Com. v. Freeman

• Decision Date: 17 April 1990
• Citation: 407 Mass. 279,552 N.E.2d 553
• Parties: COMMONWEALTH v. Joseph FREEMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 553

552 N.E.2d 553

407 Mass. 279

COMMONWEALTH v. Joseph FREEMAN.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 6, 1990.

Decided April 17, 1990.

Randolph Gioia, Boston, for defendant.

Newman Flanagan, Dist. Atty., Daniel M. Marposon & Daniel C. Mullane, Asst. Dist. Attys., for the Com.

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

GREANEY, Justice.

A jury in the Superior Court convicted the defendant of murder in the first degree, forcible rape of a child under the age of sixteen, and assault and battery. ¹ On appeal, the defendant argues: (1) that it was error to deny his pretrial motion to dismiss the murder and rape indictments because of the introduction of allegedly improper evidence before the grand jury; and (2) that the trial judge's failure to instruct the jury on involuntary manslaughter and on criminal responsibility creates a substantial risk of a miscarriage of justice. The defendant also asks that we exercise our power under G.L. c. 278, § 33E (1988 ed.), to order a new trial in the interests of justice. We affirm the judgments of conviction and find no basis to exercise our power under G.L. c. 278, § 33E.

There was evidence from which the jury could have found the following facts. On the evening of September 9, 1986, Cheryl Thompson was at home with her three children: three year old Jane (victim), two year old Michael and nine week old Thomas. ² At approximately 11:30 P.M., the defendant arrived at Cheryl's apartment in the Dorchester section of Boston. All three children were in bed at that time. Cheryl, who was acquainted with the defendant, admitted him to the apartment. After the two had conversed for a few minutes, Cheryl heard Thomas crying from his room in the rear of the apartment. She went to Thomas, took him into her bedroom, and lay down with him on her bed to rock him to sleep. The lights were off in the bedroom, and Cheryl feel asleep.

Cheryl awakened sometime later that evening to find the defendant, naked, in her bed. The defendant was straddling her and choking her with his hands. Cheryl escaped the defendant's grasp, and a struggle ensued. The defendant again began to choke her, and stated that his mission was to "Kill and destroy" Cheryl and her children. The defendant punched Cheryl, bit her on the face and back, and partially disrobed her. Cheryl finally escaped through the back door, and the defendant followed her.

At that point, Cheryl's brother, Shawn Thompson, arrived at the apartment and found Cheryl and the defendant in the hallway outside the front door. Cheryl told Shawn she was locked out of the apartment, and asked him to enter through a back window. When Shawn entered the apartment, he found the victim lying on the floor in the front room. Shawn saw that she was dead, and fled to the nearby home of his sister. Meanwhile, Cheryl had fled to the home of another relative, where she called the police.

Shawn returned to Cheryl's apartment with their sister, a friend, and the friend's mother. The group arrived to find the defendant, still naked, in the apartment. They proceeded to the back bedroom where they found the victim's body on a bed. The men held the defendant in the apartment until the police arrived.

The medical examiner who testified as to the victim's autopsy results concluded that the cause of her death was asphyxia, and that she had died sometime between 11:20 P.M. and 1:30 A.M. on the night of September 9-10. The autopsy revealed multiple cigarette burns on the victim's chest, a scratch on her forehead, extensive bruising, tearing, and hemorrhaging of her vaginal and rectal areas, several lacerations deep within her vagina, a ruptured vagina, and ulcerations in the lining of her esophagus. The medical examiner further testified that the injuries to the victim's vagina, rectum, and esophagus had been caused by multiple, forceful insertions of a foreign object into those openings, and that those injuries had been inflicted before her death.

1. The defendant filed a motion to dismiss the murder and rape indictments on the ground that the grand jury proceedings had been impaired by improper testimony from a police officer in violation of his rights to due process as guaranteed by the United States Constitution and the Massachusetts Declaration of Rights. Specifically, the defendant contends that Detective Frank Mulvey of the Boston police department's homicide unit, one of several witnesses who testified before the grand jury, unconstitutionally prejudiced the jury against him by stating, in response to a grand juror's question, that a prior warrant had been issued for the defendant's arrest on an unrelated rape charge. ³ The defendant maintains that this testimony so impaired the integrity of the grand jury proceedings that invalidation of the indictments was required to correct the harm. We disagree.

