February 11, 2016.
Indictments found and returned in the Superior Court
Department on October 6, 2014.
motion to dismiss the indictments was heard by Cornelius
J. Moriarty, II, J.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Bassil ( John E. Oh with her) for the defendant.
following submitted briefs for amici curiae.
J. Murphy for Women's and Children's Advocacy Project
at New England Law Boston.
J. Curtin, Assistant District Attorney, for District
Attorneys for the Berkshire, Bristol, Eastern, Middle,
Norfolk, Northern, Northwestern, Plymouth, Suffolk, and
J. Barter & Chauncey B. Wood for Committee for Public Counsel
Services & another.
Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines, JJ.
N.E.3d 185] On October 6, 2014, a grand jury returned six
indictments against the defendant, Carlos Stevenson: one
charging aggravated rape of a child with force, G. L. c. 265,
§ 22B; and five charging indecent assault and battery on
a child under the age
of fourteen, G. L. c. 265, § 13B. The defendant filed
a motion to dismiss the indictments, arguing, as is relevant
to this appeal, that the evidence presented to the grand jury
was insufficient because the Commonwealth offered only
hearsay testimony from a single witness, the investigating
hearing, a judge of the Superior Court allowed the
defendant's motion to dismiss without prejudice. The
judge concluded that, while an indictment generally may be
based solely on hearsay, the Commonwealth's exclusive
reliance on such testimony in the present case constituted
" extraordinary circumstances" that justified
dismissal of the indictments. In particular, the judge
determined that " there was no good reason for [the
complainant] not to testify," and the prosecutor's
decision not to seek her testimony deprived the defendant of
the opportunity to obtain pretrial discovery.
Commonwealth appealed the dismissal, and we granted the
defendant's application for direct appellate review. We
conclude that this case does not present an extraordinary
circumstance warranting a variance from our general approval
of indictments that are returned on the basis of hearsay
testimony. Therefore, the order of the Superior Court is
N.E.3d 186] 1. Evidence presented at the grand jury
testimony presented before the grand jury came exclusively
through one witness: the lead investigating officer on the
case, Detective Mark Santon of the Tisbury police department.
That evidence included the following.
22, 2014, a lieutenant with the West Tisbury police
department contacted Santon. The lieutenant informed Santon
that the complainant's boy friend reported to the West
Tisbury police that the complainant had, years before, been a
victim of sexual assault. Santon interviewed the ...