Commonwealth v. Nicholas Brien — Appeals Court of Massachusetts (Dec. 3, 1984)

Factual and Procedural Background

The case arises from grand jury proceedings concerning an alleged armed theft of drugs from two pharmacists. The investigating officer testified to the grand jurors, including that the two pharmacists had identified the defendant and that the officer had obtained the defendant's photograph from another town's police department after receiving a tip. During the grand jury's questioning of the officer, the officer said the stolen drug was Percodan, commented that Percodan is used by some heroin addicts when heroin is unavailable, stated his belief that the defendant was a drug addict, and answered that the defendant did not have (and probably would not be issued) a permit to carry a firearm. The defendant raised objections to aspects of the grand jury proceedings, arguing that the Commonwealth's handling of testimony and evidence impaired the integrity of the grand jury. The Appeals Court reviewed these claims and issued the opinion now summarized, concluding with the notation "Judgment affirmed."

Legal Issues Presented

Whether the conduct and testimony presented to the grand jury (including references to the nature and use of the stolen drug, the officer's belief that the defendant was a drug addict, and comments about a firearms permit) so impaired the integrity of the grand jury proceedings that the indictment should be dismissed.
Whether the trial judge erred in resolving a conflict in testimony (a routine credibility determination) presented in the record.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Gibson, 368 Mass. 518, 522-525 (1975)	Establishes that grand jury proceedings are not required to be confined to evidence meeting technical trial admissibility rules, so long as the evidence is probative of the defendant's criminal activity; describes the grand jury as an institution "in which laymen conduct their inquiries unfettered by technical rules."	The court relied on Gibson as part of the foundational principle that exposure of grand jurors to information excluded at trial does not alone impair grand jury integrity and therefore does not require dismissal here.
Commonwealth v. St. Pierre, 377 Mass. 650, 654-657 (1979)	Addresses circumstances in which the Commonwealth may have "concertedly guided the grand jury's attention into improper, nonprobative, inflammatory areas," warning that such conduct can deceive grand jurors.	The court cited St. Pierre to explain the standard under which courts will scrutinize grand jury presentments if the Commonwealth guided the grand jury into improper areas; it found that the facts before it did not reach that threshold.
Commonwealth v. McCarthy, 385 Mass. 160, 162-164 (1982)	Holds that where the Commonwealth has failed to produce any evidence of the defendant's criminal activity, a motion to dismiss the indictment will lie.	The court noted McCarthy as describing one ground for dismissal and observed that the instant case did not fit McCarthy because the Commonwealth had produced probative evidence (identifications and testimony).
Commonwealth v. Salman, 387 Mass. 160, 166-168 (1982)	States that a motion to dismiss may lie where the Commonwealth has impaired the integrity of the grand jury proceedings by knowingly using false testimony.	The court cited Salman to note that knowingly false testimony is a ground for dismissal, but found no such impairment of integrity in the officer's answers in this case.
Commonwealth v. O'Dell, 392 Mass. 445, 446-452 (1984)	Holds that doctoring evidence so as to give the grand jury a distorted picture of its probative force can warrant dismissal of the indictment.	The court referenced O'Dell to identify doctored evidence as a dismissal ground and concluded the present testimony was not a comparable distortion.
Commonwealth v. Connor, 392 Mass. 838, 853-854 (1984)	Included among the authorities from which the opinion summarizes principles governing proper grand jury practice.	The court cited Connor as part of the body of precedent shaping the standard for evaluating grand jury proceedings; it applied these aggregated principles to the facts and found no basis for dismissal.
Commonwealth v. Saya, 14 Mass. App. Ct. 509, 511-516 (1982)	Explains that exposure of a grand jury to information that would be excluded at trial, standing alone, does not impair the integrity of the proceedings.	The court relied on Saya to support the view that mere exposure to arguably inadmissible information does not, without more, justify dismissing an indictment.
United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972)	Quoted for the concept (via St. Pierre) concerning deceiving grand jurors as to "the shoddy merchandise they [were] getting," illustrating judicial skepticism when grand jurors are deceived.	The court cited Estepa (through St. Pierre) to show the phrase and concept used when describing circumstances that would cause courts to view grand jury presentments with a jaundiced eye; it determined such circumstances were absent here.
United States v. Payton, 363 F.2d 996, 1000 (2d Cir.), cert. denied, 385 U.S. 993 [Friendly, J., dissenting]	Quoted (via St. Pierre) alongside Estepa regarding courts' concern when grand jurors have been deceived about the quality of the evidence presented.	The court relied on the Payton quotation as part of the authority warning against deceptive practices; it found no comparable deception in the present proceedings.

Court's Reasoning and Analysis

The court began by summarizing a body of precedents establishing both broad latitude for grand jury proceedings and limits to that latitude. It stated the general principle that grand juries need not be confined to evidence that would satisfy trial admissibility rules if the evidence is probative, but that dismissal is appropriate when the Commonwealth either (a) produces no evidence of the defendant's criminal activity (McCarthy), (b) knowingly uses false testimony (Salman), or (c) doctoring evidence so the grand jury gets a distorted view (O'Dell). The court emphasized that mere exposure of grand jurors to information that would be excluded at trial does not, standing alone, undermine the integrity of the proceedings (Saya; Gibson).

