Opinion
21-P-959
10-13-2022
COMMONWEALTH v. YVELON MADELON.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of indecent assault and battery on a child under the age of fourteen, posing a child in the nude, and attempting to pose a child in the nude.On appeal, the defendant claims that: (1) the judge erred in denying his motion for new trial based on ineffective assistance of counsel, where counsel did not file a motion to suppress; (2) violations of the first complaint rule created a substantial risk of a miscarriage of justice; (3) the prosecutor's closing argument was improper; and (4) there was insufficient evidence to support his convictions of posing and attempting to pose a child in the nude. We affirm.
The defendant was found not guilty of assault and battery and rape of a child. Prior to trial, an indictment alleging aggravated rape was dismissed. At the close of the Commonwealth's case, the judge entered required findings of not guilty as to a second count of indecent assault and battery on a child under the age of fourteen, and as to a second count of posing a child in the nude.
Discussion.
1. Ineffective assistance of counsel.
In a motion for new trial, the defendant claimed that his attorney provided ineffective assistance by failing to move to suppress the images the police seized from his cell phone pursuant to a search warrant. The motion judge, who was also the trial judge, properly denied the motion for new trial.
A judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001) . The decision is committed to the discretion of the motion judge, and our review is limited to determining "whether there has been a significant error of law or other abuse of discretion." Commonwealth v. DiBenedetto, 458 Mass. 657, 664 (2011), quoting Commonwealth v. Wolinski, 431 Mass. 228, 235 (2000). We give particular deference to the motion judge where the same judge also presided over the trial. See Commonwealth v. Tucceri, 412 Mass. 401, 409 (1992). In fact, "[r]eversal for abuse of discretion is particularly rare where, as here, the trial judge is also the judge acting on the motion." Commonwealth v. Kelly, 57 Mass.App.Ct. 201, 208 (2003).
Where the motion is based on ineffective assistance of counsel, the defendant must show that there has been a "serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer," and that counsel's performance "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). When the claim involves counsel's performance with respect to a motion to suppress, "the defendant must demonstrate that the evidence would have been suppressed if properly challenged." Commonwealth v. Cavitt, 460 Mass. 617, 626 (2011) .
The defendant claims that the search warrant permitted the police to search the defendant's residence only for certain electronic devices, and it did not authorize a search of the files contained on those devices. We disagree. While police must obtain a warrant to search a digital device,
"nothing in the case law requires that there be two separate and distinct search warrants -- one to seize the digital device and another to search it. A single search warrant can authorize the seizure of the digital device and the search of that device for the particularly described evidence there is probable cause to believe is on the device."J.A. Grasso, Jr., & CM. McEvoy, Suppression Matters under Massachusetts Law, § 7-6[a][2], at 7-20 (2021 ed.). The defendant has cited no case that requires a separate, second warrant to search a cell phone's content.
Here the warrant authorized the search for "[c]ell phones, all computers, hard drives, laptops, thumb drives or mass storage devices, tablets, CDs or DVDs, all printed pictures that contain evidence of [c]hild [p]ornography or children in any state of nudity or partial dress; mere evidence or any other evidence of a crime." Based on the victim's statements, the police had probable cause to believe that video recordings and images of the young victim in a state of nudity or partial dress would be found on the defendant's cell phone. See Commonwealth v. Keown, 478 Mass. 232, 240 (2017).
Although the search warrant, on its face, did not explicitly permit the police to examine the devices that they seized, the affidavit, which was incorporated into the warrant, sought authority to forensically examine any seized device for this particularly-described "child pornography" evidence. The defendant's argument to the contrary improperly requires us to engage in a "hypercritical analysis" of the warrant rather than interpreting it in a "realistic and commonsense manner." See Commonwealth v. Henley, 488 Mass. 95, 116 (2021) . A proper reading of the warrant and affidavit indicates that the police could both seize the described digital devices and search them for evidence of child pornography. Reading the warrant to permit the police only to seize the physical cell phone without searching its contents would defy both the purpose of the authorized search and common sense. Cf. Commonwealth v. McDermott, 448 Mass. 750, 776 (2007) (warrant authorizing seizure of firearm permitted forensic testing).
