Appellate Court (February 23, 2009)

Evidence presented before a grand jury must contain probable cause for murder and one of the aggravating forms laid out in G.L. c. 265, § 1, in order to support an indictment for murder in the first degree.

A grand jury returned indictments charging the defendant and his wife with murder for the death of their four year old daughter. The defendant filed a motion pursuant to Commonwealth v. McCarthy, 385 Mass. 160 (1982), arguing that the evidence before the grand jury was insufficient to establish malice in any of its prongs and, as well, to establish any of the aggravating circumstances required by statute for murder in the first degree. The Superior Court judge dismissed so much of each indictment as alleged murder in the first degree and, as to the remaining charge of second degree murder, precluded the Commonwealth from proceeding at trial on theories of first and second prong malice. The Commonwealth appealed and the Appellate Court reversed and remanded the case for trial.

The Court ruled that in this case the evidence before the grand jury sufficed both as to murder and the aggravating elements of murder in the first degree. Even if the evidence only supported third prong malice, the judge erred in restricting the Commonwealth's proof of malice at trial. The Courts do not require an exact match between the evidence presented at trial and that presented to the grand jury. Commonwealth v. Clayton, 63 Mass. App. Ct. 608 (2005). "So long as the evidence suffices to establish probable cause for murder under any of its prongs, the Commonwealth is free to prove malice under any of its prongs at trial and need not present the same theory or evidence as before the grand jury." To require more than was presented to the grand jury here conflates and confuses the accusatory role of the grand jury, the adjudicatory role of the petit jury, and the quantum of proof required at two very different stages of criminal proceedings."