Commonwealth v. Gregory Lamontagne.

• Court: Massachusetts Appeals Court
• Decided: May 8, 2025
• Docket: 24-P-0957
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-957

COMMONWEALTH

vs.

GREGORY LAMONTAGNE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Gregory Lamontagne, appeals from a judgment

of the Superior Court. He challenges the denial of his pretrial

motion to dismiss a seven-count indictment against him,1 arguing

that "[t]he integrity of the [g]rand [j]ury proceedings was

1In October 2019, a grand jury for the county of Worcester returned an indictment against the defendant alleging seven counts: aggravated rape of a child, G. L. c. 265, § 23A (b) (count I); rape, G. L. c. 265, § 22 (b) (count II); incest, G. L. c. 272, § 17 (count III); indecent assault and battery on a person over the age of fourteen, G. L. c. 265, § 13H (count IV); assault and battery with a dangerous weapon, G. L. c. 265, § 15A (b) (count V); strangulation or suffocation, G. L. c. 265, § 15D (b) (count VI); and intimidation of a witness, G. L. c. 268, § 13B (count VII). In October 2023, following a jury trial in the Superior Court, the defendant was convicted of count V only and was sentenced to two years of supervised probation with the condition, inter alia, to stay away from, and have no contact with, the alleged victim. impaired" because the Commonwealth failed to present purportedly

exculpatory evidence, namely, testimony elicited during the

defendant's bail revocation hearing, which the defendant claims

would have likely affected the grand jury's decision to indict

him. We affirm.

Before the defendant was indicted, the Commonwealth filed a

motion to revoke the defendant's bail, asserting that the

defendant violated his conditions of release by failing to stay

away from the alleged victim.2 An evidentiary hearing was held

on the Commonwealth's motion where conflicting testimony was

given as to whether the defendant violated the stay away order

by driving to the alleged victim's school and watching the

alleged victim in the parking lot as she was leaving. At the

conclusion of the hearing the Commonwealth's motion was denied.

As a result, the defendant asserts that the testimony at the

hearing suggesting that he was not present at the school,

provided by both his girlfriend and his sister, amounted to

exculpatory impeachment evidence because it contradicted the

alleged victim's testimony. The defendant, therefore, argues

that the Commonwealth was required to present this contradictory

testimony to the grand jury during its grand jury presentment,

After the defendant was arraigned, he posted bail in the 2

amount of $5,000 dollars.

2 and that the Commonwealth's failure to do so was prejudicial

error. The argument is meritless.

To be sure, "[n]o comprehensive rule delineates what

constitutes impairment of the grand jury process." Commonwealth

v. Ali, 43 Mass. App. Ct. 549, 556 (1997), citing Commonwealth

v. Pond, 24 Mass. App. Ct. 546, 550 (1987). However, "[t]o

support a claim that the integrity of the grand jury proceedings

has been impaired, the evidence (1) must have been given with

the knowledge that it was false or deceptive, (2) must have been

given with the intention of obtaining the indictment, and (3)

must probably have influenced the grand jury's determination to

hand up the indictment" (citation omitted). Ali, supra at 556-

557"The defendant has the burden of demonstrating these

factors." Id. at 557. Moreover, "[a] prosecutor is not

required to present all exculpatory evidence to a grand jury,

but must disclose evidence that would greatly undermine the

credibility of evidence likely to affect the grand jury's

decision to indict" (quotations and citations omitted). Id.

Here, the defendant does not challenge any of the evidence

presented to the grand jury, but instead contends that the

testimony elicited at his bail revocation hearing ultimately

undermined the alleged victim's credibility so severely that its

absence from the Commonwealth's grand jury presentment likely

affected the grand jury's decision to indict him. This argument

3 fails for two reasons. First, it was not established, as the

defendant asserts, that the alleged victim testified

untruthfully at the bail revocation hearing. Rather, the

hearing judge explicitly found the alleged victim to be credible

but noted that she may have been honestly mistaken that she saw

the defendant at her school when testifying at the bail

revocation hearing. Second, and more importantly, the testimony

at the revocation hearing solely concerned whether the defendant

violated his conditions of release and had no bearing on the

evidence presented to the grand jury, which sought only to

establish the existence of probable cause to arrest the

defendant for the crimes charged. See Commonwealth v. Maggio,

414 Mass. 193, 198-199 (1993). Therefore, because the defendant

fails to identify any exculpatory evidence "that would greatly

undermine the credibility of evidence likely to affect the grand

jury's decision to indict," the defendant cannot meet his burden

to show that the integrity of the grand jury proceedings was

impaired (quotations and citation omitted). Ali, 43 Mass. App.

4 Ct. at 557. Accordingly, the judge did not err in denying the

defendant's motion to dismiss the indictment.

Judgment affirmed.

By the Court (Desmond, Sacks & Brennan, JJ.3),

Clerk

Entered: May 8, 2025.

3 The panelists are listed in order of seniority.