al COMMONWEALTH OF MASSACHUSETTS HAMPDEN, 5, SUPERIOR COURT Witenes os CRIMINAL ACTION Ee NOS, 15-731, 15.752 & 15-724 JUL 24 Be ‘COMMONWEALTH. Sexes eons MEMORANDUM OF DECISION ON DEFENDANTS’ MOTIONS TO DISMISS “The defendant, Marquies Johnson (*Me, Johnson”) is charged with conspiracy to commit possession ofa firearm, pursuant to G.I. ¢.274, §7 (Count 1, illegal possession of a firearm, pursuant to GL. ©. 269, § 10 (a) and G. L,¢. 269, § 106 (Armed Career Criminal Act) ACCA”) (Count I), unlawful possession of ammunition without firearm identification card (FID card”), pursuant to G.L. ¢.269, § 10 (h) and G. Le. 269, § 10G (ACCA) (Count Il), and ‘operating a motor vehicle after license suspended or revoked (subsequent offense), pursuant to G.L-¢. 90, § 23 (Count 1Vp. ‘The defendant, Jose Sosa (*Mr. Sosa’), is charged with conspiracy to commit possession of a frearm, pursuant to G. L. ¢.274, §7 (Count 1, illegal possession of a firearm, pursuant to G. Lc. 269, § 10 (a) and G. L. 269, § 106 (ACCA) (Count I), unlawful possession of ‘ammunition without FID card, pursuant to G. Lc. 269, § 10 (h) and G. L.€. 269, § 106 stolen property, pursuant to G. L. ¢. 266, § 60 (Count IV). (ACCA) (Count IN), and rect ‘The defendant, Paul Finegan (*Me. Finegan’, is charged with unlawful possesion of a ‘controlled substance (Class B- Cocaine), pursuant to GL. ¢, 94C, § 32A (e) (Count 1, violation * pr Sosa und Mr lnegan fled scart maton to dsm. Counsel for Mr Finegan represented at heating on Sus 30, 2017 tht hd nether Tea mason to dsm ror id he sek join nodes moto “isms. Nocwithsanding his provounement, prior ounel le motion o demi on Feb 2 2016 andthe ‘Commonweal edit opposition o Mr Finepa’smsion to dismiss on May 21,2017. Acoaigy, | onsseed [Wr Finepan's mosion to einmis ied by prior ene COR mauris Kaard = Both Atha | | | | |‘ofa controlled substance law school or park zone, pursuant to G. L. e. 94C, § 325 (Count I), ‘conspiracy fo commit possession ofa firearm, pursuant to G. L.¢.274, § 7 (Count I), illegal possession of firearm, pursuant to G. Le. 269, § 10 (a) (Count IV), and unlawful possession of 2 loaded firearm, sawed off shotgun or machine gun, pursuant to G. L. €. 269, § 10 (n) (Count we “The defendants seek dismissal of the within indictments arguing that: (1) the grand jury was presented with insufficient evidence to support probable cause for the issuance ofthe indictments; and (2) the evidence was misleading and contrived. For the fotlowing reasons, and after consideration ofthe arguments of counsel, Me. Johnson's motion to dismiss is ALLOWED ‘as to Counts |, I, Ill and DENIED as to Count IV, Mr. Finegan’s motioa to dismiss is ALLOWED as to counts II, 1V, and V, and Mr. Sosa’s motion to dismiss is ALLOWED es to Count 1 (conspiracy to commit possession ofa firearm) and the ACCA enkancements pursuant (0 G.L€. 269, § 106, and otherwise DENIED. BACKGROUND A, Grand Jury Testimony ‘On September 10, 2015, the grand jury heard testimony ftom Officer Grege Bigda as set forth below: (On August 11,2015, at approximately 9:35 pam, officers of the Narcotics Bureau, under the supervision of Lieutenant Ayal, arrested Mr. Sosa, Mr. Jolnson, and Paul Finegan (Mr. Finnegan”), Prior tothe arrests, the officers were in the ares of Frank's Package Stor, located at 11 Dickinson Street in Springfield. The area is high-erime area where the police have made ‘numerous narcoties-elated arrest. The Springfield Police Department (“the Department”), has ‘dentified this area as a trouble spot, and ithas heen the focus of numerous citizens’ complaints ‘With that in mind, Lieutenant Ayala instructed officers to spread through the area in order (0 2 The court (Fear, 1), sever Counts an Il on Febrary 1, 2016conduct surveillance and attempt to locate any illegal act Shorty after arriving, Lieutenant Ayala and Officer Robles observed three men seated in & Mazda (“the Mazda”), at Dovr Steet and Orange Stvet. Officer Kalish immediately recognized the license plate, Mass, tag 199SR3, from « previous inves and a search warrant naming Mr. Jobson asthe target. The officers knew ME. Johnson to be an ative narcotics deter and wo havea suspended license Officer Kalish was abe to drive pas the Mazda and determine that Mr. Johnson was operating the Mazda, The grand jury was preseated with evidence that Mr Johnson had a eco of roe ‘conviction for operating « motor vehicle witha suspended o evoked license ‘Te officers set up sureilance ofthe Mazda, Shor theealer, the Mazda pulled away from the curb without its headlights on and continued up Noe! Stet, Lieutenant Ayala followed the Mazda up Noe! Steet and right onto Euclid Avenue Upon reaching Orange Sect, the “Mazda crossed Orange Street and continued along Euclid Avenue, witout slowing or stopping the stop sign. Officers conned to follow the Mad crs the ty. The Mazda eventually tured onto Riverview Stet and accelerated rapidly. Officers attempted to continue following the Mardi sit looped though he side sects, ut lost the Mazda in the ates of Sumner and Forest Park Avenue. The officers believed tha the Manas operator had detected the officers? ‘presence a fled. The offices spread out over the sea in an attempt to locate the Mazda Ofticee Rodez observed a Mazda ding atthe curb in front of 30 Beechwood ‘Avenue, and after driving pas the vehicle Officer Rodkiguez identified it as the Maze, Support officers immediatly responded tothe area? As the officers anved, Officer Kalish observed two ‘men, later identified as Me. Sosa and Mr Finegan, exit the Maa and walk towards the Friendly’s lee Cream restaurant (“Friendly's"), located at 65 Sumner Avenue. Me. Sosa and Mr ‘negan repeatedly looked around and appeared to be very nervous. At that point, Officers 2 The poe report refers to "Beechwood Stet” but the proper name ie Roschwood Avenue. |Kalish and Cournoyer began to drive past Friendy’s in an undereover vehicle and Mr. Finegan ‘motioned towards their vehicle, Mr. Finegan, who continued to look nervously around the area, stopped and quickly walked across the parking lot and out to Sumner Avenue, Mr, Finegan continued scanning the area and looked up and down the street ashe utilized his cellular telephone (“cell phone”). Officers Kalish and Coumoyerretumed to the intersection and as they approached the area in ther vehicle heard Me. Finegan say into his cll phone, “They're here, they're here!” Mr. Sosa immectately tumed away fom the store and walked quickly back towards 30 Beechwood Avenue asthe Mazda accelerated away fom the eu towards Spruccland Street, wher it tuned lft ‘Officers Rodriguez and Hemandez then observed Mr. Sosa next to a broken-down ‘ehiele infront of 30 Beechwood Avenue, and subsequently attempted to follow the Mazda as it fled the scene. The Mazda continued down Spruceland Street without slowing or stopping forthe stop sign at Magnolia Terace. The Mazda then continued left onto Firglade Avenue towards Sumner Avenue “ Officers were able to block Firlade Avenue and stop the Mads at Sumner ‘Avenue and Finglade Avenue, Te officers took Mr. Johnson into custody without incident. At the sume time, Officers Kalish and Courmoyer had detained Mr. Finegan at Sumner and Beechwood Street. Atthat time, Officers Fitzpatrick and Truoiolo were traveling in a marked police emuiser operating the wrong way on Beechwood Avenue. They entered the Friendly’s parking lot Oicer Iruoiolo ented the eraser and observed Mr. Sose stand up next toa broken-down vehicle on jack stands in front of 30 Beechwood Avenue, Officer Tn fo took Mr. Sose into ‘custody. Officer Fitzpatrick walked back tothe broken-down vehicle and immediately observed “The police opr refers to “Fale Set," bathe proper name is Fade Aveave‘Colt semi-automatic pistol ("the firearm”), on the