous must be not or intentional” (United Udziela, 995, denied, States v. Cir.], 671 F.2d cert. [7th Bettencourt, (United [1982]), States v. U.S. 1135 “flagrant” 614 F.2d 1980]). perjured testimony presented, generally Cir. If [9th indictment may challenged successfully only be if there was no other evi United dence before the sufficient the indictment. support Udziela, Adamo, supra. States United States v. 742 F.2d States, (6th 1984), cert. denied sub nom. Freeman v. United Cir. 469 U.S. DeLeo, Cir.), (1st United States See 422 F.2d denied, (1970) (indictment cert. U.S. 1037 is not impeached witness). perjury of one *11 627 398 v. Arizona, concluded that the (1966). U.S. 436 The judge 384 event, was not custodial any interrogation never invoked his to discontinue right questioning. defendant the defendant was not in custody The conclusion that See Common- warranted on the facts found by judge. fully who Mass. 737 Bryant, Mayfield, wealth went to the station was then one of several only suspects, he was free to He was told voluntarily by prearrangement. time, at the end of the session. and he did leave leave any conver- conducted in a nonthreatening, The interrogation arrest The detectives had no cause to sational manner. probable custo- at that time. Miranda only Mayfield principles apply Mathiason, U.S. dial Oregon interrogations. fact that the defendant was Miranda
(1977) given warnings . The did not make the custodial. See Commonwealth interrogation at 131 n.8.10 v. Bryant, supra err evidence of the defend-
3. The did not in admitting victim, acted assault on the and the judge ant’s sexual alleged evidence of the defendant’s within his discretion excluding as to the defendant’s at the first trial. Testimony acquittal rape time conduct at the of the commission of the crime was admis- Harris, 201, 207 sible. See Commonwealth v. (1978) . That evidence was relevant to the two theories advanced of murder in the first murder of a conviction degree, support and murder with extreme atrocity with deliberate premeditation Lamrini, or See Commonwealth v. cruelty.
The the defendant’s on the charge fact of acquittal rape is, tried It not relevant because he was not being rape. however, discretion to admit evidence within judge’s failure argument judge’s that he was prejudiced defendant’s early portion from the of the interview to excise a detective’s if he had heard the standard Mayfield without merit. A detective asked TV, him, or if he had been in rights given if he had had them read general way. Mayfield affirmatively ambiguously court. answered in an course, of the defendant’s was relevant to the voluntariness colloquy, This have been better rights waiver of his and admissible on that issue. It would any previous experi to have excised references to the defendant’s practice warnings. ence with Miranda
a defendant’s earlier of a crime shown acquittal evidence. circumstances, In certain fairness would warrant admission of the fact of an acquittal, perhaps giving cautionary instructions a defendant. See requested by Commonwealth v. *12 Mahan, 738, 18 Mass. Ct. (1984). On the other App. hand, in this alone, case evidence of the acquittal, standing have been might (and misleading unfair to the and, Commonwealth), if the had judge fully explained reasons possible benefit of evi- acquittal, any possible dence of the would have been acquittal probably dissipated.
4. The did err in certain judge chal- evidentiary rulings the defendant. lenged by
a. The McDonald, excluded the of Linda judge testimony a neighborhood similar to the victim. If girl age permitted McDonald would have testify, told of incident apparently her, between and in which Gallagher after she refused his date, for a he her arm screamed at request grabbed forcefully, her, house, the doorbell of her and ran punched away. Gallagher had testified that the incident had not occurred. The testimony defendant, was offered to show rather than the Gallagher, victim, have killed the and to cred- may impeach Gallagher’s ibility.
