Heard: December 11, 2018
found and returned in the Superior Court Department on
January 13, 2017.
motion to dismiss was heard by William F. Sullivan, J.
B. Linn, Assistant District Attorney (Michele E. Granda,
Assistant District Attorney, also present) for the
Michael P. Doolin (William T. Broderick also present) for the
Present: Meade, Agnes, & Englander, JJ.
case raises the question whether three indictments returned
against the defendant must be dismissed because an
unauthorized person, a police officer, was present when one
of the witnesses testified before the grand jury. Although
there is no showing that the defendant was prejudiced by the
officer's presence, the Superior Court judge ruled that
the case law nevertheless required dismissal of two of the
three indictments. We conclude that in the particular
circumstances here -- which included an express instruction
by the prosecutor to disregard the testimony of the witness
in question -- the indictments should not have been
dismissed. We accordingly vacate the portion of the order
that dismissed the two indictments, and affirm the remainder.
January 13, 2017, a Suffolk County grand jury returned three
indictments charging the defendant, Mila Depina-Cooley, with
receiving stolen property with a value in excess of $250. The
grand jury heard testimony from eight witnesses over six days
between January 3, 2017, and January 13, 2017. The gist of
the evidence was that the defendant had purchased Home Depot
(store) gift cards from an individual, referred to as
"subject [no.] 1," at a fifty-percent discount.
Subject no. 1 was a store employee, and the
Commonwealth's theory was that subject no. 1 would steal
merchandise from the store and then provide it to a series of
individuals -- called "runners" -- who would then
return the items to the store. The store issued the runners
gift cards for the returned merchandise, which the runners
provided back to subject no. 1.
indicated, the defendant's involvement in the scheme was
as a purchaser from subject no. 1 of the gift cards, and
sometimes of merchandise, at a price well below their value.
The defendant was a Boston police officer. The grand jury
evidence included recordings of telephone conversations and
text messages between the defendant and subject no. 1
regarding the purchases.
unauthorized presence issue pertained to the grand jury
testimony of one of the runners, R.C. R.C. was one of five
runners to testify. R.C. was brought to the grand jury room
in shackles by Lieutenant Christopher Hamilton of the State
Police, because R.C. was in custody on a probation surrender
matter at the time. The prosecutor then invited Lieutenant
Hamilton into the grand jury room to guard R.C. After one of
the members of the grand jury inquired, the prosecutor
introduced Lieutenant Hamilton.
judge aptly put it, Lieutenant Hamilton "was an
inappropriate choice as guard." Lieutenant Hamilton did
not testify before the grand jury, but he supervised the lead
investigator on the case. He was present during an interview
of the defendant on December 6, 2016, recordings of which
were presented to the grand jury. Lieutenant Hamilton may
also be called as a witness at trial.
prosecutor realized her error, however, even before the grand
jury had completed its work. Accordingly, on January 13,
2017, the prosecutor instructed the grand jury to
"disregard in its entirety" the testimony of R.C.,
and explained that Lieutenant Hamilton should not have been
present during R.C.'s testimony. Shortly thereafter the
grand jury returned the three indictments for receiving
stolen property with a ...