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18-P-108                                            Appeals Court

             COMMONWEALTH    vs.   MILA DEPINA-COOLEY.


                            No. 18-P-108.

       Suffolk.        December 11, 2018. - April 26, 2019.

            Present:    Meade, Agnes, & Englander, JJ.


Grand Jury. Practice, Criminal, Grand jury proceedings,
     Indictment, Dismissal.



     Indictments found and returned in the Superior Court
Department on January 13, 2017.

    A motion to dismiss was heard by William F. Sullivan, J.


     Paul B. Linn, Assistant District Attorney (Michele E.
Granda, Assistant District Attorney, also present) for the
Commonwealth.
     Michael P. Doolin (William T. Broderick also present) for
the defendant.


    ENGLANDER, J.   This case raises the question whether three

indictments returned against the defendant must be dismissed

because an unauthorized person, a police officer, was present

when one of the witnesses testified before the grand jury.

Although there is no showing that the defendant was prejudiced
                                                                     2


by the officer's presence, the Superior Court judge ruled that

the case law nevertheless required dismissal of two of the three

indictments.   We conclude that in the particular circumstances

here -- which included an express instruction by the prosecutor

to disregard the testimony of the witness in question -- the

indictments should not have been dismissed.   We accordingly

vacate the portion of the order that dismissed the two

indictments, and affirm the remainder.

    Background.   On January 13, 2017, a Suffolk County grand

jury returned three indictments charging the defendant, Mila

Depina-Cooley, with receiving stolen property with a value in

excess of $250.   The grand jury heard testimony from eight

witnesses over six days between January 3, 2017, and January 13,

2017.   The gist of the evidence was that the defendant had

purchased Home Depot (store) gift cards from an individual,

referred to as "subject [no.] 1," at a fifty-percent discount.

Subject no. 1 was a store employee, and the Commonwealth's

theory was that subject no. 1 would steal merchandise from the

store and then provide it to a series of individuals -- called

"runners" -- who would then return the items to the store.     The

store issued the runners gift cards for the returned

merchandise, which the runners provided back to subject no. 1.

    As indicated, the defendant's involvement in the scheme was

as a purchaser from subject no. 1 of the gift cards, and
                                                                     3


sometimes of merchandise, at a price well below their value.

The defendant was a Boston police officer.    The grand jury

evidence included recordings of telephone conversations and text

messages between the defendant and subject no. 1 regarding the

purchases.

    The unauthorized presence issue pertained to the grand jury

testimony of one of the runners, R.C.    R.C. was one of five

runners to testify.    R.C. was brought to the grand jury room in

shackles by Lieutenant Christopher Hamilton of the State Police,

because R.C. was in custody on a probation surrender matter at

the time.    The prosecutor then invited Lieutenant Hamilton into

the grand jury room to guard R.C.    After one of the members of

the grand jury inquired, the prosecutor introduced Lieutenant

Hamilton.

    As the judge aptly put it, Lieutenant Hamilton "was an

inappropriate choice as guard."     Lieutenant Hamilton did not

testify before the grand jury, but he supervised the lead

investigator on the case.    He was present during an interview of

the defendant on December 6, 2016, recordings of which were

presented to the grand jury.    Lieutenant Hamilton may also be

called as a witness at trial.

    The prosecutor realized her error, however, even before the

grand jury had completed its work.     Accordingly, on January 13,

2017, the prosecutor instructed the grand jury to "disregard in
                                                                    4


its entirety" the testimony of R.C., and explained that

Lieutenant Hamilton should not have been present during R.C.'s

testimony.    Shortly thereafter the grand jury returned the three

indictments for receiving stolen property with a value in excess

of $250, covering three different time periods between November

11, 2010, and January 18, 2011.

     In April of 2017 the Commonwealth moved in the Superior

Court for a determination that the indictments were valid

despite Lieutenant Hamilton's presence during R.C.'s testimony,

and the defendant responded with a motion to dismiss.     Relying

principally on Commonwealth v. Pezzano, 387 Mass. 69 (1982), the

judge ruled that the presence of the officer voided the two

indictments that were premised, in part, on R.C.'s testimony --

concluding that under the case law the defendant "does not have

to establish any prejudice."    The judge did go on to reason,

however, that the third indictment -- which covered a time

period unrelated to any actions of R.C. -- was valid and could

go forward.   In this cross appeal, we vacate the portion of the

order that dismissed the two indictments, and hold that the

third indictment properly was not dismissed.1




     1 We note that this is not a case where the Commonwealth can
merely reindict the defendant if the indictments are dismissed.
The grand jury returned the indictments close to the time of the
running of the statute of limitations. While the Commonwealth
took steps to recharge the defendant in early 2017, the parties
                                                                   5


