Commonwealth v. Mayfield

500 N.E.2d 774, 398 Mass. 615, 1986 Mass. LEXIS 1572

• Court: Massachusetts Supreme Judicial Court
• Decided: November 25, 1986
• Status: Published

Opinions

Wilkins, J.

About 2 a.m. on August 2, 1983, the body of eleven year old Mary Ann Hanley was found in a wooded area of Ronan Park in the Dorchester section of Boston. The victim was dead, her shorts and underwear were down by one ankle, and her face and genitalia bloodied. About two and one-half months later, largely on the basis of recently disclosed testimony of one Kevin Gallagher who claimed to have been an eyewitness to the homicide, the defendant, Val Mayfield, was indicted for murder in the first degree and rape of a child under sixteen years of age. At his first trial in April, 1984, the jury found the defendant not guilty of rape and were unable to reach a verdict on the murder indictment. At a second trial on the murder indictment, in November, 1984, the jury found the defendant guilty of murder in the first degree.

The defendant argues a variety of objections to his conviction and asks for relief under G. L. c. 278, § 33E (1984 ed.). The issue that attracts our particular attention concerns deficiencies in the presentation of evidence to the grand jury which indicted the defendant, deficiencies that the defendant argues undercut the integrity of the grand jury proceedings and require the dismissal of the indictment. We reject both this argument and those contentions urged as grounds for reversal of the conviction, and, after considering the defendant’s § 33E argument, we affirm the judgment.

We start with an outline of relevant circumstances known to the police prior to the time the eyewitness Gallagher came forth with his description of the homicide. The defendant, the father of a child by a half-sister of the victim, lived with the victim and her family on Mt. Ida Road in Dorchester, not far from Ronan Park, a large park with several baseball fields, a basketball court, and tennis courts. On August 1, 1983, about 7 p.m. , the defendant stole a gym bag belonging to one Ruiz. He took the bag to Ronan Park, removed from it sneakers, which he put on, and gave the bag and its remaining contents to others who were gathered in the area. Ruiz, who had discovered that Mayfield had taken his gym bag, went to the defendant’s residence, but the defendant was not there. He returned about 8:15 p.m., and spoke to the victim, who pointed out the defendant. Ruiz then confronted Mayfield, who surrendered the sneakers and told Ruiz what he had done with the bag and its contents.

Shortly thereafter a group of youths including the victim, Mayfield, and Gallagher gathered on the porch of a house across from the park. About 9 p.m., most of the group went to see a motion picture. Gallagher left with the group but did not go to the movies. About this time the victim and the defendant headed toward home in the opposite direction, but shortly the defendant returned to the porch for a brief time. Later that night, when Mary Ann was reported missing, a search of the park was conducted. A neighbor found her body in a tunnel-like area of the park created by overhanding vegetation and carried it to the top of an embankment. She was dead.

In the following days the police obtained certain information that pointed to Mayfield as a suspect. The defendant told Detective Robert F. Aheam of the Boston police department shortly after the death that he had walked the victim part way home and then had left her when he recalled he had to meet a friend named John at a pizza shop. When pressed, the defendant said John’s last name was Vasquez. Investigation did not uncover a John Vasquez. Aheam noticed three vertical scratches on the defendant’s neck which the defendant said one Joey Doyle had given during a wrestling match. There was evidence that Doyle had bitten his nails to the degree that he could not have scratched the defendant. On August 9, 1983, the defendant gave an interview to the police. Toward the end of the interview when confronted with the accusation, “You did it. You did it. Why don’t you tell us about it,” Mayfield replied that he needed time to think.¹

Kevin Gallagher first spoke to the police on October 17, 1983, and testified before the grand jury four days later. Gallagher had acknowledged to a family friend that he had been present when the victim was killed, and the friend in turn told the police. Gallagher’s story of what happened on the night of August 1, 1983, was substantially the same before the grand jury and at trial.