The well within his discretion in judge acting ruling that the incident between McDonald and alleged Gallagher was not similar to the crime of murder to warrant sufficiently its admission as a having tendency implicate Gallagher Graziano, the defendant. See Commonwealth v. exculpate Walker, 325, (1975); 368 Mass. 329-330 Commonwealth v. 544, (1982). 14 Mass. Ct. Cf. Commonwealth v. App. Keizer, (1979). 377 Mass. 266-268 He was also justified as The evidence. excluding gen- impeachment eral, inflexible, but not rule is that witness not be may evidence extrinsic misconduct not ma- impeached prior terial to the case which he testifies. See Commonwealth v. Bohannon, 376 Mass. 93-94 The rule general here. applies
b. The defendant also claims error in the exclusion of prof- fered of one offer of George Gagnon. By proof, 398 Mass.
defendant would have testified to the stated follow- Gagnon 2, 1983, On he a disheveled hitchhiker ing. August picked up between Boston and The hitchhiker Route 95 Providence. stated that he had been released from that he had just prison, in a and that he wanted to spent night park, buy gun. He also asked whether heard of a little Gagnon girl being in Boston near the water. related sub- strangled Gagnon stance of his conversation with the hitchhiker to Boston police after he became aware of the victim’s officers murder. Although police report prepared Gag- incorporating statement, non’s voir dire indicated that no investi- hitchhiker was undertaken. gation Gagnon’s testimony was offered to demonstrate into police investigation the victim’s murder was See Commonwealth v. inadequate. Bowden, excluded *13 the evidence as not of probative quality investigation. He did not abuse his discretion in so See Commonwealth ruling. Booker,
c. The Anne Baker to as to statements judge permitted testify October, made in her Gallagher 1983. presence According Baker, revealed that he had seen the Gallagher defendant victim, murder the and he reenacted the details of the crime Baker, for her benefit. As recalled this version of the crim- by inal incident was identical to the one which Gal- essentially at trial. recited Baker’s was lagher Although clearly it was admitted as a consistent statement hearsay, for prior trial tes- nonhearsay purpose rehabilitating Gallagher’s A instruction was timony. limiting given. consistent statements are not admissible
Normally, prior rehabilitate a witness whose has been by impeached the introduction of inconsistent Common- pretrial testimony. Zukoski, wealth v. “As an exception rule, however, to this a witness’s consistent state- general prior ment is admissible where a claim made that the witness’s in-court statement is of recent contrivance or is the product inducements or bias.” Id. at 26-27. In the case at particular bar, the defendant raised the inference that trial Gallagher’s resulted from coercion dur- officers by investigating Thus, on October 17 and
ing interrogations 1983. evidence consistent Gallagher’s statements was admissible to prior rebut the inference that was influenced Gallagher’s testimony by police pressure.
5. The did not minimize the of reasonable importance doubt to a from the on the third response jury of their deliberations. One of the day asked jury’s questions definition of reasonable doubt in In writing. complying with that trivialized the request, judge hardly importance of reasonable doubt. It not error in the circumstances then to tell the not to focus on jury any particular aspect “because the whole charge thing important.” 6. The defendant has not shown that he was prejudiced or of venue for the second trial pretrial publicity change from Suffolk to Middlesex rather than to County County Nor has the defendant shown that the Hampden County. pros- ecution source of improper pretrial publicity been, if the the conviction should be prosecution upset the absence of a showing prejudice.
7. defendant that he should not have been retried argues because, for murder in the first based on degree infor- posttrial mation his counsel obtained from one the first were juror, jury deadlocked, one, eleven to for conviction of murder but only in the second The claim is that in effect the first degree. the defendant of murder in the first and that acquitted degree double bar his retrial for murder in the first jeopardy principles *14 There no and verdict of not degree. open public guilty under of the murder indictment. There was no error. any aspect Commonwealth, A Juvenile v. 392 Mass. claim,
8. The defendant’s raised time for first at oral that of the medical examiner was argument, improp- admitted is meritless. that erly injuries Testimony particular were consistent with a cause was entirely particular appropriate. Juvenile, Commonwealth v. A 278, 33E, § The defendant relief under L. c.