     Discussion.   1.   Historical background.   The grand jury

right in this Commonwealth is derived from the grand jury right

afforded in England, and is grounded in art. 12 of the

Massachusetts Declaration of Rights.    Commonwealth v. Harris,

231 Mass. 584, 585-587 (1919).2   One important aspect of our

grand jury process is that it is conducted in secret, so that a

person is not publicly accused of an "infamous crime[]" until

the grand jury has found probable cause to do so.    Id. at 586.

The Supreme Judicial Court addressed the evolution and limits of

grand jury secrecy in Opinion of the Justices, 373 Mass. 915,

918-919 (1977):

     "Grand jury proceedings originally were public. This made
     it easy for the crown to exert pressure on the jurors.
     Ultimately the English grand jury won the right to examine
     witnesses and deliberate privately, without the presence or
     participation of the royal justices or prosecutors. The
     tradition of secrecy or privacy continues in this
     Commonwealth in the qualified sense that the grand jury is
     guarded within reasonable limits from extraneous influences
     that might distort their investigatory or accusatory
     functions. This relative isolation also has collateral
     benefits in tending to protect witnesses against
     intimidation, and to save individuals from notoriety unless
     probable cause is found against them and an indictment is
     returned and disclosed." (Citations omitted.)



have indicated that those later charges might confront statute
of limitations issues that the indictments at issue do not.

     2 Harris, 231 Mass. at 585, quotes Jones v. Robbins, 8 Gray
329, 343 (1857) ("The words by the law of the land, as used
originally in the Magna Charta in reference to this subject, are
understood to mean due process of law, that is, by indictment or
presentment of good and lawful men").
                                                                    6


    In Opinion of the Justices, the court affirmed the

constitutionality of a proposed statute which, for the first

time, would allow counsel for grand jury witnesses to sit in on

grand jury proceedings.   Id. at 921-922.     It was in that context

that the court stated that under Massachusetts law the

"tradition of secrecy or privacy continues," but in a "qualified

sense."   Id. at 918.   The court went on to point out that "[i]n

a somewhat ironical turn of history, the presence and assistance

of prosecuting attorneys in the grand jury room during the

examination of witnesses is not only considered today to be

unobjectionable, . . . but is provided for by statute (G. L.

c. 277, § 9), with the understanding, however, that these

attorneys are not to appear in overbearing or intimidating

numbers or seek unduly to impose their preferences on the jury."

Id. at 919.   And in addition to prosecutors, the court noted, we

also allow several other persons to be present in the grand jury

room; these include stenographers, interpreters, and a "guard

for a witness in custody."     Id.   These latter persons are

"admitted out of necessity."     Id.

    Importantly, in Opinion of the Justices, the court also

noted that the details of the grand jury process are not

constitutionally prescribed; art. 12 does not "freeze beyond

legislative change the details of grand jury proceedings as

known in the Eighteenth Century, but rather preserves the
                                                                      7


essence of the institution as it functions in a contemporary

setting. . . .      Thus grand jury procedures have been altered in

various respects over the years without offense to art. 12."

Id. at 918.

    2.    Remedy.    With this backdrop we turn to the matter at

hand.    Here the question is not whether there was a violation of

grand jury secrecy, but rather, the appropriate remedy for a

conceded violation -- a violation that the Commonwealth sought

to remedy before the grand jury issued their indictments.      While

a guard for the witness, R.C., may have been appropriate,

Lieutenant Hamilton should not have been in the room, given his

involvement in the investigation and the fact that he could have

been a witness.      See Commonwealth v. Holley, 476 Mass. 114, 118

(2016); Lebowitch, petitioner, 235 Mass. 357, 360-363 (1920).

    The fact that a violation has occurred, however, does not

necessarily lead to the extreme remedy of dismissal.      In most

contexts, a showing of prejudice is required before such a

remedy is imposed.      See, e.g., Commonwealth v. Pina, 481 Mass.

