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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Halsey, 41 Mass.App.Ct.
200 (1996)
Appeals Court of Massachusetts,
No. 94‑P‑477.
Argued
Decided
Further Appellate Review Denied
Patricia A. O'Neill, Committee for Public Counsel
Services,
Eric Neyman, Assistant
District Attorney, for Commonwealth.
Before GREENBERG, FLANNERY, and LENK,
JJ.
GREENBERG, Justice.
The
defendant was convicted by a Superior [41
Mass.App.Ct. 201]
Court jury on four indictments for rape of two children (brothers) under
sixteen (G.L. c. 265,§ 22A); two indictments for unnatural and lascivious
acts on a child under sixteen (G.L. c. 272, §
35A); two indictments for assault and battery by means of a dangerous
weapon (G.L. c. 265, § 15A); eight indictments for assault by means of a
dangerous weapon (G.L. c. 265, § 15B); and nine indictments for assault and battery
(G.L. c. 265, § 13A).
Except for three of the assault and battery counts, all of the
convictions involved eight year old twin brothers as victims. Two principal issues are raised on
appeal: (1) whether seizure of adult
pornographic materials that were not particularly described in the search
warrant from the defendant's home and car was unlawful; and (2) whether admission of evidence
concerning the defendant's possession of these materials denied him a fair
trial. There are two other evidentiary
points which we shall also discuss.
1. Motion to suppress. The defendant argues that the seizure of a
"black light" poster depicting a naked man and woman, a box
containing eight X‑rated video tapes, a scrapbook containing pornographic
pictures, five photographs of nude women, and a pornographic cartoon, which
were not mentioned in the search warrant violated his rights under both the
State and Federal Constitutions. All of
the items found during the course of the search were in plain view. (FN1)
We conclude that the seizure of the materials was lawful as evidence
relevant to establish the defendant's connection to the crimes for which he was
charged.
As the
principal investigating officer, Lieutenant Robert Scott, who was present at
the defendant's home at the time the search warrant was executed, testified at
the motion hearing (over the defendant's objection) that pedophiles often use
various forms of pornography as a way to initiate children into sexual
activity. His opinion was based upon
specialized training. During a twenty‑year
career Scott had investigated nearly 200 such cases. In his view, the children's story was
corroborated by the defendant's possession of these materials even though they
had not yet specifically mentioned any of them in their statements to the
police.
[1][2] [41 Mass.App.Ct.
202] The United States Supreme Court
has held that the Fourth Amendment to the United States Constitution does not
require a distinction prohibiting the seizure of items of evidential value only
(mere evidence), as opposed to the seizure of contraband or of the
instrumentalities or fruits of a crime. Warden v. Hayden, 387 U.S. 294, 300‑301,
87 S.Ct. 1642, 1646‑1647, 18 L.Ed.2d 782
(1967). The Supreme Judicial Court is in
accord. See Commonwealth v. Wojcik, 358 Mass. 623,
627, 266 N.E.2d 645 (1971); Commonwealth v. Murray, 359 Mass. 541,
547, 269 N.E.2d 641 (1971). Evidence not
described in a valid search warrant but inadvertently discovered and having a
nexus with the crime under investigation may be seized at the same time as the
material described in the warrant. Commonwealth v. Rodriguez, 378 Mass. 296,
303, 391 N.E.2d 889 (1979). The two‑pronged
test in the case of "mere evidence" (as distinct from contraband or
instrumentalities used to perpetrate a crime) is whether the officers recognize
it to be plausibly related as proof of criminal activity of which they were
already aware, Commonwealth v. Bond,
375 Mass. 201, 206, 375 N.E.2d 1214 (1978), and whether "the evidence
sought will aid in a particular apprehension or conviction."
Warden v. Hayden, supra at 307, 87 S.Ct.
at 1650.
[3] The
instant case passes muster because Scott's experience in this type of case
reasonably led him to believe that the materials were connected to the
defendant's suspected pederastic involvement. That circumstance was already known to the
police, by virtue of the children's reports of being sexually abused by
him. See Texas v. Brown, 460 U.S. 730, 746, 103 S.Ct.
1535, 1545‑1546, 75 L.Ed.2d 502 (1983) (Powell, J., concurring). Further, there is no reason to assume that
the police were engaged in a general exploratory search for anything that might
incriminate the defendant not mentioned in the warrant. Cf.
Commonwealth v. Rand, 363 Mass. 554, 558 n. 2, 296 N.E.2d 200 (1973). The items were found in plain view in the
defendant's bedroom, and Scott reasonably recognized the pornography as a
potential "tool of the trade" and as evidence.
One
commentator puts it thus: "Because
the situations are so varied, it is difficult to state precisely what it takes to establish a
sufficient nexus, on a probable cause standard, between a discovered but
unnamed item and the crime for which the warrant issued." LaFave, Search and
Seizure § 4.11(c), at 695 (3d ed. 1996).
In this case, because of Scott's knowledge of the children's reports of
sexual activity with the defendant and his opinion about the possible role of
pornographic materials, seizure of them did not depend upon speculation.
[41 Mass.App.Ct.
203] That the defendant could have
legitimately possessed these items for lawful personal use does not negate the
propriety of the seizure. As stated, the
officers had probable cause to believe that the materials bore a nexus to the
crimes under investigation. Commonwealth v. Feijoo,
419 Mass. 486, 498, 646 N.E.2d 118 (1995).
All of the items were "plausibly" related to the criminal
activity of which the officers were already aware. Commonwealth v. Bond, 375
Mass. at 206, 375 N.E.2d 1214. Commonwealth v. Rodriguez, 378 Mass. at
303, 391 N.E.2d 889. Here, we conclude
that the prosecution satisfied its burden to show that the seizure fell within
the narrow exception of permissible seizures conducted outside the scope of
valid warrants.