After separating that night from the group of youths who were headed to a motion picture, Gallagher started to walk home, but changed his mind and went to Ronan Park. On entering the park, Gallagher saw the defendant and the victim. He asked them where they were going, and the defendant said, “I have to do something. Well, you’d better come along, too.” The three went to the tunnel-like area of the park.

When they arrived there the defendant asked the victim why earlier that night she had identified him to Ruiz. She replied that she had not done so. The defendant began to hit her about the face. She started to cry and called out for help. Gallagher tried to intervene but desisted when the defendant told him to remain where he was standing. He made no further effort to aid the victim.

The defendant knocked the victim to the ground, face down by a tree limb. When on his demand the victim did not get up, he grabbed her by the hair and smashed her face on the tree limb four times. The victim moved no more. The defendant turned her on her back and placed his fingers under her nose to see if she was breathing. He then took her pants down and raped her. He turned to Gallagher and said that he would kill Gallagher and his family if Gallagher told anybody what had happened. He also told Gallagher that he had killed the victim because she was a “rat” and that he had raped her to throw suspicion off himself. Gallagher then went home. Several days later, the defendant threatened him with death if he revealed that the defendant had killed the victim.

1. We consider first the defendant’s claim that a detective’s false statements to the grand jury impaired the integrity of the grand jury proceedings that led to his indictment. Our discussion starts with consideration of the standards to be applied in assessing such a challenge and concludes with consideration of the specific circumstances on which the defendant relies.

Although generally the adequacy or competency of evidence before a grand jury is not a matter for judicial inquiry (Commonwealth v. Robinson, 373 Mass. 591, 592 [1977]), we will consider whether grand jury evidence was sufficient to warrant a finding of probable cause (Commonwealth v. McCarthy, 385 [1982]) and whether the defendant has shown that the integrity of the grand jury proceedings was impaired (Commonwealth v. O’Dell, 392 Mass. 445, 449-450 [1984]). Because a purported eyewitness to the victim’s death testified before the grand jury, we are concerned here only with the claim that the integrity of the grand jury proceeding was impaired.

We must deal with such a question case by case. It is unlikely that we could devise a satisfactory, comprehensive statement of what conduct does, and what conduct does not, impair the integrity of the grand jury process. We have recognized possible impairment if a prosecutor were to deceive grand jurors by presenting remote hearsay in the guise of direct testimony. Commonwealth v. St. Pierre, 377 Mass. 650, 655 (1979). We have indicated that inaccurate statements made in good faith do not require dismissal of an indictment. Commonwealth v. Reddington, 395 Mass. 315, 320 (1985). We have never held that an indictment should be dismissed if a witness or prosecutor reasonably should have known (a negligence standard), but did not know, that the witness’s testimony was false. In such a case, the prosecutor and the witness would not have intended to use false testimony to procure an indictment, and dismissal of an indictment as a prophylactic measure to discourage intentional wrongdoing could have no application. We have said, however, that if the Commonwealth or one of its agents knowingly uses false testimony to procure an indictment, the indictment should be dismissed, and a prosecutor who learns of the use of the knowingly false, material evidence has a duty to come forward. See Commonwealth v. Salman, 387 Mass. 160, 166-167 (1982).

In certain instances, the failure to disclose known information may impair the grand jury proceedings. For example, presentation of a defendant’s inculpatory statements recorded in a police report, distorted by the intentional failure to disclose the defendant’s exculpatory comments interspersed in that report, impaired grand jury proceedings and required dismissal of the indictment in Commonwealth v. O’Dell, 392 Mass. 445, 448-449 (1984). Similarly, we have indicated that a grand jury should be told of known exculpatory evidence that would greatly undermine the credibility of an important witness. See Commonwealth v. Connor, 392 Mass. 838, 854 (1984).