9. G. argues on the cumulative effect of the asserted errors with relying He does which we have dealt in this not contend opinion. the circumstances of the crime or matters relating in the a reduction in the verdict of murder defendant justify 33E. § not entitled to relief under first The defendant is degree. Judgment affirmed. trial is J. I am that new (dissenting). persuaded Liacos, because this seventeen old defendant was year prej- required udiced conduct during procure- improper prosecutorial I order a new ment of indictments from the would grand jury. I dissent trial in interest justice. Accordingly, respectfully the court’s conclusion of convic- from affirming judgment reasons; of murder in the first I state in doing tion degree. my so, I on that of the court’s which focus only aspect opinion discusses the issue of the of the impairment integrity to the indictment of the defend- grand jury proceedings leading ant. As view of the facts shown record my pertaining court, to that issue differs from that of the I state the relevant facts some detail. witnesses,
Kevin and four other them De- Gallagher among tective Robert F. Aheam1 of the Boston police department’s unit, homicide were called before who testify grand jury indicted the defendant for and murder. The witnesses rape key were and Detective Aheam.2 Gallagher trial,
Prior to his first the defendant moved to dismiss the and murder indictments based on the false allegedly rape of Detective Aheam. The defendant took issue jury testimony First, with two statements in the detective testified particular. Ruiz, Gomez, The other witnesses were Guillermo Faustino involving Melendez. Ruiz related the incident the theft of his Elizabeth gym bag belongings the Dorchester House and his efforts to retrieve his from testified as to his fabrication of an alibi for the from defendant. Gomez friend, half request girl defendant at the of the defendant’s sister Melendez, neighborhood youth, victim. testified that Gomez admitted night her that he had not seen the defendant on the of the murder but told officers otherwise because the defendant needed alibi. inconsistencies, 2 Gallagher’s story, inherently suspect from its apart gratuitously he invited him to the extent claimed that the defendant *15 along to witness the murder and rape. Atkins, that Dr. the associate medical examiner,3 him told that the victim’s death could have been caused severe blow to the neck. The defendant Second, claimed this to be in contrary autopsy report. ato whether semen was found in the victim’s response Detective Aheam answered vagina, The defend- affirmatively. ant which the detective argued laboratory reports, aware, must have been stated otherwise.4 The denied dismiss, the motion to to reconsideration after a voir subject dire examination of Dr. trial Atkins the cause during regarding of death. dire, had,
At the voir Dr. Atkins stated that he subsequent fact, in told Detective Aheam severe blow to the neck could have caused the victim’s death. The denied judge again the motion to dismiss. The defendant indicated at that time that he renew the motion as the trial based might progressed, and, on the articulated additional grounds previously possibly, grounds. case,
At the close of his the defendant renewed his motion once more. He restated the for the motion. original grounds Moreover, he added reference to another Detective portion Aheam’s The defendant asserted that grand jury testimony. detective testified before in falsely stating 2, 1983, that in the he recovered the early morning August stolen from Ruiz the defendant cigarette lighter “right the area where the was found.” Detective Aheam had called testify grand jury.
3 Doctor Atkins was not before victim, gave vaginal performing autopsy After an on the Dr. Atkins smear, swabs, vaginal and a rectal the Boston police department swab to laboratory testing. crime The of acid presence swabs were tested for enzyme characteristically high found in concentrations phosphatase, semen, laboratory report and examined for indicates that the sperm. vaginal rectal swab tested for acid while the swabs positive phosphatase, detected only enzyme. sperm, showed trace amounts of the No vaginal or on the swabs smear. (F.B.I.) Investigation The swabs were forwarded to the Federal Bureau of D.C., labora- laboratory Washington, again. and were tested The F.B.I. tory phos- states that the rectal swab tested trace for acid report positive negative regard phatase, presence sperm prostatic antigen. vaginal It further states that no semen was found on the swabs. *16 633 Mass. 615 398 trial, admitted, he did not find a when searching lighter found. Other trial tes- the area the victim’s where detective, that another Gerard Seeley, indicated timony police distance from the site of the murder.5 found a some lighter dismiss The denied for the third time the motion to judge indictments, all that his latest was “based on ruling stating in the the evidence which has been to the Court way presented this case.”6 of both affidavit and evidence during us, then, The before is whether Detective Abeam’s issue of the relative to the cause grand jury death, the of semen in her and the victim’s vagina, presence sneakers, noted, except As witnesses testified for Ruiz’s previously gym bag by the defendant cast the and its contents aside the wall of the sneakers, clothing, and various yard. bag abandoned school The contained effects, including cigarette lighter. Some of the dis personal disposable others, were left carded items were taken while other items undisturbed. Seeley Detective testified that he conducted a search of Ronan Park on 2, 1983, recovered, wall, August yard and next to the school a number of bag. cigarette lighter items that had been in Ruiz’s He found the in another location, however. aquittal rape After the trial ended in an on the indictment and a