ground in the area wheze Mr, Sosa had been standing, It was raining atthe time. When the officers recovered the firearm, the fear was dr. During a booking search of Mr. Sosa, Olficer Hernandez. observed a black ski mask hidden in Me. Sosa’s shorts. The Firearm ‘The Commonwealth presented the grand jury with the photograph Officer Bigda took of the firearm. Officer Bigda testified thatthe photograph depicts the firearm on the grounel where it ‘was recovered, The photograph shows a multicolored firearm lying on the ground, The majority of the firearm is lying on the grass anda small part ofthe firearm rests on what appears to be pavement. Officer Bigda testified that when he viewed the firearm he observed that it had a loaded magazine, He manipulated the slide and test checked it, and the irr appeared to be ‘operational. He also observed tha the firearm was loaded. A records check revedled, andthe Holyoke Police Department confirmed, thatthe firearm was a stolen firearm from Holyoke, Officer Bigda’s Supplemental Report Officer Bigda issued a supplemental report, dated September 1, 2015 (“the Bigda Supplemental Report”, which he read tothe grand jury. The Bigda Supplemental Report sts forth te following: “9/1/15. In regards tothe arest of Jose Sosa, dat of birth 7/30/89, arrest number 15- 2778-AR; Paul Finegan, date of birth 8/29/94, arrest number 15-2779-AR; and Marquies Johnson, date of birth 5/13/82, arrest number 15-2780-AR, Afier completion of these anvests Officers were monitoring the video and audio surveillance of the nareotis holding cell wale these thee subjects awaited formal Booking procedure, 1his audio and video surveillane is for safety purposes only and is not recorded, While these three subjects awaited Booking they began a casual conversation about the preceding events. Mr. Finegan began to speak ofthe white SUV with tinted windows and the fact that e knew | ‘twas the cops, Me. Finegan went on to state that he had fled from Mr, Sosa due to the return on the white SUV to the area, which be now believed to be the Police. Mr, Finegan also stated to Police thal, He was gong to see hs girlfend, Upon asking where she lived. Mr. Finegan stated, Oswego Street, which isthe opposite direction ffom which he‘was walking. Mr. Finegan and Mr. Johnson's appreaension and fight upon observing Police presence were part of the reasons for the charges.” After reading the Bigda Supplemental Report to the grand jury, Officer Bigda testified thatthe police confirmed that Mr, Johnson had a suspended license. The police further identified that none ofthe three men possessed an FID card. Prior Records and Convictions ‘The Commonwealth presented the grand jury with Mr. Sosa’s and Mr, Jobnson’s criminal docket reports. Officer Bigda testified that Mr. Sosa had prior convictions for disorderly conduct, assault and battery on a police officer (*ABPO"), receiving stolen property, receiving stolen property over, and resisting arrest’ He further testified that Me. Sosa had a conviction for assault and battery with a dangerous weapon (“ABDW"). Officer Bigda testified that Mr. Johnson had pled guilty manslaughter. Mr. Johnson also had prior convictions for possession with intent to distribute & Clas B substance and violation near a school or park zone, ABDW, and operating on «a suspended licens. B. Evidentiary Hearing on the Bigda Supplemental Report Although Officer Bigda testified before the grand jury relative tothe Bigda Supplemental Report, the Commonwealth did not submit the report as an exhibit. Mr. Johnson and Mr: Sosa ‘moved fo dismiss thei indictments onthe basis that the Commonwealth knowingly presented {alse testimony and distorted evidence to they grand jury. They pointed to the absence of @ physical copy ofthe report and Otficer Bigda’s statements captured in a recorded encounter at the Palmer Police Department (‘the Pelmer