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SJC-11962

               COMMONWEALTH   vs.   CARLOS G. STEVENSON.



            Dukes.    February 11, 2016. - May 25, 2016.

  Present:    Gants, C.J., Spina, Cordy, Botsford, Lenk, & Hines,
                                 JJ.


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



     Indictments found and returned in the Superior Court
Department on October 6, 2014.

     A motion to dismiss the indictments was heard by Cornelius
J. Moriarty, II, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
     Janice Bassil (John E. Oh with her) for the defendant.
     The following submitted briefs for amici curiae:
     Wendy J. Murphy for Women's and Children's Advocacy Project
at New England Law|Boston.
     Kevin J. Curtin, Assistant District Attorney, for District
Attorneys for the Berkshire, Bristol, Eastern, Middle, Norfolk,
Northern, Northwestern, Plymouth, Suffolk, and Western
Districts.
                                                                    2


     John J. Barter & Chauncey B. Wood for Committee for Public
Counsel Services & another.


     CORDY, J.   On October 6, 2014, a grand jury returned six

indictments against the defendant, Carlos Stevenson:   one

charging aggravated rape of a child with force, G. L. c. 265,

§ 22B; and five charging indecent assault and battery on a child

under the age of fourteen, G. L. c. 265, § 13B.1   The defendant

filed a motion to dismiss the indictments, arguing, as is

relevant to this appeal, that the evidence presented to the

grand jury was insufficient because the Commonwealth offered

only hearsay testimony from a single witness, the investigating

officer.

     After a hearing, a judge of the Superior Court allowed the

defendant's motion to dismiss without prejudice.   The judge

concluded that, while an indictment generally may be based

solely on hearsay, the Commonwealth's exclusive reliance on such

testimony in the present case constituted "extraordinary

circumstances" that justified dismissal of the indictments.    In

particular, the judge determined that "there was no good reason

for [the complainant] not to testify," and the prosecutor's



     1
       Various portions of the case were either impounded or
under seal. The seal and impoundment are lifted as to the
information in the opinion, to the extent necessary in resolving
the case. See Adams v. Adams, 459 Mass. 361, 362 n.1 (2011),
S.C., 466 Mass. 1015 (2013).
                                                                      3


decision not to seek her testimony deprived the defendant of the

opportunity to obtain pretrial discovery.2

     The Commonwealth appealed the dismissal, and we granted the

defendant's application for direct appellate review.     We

conclude that this case does not present an extraordinary

circumstance warranting a variance from our general approval of

indictments that are returned on the basis of hearsay testimony.

Therefore, the order of the Superior Court is reversed.3

     1.   Evidence presented at the grand jury proceedings.     The

testimony presented before the grand jury came exclusively

through one witness:   the lead investigating officer on the

case, Detective Mark Santon of the Tisbury police department.

That evidence included the following.

     On May 22, 2014, a lieutenant with the West Tisbury police

department contacted Santon.   The lieutenant informed Santon

that the complainant's boy friend reported to the West Tisbury

police that the complainant had, years before, been a victim of

sexual assault.   Santon interviewed the complainant on multiple



     2
       The complainant has been referred to by various
pseudonyms; we identify her only as the complainant.
     3
       We acknowledge the amicus briefs submitted by the Women's
and Children's Advocacy Project at New England Law|Boston; the
District Attorneys for the Berkshire, Bristol, Eastern, Middle,
Norfolk, Northern, Northwestern, Plymouth, Suffolk, and Western
Districts; and the Committee for Public Counsel Services and the
Massachusetts Association of Criminal Defense Lawyers.
                                                                    4


occasions and relayed the contents of those interviews to the

grand jury.

    The complainant described to Santon a series of sexual

assaults at the hands of the defendant, beginning in 2000, when

she began babysitting the defendant's children, and continuing

until the fall of 2003.   These included an assault by the

defendant occurring when she was catsitting at another

neighbor's home.   The alleged episodes ranged from inappropriate

comments to groping to forcible digital rape.

    The complainant's boy friend was not the first person she

had told about the attacks.   During her senior year in high

school, a friend of the complainant's was conducting a class

project on sexual assault.    The complainant filled out a survey

describing her contacts with the defendant, which the classmate

compiled as part of a PowerPoint presentation.   Officer Santon

interviewed the friend, and obtained from her the survey that

had been filled out by the complainant.   The portion of the

presentation applicable to the complainant was introduced as an

exhibit before the grand jury.

