Commonwealth v. Kolenovic (Lawyers Weekly No. 10-166-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-08047 COMMONWEALTH vs. ENEZ KOLENOVIC. Hampshire. April 7, 2017. – October 18, 2017. Present: Gants, C.J., Lenk, Gaziano, Budd, & Cypher, JJ. Homicide. Constitutional Law, Assistance of counsel, Public trial, Confrontation of witnesses. Practice, Criminal, Assistance of counsel, Argument by counsel, Instructions to jury, Admissions and confessions, Argument by prosecutor, Public trial, Confrontation of witnesses, Mistrial, Jury and jurors, Verdict, Capital case. Evidence, Blood alcohol test, Blood sample, Expert opinion, Intoxication. Jury and Jurors. Intoxication. Mental Impairment. Indictment found and returned in the Superior Court Department on September 24, 1996. The case was tried before Mary-Lou Rup, J.; a posttrial motion for reduction of the verdict, filed on March 18, 2003, was heard by her; and, following review by this court, 471 Mass. 664 (2015), a motion for reconsideration was heard by her. Michael R. Schneider for the defendant. Thomas H. Townsend, Assistant District Attorney, for the Commonwealth. BUDD, J. The defendant, Enez Kolenovic, was convicted of murder in the first degree on a theory of extreme atrocity or cruelty in the death of David Walker. On appeal, the defendant argues error in several areas, including error committed by his trial counsel, the trial judge, and the prosecutor, creating a substantial likelihood of a miscarriage of justice. He also asks this court either to remand his case to the Superior Court for renewed consideration of his motion to reduce the verdict, or to grant him relief under G. L. c. 278, § 33E. We affirm the defendant’s conviction and the denial of his motion for a reduced verdict, and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E. Background. The evidence presented in the defendant’s trial and the postconviction evidence introduced in his motion for a new trial hearing is summarized in Commonwealth v. Kolenovic (Kolenovic I), 471 Mass. 664 (2015). We provide a condensed version of events as the jury could have found them, reserving some details for discussion. The homicide. The defendant spent much of the day on September 15, 1996, drinking alcohol. Around 9:30 P.M. he went to a bar, which was connected to a restaurant that his family operated. At the bar, the defendant continued to drink, along with Melissa Radigan and John McCrystal. Near 11 P.M., the defendant had a […]
Commonwealth v. Collins (Lawyers Weekly No. 11-135-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1441 Appeals Court COMMONWEALTH vs. MOSES COLLINS. No. 16-P-1441. Suffolk. September 5, 2017. – October 18, 2017. Present: Milkey, Hanlon, & Shin, JJ. Assault and Battery. Threatening. Identification. Constitutional Law, Identification. Due Process of Law, Identification. Evidence, Identification. Practice, Criminal, Identification of defendant in courtroom, Argument by prosecutor. Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on March 23, 2015. The case was tried before Thomas S. Kaplanes, J. Christie L. Nader (Dana Alan Curhan also present) for the defendant. Cailin M. Campbell, Assistant District Attorney (Dana M. Goheen, Assistant District Attorney, also present) for the Commonwealth. SHIN, J. A jury convicted the defendant of assault and battery and threatening to commit a crime against the person or property of another. On appeal the defendant argues that the trial judge abused his discretion in admitting the victim’s in-court identification of the defendant, that the prosecutor elicited inadmissible testimony identifying the defendant as one of the people seen on video surveillance footage, and that the prosecutor made improper statements in his closing argument. We affirm. Background. The jury could have found the following facts. On the day of the crime, the victim, Alejandro Gonzalez, and his supervisor, Susan Wall, both letter carriers for the United States Postal Service, were working in the Roxbury section of Boston. After delivering mail to a pizzeria and exiting onto the sidewalk, Gonzalez encountered a man who looked at him as though he recognized him. The man then grabbed Gonzalez by the shoulder, hit him on the head, and pointed at him with his hand in the shape of a gun and stated, “I know your face. Boom, boom, boom.” Gonzalez immediately went to Wall and told her what had happened. They returned to the pizzeria, where Gonzalez pointed out a man inside as the person who attacked him. Wall confronted the man and told him not to put his hands on a postal worker. About a month later, a Boston police detective showed Gonzalez a photographic array consisting of eight photographs.[1] Gonzalez initially believed that two of the photographs looked similar to his assailant but, after reviewing those two, made a positive identification of the defendant, writing underneath his photograph, “He looks like the […]
Commonwealth v. Morales-Alvarez, et al. (Lawyers Weekly No. 09-020-17)
COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT. 1677CR0564, 0565, 0566 ____________________ COMMONWEALTH v. EDGAR MORALES-ALVAREZ, ELISAMUEL FERNANDEZ-PAGAN, and ANGEL ROJAS ____________________ FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANTS’ MOTIONS TO SUPPRESS IDENTIFICATIONS The Defendants have all been charged with participating in an armed robbery of a convenience store, assault with a dangerous weapon (because one of them allegedly fired a shot at two people as Defendants fled), and receiving a stolen motor vehicle. Three witnesses (the convenience store owner, the owner of a neighboring pizza shop, and one of the neighbors who was shot at) identified some or all of the defendants as the perpetrators after police had them showup and view three suspects standing next to a marked police cruiser, with their hands behind their backs, and flanked by two uniformed police officers. The fourth witness could not identify any of the suspects. Defendants move to suppress these three identifications. The Court concludes that it must suppress the identifications made by the convenience store owner because they were brought about by an unnecessarily suggestive identification procedure and also because the limited probative value of his identifications is substantially outweighed by the unfair prejudice of admitting identifications tainted by highly suggestive circumstances. It further concludes that it must also suppress the identifications by the neighbor; although the identification procedure used with this witness was not unnecessarily suggestive in a constitutional sense, the probative value of his identifications is also substantially outweighed by the unfair prejudice of admitting identifications tainted by suggestive circumstances. However, the Court concludes that the separate identification by the pizza shop owner is admissible. 1. Findings of Fact. The Court heard testimony by Lt. Maurice Aguiler and Det. Frank Daly of the Lawrence Police Department. The Court finds that both – 2 – witnesses were credible and credits all of their testimony. It makes the following findings based on this evidence and reasonable inferences drawn from the evidence. 1.1. The Robbery and Witness Statements. On October 17, 2016, shortly before 11:45 a.m., the Lawrence police department received a 911 call reporting an armed robbery at the D&C Convenience store. At that time Aguiler was a police sergeant and was overseeing the day shift. Daly was working his very first shift as a police detective. They responded together to the call, driving to D&C Convenience in an unmarked Ford Crown Victoria sedan. Other police officers also responded. David Ashness, the owner of D&C Convenience, was the robbery victim. The Court infers and therefore finds that Ashness was the person who had made the 911 call. Det. Daly took his statement. Ashness was bleeding from the head when Daly arrived. Ashness told Daly that he had […]
Categories: News Tags: 0902017, Commonwealth, Lawyers, MoralesAlvarez, Weekly
Care and Protection of Vieri (Lawyers Weekly No. 11-136-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-1706 Appeals Court CARE AND PROTECTION OF VIERI.[1] No. 16-P-1706. Berkshire. September 11, 2017. – October 18, 2017. Present: Green, Sullivan, & Sacks, JJ. Minor, Care and protection. Parent and Child, Care and protection of minor. Practice, Civil, Care and protection proceeding. Department of Children & Families. Petition filed in the Berkshire County Division of the Juvenile Court Department on October 26, 2015. The case was heard by Judith A. Locke, J. Daniel R. Katz for the mother. Andrew J. Haile, Assistant Attorney General, for Department of Children and Families. William A. Comeau for the child. SULLIVAN, J. Vieri’s adoptive mother, who is also his maternal grandmother (mother), appeals from an adjudication that Vieri is in need of care and protection pursuant to G. L. c. 119, § 26. On appeal the mother challenges the Juvenile Court judge’s determination that she is currently unfit to parent Vieri. We affirm. Background. We summarize the judge’s findings and the evidence consistent with those findings. Vieri was born in September, 2001. The mother adopted Vieri and his older brother, Alan (a pseudonym), in November of 2006, when Vieri was five years old and Alan was seven.[2] In June, 2014, the Department of Children and Families (department) began an investigation arising from concerns that Vieri was neglected. A little over a week later, the town health department, which had had ongoing contact with the mother over various issues in the home, responded to complaints of a sewage leak in the home. Ultimately, over 2,500 gallons of raw sewage were removed from the basement. The mother left Vieri, then thirteen, and Alan “on [their] own most of the summer” of 2015. During this time, Vieri was arrested twice; he was charged with possession of alcohol and shoplifting in July. Later in September, 2015, Vieri was charged with larceny for stealing $ 800 from the mother. Vieri testified, and the judge credited, that he took the money because the mother left him and Alan without food. The department subsequently created an interim service plan for the mother, which included cooperating with the department and meeting with the assigned social worker, providing food in the home, keeping the home clean, and not leaving Vieri home alone without adult supervision. In October, 2015, an agent of the […]