[4] 2. Admission of Scott's testimony regarding
the items seized. None of the
materials seized in the search was admitted as evidence at trial. However, Scott testified to the nature and
content of the items involved. In his
view, the children's story was corroborated by what was discovered during the
search. The defendant's trial counsel
made no objection to this testimony, which is, therefore, reviewed only to
determine if its admission created a substantial risk of a miscarriage of
justice.
Commonwealth v. Ramos, 402 Mass. 209, 217, 521 N.E.2d 1002 (1988).
Scott's
testimony concerning the seized materials was properly admitted. It corroborated what the children told the
jury. One child testified that the
defendant showed him pictures of people "mating" and of "people
naked." He also stated that while
he was inside the defendant's house, the defendant showed him movies of
"naked people." His brother's
account on the point was different only in form, not in substance. Their testimony, coupled with Scott's
testimony regarding the defendant's initial denial that he possessed the items,
provides a sufficient basis for the admission of the contested testimony.
On appeal,
the defendant argues that the evidence was so inflammatory as to deny him a
fair trial. It is settled that, on
proper foundation, the prosecution may adduce relevant evidence of lawfully
seized materials and comment upon such materials seized under the authority of
a search warrant. Whether sexually
explicit photographs or other similar materials "are so inflammatory as to
outweigh their probative value is a determination to be made by the trial judge
in the exercise of sound discretion." Commonwealth v. Hrycenko,
31 Mass.App.Ct. 425, 431, 578 N.E.2d 809 (1991). The prosecution was entitled [41 Mass.App.Ct.
204] to present evidence that both
corroborated the children's testimony and established motive.
Commonwealth v. LeFave, 407 Mass. 927, 934‑935,
556 N.E.2d 83 (1990). In this situation,
the general references to the content of the materials were probative and did
not depict the defendant as particularly depraved. Contrast
Commonwealth v. LaSota, 29 Mass.App.Ct.
15, 26‑27, 557 N.E.2d 34 (1990).
Further, the judge gave a detailed limiting instruction informing the
jurors of the only purpose (corroboration of the children's testimony) for
which they might consider Scott's testimony about the pornography. If error were shown in the admission of
Scott's testimony concerning the seized materials not specifically mentioned by
the children, its cumulative quality would lead us to conclude that it
presented little risk of a miscarriage of justice.
[5] 3. Other matters relating to the trial. The remaining claims of error by the
defendant concerning the conduct of the trial are susceptible of summary
comment. Jane Weinstein, a therapist who
testified as a fresh complaint witness, saw the children after their
disclosures. She testified to the
protocols used during the interviews.
The defendant now argues that her testimony improperly
"vouches" for the victim's credibility. Weinstein's testimony did not endorse the
children's testimony. She described her protocol for interviewing children
generally. She refrained from comparing
the complainants in the case with characteristics of sexually abused
children. See Commonwealth v. Richardson, 423 Mass. 180, 186, 667 N.E.2d 257
(1996);
Commonwealth v. Allen, 40 Mass.App.Ct. 458,
465‑466, 665 N.E.2d 105 (1996).
Contrast Commonwealth v.
Trowbridge, 419 Mass. 750, 759‑760, 647 N.E.2d 413 (1995);
Commonwealth v. Perkins, 39 Mass.App.Ct.
577, 582‑584, 658 N.E.2d 975 (1995); Commonwealth v. Brouillard,
40 Mass.App.Ct. 448, 451‑454, 665 N.E.2d 113
(1996). Nothing appears in her testimony
which amounts to an expert opinion that the children's claims of sexual abuse
were probably true or that otherwise "intruded on the function of the jury
to assess the credibility of [a] child witness." Commonwealth v. Trowbridge,
419 Mass. at 756, 647 N.E.2d 413.
[6] Last,
the defendant contends that Scott's testimony regarding the defendant's
demeanor both at the time of his arrest and after he had been given his Miranda rights, constituted a violation
of his right to remain silent under art. 12 of the Massachusetts Declaration of
Rights and the Fifth Amendment to the United States Constitution. Asked by the prosecutorto [41 Mass.App.Ct.
205] describe the defendant's
demeanor during questioning, Scott replied, "He seemed calm, lucid. That would be my best description of his
demeanor." When queried whether
the defendant's deportment changed after being advised of the charges, Scott
said, "No." Nothing in this
brief exchange parallels the prejudice found in Commonwealth v. Haas, 373 Mass. 545, 558‑562, 369 N.E.2d 692
(1977);
Commonwealth v. Mahdi, 388 Mass. 679, 694‑698,
448 N.E.2d 704 (1983); or Commonwealth v. King, 34 Mass.App.Ct. 466, 468, 612 N.E.2d 690 (1993), three cases
relied upon by the defendant. As the
case was presented at trial, there was no disagreement that the
"demeanor" testimony was offered under the second step of our
"humane practice" regarding the voluntariness
of the defendant's statements to the police.
See Smith, Criminal Practice and Procedure §§ 389, 392 (2d ed.
1983). Put another way, his physical, nontestimonial characteristics may have informed the jury
on the issue of voluntariness. Unlike the cases cited by the defendant,
Scott's testimony was not elicited for the sole purpose of having the jurors
infer guilt from the defendant's invocation of his right to remain silent. There was no error.
Judgments affirmed.
(FN1.) The officers entered and searched the
defendant's home and automobile pursuant to valid search warrants. The defendant stipulated during the motion
hearing that the items seized were found in places where the police had a right
to search.