Commonwealth v. Fernandes

• Citation: 130 N.E.3d 696,483 Mass. 1
• Decision Date: 04 September 2019
• Docket Number: SJC-12429
• Parties: COMMONWEALTH v. Stephanie A. FERNANDES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

483 Mass. 1

130 N.E.3d 696

COMMONWEALTH

v.Stephanie A. FERNANDES.

SJC-12429

Supreme Judicial Court of Massachusetts, Worcester..

Argued September 6, 2018

Decided September 4, 2019

Ellyn H. Lazar, Assistant District Attorney, for the Commonwealth.

Peter L. Ettenberg for the defendant.

Chauncey B. Wood, K. Neil Austin, Caroline S. Donovan, & Joanna McDonough, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

Until recently, we provided only limited guidance regarding legal instructions furnished to grand juries. We had held, for example, that "it is the duty of the district attorney in appropriate instances to advise [the grand jury] concerning the law," Attorney Gen. v. Pelletier, 240 Mass. 264, 307, 134 N.E. 407 (1922), and that an appropriate instance for such instructions is when the grand jury request them, Commonwealth v. Noble, 429 Mass. 44, 48, 707 N.E.2d 819 (1999). Then, in Commonwealth v. Walczak, 463 Mass. 808, 979 N.E.2d 732 (2012), we held that where the Commonwealth seeks to indict a juvenile for murder, and substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility) is presented to a grand jury, the Commonwealth must instruct the grand jury on the elements of murder and on the legal significance of those mitigating circumstances or defenses. Id. at 810, 979 N.E.2d 732. We are called on in this case to determine whether the Commonwealth's failure to provide instructions to the grand jury regarding the significance of the mitigating evidence it presented requires dismissal of an indictment against an adult for murder in the first degree.

As reflected in this plurality opinion and in the separate opinions that follow, six Justices are of the view that it is generally advisable for prosecutors to instruct grand juries on the elements of lesser offenses and defenses whenever such instructions would help the grand jury to understand the legal significance of mitigating circumstances and defenses.¹

The Justices disagree, however, as to the consequences of failing to provide such instructions. The three Justices who subscribe to this plurality opinion would hold that the integrity of a grand jury is impaired, and the dismissal of an indictment due to the lack of instructions is therefore appropriate, only when the instructions likely would have given effect to a complete defense -- in other words, only where the exculpatory evidence² presented to the grand jury was so compelling that giving instructions on that evidence probably would have resulted in the grand jury returning a no bill. Two Justices -- Chief Justice Gants and Justice Lenk -- would hold that a prosecutor's failure to give a grand jury appropriate instructions on mitigating circumstances and defenses ought to result in the dismissal of an indictment if the absence of instructions probably influenced the grand jury's decision to return an indictment for murder as opposed to manslaughter or a no bill. Two other Justices -- Justice Cypher and Justice Lowy -- would hold that the integrity of a grand jury is impaired by a prosecutor's failure to give instructions only in cases where there has been affirmative prosecutorial misconduct, i.e., only if and when the facts known to the prosecutor clearly establish that the instruction would result in a complete exoneration, yet the prosecutor withholds appropriate instructions.

Because this case fails to satisfy the standards for dismissal set forth in this plurality opinion and in Justice Cypher's concurring opinion, five Justices (those who subscribe to this opinion and Justice Cypher's opinion) agree that, here, the indictment should not have been dismissed.

Background. The evidence presented to the grand jury was as follows. On the evening of May 7, 2014, the defendant banged on her neighbors' door and asked for help. The neighbors followed the defendant to her home and discovered the victim (the defendant's fiancé) on the floor in the kitchen covered in blood. His carotid artery had been cut; efforts to resuscitate him failed. When asked what had happened, the defendant responded, "[H]e hit me, so I hit him."

Later that night, the defendant gave a recorded interview to police in which she stated that, on the night of the killing, both she and the victim had been drinking when he became "physical." The victim began choking and beating the defendant; he then pulled out "knives and guns." At one point it appears that both had knives, and that the victim was choking the defendant. When the defendant tried to protect herself, the victim told her that he had been stabbed and that he felt dizzy. The defendant observed the stab wound

to the victim's neck. After being unable to find her cellular telephone (cell phone), she went to the neighbors' house for help. The detective who interviewed the defendant stated that he could "see the bruises" on her.