mistrial indictment, original as to the murder the defendant was retried on the murder presided indictment before the same who over the first trial. The defendant did not renew his motion to dismiss the indictment at the second trial, nor, circumstances, obligated I think he was do to do so to rights. preserve appellate alleged falsity In addition to the of Detective Aheam’s tes- outlined, timony already the defendant now asserts that the presentation fatally respects. flawed in other defendant claims that testifying Detective Aheam that the distorted facts defendant avoided murder, investigating by failing officers after the to inform police grand jurors many of the which the defendant spoke occasions on various The defendant that the complains prosecutor officers. also which, the grand jury by withholding presentation misled of certain facts Gallagher’s doubt varying degrees, veracity eyewitness cast testimony. Finally, prosecutor improp- the defendant contends that the acted erly Faustino Gomez’s as to a contrived alibi without presenting eliciting a that the alibi disclaimer was fabricated without defendant’s knowledge or consent. (see agree grounds I that the court need not these additional consider n.4) grounds ante at 622 because the defendant review of has waived these (a) by failing judge. them to the trial R. Crim. P. 13 present See Mass. (2), (1979); Sawyer, Commonwealth v.
detective’s at the murder discovery cigarette lighter scene, either or in the constitutes sufficient singly aggregate, the murder indictment. grounds dismissing “a court should not into the Ordinarily, inquire adequacy of the evidence which an indictment is based. competency upon However, . . . when it appears integrity *17 has been a defendant attack the jury may process impaired, of of the indictment a motion to dismiss. . . . validity by way can be no doubt that the the There use Common- knowing by of wealth or one its false agents procure of indictment is a for the indictment” ground dismissing (emphasis Salman, (Citations omitted.) 387 Commonwealth supplied). 160, Mass. 166 See v. Reddington, Commonwealth 315, (1985); Mass. Commonwealth v. Bongarzone, 395 319 326, of law was bom 338 This principle administration the honor of of a “fastidious regard Basurto, 781, (9th States v. F.2d United justice,” States, 1974), Mesarosh v. United 352 U.S. Cir. quoting a defendant (1956), which is undermined when is put knows is trial on an indictment which Commonwealth or in on false based whole part testimony. that Detective Aheam’s
The contends based in faith on information good provided in so far as only to him others. This assertion plausible the cause of Detective Aheam’s statements about it concerns dire death. Based on Dr. Atkins’s voir testimony, the victim’s Aheam that Detective was warranted concluding told Dr. when he stated that he was testified truthfully Atkins with a severe that the victim’s were consistent injuries Nevertheless, review of the record to the neck. blow proper false us that the detective knowingly should convince gave and the of semen presence respect cigarette lighter.7 at the stated without
Detective Aheam equivocation found in the victim’s vagina. that semen was jury proceeding ante “found judge implicitly assumption, The court’s reasonably ruling permit” as the record would support such facts in evidence, the possi as well as overlooks disregards import the clear of law. judge’s ruling was based error bility that he based this conclusion on the Boston testified at trial that He and on information laboratory relayed report police department was at best to him a officer. laboratory report by superior however, inconclusive, that trace amounts of acid stating only See note were found on the swabs tested. supra.8 phosphatase trials, Detective Aheam at both On cross-examination pro- little at the time of his knowledge fessed having the acid of the scientific underlying principles phos- appearance stated, essence, that he was test for semen. He phatase for acid was not unaware that a finding phosphatase positive claim be to a of semen.9 This must finding positive equivalent I. senior with the testimony Stanley Bogdan, compared Boston crime Bogdan criminalist with the laboratory. and rectal swabs taken from conducted the tests on vaginal Aheam victim and on which Detective report prepared relied when testifying grand jury. purportedly that he with Detective Aheam after testified Bogdan spoke *18 and told him that trace the was laboratory report completed on the swabs. He amounts of acid were found phosphatase an informed Detective Aheam that acid enzyme phosphatase semen, but noted that it is found in concentrations in high fluids as well. Most Bogdan found other body importantly, contradiction, Aheam, testified, that he told Detective without that semen based on his he could not give findings, opinion Thus, the Detective Aheam’s was swabs. vaginal present direct contradiction to what statement to the was in grand jury the he had been the most told by person competent interpret evidence is that Detective test results. A fair of this reading the Aheam was aware of the of his answer regarding falsity in the victim’s of semen vagina.10 presence 20, 1983, the laboratory 8 The F.B.I. which was dated October report, jury, clearly day grand before Detective Aheam stated appeared whether vaginal apparent that no semen was on the swabs. It is present report testifying Detective Aheam examined that before before jury. He at the second trial that he did not. stated Detective Aheam’s might Some of this claim arise from skepticism sixteen-year status as a veteran of the force. factually is not similar to light Bogdan’s testimony, In this case There, field Reddington, supra. conducted on two tests there can be no that Detective
Additionally, Aheam’s cigarette was respect lighter deliberate told detective prevarication.