413, 427-429 (2019) (erroneous deprivation of peremptory

challenges did not warrant new trial absent showing of

prejudice); Commonwealth v. Rakes, 478 Mass. 22, 31-32 (2017),

quoting Commonwealth v. Freeman, 407 Mass. 279, 283 (1990)

(improper statements to grand jury do not warrant reversing

guilty verdict unless statements "'probably made a difference'
                                                                  8


in [the] decision to indict"); Commonwealth v. Jackson, 471

Mass. 262, 271 (2015) (inclusion of noncitizen in petit jury did

not require new trial where defendant did not show prejudice).

In other contexts, we employ a harmless error analysis.

Commonwealth v. Seino, 479 Mass. 463, 466-468 (2018) (violation

of confrontation clause right was harmless error beyond a

reasonable doubt).

    Here the defendant urges that dismissal is the required

remedy for unauthorized presence in the grand jury, even where

no prejudice is shown.   There are two Supreme Judicial Court

cases of particular relevance in evaluating that proposition.

The first is Pezzano, 387 Mass. 69.   In Pezzano the unauthorized

person present in the grand jury room was the chief

investigating officer with respect to an armed robbery and

kidnapping, and the witnesses involved were two of the

participants, both of whom were cooperating against a third

participant, the defendant Pezzano.   Id. at 70-71.   The evidence

showed that the police officer met with the prosecutor and the

witnesses the day they were to testify before the grand jury,

and thereafter "presented himself at the first criminal session

. . . in order to be appointed to provide security while [the

witnesses] were testifying."   Id. at 71.

    The Pezzano court held that "in these circumstances" the

resulting indictment should have been dismissed.   Id. at 70.
                                                                       9


The court emphasized that one purpose behind grand jury secrecy

was "to shield grand jury proceedings from any outside

influences having the potential to 'distort their investigatory

or accusatory functions.'"    Id. at 73, quoting Opinion of the

Justices, 373 Mass. at 918.   The court further concluded, as we

have here, that the police officer who was also a lead

investigator was not an appropriate guard, and should not have

been present in the grand jury room.       Pezzano, 387 Mass. at 70,

74.

      The court then turned to remedy, and concluded that

dismissal was "warranted."    Id. at 76.    The court noted that in

prior cases, it had rejected the notion that the defendant must

show prejudice from the unauthorized presence.      Id.   Notably,

however, the Pezzano court went on to observe that on the facts

before it, prejudice may well have been present:      "our reading

of the transcript of the hearing on the motion indicates that

there was in fact a risk of intimidation inherent in [the police

officer's] presence."   Id. at 77.

      The second important decision regarding remedy is the

Supreme Judicial Court's recent decision in Holley, 476 Mass.

114, which reached a different result than in Pezzano.       Unlike

Pezzano and the case at bar, in Holley the issue of an

unauthorized person in the grand jury room was not raised until

after the defendant had been tried and convicted.      476 Mass. at
                                                                    10


115.    On a motion for new trial the defendant showed that "[t]wo

police officers involved in the investigation of this case, who

were witnesses before the grand jury in the matter, were present

in the grand jury room for most, if not all, of the other

witnesses' testimony."    Id. at 118.

       The court in Holley nevertheless ruled that the conviction

was not void, and should not be overturned.     Id. at 118.   The

court acknowledged that a violation had occurred, but pointed

out that no challenge to the grand jury proceedings had been

made before trial.    Id. at 119.   The court distinguished Pezzano

on that ground, and went on to analyze whether the violation

before it created a substantial likelihood of a miscarriage of

justice.   Id. at 120-121.    The court reviewed the record and

concluded that the defendant had not shown prejudice, i.e., he

had "not shown that the presence of the police officers caused

those who testified before the grand jury to feel coerced or

intimidated."   Id. at 120.

       Holley, the history of the grand jury secrecy right, and

the case law regarding prejudice, discussed above, convince us

that dismissal of the indictments was not warranted on the facts

here.   Holley establishes that grand jury secrecy is not a right

so extraordinary that any violation must result in the voiding

of proceedings.   Id. at 119-120.   Holley thus departs from the

most rigid language in Pezzano, and instead concludes that the
                                                                   11


remedy for a violation of grand jury secrecy is dependent on a

showing of prejudice -- as is true in determining the remedy for

many other judicial process violations.3   As noted, the holding

in Pezzano can be well understood in its factual context, where

the police officer first met with the critical witnesses before

they testified, and then actively sought to place himself in the

grand jury room for their testimony.   387 Mass. at 71.   Those

facts gave rise to a concern that the officer's presence was

intended to affect the testimony given.

