Opinion
10-P-1627
10-20-2011
COMMONWEALTH v. DOUGLAS HENNESSY.
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
The defendant appeals from his convictions of filing a false report by a public employee, G. L. c. 268, § 6A, and committing a civil rights violation resulting in bodily injury, G. L. c. 265, § 37. The defendant is a police officer of the Massachusetts Bay Transportation Authority (MBTA) and the charges arose from his treatment of an intoxicated person who was placed in protective custody at the Forest Hills MBTA station. On appeal, the defendant raises three arguments. First, he contends that the indictments should have been dismissed because the integrity of the grand jury was impaired. Second, he argues that it was error to deny his motion to set aside the civil rights verdict, pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), because it was inconsistent with the jury's verdict that he was not guilty of the assault charges. Third, he argues that there was insufficient evidence to support the civil rights conviction. We affirm.
The defendant was acquitted of assault, G. L. c. 265, § 13A; assault and battery, G. L. c. 265, § 13A; and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b).
1. Claim of grand jury impairment. The defendant argues that the integrity of the grand jury was impaired because (1) the Commonwealth requested that the 2004 grand jury give the Attorney General custody and control of the evidence for presentment to a subsequent grand jury; (2) the prosecution read the first grand jury testimony of Officers Daniel and Barriteau to the second grand jury, rather than presenting those officers in person for a second time; and (3) only negative portions of his personnel file were placed before the grand jury.
'Although generally the adequacy or competency of evidence before a grand jury is not a matter for judicial inquiry (Commonwealth v. Robinson, 373 Mass. 591, 592 [1977]), we will consider . . . whether the defendant has shown that the integrity of the grand jury proceedings was impaired (Commonwealth v. O'Dell, 392 Mass. 445, 449-450 [1984]).' Commonwealth v. Mayfield, 398 Mass. 615, 619- 620 (1986). In order to succeed on a claim that the grand jury proceedings were impaired, a defendant must demonstrate that (1) false or deceptive evidence was knowingly presented to the grand jury (2) for the purpose of obtaining an indictment, and that (3) 'on the entire grand jury record, the false or deceptive testimony probably made a difference.' Id. at 621-622. Applying this framework to each of the irregularities claimed by the defendant, we conclude that he has failed to establish that the grand jury was impaired.
The matter was first presented to a grand jury in 2004, but that grand jury's term expired without the grand jury having voted to indict (or not). The 2004 grand jury did, however, vote to give the Attorney General's office custody and control of the records for presentment to a subsequent grand jury. The defendant argues that the prosecution somehow manipulated the process by presenting evidence to successive grand juries. There is, however, nothing in the record to indicate that the prosecution's request that the 2004 grand jury vote over the evidence for presentment to a subsequent grand jury was deceptive or manipulative. The prosecution may present the same matter to more than one grand jury. Commonwealth v. McCravy, 430 Mass. 758, 762-763 (2000). The mere fact that no evidence had been presented to the 2004 grand jury during the two months preceding the request to present the case to a subsequent grand jury is insufficient to establish the required deception.
Nor is there any error shown with respect to the presentation of hearsay testimony. It is well settled that 'it is not enough to justify dismissal of an indictment that the jurors received hearsay or hearsay exclusively, and this is so even when better testimony was available for presentation to the grand jury.' Commonwealth v. St. Pierre, 377 Mass. 650, 655 (1979). Commonwealth v. LaVelle, 414 Mass. 146, 149 (1993). A defendant must demonstrate that the use of hearsay was somehow false or deceptive. Id. at 149-150. Here, the defendant has failed to do so: the fact that the jurors were unable to question the witnesses whose testimony was read is not enough to render the use of the hearsay false or deceptive. Nothing in the record supports the notion that the prosecution knew that the testimony of one or both of these officers was false. Indeed, each officer testified consistently throughout the case. Cf. Commonwealth v. Lay, 63 Mass. App. Ct. 27, 31-32 (2005) (insufficient evidence to establish prosecutor's knowledge that testimony at suppression hearing was false even where witnesses altered testimony between proceedings).
Finally, the defendant has failed to demonstrate that the introduction of only the negative parts of his personnel file was false or deceptive. While a defendant's prior bad acts are generally not admissible to prove criminal propensity, such evidence may be admitted 'to show a common scheme or course of conduct, [or] a pattern of operation,' Commonwealth v. Barrett, 418 Mass. 788, 794 (1994), in this case the defendant's pattern of violating MBTA policies. Even were we to assume, however, that the materials were inadmissible, that alone would not necessarily impair the integrity of the grand jury proceeding. Commonwealth v. Brien, 19 Mass. App. Ct. 914, 914 (1984) (evidence that would not be admissible at trial may be presented to a grand jury without impairing the integrity of the proceeding). Nor does the fact that only portions of the file were presented necessarily make the evidence false or deceptive. In order to impair the integrity of the proceedings, the prosecution must withhold evidence so material it 'distort[s] the meaning' of the evidence presented. Commonwealth v. O'Dell, 392 Mass. at 449. No such distortion has been shown here. Contrast id. at 448-449 (integrity impaired where prosecution read portion of statement admitting to being at the scene of a crime but withheld portion denying knowledge of principal's criminal intention).
2. Motion to set aside the verdict based on inconsistent verdicts. The defendant contends that his civil rights conviction must be set aside as legally inconsistent with the jury's 'not guilty' verdicts on the assault charges. 'A legally inconsistent verdict arises 'when there exists no set of facts that the government could have proved in the particular case that would have resulted in the verdict at issue." Commonwealth v. Sylvia, 456 Mass. 182, 196 (2010), quoting from Commonwealth v. Gonzales, 452 Mass. 142, 151 n.8 (2008). This is not such a case. Each of the assault charges required proof of elements that were not required in the civil rights charge. The finding that the victim sustained physical injury is not necessarily inconsistent with the acquittal on the assault and battery charge. General Laws c. 265, 37, requires only that 'bodily injury result[]' from the defendant's actions, not that the injury resulted from a battery by the defendant.
On the Commonwealth's theory of assault in this case, it was required to prove that the defendant's actions put the victim in fear of immediate bodily injury. See Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010). In contrast, G. L. c. 265, § 37, contains no such requirement. A defendant may violate § 37 by merely 'attempt[ing] to injure, intimidate or interfere' with the exercise of rights. The Commonwealth's theory on the assault and battery charge was that the defendant used force by slapping and/or punching the victim. In contrast, force is only one way to violate § 37. Nor does § 37 require the use of a dangerous weapon, in contrast to G. L. c. 265, § 15A.
3. Sufficiency of the evidence. We are satisfied that there was ample evidence to support the civil rights conviction. Taken in the light most favorable to the Commonwealth, a jury could conclude that the defendant deliberately taunted, threatened, and provoked the victim by humiliating and demeaning him while he (the victim) was incapacitated by intoxication and in protective custody.
For these reasons, the judgments and the postjudgment order denying the motion to set aside the verdict are affirmed.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),