Ajemian, et al. v. Yahoo!, Inc. (Lawyers Weekly No. 10-165-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12237 MARIANNE AJEMIAN, coadministrator,[1] & another[2] vs. YAHOO!, INC. Norfolk. March 9, 2017. – October 16, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[3] Internet. Personal Property, Ownership. Executor and Administrator, Recovery of assets, Contracts. Contract, Service contract. Agency, What constitutes. Statute, Construction. Consent. Federal Preemption. Complaint filed in the Norfolk Division of the Probate and Family Court Department on September 15, 2009. Following review by the Appeals Court, 83 Mass. App. Ct. 565 (2013), the case was heard by John D. Casey, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Robert L. Kirby, Jr. (Thomas E. Kenney also present) for the plaintiffs. Marc J. Zwillinger (Jeffrey G. Landis also present) for the defendant. Mason Kortz, for Naomi Cahn & others, amici curiae, submitted a brief. James R. McCullagh & Ryan T. Mrazik, of Washington, & Joseph Aronson, for NetChoice & another, amici curiae, submitted a brief. LENK, J. This case concerns access sought by the personal representatives of an estate to a decedent’s electronic mail (e-mail) account. Such an account is a form of property often referred to as a “digital asset.” On August 10, 2006, forty-three year old John Ajemian died in a bicycle accident; he had no will. He left behind a Yahoo!, Inc. (Yahoo), e-mail account that he and his brother, Robert Ajemian,[4] had opened four years earlier; he left no instructions regarding treatment of the account. Robert and Marianne Ajemian, John’s siblings, subsequently were appointed as personal representatives of their brother’s estate. In that capacity, they sought access to the contents of the e-mail account. While providing certain descriptive information, Yahoo declined to provide access to the account, claiming that it was prohibited from doing so by certain requirements of the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 et seq. Yahoo also maintained that the terms of service governing the e-mail account provided it with discretion to reject the personal representatives’ request. The siblings commenced an action in the Probate and Family Court challenging Yahoo’s refusal, and a judge of that court allowed Yahoo’s motion for summary judgment on the ground that the requested disclosure was prohibited by the SCA. This appeal followed. We are […]
OneBeacon America Insurance Company v. Celanese Corporation (Lawyers Weekly No. 11-134-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-203 Appeals Court ONEBEACON AMERICA INSURANCE COMPANY vs. CELANESE CORPORATION. No. 16-P-203. Suffolk. November 18, 2016. – October 16, 2017. Present: Trainor, Meade, & Hanlon, JJ. Insurance, Defense of proceedings against insured, Insurer’s obligation to defend. Contract, Insurance. Conflict of Interest. Practice, Civil, Summary judgment, Attorney’s fees. Civil action commenced in the Superior Court Department on March 2, 2010. The case was heard by Christine M. Roach, J., on motions for summary judgment, and an award of attorney’s fees was entered by her. Kevin J. O’Connor (Kara A. Loridas also present) for the plaintiff. Michael John Miguel for the defendant. TRAINOR, J. This appeal arises from a series of cross motions for summary judgment. The plaintiff, OneBeacon America Insurance Company (OneBeacon), appeals from so much of the final judgment as awarded reasonable and necessary defense costs to its insured, Celanese Corporation (Celanese), that Celanese incurred from April 13, 2009, through May 27, 2011.[1] On May 27, 2011, a judge of the Superior Court determined that OneBeacon was entitled to take control of Celanese’s defense as of April 13, 2009 (see note 1, supra). The issue on appeal is whether that determination precludes Celanese from receiving any reimbursement for defense of the underlying claims during the period of time when the question of control over the defense was being litigated. OneBeacon argues that it is not liable for any defense costs incurred by Celanese during that period of time because OneBeacon offered to defend Celanese without a reservation of rights. Celanese, on cross appeal, contends that the judge committed an abuse of discretion by not awarding the full amount of defense costs that Celanese requested. We vacate so much of the judgment that held OneBeacon liable for Celanese’s defense costs for the period of time at issue, and therefore do not reach the issues raised in Celanese’s cross appeal. Background. The following undisputed facts are taken from the summary judgment record. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) (“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law”). […]
