Supreme Judicial Court of Massachusetts, Worcester
Heard: September 6, 2018.
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.
Chauncey B. Wood, K. Neil Austin, Caroline S. Donovan, &
Joanna McDonough, for Massachusetts Association of Criminal
Defense Lawyers, amicus curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,&
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 (1922), and that an
appropriate instance for such instructions is when the grand
jury request them, Commonwealth v.
Noble, 429 Mass. 44, 48 (1999). Then, in
Commonwealth v. Walczak, 463 Mass.
808 (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. We are called
on in this case to determine whether the Commonwealth's
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
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 prosecutor's 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 jury's 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 prosecutor's 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.
this case fails to satisfy the standards for dismissal set
forth in this plurality opinion and in Justice Cypher's
concurring opinion, five Justices (those who subscribe to
this opinion and Justice Cypher's 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 defendant's fiance) 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 victim's 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 her.
testified to seeing bruises on the defendant at various times
during the relationship. The defendant told one witness that
the victim had put a gun to the defendant's mouth on
multiple occasions, and she told police that the victim had
been abusive toward her. The police seized the
defendant's cell phone and recovered a text message from
the victim in which he threatened to kill the defendant's
former boyfriend; that message was accompanied by a
photograph of the victim holding a gun.
also was evidence of the defendant's 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
defendant's 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 Commonwealth's 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 defendant's 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 (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
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 (1993), quoting Commonwealth
v. O'Dell, 392 Mass. 445, 451 (1984).
"As the standard is most often formulated, probable
cause exists where, at the moment of arrest, the facts and
circumstances within the knowledge 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 (1979), cert, denied, 446 U.S. 955 (1980), and cases
cited. See Commonwealth v.
Santaliz, 413 Mass. 238, 241 (1992), quoting
Commonwealth v. Rivera, 27 Mass.
App. Ct. 41, 45 (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 (1975), S.C., 377 Mass. 539 (1979) and 424 Mass.
242, cert, denied, 521 U.S. 1123 (1997), citing United
States v. Calandra, 414 U.S. 338,
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 (1985). See
Commonwealth v. Geagan, 339 Mass.
487, 499, cert, denied, 361 U.S. 895 (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, citing Commonwealth v.
Mayfield, 398 Mass. 615, 619-620 (1986). See
Commonwealth v. McGahee, 393 Mass.
743, 746-747 (1985). See also Commonwealth
v. O'Dell, 392 Mass. 445, 451 (1984)
(standard for evidence in grand jury proceedings is
"considerably less exacting than a requirement of
sufficient evidence to warrant a guilty finding").
considering the claim that the Commonwealth's 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 (Lenk, J.,
concurring), quoting People v.
Valles, 62 N.Y.2d 36, 38 (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 (2001). See Lataille, 366 Mass.
at 532. 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 (2009). Because the Commonwealth's 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 (1993), citing
Commonwealth v. Shea, 401 Mass.
731, 734 (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
("a prosecutor's 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, citing
O'Dell, 392 Mass. at 447. 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 jury's
decision to indict." Commonwealth v.
Clemmey, 447 Mass. 121, 130 (2006). See
Commonwealth v. Connor, 392 Mass.
838, 854 (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 0'Dell,
supra at 447 ("the withholding of a portion of
the defendant's 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 jury's determination
to hand up an indictment." Mayfield, 398 Mass.
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 jury's
decision to indict." Clemmey, 447 Mass. at 130.
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
(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 (1988), quoting United
States v. Mechanik, 475 U.S. 66, 78
(1986) ("dismissal of [an] indictment is appropriate
only 'if it is established that the [omission]
substantially influenced the grand jury's decision to
indict,' or if there is 'grave doubt' that the
decision to indict was free from the substantial influence of
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. Thus, this is not a
basis for holding that the integrity of a grand jury
proceeding was impaired.
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. 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 (2002), quoting Brunson
v. Commonwealth, 369 Mass. 106, 120 (1975). See
Commonwealth v. Colon-Cruz, 408
Mass. 533, 549 (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 (1982).
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 (2009). Nor is a prosecutor required to instruct the
grand jury on the elements of any lesser included offenses.
Noble, 429 Mass. at 48. Indeed, prosecutors are
permitted to use the same indictment for charging the various
degrees of homicide. See Commonwealth v.
DePace, 442 Mass. 739, 743 (2004), cert, denied, 544
U.S. 980 (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. McLeod, 394
Mass. 733, quoting Brunson, 369 Mass. at 120; 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 Cypher's 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 jury's decision to
return an indictment for murder, rather than manslaughter,
was 'probably influenced' by the absence of legal
guidance." Post at . Thus, in the dissent's
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 . 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 that the
failure to present exculpatory evidence impairs the integrity
of the process only where the omitted information "would
likely have affected the grand jury's decision to
indict," Clemmey, 447 Mass. at 130, 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 (presentation of false or
misleading evidence only impairs integrity of grand jury
process if, among other things, it "probably influenced
the grand jury's determination to hand up an
to dicta in the concurring opinions in Walczak, the
dissent reasons that "[b]ecause mitigating evidence
tends to cast doubt on the Commonwealth's proof regarding
an essential element of a crime for which the Commonwealth
seeks an indictment, it is exculpatory as to that
crime." Post at, citing Walczak at
822-823 (Lenk, J., concurring); Id. at 839 (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 jury's decision to indict," not whether
they would have preferred to indict for a lesser version of
the offense. Post at . See Clemmey, 447
Mass. at 130. See also Noble, 429 Mass. at 48. The
dissent's 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, 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.
