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Commonwealth v. Holley

Supreme Judicial Court of Massachusetts, Bristol

December 19, 2016


          Heard: September 9, 2016.

         Homicide. Grand Jury. Evidence, Prior misconduct, Expert opinion. Practice, Criminal, Capital case, Grand jury proceedings, Prosecutor's conflict of interest, Opening statement, Argument by prosecutor, New trial.

         Indictment found and returned in the Superior Court Department on June 29, 2007.

         The case was tried before Robert J. Kane, J., and a motion for a new trial, filed on October 3, 2014, was considered by him.

          David H. Mirsky (Joanne T. Petito with him) for the defendant.

          Shoshana Stern, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ.

          BUDD, J.

         In December of 2011, a jury convicted the defendant, Jermaine Holley, of murder in the first degree on a theory of extreme atrocity or cruelty in connection with the death of the victim, Susy Goulart, in April, 2005.[1]

         On appeal, the defendant asserts errors in (1) the presence of police officers in the grand jury room while the Commonwealth presented witness testimony in support of the murder indictment; (2) the trial judge's denial of the defendant's motion for the appointment of a special prosecutor; (3) several evidentiary rulings by the trial judge; (4) the prosecutor's opening statement and closing argument; and (5) the trial judge's denial of his motion for a new trial. The defendant also seeks relief under G. L. c. 278, § 33E. After full consideration of the trial record and the defendant's arguments, we affirm the defendant's conviction and the denial of his motion for a new trial, and we decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.


         We summarize the facts the jury could have found, reserving certain details for discussion of specific issues. The victim lived in a multibuilding public housing development in Fall River. On the day of her death, the victim's former friend and neighbor, Patricia Moran, moved out of her apartment because she had been evicted as the result of both nonpayment of rent and a then-pending criminal charge of assaulting the victim during a dispute over a debt. Moran's boy friend and his brother, the defendant, had often visited Moran at the development. The defendant was among those who helped move Moran's belongings into a truck after which the group drank alcohol outside her building. The defendant told one of these people that the victim owed Moran money. The defendant was still at Moran's building at approximately 8 P.M. At approximately 9 P..M., a neighbor saw the victim walking home from the direction of Moran's building. The victim then stopped to smoke a cigarette while with her downstairs neighbors near the back door of her own building. As the victim was walking upstairs afterward, the neighbors saw an African-American man also walk upstairs. He did not respond when the victim asked him, "Are you here for me?" The hood the man was wearing blocked most of his face. Earlier in the day, a resident had seen the defendant wearing a "hoodie."

         Soon after the victim and the man walked up the stairs, the neighbors she had been smoking with heard the victim's apartment door lock and then the sound of loud music. A neighbor who lived next door to the victim, also heard people enter the apartment. Later, this neighbor heard a scream but could not tell the source. Shortly after that, she saw smoke coming from the victim's apartment and telephoned the fire department. No one saw or heard anyone else enter or leave the apartment, and the victim did not answer her friend's telephone calls at 10:13 P.M. and 11:32 P.M.

         Police, fire fighters, and paramedics responded to the scene. A pot on the stove was on fire, blood was seen throughout the living room and kitchen, and the victim was dead on the floor, wearing only a shirt and holding a severed telephone line. An autopsy showed that she had died as a result of forty stab wounds and thirteen cutting wounds. The knife used in the killing was never found.

         Investigators took samples of blood, clothing (including a bloody sock), and powder and gelatin lifts of fingerprint and footwear impressions from the victim's apartment, as well as fingernail scrapings, a blood sample, and oral, vaginal, and anorectal swabs from the victim's body. The State police crime laboratory compared deoxyribonucleic acid (DNA) samples from the evidence collected to DNA samples from the victim, the defendant, the defendant's brother, and the first police officer to respond to the fire. Over the course of the investigation, the police also found and seized a pair of the defendant's shoes, the soles of which were consistent with footprint impressions found in blood in the victim's apartment.

         Residents of the housing complex told police that they had seen the defendant with a knife on the day the victim was killed. At around noon, the defendant showed his knife to one resident who had stopped by Moran's apartment. It was approximately eleven inches long with a black handle and black sheath. That afternoon, the defendant visited another resident's apartment to demand money that the resident's former boy friend owed to the defendant. When the resident told the defendant that she was not responsible for the debt, the defendant lifted his hoodie and shirt to show her a knife with a black and silver handle in a "holster, " and said he would be back. A third resident, Jose Torres, said that the defendant had waved a large knife at Torres and his friends on the day of the murder.

         Five days after Goulart's death, the police went to speak with the defendant. He was brought to the police station, where an officer noticed a cut on the defendant's hand. A test for blood on both of his hands was negative.

         After giving the defendant the Miranda warnings, the police interviewed him about the victim's death. During the interview, the defendant denied being at the housing complex on the day of the murder and denied knowing personally or having sex with the victim (he even initially denied knowing Moran).[2] He also falsely stated that he and his girl friend had gone to Newport, Rhode Island, on the day of the victim's death. When the police asked the defendant if he could think of anything worse than murder, he said, "You can snitch on somebody. That's like taking somebody's life." At some point, the defendant apparently had told his girl friend that the victim was a snitch.