    Santon further testified about his interview with the

complainant's parents and the neighbor for whom the complainant

was catsitting when one of the assaults was alleged to have

occurred.   After Santon testified and the grand jury had an

opportunity to ask him questions regarding whether he had been
                                                                     5


able to further confirm the complainant's allegations, the grand

jury returned six indictments, which the defendant moved to

dismiss.    The judge allowed the motion without prejudice, ruling

that, "in a case such as this, the exclusive use of hearsay in

the presentation of the case to the grand jury destroys the

historical function of the grand jury in assessing the

likelihood of prosecutorial success and diminishes the

protections that the grand jury is supposed to afford to the

innocent."

    2.     Discussion.   The defendant asserts two arguments in

support of the proposition that the judge properly dismissed the

indictments.    First, he argues that indictments supported by

hearsay evidence never meet the due process standards of art. 12

of the Massachusetts Declaration of Rights, and such evidence

should therefore not be admissible before the grand jury.       In

the alternative, the defendant asserts that the use of hearsay

testimony under the circumstances presented in this case

impaired the function of the grand jury to a degree that

warranted the dismissal of the indictments.    We address the two

arguments in turn.

    a.     The presentation of hearsay testimony to the grand

jury, exclusively or otherwise, is supported by our case law.

Grand juries in the Commonwealth act as "an informing and

accusing body," (citation omitted).     Lataille v. District Court
                                                                     6


of E. Hampden, 366 Mass. 525, 532 (1974).    They perform the

"dual function of determining whether there is probable cause to

believe a crime has been committed and of protecting citizens

against unfounded criminal prosecutions."    Id.

    The right to a grand jury indictment for State crimes is

not guaranteed by the United States Constitution.   See

Commonwealth v. McCravy, 430 Mass. 758, 761 n.5 (2000).    It is,

however, "one of the great securities of private right, handed

down to us as among the liberties and privileges which our

ancestors enjoyed at the time of their emigration, and claimed

to hold and retain as their birthright."    Jones v. Robbins, 8

Gray 329, 342 (1857).    Consequently, in the Commonwealth, it is,

with respect to "crimes of great magnitude," a right that is

firmly rooted in and protected by art. 12 of the Massachusetts

Declaration of Rights.    Id. at 347.

    While jealously guarding the grand jury's role as an

independent investigative body, our courts have exercised a

somewhat greater supervisory role over the substance of their

proceedings than Federal courts have over those of Federal grand

juries.   Compare United States v. Williams, 504 U.S. 36, 50

(1992) ("any power [F]ederal courts may have to fashion, on

their own initiative, rules of grand jury procedures is a very

limited one"; to permit challenge to facially valid indictment

on grounds that there was inadequate or incompetent evidence
                                                                   7


before grand jury would run counter to history of institution),

with Commonwealth v. Walczak, 463 Mass. 808, 810 (2012)

(requiring prosecutor to instruct grand jury on elements of

murder and on significance of mitigating circumstances and

defenses [other than lack of criminal responsibility] where

Commonwealth seeks to indict juvenile for murder and where there

is substantial evidence of mitigating circumstances or

defenses), Commonwealth v. Mayfield, 398 Mass. 615, 634 (1986)

(integrity of grand jury proceeding would be impaired if

defendant is "put to trial on an indictment which the

Commonwealth knows is based in whole or in part on false

testimony"), Commonwealth v. O'Dell, 392 Mass. 445, 446-447

(1984) (dismissing indictment where grand jury impaired when

presented with portion of statement attributed to defendant,

seemingly inculpating him, without exculpatory portion of

purported statement that had been excised), and Commonwealth v.

McCarthy, 385 Mass. 160, 163 (1982) (announcing rule that "at

the very least the grand jury must hear sufficient evidence to

establish the identity of the accused . . . and probable cause

to arrest him").4


     4
       The Commonwealth's statutes and common law are likewise
protective of defendants and witnesses during grand jury
proceedings. See Commonwealth v. Woods, 466 Mass. 707, 709,
cert. denied, 134 S. Ct. 2855 (2014) ("targets, or those
reasonably likely to become targets, of the investigation" are
entitled to warnings that they can exercise their privilege
                                                                    8


    Those protections, however, are limited by the grand jury's

independence, and generally we "will not inquire into the

competency or sufficiency of the evidence before the grand jury"

(citation omitted).   Commonwealth v. Robinson, 373 Mass. 591,

592 (1977).   See McCarthy, supra at 161-162.   Therefore, the

heavy burden to show impairment of the grand jury proceeding is

borne by the defendant.   See Commonwealth v. LaVelle, 414 Mass.