The defendant further claims that the "record substantially suggests" that the warrant was not present at the time of the search. See Commonwealth v. Valerio, 449 Mass. 562, 572 (2007) . However, the forensic examination did not take place at the same time that the cell phones were seized. Although there was no evidence that police possessed the warrant at the time they seized the cell phones, as the motion judge noted, the defendant never disputed that the police had probable cause to search and seize the devices listed in the warrant. Notably, as the motion judge also found, at the time of the forensic search of the devices, the police officer conducting the search had both the warrant and the supporting affidavit to guide the search.
The defendant also claims that the search warrant lacked the necessary particularity because it failed to identify the types and location of files to be searched on the cell phone. We disagree. As the Supreme Judicial Court has stated, "[a]lthough general or exploratory searches are not permitted, requiring a search warrant application to identify specific locations or files on a cell phone to be searched places an unrealistic burden on law enforcement and restricts legitimate search objectives, given the storage capacity and file structure of most cell phones." Henley, 488 Mass. at 119.
In light of the above, the defendant has failed to establish that had a motion to suppress been litigated, it would have been successful. See Cavitt, 460 Mass. at 626. Accordingly, trial counsel's failure to file a motion to suppress did not amount to ineffective assistance. See Saferian, 366 Mass. at 96.
2. First complaint. Here, the designated first complaint evidence was the victim's diary in which she wrote about the defendant's sexual abuse of her. The defendant claims, for the first time on appeal, that three separate pieces of testimony violated the first complaint doctrine: (1) the victim's sister's testimony that she took the victim to the police after discovering the diary; (2) a detective's testimony that after he spoke to the victim, he interviewed her and obtained a search warrant for the child pornography found in the defendant's home; and (3) the victim's testimony that her sisters found and read her diary, and they would not let her return to her mother's home because they felt "like it would happen over and over."The defendant did not lodge an objection to any of this testimony.
The judge interrupted the victim's testimony and effectively struck it when the judge told the victim that "you can't talk about what other people say." Given the judge's action, the jury would have understood that the statement was inadmissible and not before them. See Commonwealth v. Sanders, 451 Mass. 290, 298 (2008). In light of this, we need not address whether the victim's testimony was admitted in error or if it created a substantial risk of a miscarriage of justice.
Because the defendant's first complaint claims were not preserved, we review to determine whether an error occurred and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). To determine whether the above-enumerated pieces of testimony created a substantial risk of a miscarriage of justice, and keeping in mind that "[e]rrors of this magnitude are extraordinary events and relief is seldom granted," Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), we ask four questions: "(1) Was there error? (2) Was the defendant prejudiced by the error? (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? (4) May we infer from the record that counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision?" (citations omitted) . Id. at 298. "Only if the answer to all four questions is 'yes' may we grant relief." Id. See Commonwealth v. Coutu, 88 Mass.App. Ct 686, 693 (2015), S.C., 90 Mass.App.Ct. 227 (2016).
In Commonwealth v. McCoy, 456 Mass. 838, 846-847 (2010), the Supreme Judicial Court held that "[e]ven where the witness does not relay the details of the conversation with the victim, the fact that the victim reported the details to the witness 'is the equivalent of saying that she repeated her account of the incident, i.e., it allows [corroborative] complaint testimony through the back door,' and is error." Id., quoting Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) . McCoy is distinguishable, however, because here the victim did not volunteer the information in the diary to her sister; the sister discovered the diary on her own.