         At trial, the defendant pointed to the victim's former boy friend as the murderer, suggesting that the police had narrowed their search too quickly to African-American men, and highlighting a number of reasons that the boy friend had to kill the victim, including their turbulent relationship and the fact that she had had sex with the defendant. The defendant also presented evidence that the boy friend had been in the housing complex on the day of the murder. The defense stressed the lack of fingerprint evidence linking the defendant to the murder and argued that the number and type of stab wounds were indicative of the victim's boy friend's obsession with and anger at her. The victim's boy friend had been seen elsewhere on the evening of the murder.

         2. Discussion.

         a. Unauthorized persons in the grand jury room.

         In the defendant's motion for a new trial, and again on appeal, he argued that his indictment must be dismissed because of the presence of unauthorized persons in the grand jury room. Two police officers involved in the investigation of this case, who were witnesses before the grand jury in the matter, were present in the grand jury room for most, if not all, of the other witnesses' testimony. Both parties agree that the officers' presence was improper. The defendant contends that this error rendered his indictment void ab initio, requiring not only the vacation of his conviction but also the dismissal of the indictment under the United States Constitution and the Massachusetts Declaration of Rights. Alternatively, the defendant argues that if the indictment was not void, he is nevertheless entitled to a new trial based on the ineffective assistance of trial counsel, who failed to move to dismiss the indictment or even to raise the issue prior to trial. We conclude that the indictment was voidable rather than void, and that, in this case, the defendant has failed to show that he was prejudiced by either the grand jury irregularity or his counsel's failure to raise the issue.

         Secrecy is of fundamental importance to grand jury proceedings, not only to protect the reputation of the accused, but also "to shield grand jury proceedings from any outside influences having the potential to 'distort their investigatory or accusatory functions.'" Commonwealth v. Pezzano, 387 Mass. 69, 73 (1982), quoting Opinion of the Justices, 373 Mass. 915, 918 (1977). A limited category of authorized persons, such as counsel for witnesses, interpreters, court officers, and stenographers, may be present during grand jury proceedings.[3]See Mass. R. Crim. P. 5 (c), as appearing in 442 Mass. 1505 (2004); Pezzano, supra at 72 n.5. This court has disapproved of the presence of "unauthorized" individuals, especially investigating police officers, because their presence has the potential to compromise the integrity of the process by, among other things, influencing witness testimony through intimidation. Pezzano, supra at 74-75. In Opinion of the Justices, 232 Mass. 601, 604 (1919), we stated that the "essential characteristics of the grand jury would be broken down if a police officer or other person who had investigated the evidence, interviewed the witnesses, and formulated a plan for prosecuting the accused should be permitted to be present during the hearing of testimony. . . . The attendance of a police officer would afford opportunity for subjecting witnesses to fear or intimidation, for preventing freedom of full disclosure by testimony, and for infringing the secrecy of the proceedings." Accordingly, we have held that "the presence of an unauthorized person before a grand jury will void an indictment." Pezzano, supra at 72-73, citing Commonwealth v. Harris, 231 Mass. 584, 586-587 (1919). In Pezzano, supra at 70, and Harris, supra at 585, the defendants challenged their indictments prior to trial. Here, however, the defendant did not contest the validity of the indictment until after his trial and conviction. Thus, we must determine whether the presence of unauthorized persons during grand jury proceedings automatically voids an indictment even in cases where there is no challenge made until after conviction.

         The defendant's right to indictment by a grand jury is protected by the Massachusetts Declaration of Rights.[4] Harris, 231 Mass. at 585-586; Jones v. Robbins, 8 Gray 329, 347 (1857). By waiting until after his conviction, however, the defendant has waived his right to object under Massachusetts law to defects in the underlying grand jury proceeding.[5] G. L. c. 277, § 47A (failure to object to grand jury defects before trial constitutes waiver). See Mass. R. Crim. P. 13 (c) (2), as appearing in 442 Mass. 1516 (2004) (motion to dismiss must be raised before trial). Compare Commonwealth v. Barbosa, 421 Mass. 547, 553 (1995) (right to object to indictment not waived and properly preserved where defendant moved to dismiss before trial), with Commonwealth v. Mayfield, 398 Mass. 615, 622 n.4 (1986) ("alleged flaws in the grand jury proceedings, argued on appeal for the first time, are not generally before us because they were not seasonably asserted"). Thus the defendant must show that the grand jury irregularity caused a substantial likelihood of a miscarriage of justice in the trial jury's verdict. See Mayfield, supra.

         The defendant has not shown that the presence of the police officers caused those who testified before the grand jury to feel coerced or intimidated.[6] The majority of the grand jury witnesses testified again at trial, where they were subject to cross-examination by the ...

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