Opinion
10-P-1154
10-31-2011
COMMONWEALTH v. NHAK MEAS.
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 conviction of possession of a firearm without a license and the trial judge's finding that the defendant was an armed career criminal. The defendant argues that the prosecutor improperly compromised the integrity of the grand jury proceeding by failing to present exculpatory evidence. We affirm.
Background. On September 19, 2007, a Middlesex County grand jury returned indictments charging the defendant with the following offenses: possession of a firearm without a license; illegal possession of ammunition; illegal possession of a loaded firearm; discharging a firearm within 500 feet of a dwelling; and being an armed career criminal. On the second day of trial, the Commonwealth filed a nolle prosequi as to all charges except for those alleging that the defendant possessed a firearm without a license and is an armed career criminal. On December 10, 2009, the defendant was convicted of possession of a firearm without a license and, after a jury-waived trial on December 11, 2009, the defendant was adjudged an armed career criminal.
During its presentment to the grand jury, the Commonwealth called several witnesses who testified to events that occurred on June 24, 2007, at 564 Wilder Street in Lowell. Officer Penrose (Penrose) of the Lowell police department testified that the police were called to respond to a melee on Wilder Street after shots were reportedly fired. Penrose testified that civilians had seen a man, through clear inference the defendant, raise a pistol over his head and fire shots into the air. In fact, no civilian testified that they saw the shots fired into the air. Rather, witnesses testified that they saw a man brandishing a gun walking toward 564 Wilder Street and that, as the police arrived on the scene, they saw the man with the gun fire one shot. These same individuals testified that they saw the police arrest the man who had been brandishing the gun and fired a shot. Because the defendant was the only person arrested at the scene, it is clear that these individuals saw the defendant in possession of the firearm.
Also at the scene of the shooting was Ra Prin (Prin), who lived at 564 Wilder Street. Lowell police Officer Conroy (Conroy) testified that he spoke with Prin at the scene. He testified Prin was initially uncooperative when in the presence of the defendant. However, when Conroy spoke with Prin outside of the defendant's presence, Prin was cooperative and told Conroy that the defendant had possessed the gun. Conroy testified that when he confronted the defendant, who was known to him, the defendant was evasive and conveyed the impression that he did not want to speak with the police. The defendant was then arrested.
Later that evening, Prin went to the Lowell police department and gave a statement as to what had occurred on Wilder Street earlier that evening. In this statement, Prin stated that a man in a four-door sedan fired shots and then threw the gun on the sidewalk before speeding off. Prin also stated that he picked up the gun and gave it to the defendant who brought it behind the house. Prin testified before the grand jury that he went outside his home on the evening of the incident and saw the defendant with a gun in his hand. He further testified that, while he was bringing his children back inside his home, he heard several shots outside and that when he went outside to investigate, the defendant attempted to hand him a gun. Prin's statement to the police was not presented to the grand jury.
The defendant filed a motion to dismiss the indictments in the trial court based, in part, on the prosecutor's failure to present Prin's statement to the grand jury.
1 This motion was filed on February 5, 2008, by the defendant's first counsel who later withdrew. It appears that successor counsel did not pursue this motion. Although the defendant's brief alleges that the trial judge denied the motion, the docket sheet does not indicate the motion was acted on.
Discussion. To prevail on a claim that the integrity of the grand jury proceeding was impaired, the defendant must show that the evidence: (1) was given with knowledge that it was false and deceptive; (2) 'must probably have been significant in the view of the grand jury'; and (3) was presented with the intention of obtaining an indictment. Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). The defendant must make 'a substantial preliminary showing that false testimony was knowingly presented' before he will be entitled to an evidentiary hearing in the trial court. Commonwealth v. Salman, 387 Mass. 160, 166 (1982).
In this case, '[t]he defendant is correct that [Prin] did not, in his earlier statement, specify that the defendant . . . carried a gun.' Commonwealth v. Dyous, 436 Mass. 719, 723 (2002). However, '[Prin] did not affirmatively tell the police that the defendant did not carry a gun.' Ibid. Thus, Prin's 'earlier statement did not contradict his grand jury testimony, nor did it exculpate the defendant.' Ibid. Prin's statement was the subject of cross-examination at trial, and '[a] jury found, beyond a reasonable doubt, that the defendant was guilty of [possessing a firearm without a license].' Id. at 724. Thus, '[i]t is reasonable to assume that, if the grand jury -- seeking only probable cause -- had known about [Prin]'s prior statement to the police, their decision to indict would not have been affected.' Ibid.
It would have been a far better practice to have included Prin's prior statement to the Lowell police in the grand jury presentation. However, the contents of the statement were the subject of cross-examination at trial. Accordingly, the defendant's argument that the integrity of the grand jury was compromised by the omission of Prin's statement must fail.
2 At oral argument in this case, counsel for the Commonwealth took the position that the Commonwealth was not under an obligation to present Prin's testimony to the grand jury. While that position is technically correct, see Commonwealth v. O'Dell, 392 Mass. 445, 447 (1984), such a course of action puts the entire case at risk of dismissal. We do not see any reason why the statement was not presented to the grand jury.
3 The defendant also argues error caused by the grand jury testimony indicating that the defendant (1) lifted the gun over his head and fired shots into the air; (2) was known to the police; and (3) asserted his right to remain silent. Based substantially on the reasoning and authorities set out in the Commonwealth's brief at pages 14-18, we discern no error.
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Judgment affirmed.
By the Court (Trainor, Brown & Carhart, JJ.),