COMMONWEALTH vs. EARLE R. ROBINSON.

COMMONWEALTH vs. EARLE R. ROBINSON.

373 Mass. 591

May 2, 1977 - November 2, 1977

Middlesex County

Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, KAPLAN, & LIACOS, JJ.

The adequacy of evidence presented to a grand jury cannot be tested by a motion to dismiss. [592]

INDICTMENT found and returned in the Superior Court on January 13, 1976.

A motion to dismiss the indictment was heard by Travers, J., and reported by him to the Appeals Court. The Supreme Judicial Court, on its own initiative, ordered direct review.

The case was submitted on briefs.

Willie J. Davis for the defendant.

John J. Droney, District Attorney, & James W. Sahakian, Assistant District Attorney, for the Commonwealth.

QUIRICO, J. The defendant was indicted for having "sexual intercourse or unnatural sexual intercourse" with a child under sixteen years, and for having compelled the child "to submit by force and against his will . . . or . . . by threat of bodily injury, to said intercourse" in violation of G. L. c. 265, Section 22A. The defendant filed a pre-trial motion to dismiss the indictment "which alleges that the defendant committed the crime of rape, on the ground that no evidence was presented to the Grand Jury from which probable cause could be found that such a crime was committed, and that the defendant committed it."

The defendant and the Commonwealth stipulated that the evidence submitted to the grand jury was that the

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defendant compelled the victim, a child under the age of sixteen years, by force and against his will or by threat of bodily injury, to commit fellatio on the defendant. The trial judge initially denied the motion, but then vacated his order. With the defendant's consent, and without decision on the motion, he then exercised his power under G. L. c. 278, Section 30A, to report the following question of law to the Appeals Court: "Should the Court allow the defendant's motion to dismiss an indictment charging him under the provisions of General Laws Chapter 265, Section 22A, with having `. . . sexual intercourse or unnatural sexual intercourse . . .' with the victim (under compulsion) where the evidence shows that the defendant compelled the victim to commit fellatio upon the defendant?" We transferred the case to this court on our own motion. G. L. c. 211A, Section 10(A).

We conclude that the defendant's motion to dismiss should not be allowed, and thereby affirm the well established principle that the adequacy of the evidence presented to the grand jury cannot be tested by a motion to dismiss.

In Commonwealth v. Galvin, 323 Mass. 205 , 211-212 (1948), we said that "[t]he court will not inquire into the competency or sufficiency of the evidence before the grand jury. Commonwealth v. Woodward, 157 Mass. 516 [1893]. Commonwealth v. Walsh, 255 Mass. 317 , 319 [1926]. Commonwealth v. Ventura, 294 Mass. 113 , 120, 121 [1936]. Commonwealth v. Lammi, 310 Mass. 159 , 163, 164 [1941]."

More recent affirmations of this rule may be found in Commonwealth v. Hare, 361 Mass. 263 , 269 (1972), Commonwealth v. Beneficial Fin. Co., 360 Mass. 188 , 229-230 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914 (1972), Commonwealth v. Benjamin, 358 Mass. 672 , 677 (1971), and Commonwealth v. Appleby, 358 Mass. 407 , 414 (1970). See Commonwealth v. Lincoln, 368 Mass. 281 , 285 (1975); Commonwealth v. Geagan, 339 Mass. 487 , 499, cert. denied, 361 U.S. 895 (1959).

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In Costello v. United States, 350 U.S. 359 (1956), the Supreme Court held that an indictment is sufficient even though based entirely on hearsay. The Court said that "neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act." Id. at 362. The Court continued as follows: "If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more." Id. at 363. See United States v. Blue, 384 U.S. 251, n.3, at 255 (1966); Lawn v. United States, 355 U.S. 339, 349-350 (1958).

An interlocutory report on the adequacy of evidence presented to the grand jury to support an indictment raises similar cause for concern. "[I]nterlocutory . . . reports should not be permitted to become additional causes of the delays in criminal trials which are already too prevalent." Commonwealth v. Cavanaugh, 366 Mass. 277 , 279 (1974). Commonwealth v. Vaden, ante, 397, 399 (1977). Commonwealth v. Henry's Drywall Co., 362 Mass. 552 , 554-557 (1972).

The indictment in this case is in statutory form and neither the motion to dismiss nor the interlocutory report contends that it is not sufficient to allege a criminal offense. G. L. c. 277, Section 79. See Commonwealth v. Hare, 361 Mass. 263 n.7, at 266-267 (1972), and cases cited; Commonwealth v. Benjamin, 358 Mass. 672 , 676 (1971). While the defendant's brief seeks to argue that G. L. c. 265, Section 22A, is unconstitutionally vague, his motion to dismiss and the judge's report merely inquired into the validity of a motion

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to dismiss based on the evidence presented to the grand jury.

While the judge's report states that "the evidence shows that the defendant compelled the victim to commit fellatio upon the defendant" (emphasis added), all the judge had before him was a stipulation as to evidence submitted to the grand jury. The parties did not reach any agreement as to the evidence that would be presented at trial. That lack of agreement distinguishes this case from the procedure set forth in Commonwealth v. Brandano, 359 Mass. 332 , 337 (1971), Commonwealth v. Hare, 361 Mass. 263 , 270-271 (1972), and Rosenberg v. Commonwealth, 372 Mass. 59 (1977).

We have no way of knowing what the evidence at any trial of this case would be, and will not permit an interlocutory report under G. L. c. 278, Section 30A, to circumvent our long-standing refusal to inquire into the sufficiency of the evidence before the grand jury. For these reasons, the question reported is answered in the negative, the motion to dismiss is not to be allowed, and the case remanded to the Superior Court for further proceedings.

So ordered.