Com. v. Cote

• Decision Date: 05 July 1990
• Citation: 407 Mass. 827,556 N.E.2d 45
• Parties: COMMONWEALTH v. Joseph Arthur COTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 45

556 N.E.2d 45

407 Mass. 827

COMMONWEALTH v. Joseph Arthur COTE.

Supreme Judicial Court of Massachusetts Bristol.

Argued March 5, 1990.

Decided July 5, 1990.

Carlo Obligato, Committee for Public Counsel Services, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

On March 13, 1987, a jury of the Superior Court in Bristol County found the defendant, Joseph Arthur Cote, guilty of one count of breaking and entering a building in the daytime with intent to commit larceny, two counts of breaking a safe, and one count of larceny of goods with a value of more than $100. The defendant appeals his convictions. He alleges that the prosecutor's failure to present to the grand jury certain evidence obtained through a grand jury subpoena requires that his convictions be reversed and the indictments be dismissed. We affirm.

The petit jury were warranted in finding the following facts. On the morning of Sunday, November 11, 1984, two safes located inside Frem's Jewelers (Frem's) in New Bedford were drilled open and emptied of approximately $72,000 worth of merchandise. On December 12, 1984, the Fall River police department received information that the defendant had some of the merchandise which had been stolen from Frem's. In response, the Fall River police department undertook a surveillance of an apartment where the defendant occasionally stayed.

As a result of the surveillance, Fall River police officers arrested the defendant and seized a briefcase he had been carrying. The briefcase contained jewelry, identified by the manager of Frem's as some of the merchandise that had been stolen, a set of lock picks, and a wedding invitation bearing the name of Robert Dubois. The manager of Frem's, Wayne Dubreuil, told police that he had developed a business relationship involving the sale of gold with Dubois over the past several years. After further investigation, Fall River police officers arrested Dubois in February, 1985.

Dubois told the police he had known the defendant for approximately two years, and that, shortly before the break-in at Frem's, the defendant had asked Dubois if he knew of an "easy place to break into." Dubois suggested Frem's. After examining the jewelry store, the defendant told Dubois that the defendant, Alan Gaudreau, and David Hutchins "would take care of it." ¹ Dubois helped the defendant prepare for the break-in, but was not present when it occurred.

On the afternoon of the break-in, Dubois went to the apartment of Patricia Sleeper, the defendant's girl friend. The defendant, Gaudreau and Sleeper were present; Hutchins arrived later. Jewelry was spread across a table and the floor of a room in the apartment. The group sorted and inventoried the jewelry, and assessed its value. Dubois recognized some of the jewelry boxes in the apartment as those used in Frem's. The group then divided the jewelry amongst themselves.

Prior to Dubois's arrest, the office of the district attorney for the Bristol district had issued a grand jury subpoena on January 9, 1985, to Allied Answering Service (Allied) for "all records, notes, memoranda or other documents maintained and relating to messages received, messages delivered, telephone calls received and telephone calls made in connection with a customer account for a Joseph Arthur Cote, Jr., Arthur Cote or Art Cote." Although Cote did not have an account with Allied, one of Allied's clients, Leonard Martin, had instructed Allied to take messages for the defendant on the Leonard Martin Insurance Co. telephone. Allied employed operators who, if a client was unavailable to answer the telephone, would take a message from the caller and relay the message to the client at a later time. Allied complied with the grand jury subpoena by delivering to the New Bedford police department its business records, which consisted of paper message slips 1 1/2"' X 2"' in size. Each of these slips contained the name of the account for which a particular message had been taken, the time and date of the message, and the message itself. Allied considered these records to be confidential.

On June 24, 1985, the district attorney appeared before a Bristol County grand jury seeking indictments of the defendant in connection with the break-in at Frem's. The district attorney presented as witnesses Dubois and Detective Baron of the New Bedford police department, both of whom testified substantially in accord with the factual situation we have described. The district attorney did not present to the grand jury the telephone message slips which Allied had submitted to the district attorney pursuant to the grand jury subpoena. No mention of these records was made in the testimony before the grand jury. The grand jury returned indictments against the defendant for the offenses previously set forth.

