Supreme Judicial Court of Massachusetts, Worcester
September 6, 2018
N.E.3d 699] INDICTMENTS found and returned in the Superior
Court Department on June 16, 2015., A motion to dismiss was
heard by Janet Kenton-Walker, J., and a motion for
reconsideration was also heard by her.
Supreme Judicial Court granted an application for direct
H. Lazar, Assistant District Attorney, for the Commonwealth.
L. Ettenberg for the defendant.
B. Wood, K. Neil Austin, Caroline S. Donovan, & Joanna
McDonough, for Massachusetts Association of Criminal Defense
Lawyers, amicus curiae, submitted a brief.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
N.E.3d 700] Until recently, we provided only limited guidance
regarding legal instructions furnished to grand juries. We
had held, for example, that "it is the duty of the
district attorney in appropriate instances to advise [the
grand jury] concerning the law," Attorney Gen. v.
Pelletier, 240 Mass. 264, 307, 134 N.E. 407 (1922), and
that an appropriate instance for such instructions is when
the grand jury request them, Commonwealth v. Noble,
429 Mass. 44, 48, 707 N.E.2d 819 (1999). Then, in
Commonwealth v. Walczak, 463 Mass. 808, 979 N.E.2d
732 (2012), we held that where the Commonwealth seeks to
indict a juvenile for murder, and substantial evidence of
mitigating circumstances or defenses (other than lack of
criminal responsibility) is presented to a grand jury, the
Commonwealth must instruct the grand jury on the elements of
murder and on the legal significance of those mitigating
circumstances or defenses. Id. at 810, 979 N.E.2d
732. We are called on in this case to determine whether the
Commonwealths failure to provide instructions to the grand
jury regarding the significance of the mitigating evidence it
presented requires dismissal of an indictment against an
adult for murder in the first degree.
reflected in this plurality opinion and in the separate
opinions that follow, six Justices are of the view that it is
generally advisable for prosecutors to instruct grand juries
on the elements of lesser offenses and defenses whenever such
instructions would help the grand jury to understand the
legal significance of mitigating
circumstances and defenses.
N.E.3d 701] The Justices disagree, however, as to the
consequences of failing to provide such instructions. The
three Justices who subscribe to this plurality opinion would
hold that the integrity of a grand jury is impaired, and the
dismissal of an indictment due to the lack of instructions is
therefore appropriate, only when the instructions likely
would have given effect to a complete defense -- in other
words, only where the exculpatory evidence presented to
the grand jury was so compelling that giving instructions on
that evidence probably would have resulted in the grand jury
returning a no bill. Two Justices -- Chief Justice Gants and
Justice Lenk -- would hold that a prosecutors failure to
give a grand jury appropriate instructions on mitigating
circumstances and defenses ought to result in the dismissal
of an indictment if the absence of instructions probably
influenced the grand jurys decision to return an indictment
for murder as opposed to manslaughter
or a no bill. Two other Justices -- Justice Cypher and
Justice Lowy -- would hold that the integrity of a grand jury
is impaired by a prosecutors failure to give instructions
only in cases where there has been affirmative prosecutorial
misconduct, i.e., only if and when the facts known to the
prosecutor clearly establish that the instruction would
result in a complete exoneration, yet the prosecutor
withholds appropriate instructions.
Because this case fails to satisfy the standards for
dismissal set forth in this plurality opinion and in Justice
Cyphers concurring opinion, five Justices (those who
subscribe to this opinion and Justice Cyphers opinion) agree
that, here, the indictment should not have been dismissed.
evidence presented to the grand jury was as follows. On the
evening of May 7, 2014, the defendant banged on her
neighbors door and asked for help. The neighbors followed
the defendant to her home and discovered the victim (the
defendants fiancé ) on the floor in the kitchen
covered in blood. His carotid artery had been cut; efforts to
resuscitate him failed. When asked what had happened, the
defendant responded, "[H]e hit me, so I hit him."