To sustain a claim that the integrity of the grand jury proceeding has been impaired, not only must the evidence have been given with knowledge that it was false or deceptive, but the false or deceptive evidence must probably have been significant in the view of the grand jury and must have been presented with the intention of obtaining an indictment. Thus, a police officer’s knowing and intentional presentation of false but exculpatory testimony would not require dismissal of an indictment. Commonwealth v. Bongarzone, 390 Mass. 326, 338-339 (1983). The question whether, if a grand jury had been told the true facts, it probably would not have indicted the defendant requires an assessment of all the circumstances. See Commonwealth v. McGahee, 393 Mass. 743, 746-748 (1985) (“It is unlikely that [disclosure of the withheld information] would have affected the grand jury’s decision to indict.” Id. at 747).

In summary, it is not enough for dismissal of an indictment that false or deceptive evidence was presented to the grand jury. Two further elements normally must be shown. First, our cases have required a showing that false or deceptive evidence was given to the grand jury knowingly and for the purpose of obtaining an indictment. Although we have not heretofore had to decide the point (see Commonwealth v. Reddington, 395 Mass. 315, 319 [1985]), we would accept that a showing of the Commonwealth’s reckless disregard of the truth leading to the presentation of false or deceptive evidence could also warrant dismissal of an indictment.² Second, the defendant must show that the presentation of the false or deceptive evidence probably influenced the grand jury’s determination to hand up an indictment. This requires a showing not only that the evidence was material to the question of probable cause but that, on the entire grand jury record, the false or deceptive testimony probably made a difference. Thus the fact that intentionally or recklessly false or deceptive evidence concerns a material fact does not alone warrant dismissal of an indictment. The defendant must also show probable prejudice in the grand jury proceedings. In dealing with the question of prejudice, we do not adopt the “harmless beyond a reasonable doubt” standard which applies to constitutional errors occurring in postindictment stages of criminal proceedings. See Chapman v. California, 386 U.S. 18, 24 (1967); Commonwealth v. Gilday, 382 Mass. 166, 178 (1980).³

We turn to the specific false statements of Detective Ahearn to the grand jury on which the defendant bases his claim that the grand jury proceedings were impaired. We shall discuss only those asserted misrepresentations to the grand jury that the defendant argued to the trial judge.⁴ Of the three false statements on which the defendant relies, two need not detain us long. They were set forth in the defendant’s motion to dismiss the indictments filed before the first trial, which the judge initially denied without prejudice to its renewal and finally denied with prejudice at the conclusion of the first trial.

. The defendant complains that Aheam gave the grand jury the wrong cause of death. Aheam told the grand jurors that the medical examiner had certified the cause of death as “asphyxia caused by ligature,” but that the medical examiner had told him that death could have been caused by a severe blow to the neck. The medical examiner testified on voir dire during the first trial that the injuries to the victim’s neck could have been caused by a log and that he had told Aheam that the cause of death could have been a severe blow to the neck. The trial judge was fully warranted in concluding, as he impliedly did in denying the motion, that Aheam did not intentionally, or with reckless regard for the truth, misrepresent any fact concerning the cause of death.

The defendant’s second objection concerns Detective Aheam’s statement to the grand jury that semen was found in the victim’s vagina. This statement, as evidence at the trials indicated, was not correct. Aheam testified at the first trial on cross-examination that he made the statement because his superior had told him that semen had been found in the victim’s vagina and because he thought a laboratory report stating that “the substance characteristically in semen showed a trace amount” meant that semen was present. Although Aheam may have been negligent in his consideration of the laboratory report, no finding of a reckless or intentional misrepresentation has to follow in the circumstances.⁵

The testimony concerning semen in the vagina was much more critical to the rape indictment, which is no longer viable, than to the murder indictment. Moreover, the grand jury had before them several photographs that indicated forceful and abusive penetration of the victim which tended to corroborate Gallagher’s version of the facts. The presence or absence of semen in the victim’s vagina was thus not an important point for the murder indictment. We doubt that a finding would have been warranted that Aheam misrepresented the facts concerning semen for the purpose of procuring the murder indictment. Certainly no such finding was required on the record.⁶

