Opinion
No. 98-2151.
November 29, 2000.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
On December 29, 1998, a grand jury indicted John G. Bedard ("Bedard") on charges of armed assault with intent to rob, assault by means of a dangerous weapon, and malicious destruction of property over $250. The defendant moves for dismissal of all indictments on the ground that the Commonwealth impaired the integrity of the grand jury by presenting distorted and prejudicial evidence. The Court denied the motion August 11, 2000, for the reasons stated below.
EVIDENCE BEFORE THE GRAND JURY
The Commonwealth presented testimony before the grand jury on December 22, 1998, and December 29, 1998. The alleged victim, Thomas Pandora ("Pandora"), appeared first; his relevant testimony is as follows. In December 1998, Pandora was the manager of the Wild River Landing marina in Tyngsboro. At approximately 1:50 a.m. on December 4, 1998, while he slept in the marina security trailer, Pandora awoke to banging on the trailer door. He walked to the door, and looked out the window next to the door. He saw a man with a Halloween mask on "the top of" his head. When Pandora asked who was there, the man with the mask answered, "Jack." The man added that "he" or "we" were there to kill Pandora, and told Pandora to "open the f'ing door." He also called Pandora a "dirty Jew bastard." Pandora saw the man's face, which was illuminated by a "bright brown light," four to six inches in diameter. Pandora stated that he also saw another person, a gun, and a baseball bat.
The prosecutor asked Pandora whether he recognized "Jack." Pandora told the grand jury that in the spring or early summer, he had seen "Jack" at the marina speaking with one of the mechanics, Robert Finnila ("Finnila"). Pandora had told "Jack" that he would have to leave because the employees were not allowed personal visits. Pandora testified to seeing "Jack" a second time about two or three weeks before the December 4, 1998 incident. "Jack" had come into the marina looking for Finnila's trolling motor. Pandora had explained that Finnila might not be able to sell the trolling motor because he owed Pandora money. Pandora stated, "[t]he guy just gave me a dirty look and mumbled something and walked out and that was the end of it." He also testified that he knew this person only by his face, not by name.
The prosecutor then asked Pandora to continue with his account of the December 4, 1998 incident. Pandora explained that he next picked up the phone and dialed 911, and that as he reached the Tyngsboro Police, an individual outside his door shattered the window with the baseball bat.
At this juncture, the prosecutor elicited testimony from Pandora that the employee, Finnila, had earlier remarked aloud several times that Pandora kept a large amount of cash in his trailer. Pandora also stated that he asked Finnila not to say that because he thought someone who heard might believe him.
Pandora next stated that after they put the bat through his window, the assailants did not enter the trailer.
Pandora then described how the Chelmsford police, several minutes after arriving at his trailer, took him to an accident scene to identify an injured man on a stretcher. Pandora explained that the police asked him if the injured person was the man at his door, and that he "thought" the man on the stretcher was "Jack." Pandora then related that he went to the police station after the identification to give a statement.
Pandora stated that the next day, December 5, 1998, Tyngsboro police Sergeant Charles Chronopoulos ("Chronopoulos") came to his house with about eight to ten photographs. Pandora ultimately picked the defendant's photograph as the person who was "Jack." The prosecutor then asked Pandora, "So, also, in your mind the guy in the photograph, the Jack you picked out in the photograph, was the guy you saw at the stretcher?" Pandora answered, "Was the guy on the stretcher; yeah." The prosecutor then concluded his questioning of Pandora.
Testimony from the Commonwealth's second witness, Chronopoulos, detailed the events occurring after the cruisers arrived at Wild River Landing. His relevant testimony is as follows.
The Tyngsboro police sent three cruisers to the scene. As the officers approached, they noticed a vehicle exiting the driveway of Wild River Landing, traveling at a high rate of speed northbound on Middlesex Road. When a cruiser turned around in an attempt to stop the car, the car's headlights were extinguished. The police pursued the car toward Route 3 and observed that, when the car stopped briefly before turning onto Route 3, a subject in the right rear passenger seat ran from the car and into the woods.