Assuming that the first two enumerated portions of the challenged testimony were inadmissible under McCoy, and that the lack of an objection was not counsel's tactical choice, we nonetheless conclude that the testimony did not create a substantial risk of a miscarriage of justice. As for prejudice, the testimony did not affect the defendant's convictions for posing or attempting to pose the victim in the nude because those charges were supported by video and photographic evidence that spoke for itself. Similarly, although the defendant's conviction for indecent assault and battery did in part depend on the victim's credibility, the video and photographic evidence corroborated the defendant's unnatural obsession with the child victim and viewing her in the nude. See Commonwealth v. Hanlon, 44 Mass.App.Ct. 810, 817 (1998). Indeed, the defendant admits that "the video evidence bolstered a large portion of the complaining witness's testimony on the other charges." In light of the photographs and video evidence, and the lack of detail in the challenged testimony, the prejudice to the defendant was minimal at best.
Evaluating this minimally prejudicial evidence in the context of the entire trial, we conclude that any error did not materially influence the verdict. First, the sister's testimony regarding what she did after she read the diary, the contents of which was already before the jury, revealed not much more than her concern for the victim's safety. See Commonwealth v. Roby, 462 Mass. 398, 409 (2012); Commonwealth v. Place, 81 Mass.App.Ct. 229, 232-233 (2012). Second, the challenged testimony that after the detective spoke to the victim -- again without stating the details of what the victim said -- he investigated what he had been told, would be understood as a standard police practice. Indeed, much of this would be cumulative of the obvious fact that the defendant was on trial based on a police investigation. See Commonwealth v. Gallagher, 91 Mass.App.Ct. 385, 389-390 (2017) .
Given the strength of the Commonwealth's case, the brief nature of the challenged testimony, the fact that the Commonwealth did not exploit any of the testimony, and the judge's jury instructions on first complaint, it is unlikely that it had a material influence on the verdicts even if it was error. As we did not answer all four of the Randolph questions in the affirmative, we must deny relief. See Coutu, 88 Mass.App.Ct. at 693.
3. The prosecutor's closing argument. For the first time on appeal, the defendant also claims that the prosecutor created a substantial risk of a miscarriage of justice by improperly focused her closing argument on the hardships the victim suffered due to the victim's decision to testify. We disagree.
Following the defendant's closing argument, in which the victim's credibility was challenged, the prosecutor argued, in part, as follows:
"Now, [defense counsel] is absolutely right. It is up to you to determine who was telling the truth. It is up to you to determine who was credible. So why should you believe [the victim]? Let's think about the testimony. First, [the judge] is going to tell you that not only do you determine what to believe and how to believe it, but you also are supposed to look at their -- the way that they say it and their demeanor on the stand.
"Did [the victim] look like she was enjoying herself? Did she look like she was having a good time here? Remember how she started to cry when a photograph -- of that photograph of her in the nude was being passed out to each of you. Do you think she wanted to have that being shown? Remember how she didn't want to say words that this Defendant would say about her body.
"And also, what's her motive? By everyone's account, by [the victim's] account, by the Defendant's account, she loved him. He was her father. . . . You heard nothing whatsoever to suggest that she was upset with him. She loves him.
"And what did she have to gain from this? Four different foster homes, three different group homes, countless schools. What did she get out of this? Ask yourself those questions when you are determining if you find [the victim] credible."
Contrary to the defendant's claim, this is not a case where the prosecutor improperly argued that the victim was credible simply because of her willingness to testify in court. See Commonwealth v. Dirgo, 474 Mass. 1012, 1013 (2016); Commonwealth v. Cruz, 98 Mass.App.Ct. 383, 391-392 (2020) . Rather, here, the prosecutor properly addressed the victim's "demeanor, motive for testifying, and believability," where the remarks were "based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs. . . . When credibility is an issue before the jury, 'it is certainly proper for counsel to argue from the evidence why a witness should be believed'" (citation omitted). Commonwealth v. Freeman, 430 Mass. Ill. 118-119 (1999), quoting Commonwealth v. Raymond, 424 Mass. 382, 391 (1997). Moreover, the prosecutor properly used a series of rhetorical questions, based on the evidence, to answer the defendant's argument that the victim was not credible. See Commonwealth v. Chambers, 93 Mass.App.Ct. 806, 822 (2018); Commonwealth v. Lawton, 82 Mass.App.Ct. 528, 542 (2012) . See also Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) ("the prosecutor may make a fair response to an attack on the credibility of a government witness").
