COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss. SUPERIOR COURT INDICTIMENT NO. 14-445 COMMONWEALTH. vs FREDERICK PINNEY MEMORANDUM OF El DEFENDANT’S MOTION TO DISMISS (McCarthy; O’Dell| On April 29, 2014, a Hampden County grand jury returned an indictment charging Frederick Pinney (“Pinney”), with murder, in violation of G. L. ¢. 265, § 1. Pinney now moves to dismiss the indictment due to insufficient evidence presented to the grand jury and by errors of the prosecutor and a witness that allegedly tainted the grand jury proceedings.' For the following reasons, Pinney’s motion to dismiss based upon the grounds set forth in Commonwealth v. O'Dell, 392 Mass, 445 (1984), and Commonwealth v. McCarthy, 385 Mass. 160 (1982), is DENIED. BACKGROUND ‘The following facts are gleaned from the grand jury testimony. On March 22, 2014, the victim, Tayclaire Moore (“Moore”), Moore’s boyftiend, Christopher Podgurski (“Podgurski”), and Pinney, were together at the St. Patrick’s Day Road Race in Holyoke.” Pinney and Moore were ingesting cocaine throughout the course of the day. At some point, Pinney and Moore decided to go home. Pinney subleased a room to Podguski and Moore in the home he rented. When they artived, they continued to drink and snort cocaine. Due * Pinney additionally moves for dismissal for violation of his right to a speedy trial pursuant to Mass. R. Crim. P. 36 (c). For purposes of clarity, I will address that issue in a separate Memorandum of Decision and Order, ® Pinney originally met up with Moore and Podgurski to obtain drugs (lorazepam) to combat his anxiety.(o his level of intoxication, Podgurski decided to spend the evening at his mother’s home that vas closer to the location of the Road Race. Inthe early moming hours of March 23, 2014, Pinney went to his room and began consuming pills of lorazepam in an effort to kill himself, Pinney also attempted to cut his wrists and neck with a knife. When these methods proved unsuccessful, Pinney retrieved his nail gun and compressor so that he could shoot himself in the head. He continued to take cocaine and drink alcohol until he passed out in his room. Pinney awoke later that morning to Podgurski knocking on his bedroom door inquiting as to Moore’s whereabouts. Pinney exited his bed, opened the door enough to leave his room and closed the door behind him, Pinney explained that Moore must have left the night before. Podgurski then demanded that Pinney open his bedroom door to examine whether Moore was in Pinney’s room. Pinney explained that he had to go downstairs to get his key because his bedroom door locks automatically when closed. Pinney returned with a knife in his hand, which caused Podgurski to fear for his life. Podgurski exited the home and called the police, who artived shortly thereafter, Officers Alan Bethea and Richard LaBelle arrived at the scene first. They entered the home and immediately observed blood on the floor and Pinney approaching the sink where knives were strewn over the counter, At that time, the officers subdued Pinney and put him in handoufis. As they continued to comb the house, the officers eventually found Moore naked and deceased on the floor of Pinney’s room, The Medical Examiner declared that Moore’s cause of death was asphyxiation. Pinney denied knowing that Moore was in his room and what caused her death.On April 28, and 29, 2014, prosecutor David Gagne (“ADA Gagne”) presented this case to aHampden County grand jury. The prosecution's two chief witnesses were the two officers investigating the case, Detective Timothy Kenney (“Kenney”), and Detective Trent Hufaagel Hufnagel”) (collectively, the “witnesses”), Throughout the examinations, there were several instances where ADA Gagne, through his questions and the witnesses’ testimony, either ‘expressly or impliedly suggested that the DNA samples were actively being tested, This was not correct Additionally, there were two instances in the grand jury minutes where Kenney testified that Podgurski was already ruled out as a suspect.‘ One such claim flowed from a leading question posed by ADA Gagne to the investigating officer before the grand jury. After presentation of the evidence, the grand jury indicted Pinney on a charge of murder. DISCUSSION A court “will not inquire into the quality of evidence heard by a grand jury unless extraordinary circumstances ate present.” Commonwealth v. Mathews, 450 Mass. 858, 873 (2008) (internal citations and quotation marks omitted). There are two extraordinary circumstances where judicial inquiry is warranted: (1) when it is unclear that sufficient evidence ‘was presented to the grand jury to support a finding of probable cause to believe that the defendant committed the offense charged, and (2) when the defendant contends that the integrity of the grand jury was impaired, Id. > ‘The record suggests that the samples were sent tothe facility, which would perform the test, however, the second step, which requires a request to test the samples, was