that night, the defendant gave a recorded interview to police
in which she stated that, on the night of the killing, both
she and the victim had been drinking when he became
"physical." The victim began choking and beating
the defendant; he then pulled out "knives and
guns." At one point it appears that both had knives, and
that the victim was choking the defendant. When the defendant
tried to protect herself, the victim told her that he had
been stabbed and that he felt dizzy. The defendant observed
the stab wound to the victims neck. After being unable to
find her cellular telephone (cell phone), she went to the
neighbors house for help. The detective who interviewed the
defendant stated that he could "see the bruises" on
testified to seeing bruises on the defendant at various times
during the [130 N.E.3d 702] relationship. The defendant told
one witness that the victim had put a gun to the defendants
mouth on multiple occasions, and she told police that the
victim had been abusive toward her. The police seized the
defendants cell phone and recovered a text message from the
victim in which he threatened to kill the defendants former
boyfriend; that message was accompanied by a photograph of
the victim holding a gun.
also was evidence of the defendants history of violence,
including against the victim. A neighbor had heard the
defendant yelling at the victim two or three times per week.
Another witness observed the defendant berating the victim
and "throwing closed fist punches" at him. The
defendants former boyfriend testified that the defendant
told him that she had anger issues and that when she gets
upset she could "actually murder somebody." The
defendant admitted to him that she had stabbed the victim on
a previous occasion. Moreover, during an argument with the
former boyfriend, the defendant pulled a knife out, but he
was able to knock it out of her hand.
defendant initially was arraigned in the District Court on a
charge of manslaughter. Over the course of a year, four
different grand juries heard evidence pertaining to the
homicide, the last of which issued indictments against the
defendant charging her with murder and assault and battery
with a dangerous weapon. The defendant moved to dismiss the
murder charge, arguing among other things that the
Commonwealth had failed to provide the grand jury with
instructions regarding the mitigating circumstances that it
presented. A judge in the Superior Court allowed the motion,
concluding that although there was probable cause to return
an indictment for murder, the Commonwealths failure to
provide instructions on the mitigating factors impaired the
integrity of the grand jury proceedings. After a motion for
reconsideration was denied, the Commonwealth appealed. We
granted the defendants application for direct appellate
grand jury are an investigatory body with a dual function:
"determining whether there is probable cause to believe
that a crime has been committed and ... protecting citizens
against unfounded criminal prosecutions." Lataille
v. District Court of E. Hampden, 366 Mass. 525, 532, 320
N.E.2d 877 (1974). See Jones v. Robbins, 8 Gray 329,
342, 350 (1857) (under art. 12 of Massachusetts Declaration
of Rights, grand jury indictment is required for crimes
punishable by term in State prison).
role of a grand jury is vastly different from that of the
petit jury. "[A] grand jury indictment depends only on
the existence of
evidence sufficient to warrant a finding of probable cause to
arrest [the defendant]" (quotations omitted),
Commonwealth v. Maggio, 414 Mass. 193, 198, 605
N.E.2d 1247 (1993), quoting Commonwealth v. ODell,
392 Mass. 445, 451, 466 N.E.2d 828 (1984). "As the
standard is most often formulated, probable cause exists
where, at the moment of arrest, the facts and circumstances
within the knowledge [130 N.E.3d 703] of the police are
enough to warrant a prudent person in believing that the
individual arrested has committed or was committing an
offense." Commonwealth v. Storey, 378 Mass.
312, 321, 391 N.E.2d 898 (1979), cert. denied, 446 U.S. 955,
100 S.Ct. 2924, 64 L.Ed.2d 813 (1980), and cases cited. See
Commonwealth v. Santaliz, 413 Mass. 238, 241, 596
N.E.2d 337 (1992), quoting Commonwealth v. Rivera,
27 Mass.App.Ct. 41, 45, 534 N.E.2d 24 (1989) ("The
officers must have entertained rationally more than a
suspicion of criminal involvement, something definite and
substantial, but not a prima facie case of the commission of
a crime, let alone a case beyond a reasonable doubt ").