The pursuit continued onto Route 3 south. The car exited Route 3 after about two miles, crashing just off the exit ramp. Two more people fled into the woods. The officers arrested co- defendant George Dussault ("Dussault"), the driver of the car, after Pandora, at the scene, identified him as "Jack." The police found a fake gun and latex gloves inside the car. They searched unsuccessfully for the two men who had fled on foot.
Later, at approximately 5:30 a.m., Ken Shaw ("Shaw"), a truck driver, encountered co-defendant Brian Ford ("Ford") at a convenience store located a short distance from the accident site. Ford asked Shaw for a ride to Old Street in Dracut. Shaw agreed. The police later learned that this location is near Dussault's house.
In answer to the prosecutor's question, Chronopoulos confirmed that Pandora had given a statement that morning. The prosecutor marked the statement for the jurors' consideration.
Pandora's statement included the following information. "Approximately three to four weeks ago a man I had recognized as one of Robert Finnila's friends walked into Wild River Landing. I recognized this man from the spring time when he came and visited with Robert Finnila as he was working. We have a policy of no visitors during working hours. This man claimed that he had purchased a trolling motor from Robert Finnila for $50.00 and was at Wild River Landing wishing to pick it up. I said to the male subject `it may not be Robert [sic] to sell because he owes me $600.00.' The man said to me `Go fuck yourself you dirty Jew bastard' I replied `take a walk tough guy.' The man gave me a stare and walked away. . . ." Statement of December 4, 1998, grand jury exhibit 2 (December 22, 1998).
Later that morning, Captain Paul Larkham conducted a booking procedure on Dussault at the Lowell General Hospital. He found a bail slip for Ford in a pocket of Dussault's pants. Apparently, a Kristine Mercier had bailed Ford out of the Cambridge jail the day before, on December 3, 1998. Shaw later identified Ford from a photo array, and the police went to Dussault's address, 22 Bolton Street in Dracut, to look for Ford. Ford invited the officers into the house upon their arrival. Once inside, the officers noticed another person present and observed wet, soiled and ripped sweat clothes on the living room floor, and a box of latex gloves. The officers then asked Ford if he would come outside to speak with them. As Ford walked outside with the officers, Ford stated, "Hey, look it, I was there, but I didn't do a thing." The officers then advised Ford of his Miranda rights and placed him under arrest. Ford would not name anyone else present at Wild River Landing.
At booking, Ford informed the officers that he had participated in the attempted robbery because he was "obligated" to do so by the others involved who had posted his bail. He also told the police that he and the others planned to rob Pandora because he kept a lot of "mad" money in his trailer.
Chronopoulos testified that Bedard was present at 22 Bolton Street when the police arrested Ford. The police thought that he seemed nervous. Specifically, Bedard commented "you guys make me nervous, I hate cops, what are you doing here . . ." Bedard appeared to be intoxicated. Later that evening, based on information from Ford's statements, Chronopoulos put together a photo array with Bedard's picture in it. On the next day, he showed these pictures to Pandora who identified Bedard as "Jack." The officer asked Pandora about the fact that he had identified someone else (Dussault, at the accident scene) as "Jack." The officer testified that Pandora responded, "I'm telling you this is Jack. I can see it. There's his mean eyes. That's the guy that was there." As for Dussault, Pandora then said "[t]hat was Jack too then I guess," and "that guy [Dussault] was there."
Several days later, Chronopoulos testified, Pandora told the prosecutor and Chronopoulos that he believed that "the person he identified at the scene [Dussault] was the same person he had seen in a photograph."
Based on this identification, the police secured an arrest warrant for Bedard. The police were looking for Bedard when the Commonwealth presented this evidence to the grand jury. Chronopoulos commented that he thought it a fair statement that Bedard must be in "deep hiding."