146, 150 (1993).

    We have consistently and without notable exception held

that "an indictment may be based solely on hearsay."    O'Dell,

392 Mass. at 450-451 (in McCarthy, "we did not depart from the

rule that an indictment may be based solely on hearsay").     See

Commonwealth v. McGahee, 393 Mass. 743, 746 (1985), quoting

Commonwealth v. St. Pierre, 377 Mass. 650, 655 (1979)

("indictment may stand which is based in part or altogether on

hearsay"); LaVelle, supra at 149, quoting St. Pierre, supra ("it

is not enough to justify dismissal of an indictment that the

jurors received hearsay or hearsay exclusively, and this is so



against self-incrimination under Fifth Amendment to United
States Constitution); G. L. c. 277, § 14A ("Any person shall
have the right to consult with counsel and to have counsel
present at . . . examination before the grand jury; provided,
however, that such counsel . . . shall make no objections or
arguments or otherwise address the grand jury or the district
attorney"). In contrast, counsel for an unindicted witness is
not permitted to be present in the room when the witness is
testifying before a Federal grand jury. See United States v.
Mandujano, 425 U.S. 564, 581 (1976)
                                                                   9


even when better testimony was available for presentation to the

grand jury"); Mass. R. Crim. P. 4 (c), 378 Mass. 849 (1978) ("An

indictment shall not be dismissed on the grounds that the

evidence presented before the grand jury consisted in whole or

in part of the record from the defendant's probable cause

hearing or that other hearsay evidence was presented before the

grand jury").   The defendant acknowledges that no appellate

court in the Commonwealth has affirmed the dismissal of an

indictment solely because it was based on hearsay, and we do not

perceive a need to alter our long-standing general rule.5


     5
       Our affirmation of the policy that allows for indictments
before the grand jury to rely solely on hearsay evidence dates
back more than a century, see, e.g., Commonwealth v. Woodward,
157 Mass. 516, 518 (1893), and is supported by recent case law,
see Commonwealth v. Walczak, 463 Mass. 808, 845 (2012) (Spina,
J., concurring in part and dissenting in part); Commonwealth v.
Washington W., 462 Mass. 204, 210 (2012); Commonwealth v.
McGahee, 393 Mass. 743, 746 (1985); Commonwealth v. St. Pierre,
377 Mass. 650, 655 (1979), as well as commentary about the
generally accepted standards of review for such proceedings.
See 1 Wigmore, Evidence, § 4, at 53-54 (Tillers rev. ed. 1983)
("Proceedings before a grand jury are both ex parte and
interlocutory; moreover, the grand jury only seeks for a
'probable cause.' Hence, on all principles, the jury trial
rules of evidence should not apply" [footnote omitted]); 4 W.R.
LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal Procedure
§ 15.5(c), at 652 (4th ed. 2015). Federal grand jury
proceedings likewise allow the use of hearsay evidence. See
United States v. Williams, 504 U.S. 36, 50, 54 n.8 (1992);
Costello v. United States, 350 U.S. 359, 363-364 (1956).
Indeed, we remain unaware of any jurisdiction in which the
common law prohibits hearsay evidence before the grand jury
absent a statute or rule of criminal procedure. See
Commonwealth v. O'Dell, 392 Mass. 445, 452 n.2 (1984). A
handful of States prohibit hearsay at the grand jury stage by
statute or court rule. See, e.g., Alaska R. Crim. P. 6(r); Cal.
                                                                   10


    We proceed, then, to consider whether the specific facts of

this case present an exception to that general rule.

    b.   The exclusive use of hearsay before the grand jury may

be a ground for the dismissal of an indictment, but only under

extraordinary circumstances.   Despite our general approval of

indictments based on hearsay, we have on occasion repeated the

admonition that "sound policy dictates a preference for the use

of direct testimony before grand juries."     St. Pierre, 377 Mass.

at 655-656.   See McCarthy, 385 Mass. at 162 n.4.   See also

Commonwealth v. Bishop, 416 Mass. 169, 174 (1993); LaVelle, 414

Mass. at 149; O'Dell, 392 Mass. at 451 n.1.    Consistent with

that proposition, we have stated that, under "extraordinary

circumstances," the prosecution's reliance on hearsay might

impair "the integrity of [the] grand jury proceedings" to a

degree that warrants dismissal.   McGahee, 393 Mass. at 747.     See

St. Pierre, supra.   The defendant urges us to affirm the motion

judge's conclusion that this case presented such circumstances.

