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Commonwealth v. Kaplan

Superior Court of Massachusetts, Norfolk

August 21, 2017

Commonwealth
v.
Alan Kaplan

          Filed August 22, 2017

          MEMORANDUM AND ORDER ON DEFENDANT'S " MOTION TO DISMISS INDICTMENTS DUE TO IMPAIRMENT OF THE GRAND JURY PROCEEDINGS"

          Robert C. Cosgrove, Associate Justice.

         On July 26, 2013, a vacant family dwelling at 71 Spooner Rd. in Brookline, Massachusetts was consumed by flames. The property was owned by an LLC of which the defendant, Alan Kaplan, was a principal. Kaplan had insured the property for $800, 000. On September 21, 2015, and Norfolk County Grand Jury returned indictments against Kaplan alleging arson of the dwelling, accessory before the fact to arson, arson of the building, and burning to defraud an insurance company. These indictments came after thirteen meetings of the grand jury stretching from October 17, 2013 through September 21, 2015. The Commonwealth's theory of the case was that Kaplan, pressed for money, and saddled with a property that had become essentially valueless, solicited an acquaintance named Steve McCann to torch it. The indictments were returned after McCann, who had entered into a plea agreement with the Commonwealth, testified before the grand jury admitting to setting the fire and implicating Kaplan. The matter is now before the court on Kaplan's motion to dismiss the indictments, because, he argues, " the manner in which the Commonwealth presented the evidence to the grand jury impaired the integrity of . . . [its] proceedings."

         The familiar and long-standing rule in this Commonwealth is that " a court will not review the competency or sufficiency of the evidence before a grand jury." Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984). There are two notable exceptions to this rule. First, the Supreme Judicial Court has held that a court may consider whether the grand jury received " sufficient evidence to establish the identity of the accused . . . and [whether there was] probable cause to arrest him." Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982) (internal citation omitted). The defendant does not argue that the evidence was insufficient to establish probable cause to believe that the crimes for which he has been indicted had been committed, and to believe that he had committed them. Instead, the defendant relies on the second exception to the general rule, which holds that an indictment may be dismissed where " the integrity of the grand jury proceeding was impaired." O'Dell, 392 Mass. at 446-47. It is the defendant's burden to show impairment of the grand jury proceeding, and that burden is a heavy one. Commonwealth v. LaVelle, 414 Mass. 146, 150, 605 N.E.2d 852 (1993), citing Commonwealth v. Shea, 401 Mass. 731, 734, 519 N.E.2d 1283 (1988).

         As the Supreme Judicial Court has explained,

[d]ismissal of an indictment based on impairment of the grand jury proceedings requires proof of three elements: (1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury's decision to indict. Commonwealth v. Mayfield, 398 Mass. 615, 620-22, 500 N.E.2d 774 (1986). Inaccurate testimony made in good faith does not require dismissal of an indictment. Id. at 620, citing Commonwealth v. Reddington, 395 Mass. 315, 320, 480 N.E.2d 6 (1985). Failure to present known information also may impair grand jury proceedings in circumstances that warrant dismissal. See Commonwealth v. Connor, 392 Mass. 838, 854, 467 N.E.2d 1340 (1984) (failure to disclose known information that would greatly undermine credibility of important witness); Commonwealth v. O'Dell, 392 Mass. 445, 446-47, 466 N.E.2d 828 (1984) (unfair and misleading to withhold exculpatory portion of defendant's statement).

Commonwealth v. Silva, 455 Mass. 503, 509, 918 N.E.2d 65 (2009). The test requires that the defendant demonstrate " that the prosecutor knowingly distorted . . . evidence or withheld exculpatory information, which, if revealed, would have influenced the grand jury not to indict." Commonwealth v. Petras, 26 Mass.App.Ct. 483, 490, 529 N.E.2d 404 (1988).

         At the start of the September 21, 2015 grand jury presentation the prosecutor introduced as an exhibit that she identified as " two discs with Norfolk County House of Correction jail calls." None of these calls were played for the grand jurors, nor were they referenced further by the prosecutor or any witness. The Commonwealth represents, and the court accepts, that the grand jury had at their disposal a device that could play the discs if the grand jurors chose to utilize it. The court has not listened to all of the calls contained on the discs, but accepts as well the defendant's representation that they contain a total of 78 hours of recorded telephone calls that McCann made while held on bail.