     Our conclusion that dismissal is not automatically required

for a violation of grand jury secrecy finds support in the case

law addressing the Commonwealth's knowing presentation of false




     3 It is true that some of the cases preceding Holley
indicate that grand jury secrecy is so fundamental that the
court need not inquire into prejudice. Holley, however, does
not evidence the same concern, that a violation of grand jury
secrecy is so fundamental that it must be remedied by dismissal.
See 476 Mass. at 118-121. Nor does Holley evidence the concern,
found in some of the cases, that it would be too difficult for
the defendant to demonstrate prejudice from the unauthorized
presence. Instead, Holley implicitly concludes that the court
will be able to evaluate whether there was such prejudice.

     Finally, we note that the cases that precede Holley,
including Harris and Pezzano, are in tension with the
description of the secrecy principle in Opinion of the Justices,
373 Mass. 915. Rather than describing the grand jury secrecy
principle as fundamental, Opinion of the Justices recognizes the
evolution of grand jury practice and also recognizes that grand
jury practice (including who may be present) is not frozen by
the Massachusetts Constitution and may be adjusted. Id. at 918-
919.
                                                                    12


grand jury testimony.     Commonwealth v. Mathews, 450 Mass. 858,

876 (2008).     Even in that context, where the defendant has shown

serious prosecutorial misconduct, the defendant still must show

prejudice for the indictment to be dismissed; he must show "that

the presentation of the false or deceptive evidence probably

influenced the grand jury's determination to hand up an

indictment."    Commonwealth v. Mayfield, 398 Mass. 615, 621

(1986).4   It is difficult to reconcile why the presence of an

unauthorized person in the grand jury room should merit a more

stringent remedy than the knowing presentation of false

testimony.

     The facts of the case at bar are quite different from those

in Pezzano, and do not give rise even to an inference of

prejudice.    The sole witness of concern in this case, R.C., was

one of five runners who testified before the grand jury.       There

is nothing that suggests that R.C.'s testimony was peculiarly

important, or different in kind from the testimony of the other

four runners.    R.C. never even met the defendant -- in his role

in the scheme he dealt only with subject no. 1 -- and thus R.C.

provided no testimony as to the defendant's actions.     Moreover,


     4 After Pezzano was decided but before the decision in
Holley, the United States Supreme Court also adopted the
approach that an indictment should not be dismissed based upon
prosecutorial misconduct before a grand jury, absent a showing
of prejudice. Bank of Nova Scotia v. United States, 487 U.S.
250, 254-257 (1988).
                                                                   13


there is nothing that suggests that Lieutenant Hamilton's

presence during R.C.'s testimony was anything more than an

inadvertent mistake.5

     In addition, the prosecutor's actions in instructing the

grand jury to disregard R.C.'s testimony distinguish this case

from Pezzano, and from the other cases that address secrecy

violations.    The grand jury were instructed that Lieutenant

Hamilton should not have been present, and that R.C.'s testimony

must be "disregard[ed] in its entirety."   Petit jurors are

presumed to follow such instructions when they emanate from the

trial judge.   Commonwealth v. Silva, 93 Mass. App. Ct. 609, 615

(2018).   In the grand jury context the prosecutor at times is

responsible for instructing the grand jury on the law, and in

that limited sense, serves a similar role to a trial judge.      See

Commonwealth v. Rakes, 478 Mass. at 32 (declining to invalidate

indictment and relying, in part, on prosecutor's instruction to

grand jury to disregard certain "prior bad acts" evidence that

had been presented).    Here we have no reason to question whether

the jurors followed the prosecutor's direction.6


     5 Nor did Lieutenant Hamilton's presence give rise to a
concern that the charges against the defendant were
inappropriately being made public. As the supervising officer,
Lieutenant Hamilton was already well aware of the investigation.

     6 The judge at one point in his decision references a
"significant potential for prejudice in spite of the
Commonwealth's instructions." The judge does not reference any
                                                                  14


    In the circumstances, the judge's dismissal of the two

indictments was not required.   The portion of the order

dismissing the two indictments is vacated, and the remainder of

the order is affirmed.

                                   So ordered.




specific facts giving rise to a potential for prejudice in this
case, and we are aware of none. Rather, the judge's reference
to a potential for prejudice appears to be grounded in the case
law that preceded Holley.