    The motion judge did not find that the evidence considered

by the grand jury was insufficient to satisfy the probable cause

standard, or that the grand jury were presented with false


Penal Code § 939.6(b) (1959); La. Code Crim. Proc. Ann. (1928)
art. 442; Minn. R. Crim. P. § 18.05, subd. 1 (West 2010); Nev.
Rev. Stat. § 172.135(2) (1967); N.M. Stat. Ann. § 31-6-11(A)
(1969); N.Y. Crim. Proc. Law §§ 190.30(1) (McKinney's 1970);
Ore. Rev. Stat. § 132.320(1) (1973); S.D. Codified Laws Ann.
§ 23A-5-15 (1939). The Legislature has not enacted a cognate
statute in the Commonwealth.
                                                                  11


evidence or evidence so misleading and distorted as to impair

the grand jury proceedings.   Rather, he concluded that the use

of hearsay was pernicious for three reasons, all of which stem

from the fact that the complainant did not testify.    First,

Santon, an experienced witness, was able consistently and

smoothly to articulate the facts to the grand jury, belying any

potential contradictions or misstatements in the complainant's

story.   Second, the grand jury were unable to observe the

complainant's demeanor and appearance, and could not assess her

credibility.   Finally, the presentment of the case through one

witness denied the defendant his opportunity to obtain pretrial

discovery, which the judge concluded was a tactic by the

Commonwealth to avoid the possibility that grand jury testimony

could be used to impeach the complainant at trial.    The judge

credited one further factor that informed his decision,

suggesting that a higher standard of evidence ought to be

required when charges of sexual assault are at issue because of

the serious damage to one's reputation caused by such an

indictment.

    There is, however, nothing that differentiates the facts

and circumstances presented here from those in McCarthy, 385

Mass. at 162 n.4 (indictment based on hearsay testimony from

investigating officer in sexual assault case permissible where

complainant was available to testify at grand jury), and St.
                                                                  12


Pierre, 377 Mass. at 655-657 (indictment based on double hearsay

testimony permissible), except that the indictments in this case

were brought fourteen years after the purported crimes began.

Our inquiry is, then, whether it is an "extraordinary

circumstance" when sexual assault charges are brought many years

after the alleged underlying crime was committed, such that

hearsay testimony is an unacceptable substitute for direct

testimony.   We conclude that it is not.

    There are characteristics inherent in the presentation of

sexual assault charges before a grand jury that may require

greater attention in certain circumstances.    For instance,

sexual assault cases often involve a credibility contest between

the complainant and the defendant.    And, with the passage of

time and the absence of other witnesses, corroborating evidence,

or admissions of guilt, the importance and details of the

complainant's story are heightened.    Accurately relaying the

complainant's memory of those details to the grand jury through

hearsay testimony can be less than perfect.    These

considerations, to some degree, came to fruition in the present

case.   At various times during the grand jury proceedings,

Santon indicated that he and the complainant had trouble

identifying the particular dates on which certain events had

occurred, and the defendant points out various portions of
                                                                   13


Santon's testimony that do not match squarely with his police

report of the complainant's interviews.6

     This problem may become more salient now that the

Legislature has eliminated the statute of limitations as to

indictments and criminal complaints charging violations of the

statutes at issue here.   See G. L. c. 277, § 63, as amended

through St. 2006, c. 303, § 9, and St. 2010, c. 267, § 68.     The

fact that sexual assault cases under these statutes are now

capable of being prosecuted decades after the commission of the

crimes may exacerbate concerns regarding the reliability of

hearsay evidence presented in a nonadversary setting such as the

grand jury.   But the Legislature contemplated the inevitability

of such cases being brought under G. L. c. 277, § 63, and

provided for additional protections when such charges are

sought.   Specifically, the statute explicitly provides that

"indictments . . . filed more than [twenty-seven] years after

the date of commission of such offense shall be supported by

independent evidence that corroborates the victim's allegation"