Grand jury proceedings are secret and nonadversary in nature,
and thus the person under investigation is not entitled to be
represented by counsel, "to present witnesses, to
cross-examine adverse witnesses, or even to be present."
Commonwealth v. Gibson, 368 Mass. 518, 525 n.2, 333
N.E.2d 400 (1975), S . C ., 377 Mass. 539,
387 N.E.2d 123 (1979) and 424 Mass. 242, 675 N.E.2d 776,
cert. denied, 521 U.S. 1123, 117 S.Ct. 2518, 138 L.Ed.2d 1020
(1997), citing United States v. Calandra, 414 U.S.
338, 343-346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
"Because of ... the availability of an unprejudiced
petit jury at trial, the safeguards deemed necessary to
protect an accused before a petit jury are not implicated to
the same degree in grand jury proceedings."
Commonwealth v. McLeod, 394 Mass. 727, 733, 477
N.E.2d 972 (1985). See Commonwealth v. Geagan, 339
Mass. 487, 499, 159 N.E.2d 870, cert. denied, 361 U.S. 895,
80 S.Ct. 200, 4 L.Ed.2d 152 (1959). That is, the dismissal of
an indictment is not required "[a]s long as the evidence
before the grand jury was sufficient to warrant a conclusion
of probable cause and the integrity of the proceedings was
unimpaired." Noble, 429 Mass. at 48, 707
N.E.2d 819, citing Commonwealth v. Mayfield, 398
Mass. 615, 619-620, 500 N.E.2d 774 (1986). See
Commonwealth v. McGahee, 393 Mass. 743, 746-747, 473
N.E.2d 1077 (1985). See also
Commonwealth v. ODell, 392 Mass. 445, 451, 466
N.E.2d 828 (1984) (standard for evidence in grand jury
proceedings is "considerably less exacting than a
requirement of sufficient evidence to warrant a guilty
considering the claim that the Commonwealths failure to
provide the grand jury with instructions on the legal
significance of the mitigating evidence prevented that body
from properly evaluating the evidence, the starting point is
the general principle that "[t]he extent of the
[prosecutor]s obligation to instruct the [g]rand [j]ury ...
must be defined with reference to the role of that
body," Walczak, 463 Mass. at 824, 979 N.E.2d
732 (Lenk, J., concurring), quoting People v.
Valles, 62 N.Y.2d 36, 38, 476 N.Y.S.2d 50, 464 N.E.2d
418 (1984); that is, "to protect the innocent, and bring
to trial those who may be guilty," State v.
Hogan, 336 N.J.Super. 319, 341, 764 A.2d 1012 (2001).
See Lataille, 366 Mass. at 532, 320 N.E.2d 877. As
noted supra, the evidence required to indict is
significantly less than that which is required to warrant a
finding of guilt beyond a reasonable doubt. Commonwealth
v. Moran, 453 Mass. 880, 883, 906 N.E.2d 343 (2009).
Because the Commonwealths [130 N.E.3d 704] burden of proof
for indictment is relatively low, see Lataille,
supra, "the defendant bears a heavy burden to show
impairment of the grand jury proceeding," see
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).
treatment of exculpatory evidence withheld from the grand
jury is particularly instructive in determining whether a
prosecutor has an obligation to instruct the body on certain
possible defenses. See Hogan, 336 N.J.Super. at 341,
764 A.2d 1012 ("a prosecutors obligation to instruct
the grand jury on possible defenses is a corollary to his [or
her] responsibility to present exculpatory evidence").
"Prosecutors are not required in every instance to
reveal all exculpatory evidence to a grand jury."