Commonwealth v. Wolfe (Lawyers Weekly No. 10-163-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12257 COMMONWEALTH vs. MICHAEL J. WOLFE. Middlesex. May 2, 2017. – October 13, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Motor Vehicle, Operating under the influence. Practice, Criminal, Instructions to jury. Constitutional Law, Self-incrimination, Breathalyzer test. Evidence, Breathalyzer test, Field sobriety test. Complaint received and sworn to in the Marlborough Division of the District Court Department on February 13, 2015. The case was tried before Michael L. Fabbri, J. The Supreme Judicial Court granted an application for direct appellate review. Luke Rosseel for the defendant. Thomas D. Ralph, Assistant District Attorney, for the Commonwealth. Jeffrey J. Pokorak, Natalia Smychkovich, & Houston Armstrong, for Suffolk Defenders Program of Suffolk University Law School & others, amici curiae, submitted a brief. BUDD, J. We are asked to decide whether, in a jury trial of an operating a motor vehicle while under the influence (OUI) case, a trial judge may properly give a jury instruction that specifically mentions the absence of breathalyzer or other alcohol-test evidence. We conclude that the judge should not give such an instruction unless the defendant requests it.[2] In this case, the jury were instructed about the absence of alcohol-test evidence in the judge’s final instructions over the defendant’s objection. We conclude that giving the objected-to charge constituted error and that, in the circumstances of this case, the error was prejudicial. Accordingly, we vacate the defendant’s conviction and remand for a new trial.[3] Background. The defendant was charged by complaint with one count of OUI, G. L. c. 90, § 24 (1) (a) (1), and twice faced trial on this complaint before a jury in the Marlborough Division of the District Court Department. The first, in January, 2016, ended in a mistrial. The second, in March, 2016, resulted in a conviction. We summarize the facts as the jury could have found them at the second trial,[4] reserving additional details for later discussion. On February 13, 2015, at around 2 A.M., a Marlborough police officer patrolling the Main Street area noticed a Ford Explorer being driven with a broken taillight. The officer followed the vehicle for approximately five to ten minutes. During that time, the officer witnessed the vehicle cross the double yellow line in a “jerking motion” to avoid hitting a […]
Commonwealth v. Ehiabhi (Lawyers Weekly No. 10-164-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC-12259 COMMONWEALTH vs. MOSES EHIABHI. Suffolk. May 4, 2017. – October 13, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Controlled Substances. Assault and Battery on Certain Public Officers and Employees. Constitutional Law, Sentence, Separation of powers, Search and seizure. Practice, Criminal, Sentence, Motion to suppress, Instructions to jury. Search and Seizure, Motor vehicle, Impoundment of vehicle, Inventory. Indictments found and returned in the Superior Court Department on January 13, 2014. A pretrial motion to suppress evidence was heard by Mary K. Ames, J.; the cases were tried before Elizabeth M. Fahey, J., and the correctness of the sentence was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Zachary Hillman, Assistant District Attorney, for the Commonwealth. Sarah E. Dolven for the defendant. Patrick Levin, Committee for Public Counsel Services, & Chauncy B. Wood, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. CYPHER, J. This case examines a sentencing scheme that punishes the same conduct with different mandatory minimum sentences. See G. L. c. 94C, § 32A (b), (d). Both subsections punish possession with intent to distribute a class B substance, but § 32A (b) carries a mandatory minimum sentence of two years while § 32A (d) carries a mandatory minimum sentence of three and one-half years. In the law’s current form, § 32A (a) punishes first-time distribution of any of forty class B substances, including phencyclidine (PCP), cocaine, and methamphetamine; § 32A (b) punishes subsequent distribution of a class B substance; § 32A (c) punishes first-time distribution of PCP, cocaine, or methamphetamine; and § 32A (d) punishes subsequent distribution of PCP, cocaine, or methamphetamine. G. L. c. 94C, § 32A.[2] The defendant, Moses Ehiabhi, was charged and convicted of possession with intent to distribute cocaine, second offense, under § 32A (c) and (d), but the judge, over the objection of the Commonwealth, sentenced pursuant to § 32A (a) and (b).[3] Pursuant to G. L. c. 231, § 111,[4] and Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004),[5] the trial judge reported the correctness of her sentencing decision to the Appeals Court, and allowed the defendant’s motion to stay the sentence pending his appeal. The Commonwealth appeals from both the […]