As a general rule, a court will not inquire into the quality of evidence heard by a grand jury unless "extraordinary circumstances" are present. See Commonwealth v. Lammi, 310 Mass. 159, 163-164, 37 N.E.2d 250 (1941). The court has previously identified two such extraordinary circumstances where judicial inquiry is warranted: (1) when it is unclear that sufficient evidence was presented to the grand jury to support a finding of probable cause to believe that the defendant committed the offense charged in the indictment; and (2) when the defendant contends that the integrity of the grand jury proceedings somehow has been impaired. See Commonwealth v. Mayfield, 398 Mass. 615, 619-620, 500 N.E.2d 774 (1986). The defendant's claim implicates the second of these situations ⁴.

Reference to a defendant's criminal record before a grand jury is clearly undesirable, see Commonwealth v. Champagne, 399 Mass. 80, 84, 503 N.E.2d 7 (1987); Attorney Gen. v. Pelletier, 240 Mass. 264, 307-308, 134 N.E. 407 (1922); Commonwealth v. Saya, 14 Mass.App.Ct. 509, 515, 440 N.E.2d 1288 (1982), and, in some circumstances, such reference may involve "serious risk of prejudice." Commonwealth v. Saya, supra. This is not such a case. The disputed comments were made in response to a grand juror's question; they were not offered gratuitously by the police officer or by the prosecutor. The reference to the past warrant was generally responsive to the grand juror's question, and did not exceed the scope of that question. The information furnished was not false or deceptive, and there is nothing to show that it was furnished with the intention of obtaining the indictments. See Commonwealth v. Mayfield, supra 398 Mass. at 621, 500 N.E.2d 774. Further, the prosecutor curtailed the line of questioning shortly after it had commenced. We do not discern here any "blatant attempt to whet the jurors' appetite with information which could not serve as a basis for an indictment." Commonwealth v. Saya, supra, 14 Mass.App.Ct. at 517, 440 N.E.2d 1288 (Brown, J., concurring).

In addition, the defendant has not proved that the disputed statements, viewed in the context of all the evidence presented to the grand jury, "probably made a difference" in their decision to indict him. See Commonwealth v. Mayfield, supra 398 Mass. at 621-622, 500 N.E.2d 774. After Detective Mulvey testified, the jury heard from Cheryl Thompson, the victim's mother. Cheryl testified that she and her three children were home alone on the night in question, that the defendant, with whom she was acquainted, arrived, and subsequently tried to strangle her. She described in detail, essentially as recounted above, her ensuing struggle with the defendant, and her subsequent escape and discovery of her daughter's body. The grand jury also heard from a second witness, who described his arrival at the Thompson home and the discovery of both the defendant and the victim's body there. The grand jury had direct and convincing evidence of the defendant's probable guilt of the crimes charged entirely apart from the testimony given by Detective Mulvey. The presence of adequate direct evidence of the defendant's commission of the crimes renders insignificant any arguably improper information contained in the earlier testimony of the investigating police officer. See Commonwealth v. Ianello, 401 Mass. 197, 199, 515 N.E.2d 1181 (1987) (admittedly improper comments to grand jury held not to require dismissal of indictments when jurors heard abundance of additional evidence which justified indicting defendant). By contrast, the cases in which we have dismissed indictments usually have involved improper statements made by the sole witness to appear before the grand jury. See, e.g., Commonwealth v. O'Dell, 392 Mass. 445, 447, 466 N.E.2d 828 (1984); Commonwealth v. Salman, 387 Mass. 160, 161, 439 N.E.2d 245 (1982).

The facts of this case closely resemble those in Commonwealth v. Champagne, 399 Mass. 80, 503 N.E.2d 7 (1987). In Champagne, a State trooper testifying before a grand jury commented, in response to a grand juror's question, that the defendant (a prison inmate) had been suspected in other attacks similar to the one under investigation by the grand jury. In analyzing the defendant's claim of prejudice, we emphasized the facts that: (1) the disputed statement was made in response to a grand juror's question; (2) the prosecutor and the witness did not intentionally conspire to present such information to the grand jury; and (3) the prejudicial portion of the testimony was responsive to the juror's question, although inadmissible at trial. See Commonwealth v. Champagne, supra at 84, 503 N.E.2d 7. Accordingly, we concluded that the defendant "has not shown that presentation of information that he and others had been suspected of previous attacks on inmates was likely to have made a difference in the grand jury's determination to indict him." Id. We reach the same conclusion in this case ⁵.

2. The defendant argues that a new trial is required because the judge did not instruct the jury...