McGahee, 393 Mass. at 746, 473 N.E.2d 1077, citing
ODell, 392 Mass. at 447, 466 N.E.2d 828. Rather, the
integrity of the grand jury proceedings has been impaired and
dismissal is warranted where the omitted exculpatory evidence
"would likely have affected the grand jurys decision to
indict." Commonwealth v. Clemmey, 447 Mass.
121, 130, 849 N.E.2d 844 (2006). See Commonwealth v.
Connor, 392 Mass. 838, 854, 467 N.E.2d 1340 (1984)
("If the grand jury were not made aware of circumstances
which undermine the credibility of evidence that is likely to
have affected their decision to indict, then the appropriate
remedy may be dismissal of the indictment"). See also
ODell, supra at 447, 466 N.E.2d 828 ("the withholding
of a portion of the defendants statement distorted the
portion that was repeated to the grand jury in a way that so
seriously tainted the presentation to that body that the
indictment should not have been allowed to stand").
Similarly, the presentation of false or misleading evidence
only requires the dismissal of an indictment where the
evidence was presented with the knowledge that it was false,
with the express purpose of obtaining an indictment, and
"probably influenced the grand jurys determination to
hand up an indictment." Mayfield, 398 Mass. at
621, 500 N.E.2d 774.
stands to reason, then, that the same is true for
instructions regarding exculpatory evidence; that is, the
integrity of the grand jury proceedings would be impaired by
the lack of instructions only where providing them
"would likely have affected the grand jurys decision to
indict." Clemmey, 447 Mass. at 130, 849 N.E.2d
844. The defendant must establish that such instructions
likely would have given effect to a complete defense,
resulting in a no bill. See Hogan, 336 N.J.Super. at
341-342, 764 A.2d 1012 (adopting rule that prosecutors are
required to instruct on possible defenses only where, if
believed, defense would result in finding of no criminal
liability). See also Bank of Nova Scotia v. United
States, 487 U.S. 250, 256, 108 S.Ct. 2369, 101 L.Ed.2d
228 (1988), quoting United States v. Mechanik, 475
U.S. 66, 78, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)
("dismissal of [an] indictment is appropriate only if
it is established that the [omission] substantially
influenced the grand jurys decision to indict, or if there
is grave doubt that the decision to indict was free from
the substantial influence of such [omission]").
showing by the defendant that a grand jury might have
determined that a lesser charge was more appropriate would
not by itself render the entire prosecution unwarranted, nor
does it negate probable cause for the offense as charged, see
Moran, 453 Mass. at 883-884, 906 N.E.2d 343. Thus,
this is not a basis for holding that the integrity of a grand
jury proceeding was impaired.
N.E.3d 705] This is so for two interrelated reasons. First,
as discussed supra, the role of the grand jury is
limited. They are no more than an investigatory and
accusatory body. See Lataille, 366 Mass. at 532, 320
N.E.2d 877. Unlike the petit jury, who are tasked with
determining whether a defendant is guilty beyond a reasonable
doubt of the crime charged or of a lesser offense, the grand
jury "cannot and do[ ] not determine guilt."
Commonwealth v. Wilcox, 437 Mass. 33, 39, 767 N.E.2d
1061 (2002), quoting Brunson v. Commonwealth, 369
Mass. 106, 120, 337 N.E.2d 895 (1975). See Commonwealth
v. Colon-Cruz, 408 Mass. 533, 549, 562 N.E.2d 797 (1990)
("The grand jury ... is not the appropriate forum for
determining guilt or innocence"). Instead, the grand
jury need only "hear sufficient evidence to establish
the identity of the
accused ... and probable cause to arrest him" in order
to indict (citations omitted). Commonwealth v.
McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982).
Second, as a general rule, "[t]he Commonwealth is not
required to present evidence of so-called defenses or
otherwise disprove such matters before the grand jury."
Commonwealth v. Silva, 455 Mass. 503, 511, 918
N.E.2d 65 (2009). Nor is a prosecutor required to instruct
the grand jury on the elements of any lesser included
offenses. Noble, 429 Mass. at 48, 707 N.E.2d 819.