During pretrial discovery, defense counsel became aware that the district attorney had obtained Allied's business records concerning the defendant's telephone messages by use of a grand jury subpoena, and that these records had not been presented to the grand jury. The defendant moved that these records be suppressed at trial, alleging that the district attorney's actions with regard to the records "misused the Grand Jury's subpoena powers, and violated the defendant's rights under the Fourth Amendment to the United States Constitution; his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution; and Article Fourteen of The Massachusetts Declaration of Rights ... [and] improperly infringed upon the separation of powers [in] violation of Part I, Article 30 of The Massachusetts Constitution."

A hearing on the defendant's motion to suppress the records was held on January 14, 1986, January 15, 1986, and on March 11, 1986. ² On August 12, 1986, a judge of the Superior Court denied the defendant's motion. The judge concluded that "[t]he fact that the Allied records were not utilized directly in the grand jury presentment does not support the defendant's argument of abuse of subpoena power without proof of prosecutorial intention to totally exclude the grand jury from summonsed records." Earlier, in his findings of fact, the judge had found that "[t]he issue of the good faith of the District Attorney's office in summonsing the message slips was not raised directly by either party." The judge also concluded that "the records in question were otherwise discoverable by the prosecution prior to trial under the provisions of [Mass.R.Crim.P. 17(a)(2), 378 Mass. 885 (1979).] Therefore, no purpose is to be served by exclusion of the evidence in question in the absence of clear constitutional violation or proof of egregious conduct by the government."

The trial began on March 9, 1987, and continued through March 13, 1987. The defendant was found guilty on each of the three indictments, and was sentenced to from thirteen to twenty years for the safe-breaking convictions, to be followed by a six to ten year sentence for the breaking and entering conviction. ³

The defendant contends that the judge erred in denying his motion to suppress the telephone message records. Specifically, the defendant claims that the judge's conclusion that an abuse of the grand jury process had not been demonstrated was erroneous. Furthermore, the defendant argues that the judge's conclusion that the message records were otherwise available through a trial subpoena under rule 17(a)(2), ignores the defendant's claim that acquisition of the records through a subpoena violates his rights under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights.

The defendant directs our attention to the district attorney's failure to present the grand jury with the telephone message records. This omission on the part of the district attorney, the defendant argues, when considered in light of the fact that the message records were subsequently presented in evidence at the defendant's trial, represents an abuse of the grand jury subpoena power by the district attorney. We agree, but find that in the circumstances of this case the improper action of the district attorney did not "seriously impair" the integrity of the grand jury, and did not prejudice the defendant in the proceedings before that body. Commonwealth v. McLeod, 394 Mass. 727, 733-734, 477 N.E.2d 972 (1985).

The grand jury is "an appendage, a branch, an integral part of the court acting under the authority of the court." Matter of Pappas, 358 Mass. 604, 613, 266 N.E.2d 297 (1971), quoting Grand Jurors for Worcester County for the Year 1951 v. Commissioner of Corps. & Taxation, 329 Mass. 89, 91, 106 N.E.2d 539 (1952). "[T]he grand jury perform[s] the important task of determining whether there is probable cause to indict an accused," Commonwealth v. McLeod, supra 394 Mass. at 733, 477 N.E.2d 972, thereby "protecting citizens against unfounded criminal prosecutions." Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972). As a branch of the court, the grand jury's role is limited to consideration whether to indict; it may not engage in the prosecution of indictments which it has chosen to issue. See Commonwealth v. Liebman, 379 Mass. 671, 677, 400 N.E.2d 842 (1980). "The grand jury is an investigatory and accusatory body only." Commonwealth v. McLeod, supra 394 Mass. at 733, 477 N.E.2d 972. See Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984).

In the present case the district attorney, without any prompting from the grand jury, used a grand jury subpoena to acquire telephone message records which were not presented to the grand jury in any form but which were presented at the trial of the defendant. Although the issue of the district attorney's good faith in obtaining the message records was not raised below, the practical effect...