Commonwealth v. Thomas Patrick Bleakney.

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-525

COMMONWEALTH

vs.

THOMAS PATRICK BLEAKNEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On May 5, 2023, a Plymouth County grand jury indicted the

defendant for two counts of rape of a child with force, G. L.

c. 265, § 22A, and one count of indecent assault and battery on

a child under fourteen, G. L. c. 265, § 13B. A Superior Court

judge subsequently dismissed the indictments with prejudice,

finding that the Commonwealth presented distorted evidence to

the grand jury that impaired the integrity of the proceedings.

The Commonwealth appealed the dismissals pursuant to Mass. R.

Crim. P. 15 (a) (1), as amended, 476 Mass. 1501 (2017). We

conclude that the Commonwealth's repeat presentation of police

commentary on the defendant's affect after dismissal of a prior

indictment rose to the level of recklessness and likely impaired
the integrity of the grand jury proceedings. That error in

combination with other errors requires us to affirm the

dismissal with prejudice of the indictments.

Background. We recite the relevant facts as found by the

motion judges, supplemented by undisputed evidence in the

record.

1. First grand jury proceedings. On August 6, 2020, the

victim, then nineteen years old, reported to Scituate police

that the defendant had sexually abused her on several occasions

when she attended his daycare as a toddler. Several months

later, Lieutenant Amanda O'Shea and Detective Michael Prouty

interviewed the defendant. On August 13, 2021, the Commonwealth

convened a grand jury charged with indicting the defendant with

one count of rape of a child with force, G. L. c. 265, § 22A.

At the proceedings, O'Shea testified that during an interview

with the defendant, his affect was "weird" and that she had

"never had an interview like that, ever" in her twenty years of

experience. She additionally testified that the victim's story

"just made sense." Ultimately, the prosecutor never played a

recording of the interview between O'Shea and the defendant

during the presentation of the evidence, but did provide to the

jury members a laptop and a flash drive containing the video

recording of the interview. At the close of the evidence, the

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grand jury indicted the defendant on one count of rape of a

child by force.

The defendant subsequently filed a motion to dismiss the

indictment, in which he asserted that the Commonwealth impaired

the grand jury proceedings by presenting distorted evidence

through O'Shea's inaccurate description of the defendant and

impermissible vouching for the victim. A Superior Court judge

(first motion judge), after viewing the video recording of the

defendant's interview, found that the defendant "was calm and

responsive" throughout the course of the interview. The first

motion judge concluded the detective "blatantly mischaracterized

the Defendant's statements and demeanor and misled the grand

jury," and allowed the motion to dismiss without prejudice on

March 31, 2023.

2. Renewed grand jury proceedings. On May 5, 2023, the

Commonwealth convened a new grand jury, choosing to not have

O'Shea testify and instead offering testimony from both the

victim and Prouty. Immediately prior to the start of her

testimony, the victim approached Prouty and recounted previously

undisclosed information regarding urinary tract infections

(UTIs) she had as a child. The victim then testified to the

grand jury that her mother told her that she frequently

developed UTIs as a toddler and that these UTIs stopped "at the

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exact same time" that she stopped attending the defendant's

daycare.

When Prouty testified, he described the defendant as having

a "flat" demeanor during police questioning. Again, a video

recording of the interview was made available to the grand jury

through a flash drive, but it is unknown whether it was viewed.

The grand jury ultimately indicted the defendant on two counts

of rape of a child by force and one count of indecent assault

and battery on a child under the age of fourteen.

Following the indictments, the Commonwealth disclosed to

the defense that the mother realized that she was mistaken, and

the victim's UTIs occurred several years after the time of the

alleged incidents. Moreover, the mother recounted an earlier

conversation with the victim where the victim raised the

prospect that the victim's Uncle Johnny could have committed the

abuse. The mother denied that her brother could have had access

to the victim to abuse her. In a subsequent conversation

between the victim and her mother, the mother, believing that

the defendant looked like her brother, asked if it could have

been the defendant. The victim reacted strongly to the

suggestion. With this new information, the defendant filed a

motion to dismiss based on the 2023 grand jury presentation. A

second motion judge allowed the defendant's motion to dismiss

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with prejudice. The Commonwealth timely appealed the second

motion judge's dismissal.