DVD”), on February 27, 2016, On May 19,2017, the ‘Commonwealth provided defense counsel witha copy of the Bigda Supplemental Report. The Iheader on the report sets forth the date entered as “08/11/2015,” but the body ofthe report begins The grand jury tanserp reflects that Orfcer Big ead “receiving stolen property evr” witha sping “over 250"‘with “0901/15. the date Officer Bigda authored the report. Mr. Johnson and Mfr. Sosa again ‘contended that the Commonwealth presented the grand jury false statements and distorted evidence, 1. ‘The Palmer DVD, (On June 20,2017, I denied the Commonwealth's Motion in Limine To Prohibit Defense ‘Counsel from Showing or Referring o a Video Depicting Detective Greg [sc] Bigdla and Luke ‘Coumoyer.® Accordingly, on June 30, 2017, | considered at en evidentiary hearing both a redacted and unredacted recording ofthe Palmer DVD depicting Officers Bigda and Coumoyer and two juveniles during the officers’ encounter withthe juveniles in a booking cell at the Palmer Police Department on February 27, 2016. In the Palmer DVD, Oificer Bigda threatened to kill two juveniles who were suspected of stealing an undercover police vehicle, He also threatened o plant evidence on the juveniles, and yells “Don’t tell me what I'm gonna charge you with... I plant a kilo of eoke in your pocket and put you sway for 15 years.” *T'm not hampered by the truth because I don’ give a =! Officer Bigda further tells one ofthe juveniles that, “tere are no fing cameras in Springfield,” and “If it’s notin my repor, it didn’t happen.” 2. 1 Bigda's Testimony at At the evidentiary hearing Officer Bigda’s timony, coroborated by the testimony of Lieutenant Robert Tani and the Department's IT Manager Jiansonj Xu, established, by a preponderance of the credible evidence, the following: “naling onthe Commonveai's motion, Isated hat, “At tho preset sage othe proceedings, «mln, ‘erelvantwhather ort Officer Big as racially and en bisa or peice ohare defendants ch ior peas may ell i spplemenal pole epithe witha wae no question” Deeson ae (Order a3. Accordingly ound tha, "Because Oe Digs rei iat sm any evidence probative to his reciiliy might be admissible this sig" aS. Notes" [lid ha ea an eine sor Prejie scare inthis ese or tht seh bas or projuice would nessa place OMe Bip’ spleen Polls repart in gueston, I merely id th th content ofthe dd i rekvan tothe niyoIn the late night and early morning bours of August 11 ~ 12, 2015, Mr, Johnson, Mr, ‘Sosa, and Mr, Finegan were ina holding cell in the Narcotics Unit ofthe Department known as the “box.” The box isa cell with approximate dimensions of 10 feet by 14 feet with benches around its perimeter and a camera inthe comer with a volume microphone. Individuals, such as ‘he defendants erin, wait formal booking in the box, Prominent ies in both Enis and Spanish let occupants in the box that hey ae being monitored The bois located across the tall fom the Nareaies Unit. The video and audio monitoring systems inthe box play on a large ‘monitor which, on August 1 ~ 12,2015, was locate tothe ear and side of Officer Bigd’s desk, The monitoring sytem doesnot record. Its purpose so monitor people in the box or thee safety (On August 11-12, 2015, Officer Bigda was ahs desk while Mr. Jobson, Me, Sosa, an Mr, Finegan were inthe box. Atha sie, Offi gd heard Mr Finegan site onthe monitor that be knew thatthe police were driving the white SUV with tinted windows and tat head led from Me, Sosa in light of the rtum of the white SUV tothe area. ‘When a police officer rete a naratve report on the Department's computer system, 1. An officer the date and time ae recorded ona eter according tothe computer sytem cannot change the computer dite ante st forth inthe Beade, Supplemental report that are approved bya supervising officer result in an updated date and time in the header. Supplemental repors that are not approve, 