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Commonwealth v. Depina-Cooley

Appeals Court of Massachusetts, Suffolk

April 26, 2019

COMMONWEALTH
v.
MILA DEPINA-COOLEY.

          Heard: December 11, 2018

         Indictments found and returned in the Superior Court Department on January 13, 2017.

         A motion to dismiss was heard by William F. Sullivan, J.

          Paul B. Linn, Assistant District Attorney (Michele E. Granda, Assistant District Attorney, also present) for the Commonwealth.

          Michael P. Doolin (William T. Broderick also present) for the defendant.

          Present: Meade, Agnes, & Englander, JJ.

          ENGLANDER, J.

         This 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.

         Background.

         On 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.

         As 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.

         The 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.

         As the 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.

         The 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 ...


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