Witnesses testified to seeing bruises on the defendant at various times during the relationship. The defendant told one witness that the victim had put a gun to the defendant's mouth on multiple occasions, and she told police that the victim had been abusive toward her.³ The police seized the defendant's cell phone and recovered a text message from the victim in which he threatened to kill the defendant's former boyfriend; that message was accompanied by a photograph of the victim holding a gun.

There also was evidence of the defendant's history of violence, including against the victim. A neighbor had heard the defendant yelling at the victim two or three times per week. Another witness observed the defendant berating the victim and "throwing closed fist punches" at him. The defendant's former boyfriend testified that the defendant told him that she had anger issues and that when she gets upset she could "actually murder somebody." The defendant admitted to him that she had stabbed the victim on a previous occasion.⁴ Moreover, during an argument with the former boyfriend, the defendant pulled a knife out, but he was able to knock it out of her hand.

Prior proceedings. The defendant initially was arraigned in the District Court on a charge of manslaughter. Over the course of a year, four different grand juries heard evidence pertaining to the homicide, the last of which issued indictments against the defendant charging her with murder and assault and battery with a dangerous weapon.⁵ The defendant moved to dismiss the murder charge, arguing among other things that the Commonwealth had failed to provide the grand jury with instructions regarding the mitigating circumstances that it presented. A judge in the Superior Court allowed the motion, concluding that although there was probable cause to return an indictment for murder, the Commonwealth's failure to provide instructions on the mitigating factors impaired the integrity of the grand jury proceedings. After a motion for reconsideration was denied, the Commonwealth appealed. We granted the defendant's application for direct appellate review.

Discussion. 1. Standard. The grand jury are an investigatory body with a dual function: "determining whether there is probable cause to believe that a crime has been committed and ... protecting citizens against unfounded criminal prosecutions." Lataille v. District Court of E. Hampden, 366 Mass. 525, 532, 320 N.E.2d 877 (1974). See Jones v. Robbins, 8 Gray 329, 342, 350 (1857) (under art. 12 of Massachusetts Declaration of Rights, grand jury indictment is required for crimes punishable by term in State prison).

The role of a grand jury is vastly different from that of the petit jury. "[A] grand jury indictment depends only on the existence of evidence sufficient to warrant a finding of probable cause to arrest [the defendant]" (quotations omitted), Commonwealth v. Maggio, 414 Mass. 193, 198, 605 N.E.2d 1247 (1993), quoting Commonwealth v. O'Dell, 392 Mass. 445, 451, 466 N.E.2d 828 (1984). "As the standard is most often formulated, probable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Storey, 378 Mass. 312, 321, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980), and cases cited. See Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992), quoting Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45, 534 N.E.2d 24 (1989) ("The officers must have entertained rationally ‘more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt’ "). Grand jury proceedings are secret and nonadversary in nature, and thus the person under investigation is not entitled to be represented by counsel, "to present witnesses, to cross-examine adverse witnesses, or even to be present." Commonwealth v. Gibson, 368 Mass. 518, 525 n.2, 333 N.E.2d 400 (1975), S.C., 377 Mass. 539, 387 N.E.2d 123 (1979) and 424 Mass. 242, 675 N.E.2d 776, cert. denied, 521 U.S. 1123, 117 S.Ct. 2518, 138 L.Ed.2d 1020 (1997), citing United States v. Calandra, 414 U.S. 338, 343-346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

"Because of ... the availability of an unprejudiced petit jury at trial, the safeguards deemed necessary to protect an accused before a petit jury are not implicated to the same degree in grand jury proceedings." Commonwealth v. McLeod, 394 Mass. 727, 733, 477 N.E.2d 972 (1985). See Commonwealth v. Geagan, 339 Mass. 487, 499, 159 N.E.2d 870, cert. denied, 361 U.S. 895, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959). That is, the dismissal of an indictment is not required "[a]s long as the evidence before the grand jury was sufficient to warrant a conclusion of probable cause and the integrity...