The prosecutor then asked Chronopoulos about a statement taken from Finnila and marked it as an exhibit. This concluded the relevant testimony before the grand jury. On the same day that Finnila gave the police his statement, his friend John Allain ("Allain") also gave a statement to the police, quoted in the margin; the Commonwealth did not offer information about Allain to the grand jury.
The following exchange occurs at pp. 44-45:
Q. Is it fair to say Mr. Finnila is someone who had worked for Mr. Pandora in the past?
A. Yes.
Q. That he left Mr. Pandora's employ some time ago, but he indicated that he had nothing to do with the Wild River Landing incident?
A. Yes.
Allain's statement of December 12, 1993, contains the following: "Approximately 2-3 months ago, at around lunch time, I went to Wild River landing to see Bob Finilla. I've known Bob for about five years from the Boathouse Lounge in Dracut, Mass. I used to be the manager there and Bob would come in often as a patron. Bob has also worked on the refrigeration and heating systems at the Boathouse Lounge. When I met Bob during lunch time at the Wild River Landing Marina, my I [sic] wanted to see if Bob could go to lunch with me. Bob stated he could not as he was too busy. Then this guy who I think either owns or works at this place walked over to Bob. Bob introduced to this guy [sic] as his friend, "Jack." Bob never told me this guy's name. I said Hi and that was it. The guy walked away, I continued talking with Bob for a few minutes and then left. The next time I went to Wild River Landing was about a month ago after Bob was finished working there for good. I met the guy who Bob introduced me to and asked him if I could have the small boat (Shakespeare 7hp engine) that Bob left behind. Bob owed me $50.00 from this past summer and said I could have this motor for payment/exchange for the $50.00 owed to me by Bob. I agreed to this. The guy at Wild River Landing then informed me that Bob did not own the motor anymore and that I couldn't have it. I then told the guy I would go about this the right way. I informed the guy that I would retrieve a bill of sale and contact the police on this matter. I went back to Bob to find the paperwork on the motor. Bob could not find the paperwork. I decided not to go any further with this I was not going to lose sleep over the whole thing. That was the last time I saw this guy or have been to Wild River Landing Marina."
DISCUSSION
The defendant claims that the prosecutor's failure to inform the grand jury of exculpatory evidence affected the grand jury's decision to indict. He argues that the failure of the Commonwealth to present Allain's statement or to alert the grand jury to its existence impaired the integrity of the proceedings. Commonwealth v. O'Dell, 392 Mass. 445, 449 (1984).
"To sustain an argument that the integrity of the grand jury has been impaired, the defendant must show: (1) that false or deceptive evidence was given to the grand jury `knowingly' or recklessly, `for the purpose of obtaining an indictment' and (2) `that the presentation of the false or deceptive evidence probably influenced the grand jury's determination to hand up an indictment.'" Commonwealth v. Tavares, 27 Mass. App. Ct. 637, 639 (1989), quoting Commonwealth v. Mayfield, 389 Mass. 615, 621 (1986).
Although a prosecutor is not required to present all possibly exculpatory evidence to a grand jury, the court has recognized that the grand jury must be alerted to the existence of evidence that "would greatly undermine the credibility of an important witness" and is "likely to have affected their decision to indict." Commonwealth v. Conner, 392 Mass. 838, 854 (1984). Specifically, a prosecutor is not permitted to "subvert the integrity of grand jury proceedings by `selling' the grand jury `shoddy merchandise' without appropriate disclaimers." Id. citing Commonwealth v. St. Pierre, 377 Mass. 650, 655 (1979). A further issue is whether withholding arguably exculpatory evidence "would distort the identification evidence presented to the grand jury." Commonwealth v.McGahee, 393 Mass. 743, 747 (1985); see also Commonwealth v. Pina, 406 Mass. 540, 549 (1990) (omissions did not distort other material presented to grand jury); Commonwealth v. Pace, 22 Mass. App. Ct. 916, 917 (1986) (omission that victim identified photograph of someone other than defendant not likely to affect grand jury's decision in light of compelling circumstantial evidence).