he, found in the personally, cigarette area where lighter right the victim’s was discovered. This was body untrue. patently In of his explanation Detective Aheam jury testimony, stated at trial it that was related to him an officer whose (by recall) he could not that a identity cigarette lighter belonging to Ruiz was in the recovered area of Detective body. text, trial see note 5 Seeley’s testimony, and accompanying is to the supra, Detective stated that he had contrary. Seeley of a picked up cigarette lighter baseball backstop diamond near side the street He this characterized park. location as where being vicinity found. cause, This does not advance the Commonwealth’s because it answer the does not Detective Aheam charge claimed to have retrieved the falsely lighter himself.11 cigarette Nor does it Detective Aheam’s statement that the explain lighter was found next to victim’s which was the clear body, of his of Detective import Regardless testimony. hoc characterization of the location of the Seeley’s post lighter substances found they at the defendant’s home indicated that were opium and cocaine. This relayed arresting information officer who testified to that the grand jury. Laboratory analysis effect at after completed revealed, however, the officer testified thought that the substance to be nonnarcotic, opium thought as was most of the substance to be cocaine. The court held against that the defendant’s motion to dismiss indictments him was properly showing testifying denied because there was no *19 knew, known, inaccurate; testimony officer have he or should that the merely good faith had restating experienced what another officer told him. Id. at 319-320. Contrast the instant case. Here Detective Aheam claims that his superior told him that semen been found on the swabs. The who vaginal person testified, contradiction, conducted the tests without that he told the detective that he could reach such no conclusion. 11 The the argument using Commonwealth theorized at oral when statement, “I” in pronoun referring the relevant Detective Aheam was to police unitary Boston and its individual members as a whole. department utterly This explanation implausible. is 637 Mass. 615 398 v. scene, it clear it was found to the murder is relative the victim’s body.12 the immediate area of an of the Commonwealth It clear to me that agent seems who made false statements knowingly v. In 390 Bongarzone, indicted the defendant. however, an 326, made clear that indict- (1983), 338 we Mass. if falsified deliberately testimony ment need not be dismissed Thus, it. we focused on was not calculated to procure officer for fabricated testimony. motive presenting police of the false tes- materiality Other courts have spoken must dis- whether an indictment be when timony determining Ward, See, Mass. missed. Commonwealth v. 17 App. e.g., 985, v. (1984); Commonwealth Edgerly, Ct. 985-986 v. F.2d (1982); Ct. United Flaherty, States App. Basurto, 1981); (1st Cir. United States (9th 1974). F.2d Cir. The concept materiality it be related to the motive to such that falsify, may directly delib- inferred that when witness generally gives has and material he done so an effort false erately an indictment.13 procure help ma- Both of the false statements Detective Aheam were terial; each, to some advanced Commonwealth’s degree, semen was found in the cause. The detective’s assertion that ac- victim’s lent credibility Gallagher’s eyewitness vagina count of the murder it corroboration for his because provided assertion that the victim had been Detective Aheam’s raped. even was of cigarette lighter greater regarding for it evidence linking importance, provided only physical detailing None of the contained in the record the items police reports following the murder makes by police recovered from Ronan Park officers cigarette any lighter. Seeley reference to a Detective testified that lighter he cigarette Bogdan analysis, which found was not submitted to designated as although he did submit number of other items which were having vicinity body. been found in the unique There based on the facts of generalization, is a caveat this case, Bongarzone, supra. Commonwealth although In material, it jury testimony false was also knowingly officer’s was not exculpatory. Consequently, we concluded false intended to indictment. procure
the defendant to the too, murder scene. This testimony, corroborative of Gallagher’s story.
