Com. v. Brien

• Decision Date: 30 January 1985
• Citation: 471 N.E.2d 398,19 Mass.App.Ct. 914
• Parties: COMMONWEALTH v. Nicholas BRIEN.
• Court: Appeals Court of Massachusetts

Page 398

471 N.E.2d 398

19 Mass.App.Ct. 914

COMMONWEALTH v. Nicholas BRIEN.

Appeals Court of Massachusetts Essex.

Argued Nov. 15, 1984.

Decided Dec. 3, 1984.

Further Appellate Review Denied Jan. 30, 1985.

Patricia A. O'Neill, Boston, for defendant.

Robert J. Bender, Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, C.J., and ARMSTRONG and FINE, JJ.

RESCRIPT.

The principles that emerge from Commonwealth v. Gibson, 368 Mass. 518, 522-525, 333 N.E.2d 400 (1975), Commonwealth v. St. Pierre, 377 Mass. 650, 654-657, 387 N.E.2d 1135 (1979), Commonwealth v. McCarthy, 385 Mass. 160, 162-164, 430 N.E.2d 1195 (1982), Commonwealth v. Salman, 387 Mass. 160, 166-168, 439 N.E.2d 245 (1982), Commonwealth v. O'Dell, 392 Mass. 445, 446-452, 466 N.E.2d 828 (1984), Commonwealth v. Connor, 392 Mass. 838, 853-854, 467 N.E.2d 1340 (1984), and Commonwealth v. Saya, 14 Mass.App.Ct. 509, 511-516, 440 N.E.2d 1288 (1982), are that the proceedings before a grand jury are not required to be confined to evidence which would meet the technical standards for admissibility at a trial, so long as the evidence is probative of the defendant's criminal activity; but that where the Commonwealth has failed to produce any evidence of the defendant's criminal activity (Commonwealth v. McCarthy, supra), or where the Commonwealth has impaired the integrity of the grand jury proceedings by knowingly using false testimony (Commonwealth v. Salman, supra), or by doctoring the evidence so as to give the grand jury a distorted picture of its probative force (Commonwealth v. O'Dell, supra), a motion to dismiss the resulting indictment will lie. As an institution "in which laymen conduct their inquiries unfettered by technical rules," Commonwealth v. Gibson, at 524, 333 N.E.2d 400, it is inevitable that a grand jury will frequently be exposed to information that would be excluded at trial. Such exposure, standing alone, does not impair the integrity of their proceedings. Commonwealth v. Saya, supra at 514-515, 440 N.E.2d 1288. Where the Commonwealth, however, is shown to have concertedly guided the grand jury's attention into improper, non-probative, inflammatory areas, "deceiv[ing] grand jurors as to 'the shoddy merchandise they [were] getting' " (Commonwealth v. St. Pierre, supra at 655, 387 N.E.2d 1135, quoting from United States v. Estepa, 471 F.2d 1132, 1137 [2d Cir.1972], and United States v. Payton, 363 F.2d 996, 1000 [2d Cir.], cert. denied, 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 [1966] [Friendly, J., dissenting] ), courts will necessarily view the presentments of the grand jury with a jaundiced eye.

The alleged transgressions in this case do not make a close approach to impairing the integrity of the grand jury proceedings. Following the testimony of the investigating officer who outlined the Commonwealth's evidence to the grand jurors, including the identifications by the two pharmacists from whom the defendant had stolen drugs at gunpoint, the grand jury invited the officer back into the room and put questions to him as to the certainty of the identifications and as to how the officer had come to have the defendant's picture to insert into the photographic array. The officer stated that he had received a tip as a result of which he drove to another town and obtained the photo of the defendant from its police department. One of the grand jurors asked what...