The final misrepresentation made to the grand jury is Aheam’s testimony that he found at the scene (i.e., “right in the area where the [victim’s] body was found”) a brown cigarette lighter with a silver top that had been in Ruiz’s stolen gym bag. It is apparent from Aheam’s trial testimony that he did not find the lighter, but rather that another police officer had found it. It is also apparent that the other police officer had found the lighter in the vicinity of the body, but not “right in the area where the [victim’s] body was found.”⁷

The defendant did not rely on Aheam’s misstatements about the cigarette lighter in support of his motion to dismiss the indictments until the end of the first trial when he included this misstatement, along with the misstatements already discussed, in his oral argument on that motion. The defendant had not advised the Commonwealth previously that he was relying on this misstatement in support of his motion to dismiss, but the judge considered the motion again, and the Commonwealth does not now claim that it was prejudiced by its lack of notice of this asserted ground. We shall consider the argument on its merits but, because between the first and second trials the defendant did not file a new motion relying on this ground and because he did not move for or request findings of fact from the judge, we shall assume the judge found such facts in support of his ruling as the record would reasonably permit. Certainly, it is not an appropriate appellate function to find facts or to draw uncompelled inferences from the evidence.

The defendant has not proved that Aheam knowingly testified falsely concerning the cigarette lighter, or testified in reckless disregard of the truth, on a matter that was probably significant to the grand jury’s deliberations. Of course, one may infer that Aheam knew that he had not found the lighter when he testified that he had, but the grand jury were not likely to have been influenced significantly by which police officer was said to have found the lighter.⁸

The more serious question is whether the integrity of the grand jury proceeding was impaired by Aheam’s false testimony that the lighter was found “right in the area” where the body was found. The defendant did not present evidence requiring a finding that the prosecution knew this testimony was false at the time it was given or that the prosecution was reckless in not then knowing of its falsity.⁹ Aheam testified at the first trial that between August 3 and August 9 he learned from a fellow officer that a brown cigarette lighter had been found in the vicinity of the body. He could not recall who had told him. The trial judge could credit this testimony and conclude that, although Aheam was perhaps negligent in testifying as he did, Aheam did not testify falsely in this respect, either intentionally or recklessly. The judge could also have concluded on the record that the grand jury would probably have indicted the defendant even if it had known that the lighter was not found right near the victim’s body.

2. There was no error in the denial of the defendant’s motion to suppress testimony concerning his statement and conduct during a police interrogation on August 9, 1983, at the District 11 station house in Dorchester. The defendant argues that the detectives failed to honor his right to cut off questioning. See Michigan v. Mosley, 423 U.S. 96, 104 (1975); Miranda v. Arizona, 384 U.S. 436 (1966). The judge concluded that the interrogation was not custodial and that, in any event, the defendant never invoked his right to discontinue questioning.

The conclusion that the defendant was not in custody was fully warranted on the facts found by the judge. See Commonwealth v. Bryant, 390 Mass. 729, 737 (1984). Mayfield, who was then only one of several suspects, went to the police station voluntarily by prearrangement. He was told he was free to leave at any time, and he did leave at the end of the session. The interrogation was conducted in a nonthreatening, conversational manner. The detectives had no probable cause to arrest Mayfield at that time. Miranda principles apply only to custodial interrogations. Oregon v. Mathiason, 429 U.S. 492, 494 (1977) . The fact that the defendant was given Miranda warnings did not make the interrogation custodial. See Commonwealth v. Bryant, supra at 131 n.8.¹⁰

3. The judge did not err in admitting evidence of the defendant’s alleged sexual assault on the victim, and the judge acted within his discretion in excluding evidence of the defendant’s acquittal of rape at the first trial. Testimony as to the defendant’s conduct at the time of the commission of the crime was admissible. See Commonwealth v. Harris, 376 Mass. 201, 207 (1978) . That evidence was relevant to the two theories advanced in support of a conviction of murder in the first degree, murder with deliberate premeditation and murder with extreme atrocity or cruelty. See Commonwealth v. Lamrini, 392 Mass. 427, 431 (1984).