Nevertheless, the court concludes that the murder indictment
should not be dismissed because there has been no showing
of actual
to the
conclusion,
defendant. To reach this
prejudice
relies,
basis,
the court
without
on supposed implicit findings
the trial
without
judge
whether the
considering
erred
as matter of law as to the
of the uncontradicted and
import
clear evidence of mendacious
testimony given
grand
Detective
jury by
Aheam. One cannot
but feel that what
help
the court
is
since
really
holding
there was a conviction
a trial
jury,
impairment
grand
function
jury’s
Romero,
should be
Cf.
Talamante v.
ignored.
620 F.2d
(10th Cir.)
(stating
perjured grand jury
“immaterial” because it was recanted at trial and did not affect
conviction, and because it is
would
unlikely
indict,
have failed to
verdict
given
after full
petit jury’s guilty
denied,
trial), cert.
14To do otherwise would effectively insulate the Commonwealth from accountability knowing and deliberate at the improprieties stage proceedings, provided those improprieties repeated were not accept theory against trial. To such a would render the protections unjust nullity. indictments a *21 639 398 v. concern for the integrity judicial protecting Proper conviction be overturned that the defendant’s process requires O’Dell, Commonwealth v. and the indictment be dismissed. Salman, 445, (1984). 446-447 Commonwealth v. Mass. 392 160, 166 Commonwealth v. 385 McCarthy, 387 Mass. 160, (1982). Cf. Commonwealth v. Reddington, Mass. 315, (1985) (no Commonwealth or Mass. showing knew, known, have tes officer or should police false); v. Commonwealth timony Bongarzone, supra in order to (no officer testified showing falsely police Ward, indictment); (no v. show Commonwealth supra procure false; tes Commonwealth knew ing immaterial); v. was also Commonwealth Edgerly, supra timony (same). at 578-579
A that the indictment should be dismissed would conclusion a new indict the Commonwealth from obtaining preclude trial. ment and to another See Eubanks proceeding Louisiana, (1958) (no bar 356 U.S. double jeopardy and retrial of defendant whose conviction and reindictment were for ex indictment dismissed unconstitutional underlying clusion of blacks from See also United States grand jury). Ball, 662, 672 (1896). 163 U.S. Our cases indicate whether an indictment should be dismissed without opportunity retrial on the misconduct “turns basis police prosecutorial on the of the defendant to obtain fair trial ability primarily after, of, v. Lam and in light impropriety.” To, Hue 312-313 in Com Although (1977), monwealth v. we Manning, where the misconduct dismissed an indictment with prejudice officers, the defendant’s directed toward undermining “was so as to relationship attorney, pervasive preclude at a new trial would confident any assumption proceedings taint,” the instant be free of the there is no such problem view, be to dismiss the case. In course would my proper indictment without prejudice. mindful which I am of the emotional
In closing,
hardships
witnesses,
defendant him-
the trial
and the
victim’s family,
endured
the course of two lengthy
self
have
already
through
trials, and of the
of such
to the Common-
expense
proceedings
wealth. It is with reluctance that I would
the various
consign
a third trial. The court
yet
participants
possibility
however,
so,
should do
in the firm belief that
demand-
only by
adherence
officials to
ing
scrupulous
by public
principles
fundamental
can
fairness
our criminal
maintain
justice system
its moral
to command the
legitimacy
respect
hope
I dissent.
citizenry.15 Accordingly,
*22
charged
ignoble
prosecutor
“playing
The defendant has
grand jury.
of false
to the
See Common
part”
presentation
Lincoln,
unnecessary
consider
wealth v.