Discussion. In cases involving the integrity of the grand

jury, the defendant bears the "heavy burden to show impairment

of the grand jury." Commonwealth v. Stevenson, 474 Mass. 372,

376 (2016). The defendant must prove that "(1) the Commonwealth

knowingly or recklessly presented false or deceptive evidence to

the grand jury; (2) the evidence was presented for the purpose

of obtaining an indictment; and (3) the evidence probably

influenced the grand jury's decision to indict." Commonwealth

v. Silva, 455 Mass. 503, 509 (2009), citing Commonwealth v.

Mayfield, 398 Mass. 615, 620-622 (1986). When reviewing the

decision of a motion judge after a hearing on a motion to

dismiss based on false or misleading evidence, "we accept the

judge's subsidiary findings of fact absent clear error 'but

conduct an independent review of his ultimate findings and

conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646

(2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002). This case revolves around three specific pieces of

evidence that the second motion judge took into account when

allowing the defendant's motion to dismiss. We address each in

turn.

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1. Prouty's testimony. The Commonwealth first argues that

it was error for the second motion judge to conclude that

Prouty's description of the defendant's demeanor during his

interview with O'Shea impaired the grand jury proceedings

because the depiction was accurate and the jury had access to a

video recording of the interview. We disagree.

Whenever an "unfair and misleading presentation" of

statements "attributed to the defendant" occurs, grand jury

proceedings are considered impaired. Commonwealth v. O'Dell,

392 Mass. 445, 447 (1984). Here, when Prouty described the

defendant's demeanor as "flat," this description must be viewed

within the larger context of this case's history with grand jury

proceedings. The first grand jury proceedings for this case

were dismissed because of, as the first motion judge described

it, the "blatant mischaracteriz[ation]" by O'Shea of the

defendant's interview and the prosecution's decision to not play

the interview for the grand jury but instead provide a flash

drive that the grand jury could use to view the interview if it

so chose.1

1 Additionally, the first motion judge, in his discussion of
whether to dismiss the first indictments with or without
prejudice, referenced another criminal case investigated by the
Scituate police which was dismissed after a third Superior Court
judge concluded "the Commonwealth's false and misleading
presentation regarding the extraction was an impermissible

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When the proceedings were renewed, the Commonwealth had a

chance to correct any wrongs in their presentment of evidence to

the previous grand jury. Instead, the Commonwealth introduced

the same exact error as the first proceedings by soliciting

Prouty's characterization of the interview, which resulted in

him describing the defendant as "flat."2 The characterization of

flat in this context is not synonymous with calm, as the

Commonwealth argues. See Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/flat ("flat" means

"lacking in animation, zest, or vigor"). In this context, where

the defendant was accused of raping a toddler, "flat" can take

on the implication of absence of an appropriate emotional

response to describe the defendant's reaction to serious

allegations, supplying a sense of abnormality attributed to the

defendant's demeanor.

Additionally, after Prouty's testimony, the prosecutor

again left a flash drive with the interview recording for the

attempt to 'hide the ball' that significantly impaired the
integrity of the grand jury proceedings."

2 When discussing the defendant's initial demeanor during
the interview, Prouty stated he was "very matter of fact, and
gave clear answers to all of our questions. Flat demeanor but
just typical conversation." When the Commonwealth then followed
up and asked about the defendant's response to the allegations
presented to him, Prouty responded "in my opinion, he remained
fairly flat."

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grand jury to view, but did not make any effort to have the jury

actually watch the interview and compare it to Prouty's

characterization. The Commonwealth argues that there is no

requirement to publish an exhibit to a grand jury, but in this

context, by again characterizing the defendant's demeanor and

not playing the interview to the grand jury, the prosecutor's

presentation gave the impression of attempting to "hide the ball

and expect the grand jury to find it." Commonwealth v. Hunt, 84

Mass. App. Ct. 643, 655 (2013). Overall, on this record, we

conclude this conduct rose to the level of recklessness and

likely impaired the integrity of the grand jury proceedings.

O'Dell, 392 Mass. at 446-447.

2. Uncle Johnny evidence. The Commonwealth also argues

that its failure to present evidence that the victim had asked

her mother if Uncle Johnny had committed the offense was not

intentional or done with reckless disregard for the truth

because neither the prosecutor nor Prouty were aware of this

evidence until months after the grand jury proceeding. Where,

as in this case, the grand jury was left with a distorted

version of the identification process, we conclude otherwise.