4. Sufficiency of the evidence.
Finally, the defendant claims that there was insufficient evidence to support his convictions of posing and attempting to pose a child in the nude.
"When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to 'ask itself whether j_t_ believes that the evidence at the trial established guilt beyond a reasonable doubt'" (citation omitted). Commonwealth v. Rocheteau, 74 Mass.App.Ct. 17, 19 (2009). "Rather, the relevant 'question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id., quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson v. Virginia, 443 U.S. 307, 324 n.16 (1979); Latimore, 378 Mass. at 677-678. To convict a defendant of posing a child in the nude in violation of G. L. c. 272, § 29A (a.), the Commonwealth must prove: (1) the defendant knew that the person posed was under eighteen years of age; (2) the child was in a state of nudity; (3) "a purpose of representation or reproduction in any visual material; and (4) lascivious intent." Commonwealth v. Lawrence, 68 Mass.App.Ct. 103, 104 (2007). Here, although the defendant does not assert the child victim was over eighteen years of age, he does claim the Commonwealth's evidence was insufficient as to the first element based on his claim that the defendant did not "pose" the child victim. We disagree.
General Laws c. 272, § 29A (a.), punishes whoever "with knowledge that a person is a child under eighteen years of age . . ., and with lascivious intent, hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose or be exhibited in a state of nudity, for the purpose of representation or reproduction in any visual material" (emphasis added) . In the judge's unobjected-to charge to the jury, she omitted the above-emphasized language (that was contained in the indictment), and thereby narrowed the means available to the Commonwealth to prove the crime at issue. See Commonwealth v. Mills, 436 Mass. 387, 398 (2002) ("criminal conviction cannot be affirmed on appeal where the jury were not instructed on the elements of the theory of the crime"). Accordingly, the Commonwealth was required to prove that the defendant posed the child victim.
In essence, the defendant claims that the evidence must establish that he physically posed or instructed the child victim to assume a certain posture while she was nude. However, this argument disregards the other broad language in the statute that also criminalizes when a person "hires, coerces, solicits or entices, employs, procures, uses, causes, encourages, or knowingly permits such child to pose." G. L. c. 272, § 29A (a.) .
In defining the offense, the Legislature used broad language, such as to "employ," which is defined as "to make use of someone or something inactive." Webster's Third New International Dictionary 743 (2002). See Commonwealth v. Gardner, 480 Mass. 551, 557 (2018) (courts may use dictionary definitions to clarify statutory terms). With this term, the jury had sufficient evidence to find that the defendant made use of the naked child victim on the toilet such as to pose her. Similarly, there was sufficient evidence for the jury to conclude that by opening the bathroom door and photographing the naked child on the toilet, the defendant "used" or "caused" her to be posed.
To prove an attempt, the Commonwealth was required to establish: (1) the intent to commit the substantive crime, and (2) an overt act in furtherance of commission of the substantive crime. See Commonwealth v. LaBrie, 473 Mass. 754, 764 (2016); Commonwealth v. Coutu, 90 Mass.App.Ct. 227, 228-230 (2016). Here, the defendant's intent to video or photograph the nude child victim was demonstrated by videos from his cell phone that were introduced into evidence. The overt act in furtherance of the substantive crime was the defendant opening the door to the bathroom, only to find the victim was covered by a towel. Thus, when the evidence is viewed in the light most favorable to the Commonwealth, there was sufficient evidence to support the defendant's convictions for posing and attempting to pose a child in the nude.
Judgments affirmed.
The panelists are listed in order of seniority.