August 22, 2017
MEMORANDUM AND ORDER ON DEFENDANT'S " MOTION
TO DISMISS INDICTMENTS DUE TO IMPAIRMENT OF THE GRAND JURY
C. Cosgrove, Associate Justice.
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."
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).
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).
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.
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, "
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."
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).
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."
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
Commonwealth v. Rubino, Mass. Super. Ct. No.
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.
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 ...