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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. Prashaw,
Present: Lenk, Mason, &
Dana Alan Curhan (Joseph I. Machera & Lori A.
Benavides with him) for the defendant.
Christopher P. Hodgens, Assistant District Attorney, for the Commonwealth.
In this
appeal, the defendant challenges the admission in evidence of photographs
depicting her naked in various sexually provocative positions. Balancing the
minimal probative value of the pictures with respect to the nonsex-related
offenses being tried[1] against the marked prejudice, we conclude that
this is one of those exceptional cases where the bounds of the usual grant of
wide discretion to a trial judge concerning the admission of photographic
evidence were exceeded. Accordingly, we reverse the judgments of conviction.
1. Background facts. On
The defendant's husband was present in the
house both when the fire started and during the fire investigation. The
defendant was not at home and had left the house a few days before Christmas
following an altercation with her husband during which he beat her and hit her
face (this abuse was of a continuing pattern over many years, including past
incidents of domestic violence requiring hospital treatment). Following this
incident of violence, the defendant sought shelter at her mother's house in
The defendant entered the house, spoke to an
officer, gathered some belongings, and described the assault that had led to
her fleeing from the house.[2] The defendant's face had not healed and
still bore a bruise from that assault. One of the officers escorted the
defendant to the police station, where she applied for, and was granted, a
protective order under G. L. c. 209A. Thereafter, she returned to the
house, even though she had been previously told by an officer that she could
not enter because the police were seeking a search warrant. There were curious
aspects surrounding the circumstances of the defendant's return and her
explanation of the reasons why she came back to the house. The details do not
matter, but of moment is that, when she returned, there was a man with her
(whom the officers throughout the trial only described as a black man) and that
she had a plan to reenter the house with this man, notwithstanding the police
directive not to do so.
While waiting for the search warrant application to be processed, the police
had cordoned off the house and stationed an officer as sentry in an unmarked
cruiser in front of the house. It was during this time that the defendant and
the unidentified man returned to the burned-out house. The man entered the
house through the back. When the entry was discovered, another officer was dispatched
to the scene to investigate the break-in. A witness, a neighbor, identified the
defendant, who was standing nearby, as having "had something to do with
this" break-in. The officer approached the defendant, handcuffed her, and
conducted a patfrisk. A "crack" cocaine pipe containing cocaine
residue was found in her pocket. The defendant was arrested. The man who had
entered the house had been arrested by the officer stationed in front of the
house.
Thereafter, two search warrants -- one for the
house and one for a Toyota Four-Runner sport utility vehicle -- were executed.
Seized from the
2. The introduction of the photographs. The Commonwealth indicated prior to
trial that it would seek to admit all eighteen photographs. In response, the
defendant filed a motion in limine. Following a hearing, the trial judge
excluded all but three photographs. Although the Commonwealth sought to
introduce the three photographs as exhibits, after an unrecorded sidebar
conference, only two of the photographs were marked as exhibits and admitted in
evidence for the jury's deliberations. In each of the two photographs, the
defendant is naked, posing with an object in her hands and displaying the
object vis-à-vis her body in a sexually provocative way. The objects being held
appear blurry in the pictures. When confronted with the photographs during
cross-examination, the defendant described the objects as a cigarette lighter
and a billy club; the Commonwealth inferred from its scrutiny that the objects
were a handgun and a shotgun. However, as to the latter, the Commonwealth
concedes that, even assuming that the object is a shotgun, it is not the same
shotgun that was standing in the bedroom and which was the subject of the
unlawful storage charge.
The overarching principle is that "[t]he
admissibility of photographic evidence is left to the discretion of the trial
judge, and [an appellate court] will overturn the judge's decision only where a
defendant is able to bear the heavy burden of demonstrating an abuse of that
discretion." Commonwealth v. Waters, 399
A. Probative value. We begin with an assessment
of the evidentiary probativeness of the photographs. As noted, the objects
being held by the defendant in the photographs are murky, but, even if viewed
by the Commonwealth's lights, and even assuming such additional candle power would
have led the beholder to perceive a shotgun of some sort being held in one
photograph, it is not, as the Commonwealth concedes, the shotgun identified in
the improper storage charge.[3] The Commonwealth, therefore, concedes
that neither photograph was relevant to the wrongful storage of a firearm
charge and concedes error in admission on that basis. Instead, the Commonwealth
argues on appeal, as the sole basis for admission, that the photographs were
probative of the defendant's control of the upstairs bedroom where the
marijuana, scales, and crack pipes were found.
We note at the outset that there was no dispute
that the room was the defendant's bedroom and, in effect, belonged to her. As
the prosecutor put it in the closing: "This, ladies and gentlemen, is her
room; and there's no question about that. And these things were found in her
closet; there's no questions about that, in her bureau, throughout her things;
there's no question about the possession, ladies and gentlemen, no
question." Precisely so, the defendant's general control over, and
association with, the bedroom was well-established by abundant evidence --
wholly apart from the photographs. This other evidence included the defendant's
clothing, both stored in bureaus and strewn about the bedroom, as well as her
driver's license, firearm identification card, and tax return, all of which
were found within the bedroom.