The fact of the defendant’s acquittal on the rape charge was not relevant because he was not being tried for rape. It is, however, within a judge’s discretion to admit evidence of a defendant’s earlier acquittal of a crime shown by the evidence. In certain circumstances, fairness would warrant admission of the fact of an acquittal, or perhaps the giving of cautionary instructions requested by a defendant. See Commonwealth v. Mahan, 18 Mass. App. Ct. 738, 742 (1984). On the other hand, in this case evidence of the acquittal, standing alone, might have been misleading to the jury (and unfair to the Commonwealth), and, if the judge had fully explained the possible reasons for the acquittal, any possible benefit of evidence of the acquittal would probably have been dissipated.

4. The judge did not err in certain evidentiary rulings challenged by the defendant.

a. The judge excluded the testimony of Linda McDonald, a neighborhood girl of similar age to the victim. If permitted to testify, McDonald apparently would have told of an incident between Gallagher and her, in which after she refused his request for a date, he grabbed her arm forcefully, screamed at her, punched the doorbell of her house, and ran away. Gallagher had testified that the incident had not occurred. The testimony was offered to show that Gallagher, rather than the defendant, may have killed the victim, and to impeach Gallagher’s credibility.

The judge was acting well within his discretion in ruling that the alleged incident between McDonald and Gallagher was not sufficiently similar to the crime of murder to warrant its admission as having a tendency to implicate Gallagher and to exculpate the defendant. See Commonwealth v. Graziano, 368 Mass. 325, 329-330 (1975); Commonwealth v. Walker, 14 Mass. App. Ct. 544, 552 (1982). Cf. Commonwealth v. Keizer, 377 Mass. 264, 266-268 (1979). He was also justified in excluding the testimony as impeachment evidence. The general, but not inflexible, rule is that a witness may not be impeached by extrinsic evidence of prior misconduct not material to the case in which he testifies. See Commonwealth v. Bohannon, 376 Mass. 90, 93-94 (1978). The general rule applies here.

b. The defendant also claims error in the exclusion of proffered testimony of one George Gagnon. By offer of proof, the defendant stated that Gagnon would have testified to the following. On August 2, 1983, he picked up a disheveled hitchhiker on Route 95 between Boston and Providence. The hitchhiker stated that he had just been released from prison, that he had spent the night in a park, and that he wanted to buy a gun. He also asked whether Gagnon had heard of a little girl being strangled in Boston near the water. Gagnon related the substance of his conversation with the hitchhiker to Boston police officers after he became aware of the victim’s murder.

Although a police report was prepared incorporating Gag-non’s statement, voir dire testimony indicated that no investigation of the hitchhiker was undertaken. Gagnon’s testimony was offered to demonstrate that the police investigation into the victim’s murder was inadequate. See Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). The judge excluded the evidence as not probative of the quality of the investigation. He did not abuse his discretion in so ruling. See Commonwealth v. Booker, 386 Mass. 466, 469-470 (1982).

c. The judge permitted Anne Baker to testify as to statements Gallagher made in her presence in October, 1983. According to Baker, Gallagher revealed that he had seen the defendant murder the victim, and he reenacted the details of the crime for her benefit. As recalled by Baker, this version of the criminal incident was essentially identical to the one which Gallagher recited at trial. Although Baker’s testimony was clearly hearsay, it was admitted as a prior consistent statement for the nonhearsay purpose of rehabilitating Gallagher’s trial testimony. A limiting instruction was given.

Normally, prior consistent statements are not admissible to rehabilitate a witness whose testimony has been impeached by the introduction of inconsistent pretrial testimony. Commonwealth v. Zukoski, 370 Mass. 23, 26 (1976). “As an exception to this general rule, however, a witness’s prior consistent statement is admissible where a claim is made that the witness’s in-court statement is of recent contrivance or is the product of particular inducements or bias.” Id. at 26-27. In the case at bar, the defendant raised the inference that Gallagher’s trial testimony resulted from coercion by investigating officers during interrogations on October 17 and 19, 1983. Thus, evidence of Gallagher’s prior consistent statements was admissible to rebut the inference that Gallagher’s testimony was influenced by police pressure.