Allain's statement is the allegedly exculpatory evidence in this case because it arguably creates the impression that it was Allain and not Bedard whom Pandora recognized from the marina. Pandora testified that he recognized "Jack" because he had seen him at the marina on two different occasions. Thus, Allain's statement would allow the inference that "Jack" is someone other than Bedard.
Pandora's testimony concerning "Jack's" identity is the primary evidence linking the defendant to the crime. The prosecution alerted the grand jury to evidence of Pandora's doubtful credibility by asking him about his identification of Dussault as "Jack." Connor, 392 Mass. at 855 (although witness did not admit to prior inconsistent testimony, answer sufficiently evasive to make the jury aware of his doubtful credibility). The grand jury thus indicted the defendant with the knowledge that Pandora had identified someone other than Bedard as "Jack." Therefore, it is unlikely that the omission of Allain's statement affected Pandora's credibility such that it influenced the grand jury's decision to indict. Commonwealth v. McGuire, 19 Mass. App. Ct. 1013, 1014 (1985).
Moreover, the presentation of the evidence did not necessarily distort the information about Pandora's possible contact with Bedard. The prosecution elicited testimony from Pandora about two meetings at the marina with Bedard (whose photograph Pandora identified as depicting "Jack"). Although Allain's statement suggests that Pandora also met Allain at the marina, it does not require the conclusion that he must be the individual Pandora remembered as "Jack." Discrepancies between Pandora's and Allain's accounts of the meetings which they both describe permit the prosecutor to include that Pandora had met both Bedard and Allain at the marina under similar circumstances, but at different times. The omission of Allain's statement does not negate the fact that Pandora positively identified Bedard.
Regarding the first meeting, Pandora testified that it occurred in the spring or early summer of 1998 and that he asked "Jack" to leave. Allain states, however, that this meeting occurred in September or October of 1998 and that he met Pandora, said "hello," and talked with Finnila for a few more minutes before leaving.
As to the second meeting in November of 1998, Pandora says that "Jack" came looking for the trolling motor and that he told "Jack" that Finnila may not be able to sell the motor because he owed Pandora money. "Jack" then gave Pandora a dirty look, mumbled, and left. Allain states, however, that in November 1998, he told the owner of the marina that Bob owed him $50 and that Bob had told him that he could have a small boat engine for payment on the debt. Allain said that the man responded that Bob did not own it and that Allain therefore could not have it. At this point, Allain states that he said "[he] would go about this [getting the Shakespeare 7hp] the right way."
This case is similar to Pina, supra where arguably exculpatory evidence was also withheld. Specifically, the Commonwealth did not present evidence that the defendant was 5'7," not 5'9"-6'0" as the victim had described, and that the victim could not positively identify the defendant as her assailant. The court in Pina noted that the material presented was not distorted by the omissions and that the mere withholding of exculpatory evidence, without more, was not a proper ground for dismissing an indictment. Pina, 406 Mass. at 549. See McGuire, 19 Mass. App. Ct. at 1014 (witness' failure to identify defendant a second time would not distort other evidence presented to the grand jury because first identification was close in time and place to crime). Accordingly, the Court concludes that the omission regarding Allain's statement did not distort the other material presented to the grand jury. McGahee, 393 Mass. at 747.
The defendant has therefore failed to demonstrate that the prosecution recklessly presented deceptive evidence as to the identification of the defendant for the purpose of obtaining an indictment, and that the deceptive evidence likely influenced the grand jury to indict Bedard.Tavares, supra, 27 Mass. App. Ct. at 639.
ORDER
For the reasons stated above, the defendant's motion to dismiss is DENIED .
______________________________ Stephen E. Neel Justice of the Superior Court
Dated: November 29, 2000.
(nunc pro tunc 8/11/00)