Commonwealth v. Dunn (Lawyers Weekly No. 10-162-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11502 COMMONWEALTH vs. WILLIAM DUNN. Norfolk. May 5, 2017. – October 12, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Cypher, JJ.[1] Homicide. Armed Assault with Intent to Murder. Insanity. Evidence, Insanity, Expert opinion, Credibility of witness. Witness, Expert, Credibility. Practice, Criminal, Capital case, Mistrial, Verdict, Instructions to jury. Indictments found and returned in the Superior Court Department on January 15, 2008. The cases were tried before Kenneth J. Fishman, J. Alan Jay Black for the defendant. Tracey A. Cusick, Assistant District Attorney, for the Commonwealth. GANTS, C.J. On November 2, 2007, the defendant struck Robert Moore multiple times with a baseball bat in the basement of Moore’s home, killing him, and then attacked his daughter-in-law, Nancy Moore, with the baseball bat and a shod foot when she went downstairs to look for him, nearly killing her. A Superior Court jury convicted the defendant of murder in the first degree on the theory of extreme atrocity or cruelty for his killing of Robert,[2] and of various indictments for his brutal attack of Nancy, including armed assault with the intent to murder.[3] The issue at trial was not whether the defendant committed these acts; his attorney admitted that he did so in his opening statement. The issue was whether the Commonwealth proved beyond a reasonable doubt that he was criminally responsible for his actions. The defendant presents five claims on appeal: (1) that the trial judge abused his discretion in denying a motion for a mistrial after the Commonwealth’s expert witness commented on the credibility of the defendant or the defendant’s expert witness; (2) that the conviction of armed assault with the intent to murder should be reduced to assault with the intent to murder because that is how the verdict slip characterized the indictment; (3) that the judge’s instruction to the jury describing what would happen if the jury found the defendant not guilty by reason of lack of criminal responsibility created a substantial likelihood of a miscarriage of justice; (4) that the absence of a jury instruction regarding the effects of drugs on the defendant’s criminal responsibility created a substantial likelihood of a miscarriage of justice; and (5) that we should exercise our authority under G. L. c. 278, § 33E, to grant the defendant a new trial […]
Commonwealth v. Kaplan (Lawyers Weekly No. 09-018-17)
COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT 1582CR00580 COMMONWEALTH vs. ALAN KAPLAN Memorandum and Order on Defendant’s “Motion to Dismiss Indictments Due to Impairment of the Grand Jury Proceedings” On July 26, 2013, a vacant family dwelling at 71 Spooner Rd. in Brookline, Massachusetts was consumed by flames. The property was owned by an LLC of which the defendant, Alan Kaplan, was a principal. Kaplan had insured the property for $ 800,000. On September 21, 2015, and Norfolk County Grand Jury returned indictments against Kaplan alleging arson of the dwelling, accessory before the fact to arson, arson of the building, and burning to defraud an insurance company. These indictments came after thirteen meetings of the grand jury stretching from October 17, 2013 through September 21, 2015. The Commonwealth’s theory of the case was that Kaplan, pressed for money, and saddled with a property that had become essentially valueless, solicited an acquaintance named Steve McCann to torch it. The indictments were returned after McCann, who had entered into a plea agreement with the Commonwealth, testified before the grand jury admitting to setting the fire and implicating Kaplan. The matter is now before the court on Kaplan’s motion to dismiss the indictments, because, he argues, “the manner in which the Commonwealth presented the evidence to the grand jury impaired the integrity of … [its] proceedings.” The familiar and long-standing rule in this Commonwealth is that “a court will not review the competency or sufficiency of the evidence before a grand jury.” Commonwealth v. O’Dell, 392 Mass. 445, 450 (1984). There are two notable exceptions to this rule. First, the Supreme Judicial Court has held that a court may consider whether the grand jury received “sufficient evidence to establish the identity of the accused . . . and [whether there was] probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (internal citation omitted). The defendant does not argue that the evidence was insufficient to establish probable cause to believe that the crimes for which he has been indicted had been committed, and to believe that he had committed them. Instead, the defendant relies on the second exception to the general rule, which holds that an indictment may be dismissed where “the integrity of the grand jury proceeding was impaired.” O’Dell, 392 Mass. at 446-447. It is the defendant’s burden to show impairment of the grand jury proceeding, and that burden is a heavy one. Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993), citing Commonwealth v. Shea, 401 Mass. 731, 734 (1988). As the Supreme Judicial Court has explained, “[d]ismissal of an indictment based on impairment of the grand jury proceedings […]