Applying those principles to the record, the court reviewed the grand jurors' questioning of the investigating officer and the officer's answers: how the officer acquired the defendant's photograph; that the stolen drug was Percodan and that Percodan is sometimes used by heroin addicts; the officer's belief that the defendant was a drug addict; and the officer's comment that the defendant did not have and likely would not be issued a permit to carry a firearm. The court analyzed each answer in turn:

The Percodan answer was seen as responsive to the juror's inquiry about what drug was stolen and possibly explanatory of its use.
The officer's statement that he believed the defendant was a drug addict was deemed relevant to motive and to how the investigation developed.
The comment about the firearms permit was acknowledged as slightly beyond the precise question asked but plausibly an articulation of the basis for the officer's belief and not a statement that impaired the proceedings' integrity.

The court concluded that these answers did not amount to the kinds of concerted guidance, false testimony, or doctored evidence that would justify dismissing the indictment. The court also rejected the defendant's separate challenge to the judge's resolution of a credibility conflict as meritless.

Holding and Implications

Holding: The court affirmed the judgment. (The opinion concludes: "Judgment affirmed.")

Implications: The direct effect is that the defendant's challenge to the grand jury proceedings was rejected and the existing judgment was affirmed. The court's decision applied established precedent concerning the permissible scope of grand jury inquiry and reaffirmed that exposure to information that might be inadmissible at trial does not, without more, invalidate a grand jury presentment. The opinion does not announce a new rule of law; it relies on and applies preexisting authorities to the facts before it.

Show full summary ...

COMMONWEALTH vs. NICHOLAS BRIEN.

Practice, Criminal, Grand jury proceeding. Grand Jury.

The principles that emerge from Commonwealth v. Gibson, 368 Mass. 518, 522-525 (1975), Commonwealth v. St. Pierre, 377 Mass. 650, 654-657 (1979), Commonwealth v. McCarthy, 385 Mass. 160, 162-164 (1982), Commonwealth v. Salman, 387 Mass. 160, 166-168 (1982), Commonwealth v. O'Dell, 392 Mass. 445, 446-452 (1984), Commonwealth v. Connor, 392 Mass. 838, 853-854 (1984), and Commonwealth v. Saya, 14 Mass. App. Ct. 509, 511-516 (1982), are that the proceedings before a grand jury are not required to be confined to evidence which would meet the technical standards for admissibility at a trial, so long as the evidence is probative of the defendant's criminal activity; but that where the Commonwealth has failed to produce any evidence of the defendant's criminal activity ( Commonwealth v. McCarthy, supra), or where the Commonwealth has impaired the integrity of the grand jury proceedings by knowingly using false testimony ( Commonwealth v. Salman, supra), or by doctoring the evidence so as to give the grand jury a distorted picture of its probative force ( Commonwealth v. O'Dell, supra), a motion to dismiss the resulting indictment will lie. As an institution "in which laymen conduct their inquiries unfettered by technical rules," Commonwealth v. Gibson, at 524, it is inevitable that a grand jury will frequently be exposed to information that would be excluded at trial. Such exposure, standing alone, does not impair the integrity of their proceedings. Commonwealth v. Saya, supra at 514-515. Where the Commonwealth, however, is shown to have concertedly guided the grand jury's attention into improper, nonprobative, inflammatory areas, "deceiv[ing] grand jurors as to `the shoddy merchandise they [were] getting'" ( Commonwealth v. St. Pierre, supra at 655, quoting from United States v. Estepa, 471 F.2d 1132, 1137 [2d Cir. 1972], and United States v. Payton, 363 F.2d 996, 1000 [2d Cir.], cert. denied, 385 U.S. 993 [Friendly, J., dissenting]), courts will necessarily view the presentments of the grand jury with a jaundiced eye.

The alleged transgressions in this case do not make a close approach to impairing the integrity of the grand jury proceedings. Following the testimony of the investigating officer who outlined the Commonwealth's evidence to the grand jurors, including the identifications by the two pharmacists from whom the defendant had stolen drugs at gunpoint, the grand jury invited the officer back into the room and put questions to him as to the certainty of the identifications and as to how the officer had come to have the defendant's picture to insert into the photographic array. The officer stated that he had received a tip as a result of which he drove to another town and obtained the photo of the defendant from its police department. One of the grand jurors asked what drug the defendant had stolen. The officer replied that it was Percodan and added that Percodan was used by some heroin addicts to compensate when heroin was unavailable. A juror then asked whether the defendant was a drug addict, and the officer said, "Yes, I believe he is." A juror then asked about the gun, whether it had been found (the answer was negative) and whether the defendant had a permit to carry a firearm. To this the officer replied, "No. I don't believe he has one or will ever have one."

We do not regard the answer about Percodan as unresponsive to the grand juror's inquiry. The officer may well have thought that the juror was searching not just for a technical name but for an explanation of what the stolen drug is used for. The answer about the defendant's drug addiction had obvious relevance, both to the defendant's possible motivation and to manner in which he may have fallen into the investigatory dragnet. The third answer, relative to the carrying permit, may have gone slightly beyond the response called for by the question but can hardly be thought to have impaired the integrity of the proceedings. Most likely the officer was simply articulating the basis of his stated "belief" that the defendant had not been issued a permit to carry: that such licenses will not be knowingly issued to addicts. We know of no good reason why a grand jury should be precluded from inquiring into, and receiving honest answers concerning, police practices, in evaluating the strength of the Commonwealth's case against a suspect. This case falls within "the general rule that a court should not inquire into the adequacy or competency of the evidence upon which an indictment is based." Commonwealth v. Salman, supra at 166.

The other point argued involves the judge's resolution of a run-of-the-mill conflict in testimony and has no merit.

Judgment affirmed.

COMMONWEALTH v. BRIEN