Indeed, prosecutors are permitted to use the same indictment
for charging the various degrees of homicide. See
Commonwealth v. DePace, 442 Mass. 739, 743, 816
N.E.2d 1215 (2004), cert. denied, 544 U.S. 980, 125 S.Ct.
1842, 161 L.Ed.2d 735 (2005) (statutory form of indictment
alleging murder is sufficient to charge murder under any
theory and in any degree, as well as manslaughter). Indeed,
the degree of murder is properly determined by the petit
jury, not the grand jury. Noble, supra at 48, 707
N.E.2d 819. McLeod, 394 Mass. at 733, 477 N.E.2d
972, quoting Brunson, 369 Mass. at 120, 337 N.E.2d
895; G. L. c. 265, § 1 ("The degree of murder shall be
found by the [petit] jury"). As the defendant is neither
entitled to have the grand jury instructed on the differences
between the degrees of homicide, nor to have the lowest
possible homicide charge returned, it follows that the
defendant is not entitled to have the grand jury instructed
on the significance of mitigating evidence presented that
might cause the body to find probable cause for manslaughter
rather than murder.
dissent and Justice Cyphers concurrence represent very
different views of the function of the grand jury and what it
means for that function to be impaired. Those views -- which
occupy different ends of the spectrum of possible resolutions
to this issue -- are unnecessarily extreme in comparison to
the more moderate, and more appropriate, approach laid out
dissent, Chief Justice Gants contends that the "relevant
inquiry is ... whether the grand jurys decision to return an
indictment for murder, rather than manslaughter, was
probably influenced by the absence of legal guidance."
Post at __, 130 N.E.3d 696. Thus, in the dissents
view, the integrity of the process was impaired here because
the omitted instructions on the excessive use of force in
self-defense probably would have led to a charge of
manslaughter. See post at __, 130 N.E.3d 696. This
view is flawed for a number of reasons.
and foremost, it does not comport with our case law. As
explained supra, the conclusion that the grand jury
process is impaired only if the omitted legal instructions
likely would have
resulted in a no bill is based on prior holdings of this
court pertaining to withheld exculpatory evidence. And these
prior decisions have held [130 N.E.3d 706] that the failure
to present exculpatory evidence impairs the integrity of the
process only where the omitted information "would likely
have affected the grand jurys decision to indict,"
Clemmey, 447 Mass. at 130, 849 N.E.2d 844, not, as
the dissent contends, if the omitted evidence might have
caused the grand jury to indict for a lesser offense. See
Mayfield, 398 Mass. at 621, 500 N.E.2d 774
(presentation of false or misleading evidence only impairs
integrity of grand jury process if, among other things, it
"probably influenced the grand jurys determination to
hand up an indictment").
to dicta in the concurring opinions in Walczak, the
dissent reasons that "[b]ecause mitigating evidence
tends to cast doubt on the Commonwealths proof regarding an
essential element of a crime for which the Commonwealth seeks
an indictment, it is exculpatory as to that crime."
Post at __, 130 N.E.3d 696, citing Walczak at
822-823, 979 N.E.2d 732');">979 N.E.2d 732');">979 N.E.2d 732');">979 N.E.2d 732 (Lenk, J., concurring); id.
at 839, 467 N.E.2d 1340 (Gants, J., concurring).
Granted, there are important consequences to the degree of
the charge, but the court heretofore has held that the
question for the purposes of the impairment analysis is
whether withheld evidence "would likely have affected
the grand jurys decision to indict," not whether they
would have preferred to indict for a lesser version of the
offense. Post at __, 130 N.E.3d 696. See
Clemmey, 447 Mass. at 130, 849 N.E.2d 844. See also
Noble, 429 Mass. at 48, 707 N.E.2d 819. The
dissents reasoning is also directly contradicted by the
practice in this Commonwealth of using the statutory form
murder indictment to charge both degrees of murder (unless
otherwise specified) and also manslaughter as a lesser
included offense, see DePace, 442 Mass. at 743, 816
N.E.2d 1215, and then leaving to the petit jury questions of
the actual degree of culpability, whether it be murder in the
first or second degree, manslaughter, or not guilty.