not received. * Specifically, a grand juror asked Kenney whether Pinney and Podgurski were sill under investigation. Kenney responded swiftly, claiming “{nJo, no. (Podgarsk] is not under investigation.” The next day, ADA Gagne inquired of Kenney, in 2 leading fashion, “as a result of [the Moore] investigation you determined that Me. Podgurski was not 1 suspect.” Kenney responded “[cJorrect”1. Sufficiency of the Evidence ‘The first issue is whether the Commonwealth presented suflicient evidence to the grand Jury to support a finding of probable cause to believe that Pinney committed the crime charged To obtain an indictment, the Commonwealth must, at a mit mum, present the grand jury with sufficient evidence to establish the identity of the accused and probable cause to arrest him. McCarthy, 385 Mass. at 163, Probable cause to arrest requires more than a mere suspicion but something less than the evidence necessary to support a conviction. Commonwealth v. Roman, 414 Mass. 642, 643 (1993). Probable cause exists where the facts and circumstances within the officers’ knowledge at the time of the arrest serve as “reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” Commonwealth v. Stevens, 362 Mass. 24, 26 (1972). After reviewing the grand jury minutes, I find that the Commonwealth presented sufficient evidence to support a finding of probable cause to believe Pinney committed the erime charged. 2. Tainting of the Grand Jury Proceedings ‘The next issue is whether I should dismiss the grand jury’s indictment charging Pinney ‘with murder duc to allegedly misleading and deceptive testimony and prosecutorial misconduct. Dismissal of an indictment is warranted where the Commonwealth's presentation of evidence is misleading in a way that compromises the integrity of the grand jury proceeding. O'Dell, 392 Mass. at 446-447. “{]]t is not enough for dismissal of an indictment that false or deceptive evidence was presented to a grand jury.” Commonwealth v. Drumgold, 423 Mass. 230, 235 (1996). The defendant must present evidence of two additional elements: (1) that the false or Geceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment, and (2) that the presentation of the false or deceptive evidence probably influencedthe grand jury’s decision to indict. Jd. To meet this burden, the defendant must show that “not only fis] the evidence [] material to the question of probable cause but that, on the entire grand jury record, the false or deceptive testimony probably made a difference.” Id. This issue presents a closer question, but I do not think that the alleged improper testimony or prosecutorial misconduct rises to a level that compromised the integrity of the grand jury proceedings. Here, a fair reading of the record suggests that Kenney believed the DNA samples were sent for testing. This is only the first step to initiate testing. The second step requires a request for testing, something that was not accomplished by the time of the presentation to the grand jury. I am not persuaded that ADA Gagne and Kenney were aware that the second required step had yet to occur at the time of the grand jury proceedings. There is no compelling evidence to the contrary. Therefore, Kenney’s testimony pertaining to the DNA samples was not false or deceptive and is not a basis for dismissal of the indictment, Finally, I do not accept Pinney’s argument that Kenney or ADA Gagne tainted the grand jury proceedings when they claimed that Podgurski was not a suspect. By the time of his grand jury testimony, Kenney felt comfortable enough with his investigation to declare to the grand jury that Podgurski was no longer a suspect. He had primarily come to this conclusion through the confirmation of Podgurski’s alibi, There is no evidence in the record to suggest that this was false or deceptive testimony. ADA Gagne’s leading question eliciting Kenney’ s response before the grand jury that his investigation failed to produce Podgurski as a suspect may have been. improper, however, due to Kenney’s testimony on the subject eatlier in the grand jury presentation, it did not have the effect of influencing the grand jury’s decision to indict Pinney. See Drumgold, 423 Mass. at 235, Although the use of leading questions in grand jury presentations has occasionally prompted criticism, dismissal of an indictment is not warrantedsolely on this ground. See Commonwealth v. Martinez, 420 Mass. 622, 625-26, n.4 (1995), abrogated on other grounds, Commonwealth v. Azar, 435 Mass, 675 (2002). Here, the use of this leading questions did not amount to egregious prosecutorial misconduct that impaired the integrity of the grand jury proceeding. Accordingly, Pinney has failed to carry his burden cstablishing that dismissal of the indictment is warranted, ORDER For the foregoing reasons, it is hereby ORDERED that defendant's Motion to Dismiss the indictment on the grounds highlighted in O'Dell and McCarthy ig DENIED. ; MeDonough Jr. fistice of the Superior Court Dated: December ia