5. The judge did not minimize the importance of reasonable doubt in his response to a question from the jury on the third day of their deliberations. One of the jury’s questions asked for the definition of reasonable doubt in writing. In complying with that request, the judge hardly trivialized the importance of reasonable doubt. It was not error in the circumstances then to tell the jury not to focus on any particular aspect of the charge “because the whole thing was important.”

6. The defendant has not shown that he was prejudiced by pretrial publicity or by the change of venue for the second trial from Suffolk County to Middlesex County rather than to Hampden County. Nor has the defendant shown that the prosecution was the source of improper pretrial publicity or that, if the prosecution had been, the conviction should be upset in the absence of a showing of prejudice.

7. The defendant argues that he should not have been retried for murder in the first degree because, based on posttrial information his counsel obtained from one juror, the first jury were deadlocked, eleven to one, for conviction of murder but only in the second degree. The claim is that in effect the first jury acquitted the defendant of murder in the first degree and that double jeopardy principles bar his retrial for murder in the first degree. There was no open and public verdict of not guilty under any aspect of the murder indictment. There was no error. A Juvenile v. Commonwealth, 392 Mass. 52, 55-56 (1984).

8. The defendant’s claim, raised for the first time at oral argument, that testimony of the medical examiner was improperly admitted is meritless. Testimony that particular injuries were consistent with a particular cause was entirely appropriate. Commonwealth v. A Juvenile, 365 Mass. 421, 437 (1974).

9. The defendant argues for relief under G. L. c. 278, § 33E, relying on the cumulative effect of the asserted errors with which we have dealt in this opinion. He does not contend that the circumstances of the crime or matters relating to the defendant justify a reduction in the verdict of murder in the first degree. The defendant is not entitled to relief under § 33E.

Judgment affirmed.

1 There was evidence at trial that the defendant had sought assistance in establishing an alibi and that, after his arrest, he made other admissions of guilt.

2 See Franks v. Delaware, 438 U.S. 154, 155-156 (1978), concerning false statements, either intentional and knowing or made with reckless disregard for the truth, in an application for a search warrant; Commonwealth v. Nine Hundred & Ninety-two Dollars, 383 Mass. 764, 771-772 (1981), rejecting, as a ground for suppression of evidence, negligent misrepresentations, even of facts necessary to a finding of probable cause, set forth in an affidavit in support of a search warrant.

3 The issue of the impairment of the grand jury proceedings does not become irrelevant simply because sufficient evidence was presented at trial to submit the case to the jury. Preservation of the integrity of the grand jury process requires an independent analysis of the propriety of the grand jury proceedings. Our rules guiding the proper presentation of evidence to a grand jury have not been expressed in constitutional terms, but the right to a grand jury indictment as to a serious crime is constitutionally based. Art. 12 of the Massachusetts Declaration of Rights. See DeGolyer v. Commonwealth, 314 Mass. 626, 627 (1943).

The opinion of the Supreme Court in Costello v. United States, 350 U.S. 359 (1956), has tended to discourage challenges to the nature and quality of grand jury evidence. The Court rejected, as not required by the Fifth Amendment to the United States Constitution (right to grand jury indictment) or warranted on supervisory grounds, a requirement that an indictment be supported by adequate or competent evidence. “An indictment returned by a legally constituted and unbiased grand jury ... if valid on its face, is enough to call for trial of the charge on the merits.” Id. at 363. “Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.” Id. at 364. The Costello case did not, however, involve peijured testimony or testimony the prosecutor knew to be false.

4 Further alleged flaws in the grand jury proceedings, argued on appeal for the first time, are not generally before us because they were not seasonably asserted. It is inherent in Mass. R. Crim. P. 13 (a) (2), 378 Mass. 871 (1979), that each ground for a motion to dismiss must be presented to the trial judge, and any ground then known to the defendant and not presented is deemed waived. None of these new grounds presents a substantial risk of a miscarriage of justice under G. L. c. 278, § 33E.