         The defendant points to two sets of statements made by McCann while talking to a girlfriend, Venus Cloutier, which he argues are exculpatory. The first is a May 10, 2014 phone conversation wherein Cloutier professed her belief in his innocence and asked whether he would take a plea bargain or " just keep fighting for what you know is right?" McCann replies that he would be willing to accept the disposition of three years or less but adds that " what they want is they want me to tell them that Alan paid me to do it. Which he didn't. And I didn't . . . They want to tie me and Alan Kaplan together." McCann insists that he is " not willing to fuck somebody else's life up." Although it had " crossed [his] mind to sell somebody else down the river just so that [he] can get out, " he " can't do that" because " it's not right." Cloutier reframed his choice as " putting an innocent person behind bars, or you sit behind bars, " to which McCann responded, " Correct."

         In a supplementary submission to the court, Kaplan points to an April 3, 2014 conversation between the same parties. Cloutier told McCann that an insurance investigator been trying to get her to persuade McCann to provide incriminating evidence against Kaplan. McCann responded that " if I tell them that somebody hired me to do it, then they get to take down two people. And nobody hired me to do anything, so why would I, why would I do that to somebody who didn't do anything? He's trying to nail down an innocent guy."

         As Kaplan points out, McCann's statements to the effect that Kaplan is innocent, that he didn't do anything, and that nobody hired McCann to do anything directly contradict the powerfully inculpatory grand jury testimony that McCann offered against Kaplan little more than a year later. A prosecutor is by no means required to present to a grand jury all evidence that may be exculpatory, but is required to present exculpatory evidence " that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury's decision." Commonwealth v. Clemmey, 447 Mass. 121, 130, 849 N.E.2d 844 (2006), quoting Commonwealth v. Wilcox, 437 Mass. 33, 37, 767 N.E.2d 1061 (2002).

         The motion to dismiss before is court is unusual in that the district attorney did present the statements at issue to the grand jury by means of introducing as an exhibit audio recordings that contained them. Kaplan argues, however, that a mere pro forma introduction of non-testimonial exculpatory evidence whose very existence will not be apparent to the grand jury absent any effort by the Commonwealth to call attention to it is insufficient. He points out that the grand jury had no transcript of the calls in question and that the May 10, 2014 statement at issue comes during the 76th hour of 78 hours of recorded telephone calls. Noting that the grand jury returned the indictments against Kaplan the very same day that all of the recorded calls were introduced, the defendant concludes that, " as the grand jury were not advised to look and listen to the call[s], it beggars belief that they ever did." The Commonwealth characterizes this argument as " ask[ing] the court to place itself in the jury room, speculate as to what went on during deliberations, and assume that the jurors did not review the evidence that possibly [the defendant] considers exculpatory." It suggests that " such speculation is not within the purview of the court."

         As a general rule, courts should avoid drawing inferences about the deliberations of juries based on the length of their deliberations. Routinely, petit jurors hear cases in which voluminous medical or financial records are introduced, go to the jury room and deliberate but briefly, then return and deliver a verdict. A disappointed litigant will not be heard to complain that the verdict is invalid because the jury could not possibly have examined the evidence in the available time. At a trial, however, both plaintiff and defendant, or in a criminal case Commonwealth and defendant are represented by counsel, and have the opportunity to highlight such evidence as they wish, both during its introduction in the examination of witnesses, and in closing argument before the jury. No such opportunity exists before the grand jury; if exculpatory evidence is going to be called to their attention, it will have to be presented by the prosecutor.

         In Commonwealth v. Rubino, Mass. Super. Ct. No. 00-0528, KAVITA2000 WL 33799721 (2000) (Middlesex County Nov. 16, 2000), a justice of this court (Agnes, J.) considered a similar issue in the context of a McCarthy motion. There, the grand jury had returned indictments against the defendant, including two counts of knowingly possessing visual material depicting persons under the age of 18 who are engaged in sexual activity in violation of G.L.c. 272, § 29C. KAVITAId. at *1. At issue was whether the Commonwealth had introduced sufficient evidence to establish that the defendant knew that the visual images he possessed of people engaged in sex acts involved a child under the age of 18. KAVITAId. at *4. To that end, the Commonwealth had marked as an exhibit for the grand jury two videotapes, and argued that the court should presume that the grand jurors had viewed them and made their own reasonable judgment as to the age of those depicted in the tapes. KAVITAId. at *5. The court disagreed, observing that " unlike a book, a ...


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