     6
       The defendant does not assert, nor did the judge below
find, that the prosecutor intentionally sought to introduce
false testimony. As we have indicated before, "inaccurate
statements made in good faith do not require dismissal of an
indictment." Commonwealth v. Mayfield, 398 Mass. 615, 620
(1986). The inconsistencies in Santon's testimony identified by
the defendant do not warrant dismissal, as "dismissal of an
indictment as a prophylactic measure to discourage intentional
wrongdoing [has] no application." Id.
                                                                  14


(emphasis added).   Id.   Such corroboration was not required

here.

     This case does not present any circumstances that would

qualify it as extraordinary so as to impair "the integrity of

the grand jury proceedings" to a degree that warrants dismissal

of the defendant's indictments.    McGahee, 393 Mass. at 747.

Santon testified in great detail about what the complainant had

told him.   He was able to respond substantively to questions

posed by the grand jurors,7 and he informed the grand jury about

the other potential prosecution witnesses he had interviewed and

the information they had provided him.8

     Further, there is no evidence that the prosecution acted to

subvert the defendant's right to discovery in the present case,

or in effect did subvert any discovery.   The defendant was

     7
       One juror asked: "So, just to be clear, this is the
entire body of evidence?" Another queried whether Detective
Mark Santon "had experience interviewing victims who [had]
waited periods of time . . . before reporting." This juror
followed up by asking whether Santon believed that the
complainant's recollection sounded like those of other victims.
Another asked why there was never a police inquiry regarding the
survey conducted in 2009, and why the police never interviewed
the defendant's children or wife. Finally, a grand juror asked,
"[I]s there any other corroborating evidence that we should be
aware of that these incidents happened?"
     8
       We do not agree that the defendant's indictments based on
hearsay raise concerns because of the stigma associated with
being charged with sexual assault violations. We have never
held that the level of stigma that may attach to the nature of
the crime charged changes either the standard of proof or the
evidentiary requirements applicable to a grand jury proceeding,
and decline to do so in this case.
                                                                     15


provided with a detailed report of what the complainant told

Santon, and of Santon's follow-up interviews with potential

witnesses.   The defendant has no right to require the

Commonwealth to call witnesses to testify before the grand jury

so that he might have transcripts of their testimony to use at

trial, and the Commonwealth has no obligation to call such

witnesses.

    The grand jury in the present case heard all the

information available to the police at the time of the grand

jury proceedings, and were able to render an informed decision

as to the indictments.   If members of the grand jury had been

uncertain about returning indictments based on the hearsay

testimony regarding a case that was fourteen years old, they

could have requested the presentation of further evidence.     See

Commonwealth v. McNary, 246 Mass. 46, 51 (1923) ("[I]f, in the

course of such investigation, it appears that there are other

witnesses than those produced for the prosecution, and the grand

jury are actually convinced that their testimony may be material

and pertinent, and of such a nature as would elucidate or

explain the evidence for the government, and lead them to a more

perfect knowledge of the merits of the case, it is said they may

require the testimony of such witnesses").   See also

Commonwealth v. Williams, 439 Mass. 678, 683 (2003) (grand jury

possess "broad powers to 'inquire into all information that
                                                               16


might possibly bear on [their] investigation'" [citation

omitted]).9

     3.   Conclusion.   For the foregoing reasons, the order

dismissing the defendant's indictments is reversed, and the case

is remanded to the Superior Court, where the indictments are to

be reinstated.

                                    So ordered.




     9
       The defendant argues that the grand jury may never have
been instructed as to their ability to call additional
witnesses. The record does not reflect what the grand jurors
were instructed. The record does reflect, however, that the
grand jurors asked extensive questions of Santon, and understood
the limited nature of the evidence they were receiving.

     It would be helpful if the Superior Court would craft a
model instruction for use by judges who are empanelling grand
jurors. Among other things, the instruction could inform them
that they may request the production of additional witnesses if
they find it necessary to their full consideration of a case
presented to them by the prosecutor, in accord with Commonwealth
v. McNary, 246 Mass. 46, 51 (1923).