5 The author of the laboratory report, of which Aheam was aware when he testified before the grand jury, testified at the second trial (but not at the first trial) that he had told Aheam that he could not give an opinion that semen was present, but he could not remember when he did so. It would be wrong for us to find on this record that the author of the laboratory report told this to Aheam before Aheam testified before the grand jury. Moreover, at least without having revived and renewed his motion to dismiss, the defendant may not properly rely on evidence presented at the second trial in support of his appeal from the denial of his motion at the end of the first trial.

6 If the false testimony had been more material to the indictments than it was, the prosecutor, who learned of the error at least from an F.B.I. report (presumably received after Aheam testified before the grand jury), might have had a duty to ask the judge to consider, after a hearing, whether the error required dismissal of either or both of the indictments.

7 At the first trial, in his testimony as to what he found in the area where the body was found, Aheam did not include a cigarette lighter. On cross-examination, Aheam stated that he did not see or find a brown lighter with a silver top in the vicinity of where the body was located. When pressed as to his grand jury testimony about the lighter, Aheam agreed that he had testified to finding the lighter “right in the area” where the body was found and admitted that he did not “personally” find the lighter. He testified further that an officer had told him within one week of the crime that a brown cigarette lighter had been found in the vicinity of the body, but he could not remember who had given him that information.

At the second trial, Ahearn listed the items he found and took from the scene of the crime. He made no reference in his direct testimony to his finding a lighter there. On cross-examination, he admitted that he did not find any lighter. He testified that a police officer had told him that the lighter had been found. He denied that he so testified “to enhance” the case against the defendant and testified that, when he testified before the grand jury, he had not known that the lighter had not been found in the immediate vicinity of the body.

As we have noted (see note 5 above), testimony at the second trial has no significance in a challenge to the denial at the end of the first trial of a motion to dismiss.

8 In fairness to Detective Aheam the prosecutor’s leading and somewhat figurative question may have prompted Aheam to say in effect that he found the lighter. The grand jury testimony was as follows:

Q.: “Okay, did you find anything at the scene there, Detective Aheam, that you were later able to put in the gym bag that was stolen from the Dorchester House that had the sneakers in it that Val Mayfield was wearing? ”

A: “Yes, I did. There was a small cigarette lighter. It was a brown lighter, probably about an inch in width and two-and-a-half inches long, with a silver top — I believe — or black top, and later on, Mr. Ruiz identified that as being in his gym bag. That was found right in the area where the body was found.”

9 Federal cases involving claims of false representations to grand juries have generally concerned assertions of prosecutorial misconduct. To merit dismissal of an indictment in such a case, the prosecutorial misconduct generally must be not merely negligent but “outrageous or intentional” (United States v. Udziela, 671 F.2d 995, 1001 [7th Cir.], cert. denied, 457 U.S. 1135 [1982]), or “flagrant” (United States v. Bettencourt, 614 F.2d 214, 216 [9th Cir. 1980]). If perjured testimony is presented, generally an indictment may be challenged successfully only if there was no other evidence before the grand jury sufficient to support the indictment. United States v. Udziela, supra. United States v. Adamo, 742 F.2d 927, 938-939 (6th Cir. 1984), cert. denied sub nom. Freeman v. United States, 469 U.S. 1193 (1985). See United States v. DeLeo, 422 F.2d 487, 497 (1st Cir.), cert. denied, 397 U.S. 1037 (1970) (indictment is not impeached by the perjury of one grand jury witness).

10 The defendant’s argument that he was prejudiced by the judge’s failure to excise a detective’s question from the early portion of the interview is without merit. A detective asked Mayfield if he had heard the standard rights given on TV, if he had had them read to him, or if he had been in court. Mayfield answered affirmatively in an ambiguously general way. This colloquy, of course, was relevant to the voluntariness of the defendant’s waiver of his rights and admissible on that issue. It would have been better practice to have excised any references to the defendant’s previous experience with Miranda warnings.