Opinion
10-P-1867
12-02-2011
COMMONWEALTH v. JOSEPH S. KING.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury waived trial in the Superior Court, the defendant was convicted of various offenses stemming from the sexual abuse of his son. The child was four or five years old at the time of the incident. The sole issue on appeal is whether the motion judge erred in denying the defendant's motion to dismiss the indictments on the grounds that the integrity of the grand jury was impaired. For substantially the reasons set forth in the Superior Court judge's thoughtful written endorsement on the motion, we affirm the judgments of conviction.
The defendant contends that the use of leading questions and the withholding of allegedly exculpatory evidence warranted dismissal of the indictments returned against him. 'To justify dismissal of an indictment, a defendant must show not only that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment, but also that on the entire grand jury record, the false or deceptive evidence was material to the question of probable cause and probably made a difference in the grand jury's decision.' Commonwealth v. McCowen, 458 Mass. 461, 474 (2010). The defendant has failed to show that the prosecutor's questioning impaired the proceeding, much less that the prosecutor phrased the questions in such a way as to mislead the grand jury. Even though leading questions were used, the witnesses adopted and agreed with the facts contained in the questions. Thus, passing on the issue whether it is prudent to lead witnesses in a nonadversial setting, the grand jurors were not prevented from fully weighing and assessing the testimony.
Nor is there any merit to the defendant's claim that the Commonwealth concealed exculpatory information from the grand jury. The defendant contends that various reports prepared by social workers involved with the child's family raised questions about the child's credibility, and therefore, the prosecutor should have presented them to the grand jury. Even assuming without deciding that the evidence in question is exculpatory, there is no basis for concluding that the omission of this evidence seriously tainted the proceedings. See Commonwealth v. Wilcox, 437 Mass. 33, 33-37 (2002).
Judgments affirmed.
By the Court (Vuono, Sikora & Hanlon, JJ.),