Commonwealth v. Clemmey

Massachusetts Superior Court

Commonwealth v. Clemmey

17 Mass. L. Rptr. 717

CourtMassachusetts Superior Court

DecidedMay 17, 2004

DocketNo. BRCR20031327

StatusPublished

This text of 17 Mass. L. Rptr. 717 (Commonwealth v. Clemmey) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Clemmey, 17 Mass. L. Rptr. 717 (Mass. Ct. App. 2004).

Pincite

Opinion

Connon, J.

A prosecutor need not present all exculpatory evidence to the grand jury. Commonwealth v. O’Dell 392 Mass. 445, 447 (1984). However, “(w]hen the prosecutor possesses evidence which would greatly undermine the credibility of evidence likely to affect the grand jury’s decision to indict, the prosecutor must alert the grand jury to the existence of such evidence.” Commonwealth v. McGahee, 393 Mass. 743, 746 (1985). Furthermore, if the prosecutor does not communicate these circumstances to the grand jury, “then the appropriate remedy may be dismissal of the indictment.” Commonwealth v. Connor, 393 [718]*718Mass. 838, 854 (1984). Since there is “no comprehensive rule or statement as to what does and what does not constitute impairment of the integrity of the grand jury process,” dismissal must be determined on a case by case basis. Commonwealth v. Pond, 24 Mass.App.Ct. 546, 550 (1987).

In the present case, the prosecutor failed to present exculpatory evidence to the grand j ury that would have likely affected their decision to indict. The grand jury was never informed that the Massachusetts Wetlands Protection Act (“Act”), G.L.c. 131, §40, contains an agricultural exemption, which specifically exempts from both its civil and criminal prohibitions any and all “work performed for normal maintenance or improvement of land in agricultural use . .Nor did the prosecutor inform the grand jury of Mr. Clemmey’s belief that this exemption applied to his conduct in this case. The prosecutor should have presented this information to the grand juiy to allow them to consider the possibility of the defendant’s lack of intent to violate the Act as well as the defense of the agricultural exemption. Since the grand jury was not made aware of the agricultural exemption, a circumstance which undermines the credibility of the evidence and is likely to have affected their decision to indict, then the appropriate remedy is to dismiss the indictment.

ORDER

It is hereby ORDERED that the defendants’ motion to dismiss all counts of the indictment is ALLOWED without prejudice.

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Connon, J.

A prosecutor need not present all exculpatory evidence to the grand jury. Commonwealth v. O’Dell 392 Mass. 445, 447 (1984). However, “(w]hen the prosecutor possesses evidence which would greatly undermine the credibility of evidence likely to affect the grand jury’s decision to indict, the prosecutor must alert the grand jury to the existence of such evidence.” Commonwealth v. McGahee, 393 Mass. 743, 746 (1985). Furthermore, if the prosecutor does not communicate these circumstances to the grand jury, “then the appropriate remedy may be dismissal of the indictment.” Commonwealth v. Connor, 393 [718]*718Mass. 838, 854 (1984). Since there is “no comprehensive rule or statement as to what does and what does not constitute impairment of the integrity of the grand jury process,” dismissal must be determined on a case by case basis. Commonwealth v. Pond, 24 Mass.App.Ct. 546, 550 (1987).

In the present case, the prosecutor failed to present exculpatory evidence to the grand j ury that would have likely affected their decision to indict. The grand jury was never informed that the Massachusetts Wetlands Protection Act (“Act”), G.L.c. 131, §40, contains an agricultural exemption, which specifically exempts from both its civil and criminal prohibitions any and all “work performed for normal maintenance or improvement of land in agricultural use . .Nor did the prosecutor inform the grand jury of Mr. Clemmey’s belief that this exemption applied to his conduct in this case. The prosecutor should have presented this information to the grand juiy to allow them to consider the possibility of the defendant’s lack of intent to violate the Act as well as the defense of the agricultural exemption. Since the grand jury was not made aware of the agricultural exemption, a circumstance which undermines the credibility of the evidence and is likely to have affected their decision to indict, then the appropriate remedy is to dismiss the indictment.

ORDER

It is hereby ORDERED that the defendants’ motion to dismiss all counts of the indictment is ALLOWED without prejudice.

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Bluebook (online)

17 Mass. L. Rptr. 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-clemmey-masssuperct-2004.

Opinion

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