Com. v. Salman
| Decision Date | 18 August 1982 |
| Citation | 439 N.E.2d 245,387 Mass. 160 |
| Parties | COMMONWEALTH v. Keith D. SALMAN (and companion cases 1 ). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James R. Brunette, Asst. Dist. Atty., for the Commonwealth.
Walter B. Prince, Pembroke, for Edward Barton, Jr.
Judd J. Carhart, Boston, for Keith D. Salman.
Before HENNESSEY, C. J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.
This is an appeal by the Commonwealth from so much of an order of a Superior Court judge as dismisses without prejudice thirty-seven indictments against the defendants, Keith Salman and Edward Barton, Jr. The judge's order addressed a motion to dismiss a total of sixty-one indictments, which charged, inter alia, armed robbery, assault and battery, and receiving stolen property. Thirty-two of the sixty-one indictments were against Barton; twenty-nine were against Salman. The judge denied the defendants' motion as to thirteen of the indictments, and the Commonwealth was free to proceed to trial against the defendants on those indictments. Another eleven indictments were dismissed without objection by the Commonwealth. The remaining thirty-seven indictments, which are the subject of this appeal (nineteen against Barton and eighteen against Salman), were dismissed, reserving to the Commonwealth, however, the right to reindict within the period permitted by the statute of limitations and on evidence other than that originally presented to the grand jury. We affirm the judge's order.
Since, as will be seen, our conclusions are based in large part on the special circumstances of this case, we state the facts in some detail. On June 17, 1980, Salman and Barton were arrested and charged with having committed a number of armed robberies. In November of the same year, a Suffolk County grand jury returned sixty-one indictments against the defendants. Most of the sixty-one indictments were obtained solely as a result of the testimony of only one grand jury witness, Detective Arthur Linsky of the Boston police department.
On June 25, 1981, the defendants filed a motion to dismiss the indictments, alleging as grounds therefor that false testimony had knowingly been presented to the grand jury, that the integrity of the grand jury process had thereby been impaired, and that all of the indictments should be dismissed as a prophylactic measure. Attached to the defendants' motion were minutes of certain grand jury proceedings. These minutes, which have been made part of the record in this case, show that an assistant district attorney for Suffolk County presented before the grand jury, in November, 1980, evidence suggesting that one Susan Condry had been robbed by the defendants Barton and Salman. The evidence was presented through the sworn hearsay testimony of Detective Linsky. He testified that on June 11, 1980, Condry was robbed by two black males. Detective Linsky further testified that twenty-five photographs were shown to Condry and that she identified Barton and Salman as her assailants. Susan Condry did not testify before the grand jury. The grand jury returned two indictments against the defendants for robbery.
Two weeks later, the same assistant district attorney presented similar evidence to the same grand jury. This time, a different Boston police detective testified that immediately after being robbed, Susan Condry went to the police station and positively identified one Sherman A. Carter from a series of photographs. Condry also appeared before the grand jury, and testified that on June 14, 1980, she positively identified Sherman A. Carter as her assailant. She further stated that she identified Carter again at a probable cause hearing at the Brighton District Court.
During the same grand jury proceedings in November, 1980, the Commonwealth also obtained six indictments against the defendants relative to another robbery. Detective Linsky testified concerning the robbery, on June 14, 1980, of Karen Eggert and Frank Cortese. The detective testified that the victims, by way of photographs, identified Barton and Salman as the perpetrators of the robbery. The victims did not appear before the grand jury. Approximately three weeks later, the same assistant district attorney presented similar evidence to the same grand jury. A different Boston police detective testified that on June 15, 1980, Cortese positively identified Sherman A. Carter as the perpetrator. Karen Eggert also appeared and testified before the grand jury. She stated that, although she could not positively identify Carter as the robber, her friend Cortese was very sure that Carter was the assailant. The grand jury returned two indictments against Carter for the robbery of Eggert and Cortese.
A hearing on the defendants' motion to dismiss the indictments was held before a Superior Court judge on July 15, 1981. At the hearing the Commonwealth made no objection to the dismissal of the eight indictments relating to the robberies of Condry, Eggert, and Cortese, and the judge granted the defendants' motion as to those indictments. The defendants argued that, since a question had been raised concerning the reliability of Detective Linsky's testimony before the grand jury, the remaining indictments should also be dismissed. The judge declined to dismiss the remaining indictments. However, he did conclude that the defendants were entitled to be put in a position where they could inquire into the validity of the remaining indictments. The judge therefore instructed the Commonwealth to provide the defendants with (1) a list of victims involved in the indictments based solely on Detective Linsky's testimony; (2) the current addresses of the victims involved in those "Linsky cases"; and (3) a letter signed by the Commonwealth designed to encourage each witness to speak to any defense investigator. The judge also determined that the defendants' motion with respect to the remaining indictments, was to be held under advisement.
On September 15, 1981, another hearing was held at the request of the defendants. A motion to dismiss nine indictments was filed with the court together with minutes of certain grand jury proceedings and an affidavit of a defense investigator who had previously been appointed by the court. Those papers indicated that, with respect to three of the then pending indictments, Detective Linsky had testified before the grand jury, in November, 1980, that each victim had been shown a series of photographs and had identified one or both of the defendants as the perpetrators of the offenses. According to the affidavit of the defense investigator, however, the victims had never been shown any photographs by the Boston police department. With respect to the other six indictments challenged in the motion, the papers suggested less significant discrepancies between Detective Linsky's testimony and statements made to the defense investigator.
At the hearing, the defendants complained that they had been unable to resolve fully the questions raised relative to all the pending indictments because the Commonwealth had produced addresses of only ten victims. The defendants did acknowledge the Commonwealth's good faith effort to produce the addresses. The defendants asked for an evidentiary hearing in which the victims of the alleged crimes could appear before the court and testify as to the validity and accuracy of Detective Linsky's grand jury testimony. The judge agreed that the allegations of impropriety were sufficient to warrant further inquiry into the grand jury process. He concluded that a further hearing should be held, at which time the Commonwealth should be prepared to list which indictments it was prepared to nolle prosequi, and which indictments it would assert to be valid. Of those which the Commonwealth would declare to be valid, the defendants were to decide which indictments were to be resolved at trial, and which they would challenge as invalid. As to the indictments challenged as invalid, an evidentiary hearing could later be held to determine their validity. A date convenient to the Commonwealth was set for the next hearing. The judge also ordered that Detective Linsky not work on the cases during the pendency of the defendants' motion.
The third hearing was held on October 7, 1981. The Commonwealth reported that it had been unable to comply entirely with the judge's order. As to three of the indictments challenged at the previous hearing, the Commonwealth stated that it would not oppose their dismissal; with respect to thirteen indictments, it asserted that those were valid and that the Commonwealth was ready to proceed to trial on them; and with respect to the remaining thirty-seven indictments, the Commonwealth stated that it had not completed its investigation and was therefore not prepared to state its position as to their validity. The defendants renewed their request that all of the pending indictments be dismissed, and they repeated their frustration at not being able to investigate the validity of the remaining indictments. The judge granted the defendants' motion as to the three uncontested indictments. He denied the motion as to the thirteen indictments on which the Commonwealth was prepared to go forward, reserving to the...
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