Generally, "the mere withholding of exculpatory evidence

[from a grand jury] is not a proper ground for the dismissal of

an indictment." Commonwealth v. Rakes, 478 Mass. 22, 30 (2017),

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quoting Commonwealth v. Pina, 406 Mass. 540, 549, cert. denied,

498 U.S. 832 (1990). However, exceptions to this rule are if

the exculpatory evidence "was withheld in a manner that distorts

the meaning of the evidence" presented, or if the exculpatory

evidence "was so powerful" that it undermines the credibility of

a key witness or would have led the grand jury not to indict.

Rakes, supra. Moreover, when a prosecutor possesses evidence

that 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).

We discern no error in the second motion judge's conclusion

that omitting the mention of a possible third-party suspect

identification in Uncle Johnny "greatly undermined the grand

jury's decision to issue indictments." This is because the

police knew about the Uncle Johnny evidence prior to the grand

jury proceedings, and, as a member of the prosecution team, that

knowledge reflected the knowledge of the entire team. See

Commonwealth v. Beal, 429 Mass. 530, 531-532 (1999) ("Persons

considered subject to the prosecutor's control, and, therefore,

subject to the prosecutor's duty of disclosure, are those

individuals acting, in some capacity, as agents of the

government in the investigation and prosecution of the case"

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[quotation omitted]). Therefore, when the prosecution presented

the evidence surrounding the victim's identification of the

defendant and left out evidence related to Uncle Johnny, this

omission represented more than mere negligence. The victim

first brought up the possibility of Uncle Johnny being the

perpetrator to her mother, who is also Uncle Johnny's sister.

When the mother dispelled the possibility that her brother could

be the perpetrator, she then three weeks later offered for the

first time the defendant's name, leading to a strong reaction

from the victim and the ensuing investigation. On this record,

omitting the sequence of events that resulted in the

identification of the defendant as the perpetrator represents

reckless behavior that impaired the grand jury proceedings. See

Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) ("at the

very least the grand jury must hear sufficient evidence to

establish the identity of the accused").

3. UTI evidence. Finally, the Commonwealth asserts that

while it may have acted negligently in failing to investigate

the victim's UTI recollection, it did not act recklessly in

eliciting this information from the victim during her grand jury

testimony. We disagree.

Ordinarily, a grand jury may rely on hearsay when making a

probable cause determination. See Commonwealth v. Washington

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W., 462 Mass. 204, 210 (2012). Moreover, the presentment of

inaccurate testimony made in good faith does not necessitate an

indictment's dismissal. See Commonwealth v. Reddington, 395

Mass. 315, 320 (1985). However, in this case, the UTI evidence

was not represented to the grand jury in a way that suggests a

mere repetition of information given in good faith. Initially

the prosecutor asked the victim if she "recall[ed] now in

retrospect, or have you heard, that you have been having any

difficulty with your private area during the time you were [at

the daycare]?" In response, the victim said, "[y]eah. So I

would get UTIs often as a child. Very frequently to the point

my mom would bring me to the doctor and be very confused why I

was having so many UTIs basically as a toddler or a baby. And

then the UTIs stopped the exact same time that I stopped going

to the daycare." The prosecutor then asked if that was the

victim's memory "or is that from talking to your mom," to which

the victim responded "[t]hat's my mom."

As the second motion judge noted in her thoughtful order

allowing the defendant's motion to dismiss with prejudice, the

UTI information was one of the "sole specific allegations"

beyond the victim's "personal recitation of events" and

represented a "bombshell" that necessitated an investigation.

However, the prosecution instead presented this evidence to the

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grand jury as hearsay without further investigation at that

time. In cases such as these, where repressed and then

recovered memories provide the bulk of the evidence, it is clear

that any contemporaneous information that would support those

recovered memories would bear significant weight. Yet, the

prosecution did not speak to the mother who provided the

information, even though there is no indication that she was not

available, or attempt to contact the victim's pediatrician to

obtain medical records. Given the importance of this evidence

and the strong likelihood that it "made a difference" in the

grand jury's decision to indict, the Commonwealth's conduct

rises to recklessness and likely impaired the grand jury

proceedings. Mayfield, 398 Mass. at 622.

Order dismissing indictments
with prejudice affirmed.

By the Court (Henry, Smyth &
Toone, JJ.3),

Clerk

Entered: August 29, 2025.

3 The panelists are listed in order of seniority.

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