Com. v. Hrycenko, 90-P-1087

• Decision Date: 30 September 1991
• Docket Number: No. 90-P-1087,90-P-1087
• Citation: 578 N.E.2d 809,31 Mass.App.Ct. 425
• Parties: COMMONWEALTH v. Peter HRYCENKO et al. (and seven companion cases 1 ).
• Court: Appeals Court of Massachusetts

Page 809

578 N.E.2d 809

31 Mass.App.Ct. 425

COMMONWEALTH v. Peter HRYCENKO et al. (and seven companion cases

¹

).

No. 90-P-1087.

Appeals Court of Massachusetts,

Norfolk.

Argued June 14, 1991.

Decided Sept. 30, 1991.

Lee A. Drizin, Boston, for Peter Hrycenko.

Carol A. Donovan, Committee for Public Counsel Services (Cathleen Bennett, Committee for Public Counsel Services, Boston, with her), for Mary Hrycenko.

Robert C. Cosgrove, Asst. Dist. Atty., for the Com.

Before KASS, FINE and GREENBERG, JJ.

KASS, Justice.

During the course of their trial on indictments charging aggravated rape, kidnapping, assault by means of a dangerous weapon, threatening to kill, and possession of controlled substances--to all of which a jury returned verdicts of guilty ²--pictures were offered as evidence by the prosecution. The trial judge ruled that certain of the photographs were more inflammatory than probative, and that they ought not to be published to the jury. Those pictures were, however, sent to the jury in response to a question the jurors posed after they had commenced their deliberations. We think allowing the jury to see the pictures after closing arguments and charge, particularly without limiting instructions, was an error which requires a new trial. The defendants also appeal from the denial of motions to dismiss the indictments founded on assertions of defects in the grand jury proceedings, and they raise several other points which require some, albeit brief, consideration.

1. Asserted defects in the grand jury proceedings. (a) In an orientation speech to the grand jury, a judge of the Superior Court said the following:

"Remember that your job here is very different than a job that a petit jury would serve in a case. Your job is before trial, to listen to the evidence that's been presented to you, and then to decide whether or not, based on that evidence and assuming that it is uncontradicted and true, deciding whether or not to charge someone with a crime. Again, that's very different from the role a jury would serve after that jury has been selected. At that point, the jury would then hear the evidence from both sides, weigh the evidence, and then decide whether or not the Commonwealth has proven its burden beyond a reasonable doubt that a person is guilty. That's not your job. Keep that important distinction in mind.

"Now, as grand jurors, you do, as I say, have a very heavy responsibility. Remember that if someone is subject to indictment and charged with a crime, there's a certain amount of stigma, embarrassment that's associated with that charge.... Oftentimes someone goes through a trial and they're subsequently found not guilty. That won't remove the stigma; keep that in mind. It's a very heavy duty that you have, to listen and make some decision as to whether or not you're going to return an indictment."

The defendants focus on the phrase, "based on that evidence and assuming that it is uncontradicted and true, deciding whether or not to charge someone with a crime." They express alarm that this language effectively told the grand jurors that they were to accept the government's evidence as gospel and left them no choice but to return an indictment. The judge's remarks about the duties of the grand jury were inelegant and it would have been better had they described the task of the grand jurors: to decide whether the evidence submitted to them establishes probable cause, i.e., reasonable grounds to believe, that a specified offense has been committed and that the offense was committed by the accused. See Jones v. Robbins 8 Gray 329, 344 (1857); Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). ³ Read in the context of the two paragraphs set out in full above, however, the judge's language could not plausibly have been heard by the grand jury as the defendants suggest. The judge emphasized that the jurors had a duty not to accuse carelessly, a duty they could not discharge if they did not to some degree regard evidence presented to them appraisingly. Members of a grand jury, for example, are put to the task of choosing between different versions of events described by a series of witnesses. See Commonwealth v. McLeod, 394 Mass. 727, 734, 477 N.E.2d 972 (1985). Minutes of the grand jury reflect that the jurors in fact did not supinely accept the evidence presented by the government without inquiry. The jurors, for example, manifested skepticism about aspects of testimony given by the victim and probed inconsistencies between her testimony and that of a police officer. We are satisfied, from the dialogue between members of the grand jury and the prosecution, that the grand jurors understood their function. The evidence presented was more than sufficient to establish probable cause under the standards described in Commonwealth v. McCarthy, 385 Mass. at 164, 430 N.E.2d 1195.