8s sometimes the ease, appear onthe Departments computer system with the lst date oan approved report The headers are only’ ulated once a reports spproved, As such, an unapproved supplemental report will ot beara header hat accurately reflects the date the unapproved supplemental report was enteredDISCUSSION Standard of Review ‘The standard applicable to a motion fo dismiss based on the evidence presented to a ‘grand jury is wel esiablished. Generally, “a court will not review the competency or suficieney of the evidence before a grand jury” unless extraordinary circumstances are present. See Commonwealth v, O'Dell, 392 Mass. 445, 450 (1984), See also Commomwealth v. Freeman, 407 Mass. 279, 282 (1990). A reviewing court dacs not evaluate the credibility of the evidence presented to the gran jury; rather, the cour considers the evidence in the light most favorable to ‘the Commonwealth, leaving tothe grand jury all questions of credibility. Commonwealth v Washington W., 462 Mass. 204, 210 (2012); Commomeealth v. Riley, 73 Mass. App. Ct. 721, ‘727 (2009) (“The weight and credibility of the evidence is wholly for the grand jury”), A court ‘may, however, consider whether the grand jury received sufficient evidence to establish “probable cause to arrest,” and whether the inteprity ofthe proceedings was impaired. See Commonwealth v. MeCarthy, 385 Mass. 160, 163 (1982), See also “Dell, 392 Mass. at 446- 447. A. McCarthy ‘To support an indictment, the grand jury must receive sufficient evidence to establish the ‘ofthe accused and probable caus to arrest him or het. McCarthy, 385 Mass. at 163 Probable ease fo ares is defined as “more than mere suspicion bt something ess than ‘evidence sufficient to warant a conviction.” Commonwealth v, Roman, 414 Mass. 62, 643 (4993) tton omit). Despite this esse standard, to establish probable cause the Commonwealth must present the grand jury with evidence om each element ofthe crime charged ‘See Commonvveaith v. Moran, 453 Mass, 880, 884 (2009). The evidence need not be direct; | |cireunstantil evidence tit woud support the necessary inference is suicint for probsble cause, Commorveathv. Tasty, 78 Mass. App. C1. 787,798 (2011. As at a, elements involving intent or mens ste ae seldom susceptible of proof by direst evidences citcumstansil evidence supporting reasonshle inferences is the woul fom of proof. See Commonwealth. MeCarthy, 281 Mass 283, 257-258 (1932), 1. Mr. Johnson and Me. inegan Mr, Johason and Me, Finegan argue that the grand jury did not ear evidence that they ‘were involved in any criminal activity. Because nether Mr. Johnson nor Mr, Finegan had actual possession ofthe Firearm or the ammunition, dhe Commonwealth was required to preset the rand jury, atthe very least, with evidence that they had consrutive possession of he firearm. Tn onder fr thereto be sufficient evidence to prove constructive possession, the CCommonvealth must show “knowledge coupled withthe ability and intention to exercise dominion and contol.” Commonwealth v. Romero, 464 Mass. 648, 653 (2012), quoting Commonwealth. Brezinsi, 40S Mass. 401, 49 (1989). This “may be established by citeumstantal evidence, andthe inferences that canbe dravn therefrom.” Romero, 464 Mass. at (653, quoting Brzezinski, 405 Mass, at 409, Presence alone is not sufficient to show the req knowledge, power or intenton to exert contol, sbsent oer incriminating evidence Commonweathv, Albano, 373 Mass 132, 134 (1970 “The evidence presented 1th gran jury lent nothing more than speculation and sumise as to Mr Jotson ad Mr, Fnegan's involvement withthe ftearm. The grand jury ei ot Rear any evidence tht cither Mr. Jason of Mr. Finegan had knowledge othe fear, The officers recovered the fren fiom the ground near a disabled vehicle where Mr. Sosa had been standing, Although offices observed Mr, Sosa and Mr. Finegan exit Mr Jason's vehicle, there 10