The principal issue with respect to control was
limited to the defendant's absence from the house for the five days she stayed
with her mother.[4] Given this sojourn, there was a question, it appears
from the evidence, as to whether someone else may have used the bedroom for
some sort of partying and drinking spree. Indeed, that someone else was in the
bedroom during this period might have been inferred from an empty bottle of
whiskey and a pizza box which, according to the defendant, were not there
before she left for New York, and the fact that, before she left, the photographs
were kept in her locked closet. This and other evidence suggest that the
defendant did not have control of the room during her absence and that the
defendant's estranged, alcoholic husband may well have gone on a drinking binge
in that room.
Given this lapse in the defendant's control,
the probative value of the photographs, if any, is to be analyzed with respect
to this five-day period. Any such probative link between the photographs and
this period of time was extremely weak. There was no evidence, and the four
corners of the photographs do not manifest, that the pictures were taken within
the five-day time frame. Nor was there any evidence that the photographs were
taken in the bedroom area where either the drugs or paraphernalia were found or
in the corner of the room where the shotgun was standing. Further undercutting
the Commonwealth's contention that the photographs showed the defendant's
association with, and control over, the bedroom is a handwritten notation,
"George's house," on the face of one of the photographs, which
suggests that the pictures were taken someplace else.[5] In fact, there
was no substantive evidence whatsoever linking the photographs to control of
the bedroom by the defendant during her five-day absence. Rather than such authentication,
the photographs were simply dropped in evidence as items seized in the search
and were not further authenticated by time, place, or manner during the course
of trial. "To be admissible in evidence, a photograph must be shown to be
accurate and bear enough similarity to circumstances at the time in dispute to
be relevant and helpful to the jury in its deliberations."
B. Prejudicial effect. In this case, the
prejudicial effect was depicting the defendant as "a lewd [woman] and to
lead the jury to believe that a [woman] of [her] character would be likely to
commit the crimes charged." Commonwealth v. Ellis, 321 Mass. 669, 670
(1947).[6] It does not take much imagination to conjure that the purpose
and effect of the introduction of the pictures was so that the jury, appalled
by the defendant's posing in such a manner, might be swayed to perceive the
defendant as not of good moral character and more likely to have committed
criminal offenses. See Liacos, Brodin & Avery, Massachusetts Evidence
§ 11.6, at 708 (7th ed. 1999). Such a prejudicial effect, inherent in
sexually explicit depictions, was amplified in this case because the trial did
not involve a sex-related offense. Moreover, although only two photographs were
published to the jury, one of the officers testified that there were eighteen
such Polaroid photographs seized. See, e.g., Commonwealth v. Allen, 377 Mass.
674, 680 (1979) (photograph of the victim's bloody crotch, which was due to
natural decomposition, possessed "great potential for inciting jury
speculation about possible sexual overtones to the crime" in a murder
trial); Commonwealth v. Darby, 37 Mass. App. Ct. 650, 654 (1994) (photograph of
the male defendant in a sexually turgid state was unduly prejudicial where
impotence or sexual dysfunction was not "directly or inferentially"
relevant to the case).[7] As a last resort, the Commonwealth suggests
harmless error should cause us to affirm the convictions, but we are unable to
say the photographs did not unduly and unfairly influence the jury, or had just
a slight effect. In sum, the risk was great that the sexually suggestive
pictures, which had little to do with the case at hand, unduly swayed the jury.
For these reasons, we conclude that it was error to admit the photographs.
3. Proper appeal. The Commonwealth contends
that the six convictions placed on file (see note 1, supra) are not properly
the subject of review in this appeal. The general rule is that we do not
consider appeals from convictions placed on file "since no appeal may come
before [the courts] until after judgment, which in criminal cases is the sentence."
Commonwealth v. Delgado, 367
4. The motion to suppress. The defendant
challenges the denial of her motion to suppress the crack cocaine pipe found on
her person during the patfrisk.[8] The issue is to be analyzed in light
of the specific and articulable facts of which the officer was aware as he approached
the defendant. These facts included information of a breaking and entering into
a house that had been secured by police and a direct one-on-one identification
by a neighbor of the defendant as being involved in that break-in. Further,
upon arrival on the scene, Sergeant McCarthy had seen a male being detained by
another officer in front of the house, and McCarthy knew that there was another
person involved. According to the testimony of Sergeant McCarthy at the
suppression hearing, he detained the defendant, handcuffed her, and frisked her
because, having been dispatched to investigate a house break, he was concerned
for his safety and that of others, including the neighbor (McCarthy did not
know the house belonged to the defendant). We conclude that these facts and the
inferences drawn therefrom constituted reasonable suspicion justifying the stop
and the frisk.[9]
The defendant also argues that the search was invalid because the trial judge
dismissed the breaking and entering count on the basis that a person cannot be
prosecuted for breaking and entering into one's own house. Hence, the defendant
argues, the search was invalid because the break-in charge was invalid. But,
dismissal of that charge does not negate the validity of the investigatory stop
and frisk. Furthermore, the judge found that the arrest was not based on just
the attempted breaking and entry, but also was precipitated by discovery of the
crack cocaine pipe in the defendant's pocket. This finding was supported by
evidence that the arrest followed the discovery of the pipe. Accordingly, the
motion to suppress was rightly denied.