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, but this reliance is misplaced.
majority in Walczak, 463 Mass at 809-810, 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 (Gants, J, concurring). Justice Lenk's 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 (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 dissent's 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. 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;
Colon-Cruz, 408 Mass. at 549. 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, , where the failure to provide instructions
might result in an indictment for murder rather than
manslaughter, see post at, there exists no
principled reason for such a restriction. Taken to its
logical conclusion, the dissent's 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 (excessive judicial
regulation of grand jury "would add delay and complexity
without serving any significant purpose").
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 (presentation of false or misleading evidence,
even if intentional, by itself does not require dismissal;
defendant also must show that presentation of such evidence
probably influenced decision to indict). See also
Clemmey, 447 Mass. at 130; McGahee, 393
Mass. at 746-747 (same).
other end of the spectrum from the dissent, the concurrence
by Justice Cypher suggests that the integrity of the grand
jury process should be considered impaired only where the
prosecutor intentionally withholds instructions and providing
them probably would result in a complete exoneration.
Post at This position, like that of the dissent, is
not supported by our case law.
true that the intent of the prosecutor presenting the case to
the grand jury is an important factor in determining whether
dismissal of an indictment is required in circumstances like
this. In reviewing grand jury proceedings where false
information was provided, or exculpatory evidence was
withheld, we have required a showing that the conduct of the
prosecutor was intentional and done for the purpose of
obtaining an indictment. See Clemmey, 447 Mass. at
130, and cases cited; Mayfield, 398 Mass. at 621,
and cases cited. In other words, the court must consider
whether the prosecutor had actual possession or knowledge of
the evidence, see Wilcox, 437 Mass. at 37, and, if
so, whether the prosecutor withheld the evidence for valid
reasons unrelated to the indictment. See LaVelle,
414 Mass. at 150 (1993) (disclosure would have revealed
identity of police informant).
reviewing grand jury proceedings where instructions on the
law have been withheld does not lend itself to an inquiry
regarding intentionality. For example, in Walczak,
463 Mass. at 808, although we held that a prosecutor is
obligated to provide instructions on the significance of any
substantial mitigating evidence presented to the grand jury
when seeking to indict a juvenile for murder, we did not
require consideration whether the prosecutor committed
misconduct in withholding such instructions. Instructions on
the law, unlike exculpatory evidence, are always available to
the prosecution, so there is no question to be raised
regarding the prosecutor's knowledge and intent. See
Commonwealth v. Kelcourse, 404
Mass. 466, 468-469 (1989). See also Commonwealth
v. Reddington, 395 Mass. 315, 319-320
(1985) (defendant failed to establish that law enforcement
knew or should have known that evidence was false or
inaccurate). Moreover, prosecutors should be prepared to
furnish instructions if the grand jury request them. See
Noble, 429 Mass. at 48.
the relevant question is not whether the prosecution
intentionally withheld the instructions, but instead whether
the failure to give such instructions, regardless of intent,
results in an indictment where otherwise the grand jury would
have returned a no bill. It is the result of the omission of
the instructions, not the motive behind it, that determines
whether the process has been impaired to the point that a
dismissal is necessary.
approach does not, as Justice Cypher contends,
"establish another mechanism to dismiss an
indictment." Post at Instead, it does no more
(or less) here than to undergird the court's duty to
review grand jury proceedings where there is a claim that the
integrity of the proceedings has been impaired,
Mayfield, 398 Mass. at 619-620, and determine,
consonant with the court's case law, what constitutes an
impairment requiring dismissal. Nor does this approach
represent a "fundamental and significant change to grand
jury practice in the Commonwealth." Post at .
To the contrary, it likely would change very little. The only
cases affected by this approach will be those in which the
exculpatory evidence is compelling enough that the absence of
instructions on a complete defense probably would make a
difference in the grand jury's decision to hand up an
indictment; and as to those, one trusts that an indictment
would not be sought -- at least it should not be sought -- in
the first place. Limiting judicial intervention to
those indictments that enable "needless or
unfounded" prosecutions is consonant with the role of
the grand jury. Walczak, 463 Mass. at 849 (Spina, J.,
concurring in part and dissenting in part). See
Lataille, 366 Mass. at 532. See also Hogan,
336 N.J. Super, at 341-342.
case, the Commonwealth presented sufficient evidence to the
grand jury for them to find probable cause to believe that
the defendant committed murder. See McCarthy,
385 Mass. at 160, 163. That evidence included the fact that
the victim was found with a fatal stab wound to the neck,
that the defendant and the victim were fighting just prior to
the stabbing, and that they were the only adults in the house
at the time of the stabbing. The Commonwealth also presented
substantial evidence that could have been seen as
exculpatory, comprising testimony from witnesses who observed
bruises on the defendant, including on the night of the