Noble, 429 Mass. at 48, 707 N.E.2d 819.
the dissent relies on Walczak as support for its
position that mitigating evidence should receive the same
treatment as exculpatory evidence when determining
impairment, post at __, 130 N.E.3d 696, but this
reliance is misplaced. The majority in Walczak, 463
Mass. at 809-810, 979 N.E.2d 732');">979 N.E.2d 732');">979 N.E.2d 732');">979 N.E.2d 732, held that this was true
with respect to juvenile defendants, but did not hold it to
be so for adult defendants. Only then Justice Gants and the
two Justices who joined him in his concurrence would have
applied this proposition to adult defendants. Id. at
841, 979 N.E.2d 732');">979 N.E.2d 732');">979 N.E.2d 732');">979 N.E.2d 732 (Gants, J., concurring). Justice Lenks
concurring opinion in that case, which was necessary to
arrive at the holding of the majority, was firmly grounded in
the unique consequences for juveniles facing indictments for
murder rather than manslaughter; she did not subscribe to the
view of Justice Gants in that case, that mitigating and
exculpatory evidence should receive the same treatment in
all cases. See id. at 822-823, 979
N.E.2d 732 [130 N.E.3d 707] (Lenk, J., concurring). It is
therefore incorrect to claim that the holding in
Walczak supports the proposition that grand jury
proceedings for adult defendants are impaired where the
omitted instructions relate to evidence that is merely
mitigating and not wholly exculpatory.
addition, the dissents view conflates the roles of the grand
jury and the petit jury. The duty of the grand jury is to
determine whether there is probable cause to believe the
crime alleged in the indictment has been
committed. See McCarthy, 385 Mass. at
163, 430 N.E.2d 1195. The petit jury, by contrast, uniquely
are responsible for making the determination whether the
defendant is guilty of the crime charged in the indictment,
of a lesser included offense, or
not at all. See Noble, 429 Mass. at 48, 707 N.E.2d
819; Colon-Cruz, 408 Mass. at 549, 562 N.E.2d 797.
Given this division of responsibility, the fact that a
possible outcome of the grand jury process is that a
defendant might be indicted for murder, only to be convicted
of a lesser offense (e.g., manslaughter) at trial, does not
call the integrity of that process into question.
although the dissent purports to limit its rule to requiring
instructions on mitigating evidence in murder cases, see
post at __, __, 130 N.E.3d 696, where the failure to
provide instructions might result in an indictment for murder
rather than manslaughter, see post at __, 130 N.E.3d
696, there exists no principled reason for such a
restriction. Taken to its logical conclusion, the dissents
rule would appear also to require prosecutors to provide
grand juries instructions for all lesser included offenses in
all criminal cases to avoid impairing the integrity of the
grand jury process. See Noble, 429 Mass. at 48, 707
N.E.2d 819 (excessive judicial regulation of grand jury
"would add delay and complexity without serving any
dissent agrees, as does Justice Lowy in his concurrence,
that, as a matter of best practices, instructions on both
defenses and mitigating circumstances should be provided to
grand juries, including instructions that might possibly
affect the decision whether to indict for manslaughter as
opposed to murder. See note 1, supra . However, the
operative question on a motion to dismiss an indictment is
whether the integrity of the grand jury proceedings has been
impaired, not whether a prosecutor has conformed to the best
practices, and the question whether the proceedings have been
impaired is determined only by asking whether, had there been
appropriate instructions, the grand jury would have returned
no indictment at all. See, e.g., Mayfield, 398 Mass.
at 621-622, 500 N.E.2d 774 (presentation of false [130 N.E.3d
708] or misleading evidence, even if intentional, by itself