The judgments of convictions on all the complaints tried are reversed and the
verdicts are set aside. The denial of the motion to suppress is affirmed.
So ordered.
FOOTNOTES:
[1] The case involved
charges for possession of drugs, drug paraphernalia, a knife, and fireworks;
improper storage of a shotgun; attempting to commit a crime; and disturbing the
peace.
Following a jury trial, the defendant was
convicted of the following: possession of cocaine (one count); possession of
marijuana (two counts); possession of drug paraphernalia (two counts);
possession of marijuana with intent to distribute (one count); carrying a
dangerous weapon, a knife (one count); and possession of fireworks (one count).
The defendant was sentenced to one year of probation on the charges of
possession with intent to distribute marijuana and possession of cocaine. The
remaining six offenses, with the defendant's consent, were placed on file.
The jury acquitted on a charge of unlawful storage of a shotgun. The judge
granted the defendant's motion for a required finding of not guilty on the
charges of attempting to commit a crime and of disturbing the peace. Before
trial, the judge had dismissed other charges relating to an alleged breaking
and entering. On the facts of this case, the reasons for the multitudinous
charges, brought in four separate criminal complaints and adding up to fifteen
separate charges, at best, are perplexing and, at worst, reflect prosecutorial
overcharging.
[2] She also informed the officer of her husband's
threat that he would get the house for himself no matter what. The defendant,
who from time to time worked as a real estate broker, had provided the funds to
buy the house and owned it in her own name.
[3] An officer testified that the husband, an avid
hunter, told the police during the original fire survey that the shotgun
belonged to him -- a statement consistent with the husband's ownership of
thirty or so other firearms stored in a gun cabinet. The husband was ordered to
surrender the guns when the c. 209A order issued.
[4] There was conflicting evidence about who slept in
the bedroom and who slept on the downstairs couch when the defendant and her
husband fought and whether the husband's clothes were stored in the bureau
where the marijuana was found -- all of which revolved around the suggestion of
joint control by the defendant and her husband. But, in actuality, this was a
diversionary issue because the defendant never disputed that it was her bedroom
and that, apart from the five days, she had general control over it. Again, the
core of the matter precisely involved the defendant's five-day absence from
that bedroom.
[5] The reference to "George's house" is
consistent with the representation of defense counsel at the hearing on the
motion in limine, that the photographs were taken at a different location.
[6] Given our determination of the inherent prejudice
in the photographs' admission, we leave to one side the additional prejudicial
gloss flowing from the manner in which the prosecutor referenced them in
closing. As previously noted, when confronted with the photographs during
cross-examination, the defendant denied that she was holding firearms and said that
the objects were a cigarette lighter and billy club. There was no other
testimonial evidence on this point. Notwithstanding that, the prosecutor in
closing argued to the jury. "And I would suggest to you, you look at the
pictures, certainly, she's got a handgun there, certainly, she's using a
handgun, for what purpose, I don't know. But she's using a handgun. Secondly,
she's using something that looks like a gun, at least she's holding it like a
gun."
[7] The Commonwealth seeks to distinguish cases in which
the erroneous admission of provocative and sexually charged evidence has led to
reversal on the basis that the other cases concerned "prejudicial evidence
of a sexual nature in cases charging sex offenses." See, e.g.,
Commonwealth v. Yelle, 19 Mass. App. Ct. 465, 469-470 (1985); Commonwealth v.
LaSota, 29 Mass. App. Ct. 15, 23-28 (1990); Commonwealth v. Hrycenko, 31 Mass.
App. Ct. 425, 430-432 (1991); Commonwealth v. Darby, supra. To the contrary and
viewed another way, the error found in these cases is enhanced here because, in
the other cases, there was at least a probative link to the sex-related
offenses charged. In contrast, because sex-related charges were not at issue
here, there is no such link.
[8] The Commonwealth
asserts that we should not address the motion to suppress because the
conviction related to the discovery of the crack cocaine pipe was filed. The
Commonwealth is incorrect. There was only one charge for, and one conviction
under G. L. c. 94C, § 34, of, possession of a class B
substance, cocaine. The defendant was sentenced on that offense (the cocaine
residue
discovered on the two crack cocaine pipes seized in the house was not the
subject of separate charges). Thus, it would appear that the only cocaine
conviction had to relate to the pipe found on the defendant's person. In any
event, for the reasons previously stated, we would reach this issue even if the
conviction had been filed.
[9] That handcuffs were employed does not convert the
initial stop into an arrest requiring probable cause. See Commonwealth v.
Gordon, 47 Mass. App. Ct. 825, 826-827 (1999) (handcuffing and placing
defendant in police cruiser, without probable cause to arrest, did not take
investigation "beyond the proper contours of a threshold inquiry").