Opinion
No. 15–P–610.
05-25-2016
COMMONWEALTH v. Charles E. SNOW.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Charles E. Snow, appeals from his conviction of operating under the influence (OUI), fifth offense, in violation of G.L. c. 90, § 24(1)(a)(1). The defendant's conviction stems from a motor vehicle accident he caused around 4:00 P.M. on Route 128 in Lynnfield after having consumed alcoholic beverages during lunch. The defendant challenges the denials of his motions to dismiss, which were argued during the interim of his bifurcated trial, for two reasons. First, the defendant argues that the evidence presented to the grand jury was insufficient to justify the return of an indictment of OUI, fifth offense, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Second, the defendant maintains that he was prejudiced by the delayed disclosure of the fifth offense portion of the grand jury minutes. We affirm.
The defendant argued a pro se motion to dismiss while his counsel also argued a motion to dismiss on similar grounds.
Discussion. 1. Evidence before the grand jury. The defendant argues that his motions to dismiss should have been granted because there was insufficient evidence presented to the grand jury to support the fifth offense portion of his OUI indictment. Typically, we do not inquire into the sufficiency or competency of the evidence before the grand jury. Id. at 161–162. However, in McCarthy, the Supreme Judicial Court “departed from that general rule and held that where a grand jury receives no evidence of criminality on the part of the accused, the indictment must be dismissed.... [A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him.” Commonwealth v. Coonan, 428 Mass. 823, 825 (1999) (citation omitted). “Probable cause is based on ‘reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed ... an offense.’ “ Ibid., quoting from Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984).
In viewing the evidence presented to the grand jury in the light most favorable to the Commonwealth, we agree with the motion judge who found that “[t]he grand jury ... heard ample evidence to support ... probable cause ... with respect to the prior convictions portion of the indictment.” See Commonwealth v. Catalina, 407 Mass. 779, 780 (1990). This included the State police trooper testifying that she became aware of the defendant's prior OUI convictions, and her recitation of the dates and docket numbers of each of the defendant's OUI convictions to the grand jury.
2. Delayed disclosure. The defendant maintains that his motions to dismiss were improperly denied because he was prejudiced by the late disclosure of the full grand jury transcript. “Where the Commonwealth has delayed in disclosing evidence prior to trial, our principal concern is whether the defendant has been prejudiced by the delay.” Commonwealth v. Stote, 433 Mass. 19, 22 (2000). “Absent a showing of bad faith, we consider the primary issue of prejudice.” Id. at 23. In measuring prejudice, “it is the consequences of the delay that matter, not the likely impact of the nondisclosed evidence, and we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant ‘to make effective use of the evidence in preparing and presenting his case.’ “ Commonwealth v. Wilson, 381 Mass. 90, 114 (1980), quoting from Commonwealth v. Adrey, 376 Mass. 747, 755 (1978).
We note that the defendant has not made a showing of bad faith on the part of the prosecution. See Commonwealth v. Stote, supra at 23. The Commonwealth appropriately concedes that it made a discovery violation when it failed to provide the correct grand jury minutes to the defendant as required as part of automatic discovery. However, upon learning of the missing grand jury minutes, the prosecutor immediately checked with the certified court reporter who prepared the transcript. The certified court reporter then submitted a letter to the court stating that the missing minutes were an accidental oversight on his part, which the judge credited, and then promptly provided them.
The defendant has failed to show that he was prejudiced by the missing grand jury minutes. First, the defendant was provided the missing grand jury minutes six weeks before the second stage of his bifurcated trial. As the motion judge stated:
“Given the standard bifurcation of this multiple offense OUI trial, [it is] little wonder that defense counsel did not notice the absence of the prior convictions portions of the presentment. It was simply not important at that time. That portion of the grand jury presentment had no real relevance until trial preparation began for the bifurcated portion of the indictment.”
Second, the defendant had been provided certified copies of his prior convictions, his registry of motor vehicle documents, and his board of probation record before trial. Accordingly, the defendant has failed to show how he was prejudiced by the late disclosure of the grand jury minutes.
The defendant argues that he was prejudiced because he lost confidence in the proceedings and because he lost the ability to make a favorable plea. There is no evidence in the record which indicates any availability of a plea offer from the Commonwealth.
Judgment affirmed.