COMMONWEALTH v. CONSTANT (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In this direct appeal from his convictions, after a jury trial, of armed robbery, G. L. c. 265, § 17, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b), the defendant argues that his motion to dismiss the indictments was erroneously denied without an evidentiary hearing. The argument is based on the defendant's contention that Boston Police Detective Timothy Stanton falsely testified before the grand jury that the victim's roommates had given a detailed description of the assailants when, in fact, the detailed description had come from Massachusetts Bay Transportation Authority (MBTA) personnel based solely on the surveillance videos. The defendant's argument has two parts: first, that the judge erred in not conducting an evidentiary hearing on the motion to dismiss and, second, that the indictments should have been dismissed because the detective's testimony impaired the grand jury process. We conclude that the defendant is unable to show that the false testimony probably influenced the grand jury's decision to indict. We accordingly affirm the convictions.

Had the motion judge conducted an evidentiary hearing and made findings as a result, we would “accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Hunt, 84 Mass. App. Ct. 643, 651 (2013), quoting Commonwealth v. Scott, 440 Mass. 642, 646 (2004).² Because here the judge did not conduct an evidentiary hearing and made no subsidiary findings, we will assume to the defendant's benefit that his preliminary showing was sufficiently substantial to warrant an evidentiary hearing and that such a hearing would have resulted in a factual finding that the detective's testimony was knowingly or recklessly false. What that leaves us is the question whether these circumstances demonstrate grand jury impairment, an issue of law we examine de novo.

A “defendant bears a heavy burden to show impairment of the grand jury proceeding.” Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993). A motion to dismiss on this ground may be allowed only on a showing that “(1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict.” Commonwealth v. Silva, 455 Mass. 503, 509 (2009). As to the third prong,

“[t]he question on a motion to dismiss is not simply whether the false or deceptive testimony ‘probably influenced’ the grand jury in some abstract sense. Rather, the defendant must show ․ that on the entire grand jury record, the false or deceptive testimony probably ‘would have affected the decision to indict.’ Commonwealth v. Silva, 455 Mass. at 508, citing Commonwealth v. Mayfield, 398 Mass. [615,] 621-622 [1986]. See Commonwealth v. Freeman, 407 Mass. 279, 283 (1990) (whether the statements ‘viewed in the context of all the evidence presented to the grand jury, “probably made a difference” in their decision to indict him’). Thus, we are constrained to look beyond the Commonwealth's recklessness and focus our analysis on the question whether ‘if the grand jury had been told the true facts, it probably would not have indicted the defendant[s].’ Commonwealth v. Mayfield, supra at 621, citing Commonwealth v. McGahee, 393 Mass. [743,] 746-748 [1985].”

Hunt, 84 Mass. App. Ct. at 657.

Here, the grand jury heard from the victim that he was assaulted, stabbed, and robbed by two men shortly after he had withdrawn money from an automated teller machine (ATM) located in an MBTA station. Surveillance video showed the defendant and one Ralph Hyacinthe watch the victim as he withdrew money from the ATM, and then follow him out of the station. The defendant and Hyacinthe returned, in a hurried manner, to the station eight minutes later and took a train to a second MBTA station. There, Hyacinthe jammed a broken knife handle under a door. When recovered by police, the handle had what appeared to be fresh blood on it, and there were blood drops nearby. When Hyacinthe was apprehended, he had a fresh cut on his hand consistent with trying to snap a blade, the clothing he was wearing on the day of the attack was found in his bedroom, the shoes worn on the day of the attack bore what appeared to be blood stains, and the defendant's license was found in Hyacinthe's room. The defendant's grandmother identified him as one of the two men shown in the surveillance videos. In these circumstances, the defendant has not shown that, had the grand jury heard that the detailed description of the suspects came from MBTA personnel rather than the victim via his roommates, they probably would not have indicted the defendant. See Commonwealth v. Ianello, 401 Mass. 197, 199 (1987) (admittedly improper comments to grand jury held not to require dismissal of indictments when jurors heard abundance of additional evidence that justified indicting defendant); Commonwealth v. Pond, 24 Mass. App. Ct. 546, 552 (1987) (“In light of the other evidence submitted to the grand jury, we further conclude that the defendant has failed to show that the allegedly false or deceptive evidence prejudiced him by influencing the grand jury to return an indictment which it would not otherwise have returned”).

Although we do not rest our decision on this ground, and the Commonwealth does not ask us to, we note further that the detective's testimony regarding whether the roommates were indeed the people who supplied the detailed description was vigorously contested at trial.³ Nonetheless, the petit jury found the defendant guilty beyond a reasonable doubt. It might “be rational to assume, therefore, that a failure to disclose the same evidence to a grand jury seeking only probable cause would have had a negligible effect on their decision to indict.” LaVelle, 414 Mass. at 151 n.2 (involving exculpatory evidence that was improperly excluded from grand jury).

Judgments affirmed.

FOOTNOTES

2.   But see Commonwealth v. Ianello, 401 Mass. 197, 199 (1987) (“the judge in his findings of fact and rulings of law acted within his discretion in concluding that they did not impair the integrity of the grand jury”).

3.   The Commonwealth did not elicit the detective's testimony on this point. Rather, it was the defendant who brought it up through cross-examination, apparently for the purpose of impeaching the detective's credibility.