(b) A principal witness before the grand jury was Harold Donovan, a Sharon police officer. The defendants complain that Officer Donovan's account to the grand jury of the kidnapping and repetitive rape of the victim failed to touch on inconsistencies between various accounts she had given, and that his testimony overstated the amount of lidocaine found in the defendants' residence in Sharon. ⁴ The defendants' suggestion is that the grand jury, therefore, were imposed upon. Grand jury proceedings may be impaired by withholding known exculpatory evidence, Commonwealth v. Connor, 392 Mass. 838, 854, 467 N.E.2d 1340 (1984), distorting a police report through intentional deletions, Commonwealth v. O'Dell, 392 Mass. 445, 448-449, 466 N.E.2d 828 (1984), and knowing use of false testimony, Commonwealth v. Salman, 387 Mass. 160, 166-167, 439 N.E.2d 245 (1982). See generally, Commonwealth v. Mayfield, 398 Mass. 615, 620-621, 500 N.E.2d 774 (1986). Those cases illustrate what may impair grand jury proceedings; they are not the basis for an inclusive list. Id. at 620, 500 N.E.2d 774. What they have in common is intentional manipulation of evidence that was significant to the grand jury. Id. at 621, 500 N.E.2d 774.

Nothing of the sort occurred here. There is no showing that Officer Donovan intentionally misstated that the lidocaine found in the Hrycenko residence weighed 14 grams (it was actually 2.4 grams) or that he edited the victim's statements. He had interviewed the victim more than once, and it occasions no surprise that there may have been variations in details from one telling of her story to another. The essential elements of that story did not change, and the police officer was not called upon to highlight minor differences--assuming that he noticed them. The victim's denial that she had any knowledge of cocaine was false but there is no evidence that the prosecution had contrived the victim's self-protective statement. Moreover, the subject was of peripheral significance at the indictment stage.

2. Facts. In considering the other points raised by the defendants on appeal, a summary of those facts which the jury were warranted in finding will be of some help. As always, we take the evidence on the basis most favorable to the Commonwealth. Commonwealth v. Stockhammer, 409 Mass. 867, 872, 570 N.E.2d 992 (1991). Commonwealth v. Taghizadeh, 28 Mass.App.Ct. 52, 53, 545 N.E.2d 1195 (1989). While visiting a friend in Bridgewater, the victim imbibed a considerable amount of alcohol. At 6:00 A.M., on September 25, 1988, she began to make her way home to Brockton by hitchhiking. Mary Hrycenko, who was driving, and her husband, Peter, picked her up. The victim noticed the car was not going in her direction, called this to their attention, and asked to be let off. Peter, who was in the passenger seat, turned around, pointed a firearm and told her she was going with them. Mary, as recounted by the victim, amplified: the victim "was going to have sex with her [Mary's] husband, and [the victim] was going to make him orgasm, and that she [Mary] was going to sit there, and she was going to watch us."

Once inside the house, Mary also brandished a gun, and the victim was forcibly disrobed. Peter forced the victim to have oral and vaginal sex with him while Mary watched. Between sexual assaults, Peter showed the victim pictures of women, naked and clothed, that he and Mary "partied with." He asked the victim if she knew any of the women and whether she wanted to party with the Hrycenkos as the women in the photos had.

Over a period of about sixteen hours, the victim was compelled to engage in eight acts of fellatio and eight acts of vaginal sexual intercourse. During the course of the day, Peter snorted and freebased (by smoking) cocaine. The victim was coerced into freebasing cocaine. Again, under compulsion, the victim posed naked with Peter's German shepherd dog while he took Polaroid pictures of her. He then required her to take pictures of him, with and without an erection. Ultimately the victim made her escape under the guise of going out to procure more cocaine for the Hrycenkos. She made her way to the house of a friend, to whom she reported the rape. The friend at once summoned police. The defense was that the complainant had consented to acts of sexual intercourse with Peter Hrycenko.

3. The photographs. Certain photographs were received in evidence and shown to the jury. They included a torso photograph of a man (apparently Peter Hrycenko) with a partial erection, four photographs of the victim, naked, with the Hrycenko's German shepherd dog, a picture of the victim taken in the back seat of the Hrycenko's car, and a picture taken earlier of the victim (unbeknownst to her) outside a Salvation Army office. Those photographs were received in evidence to verify the testimony of the victim that photographs were taken of her during the time she was obliged to stay with the Hrycenkos. The other pictures were photographs which the Hrycenkos had exhibited to the victim. She was shown those photographs at trial...