Opinion
15-P-1058
03-07-2017
COMMONWEALTH v. William MCDONAGH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant on two indictments for aggravated statutory rape, G. L. c. 265, § 23A ; three indictments for indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B ; and one indictment for dissemination of obscene matter, G. L. c. 272, § 29. The Commonwealth concedes that the evidence was insufficient to support the conviction of dissemination of obscene matter. We agree, and therefore, that conviction must be reversed and the indictment dismissed. The defendant claims that the remaining convictions also should be reversed due to improper comments made by the prosecutor during her closing argument. As to this point, we disagree. Consequently, we affirm the remaining convictions.
The defendant was found not guilty on one indictment for dissemination of obscene matter, G. L. c. 272, § 29.
The Commonwealth made this concession at oral argument. It would have been beneficial to all had the Commonwealth acknowledged the lack of evidence to support the conviction earlier.
Background . The victim, whom we shall call Colin, is the defendant's son. He testified that the defendant sexually assaulted him on a number of occasions when he was ten and eleven years old. During some of these incidents, the defendant showed Colin pictures and videos depicting naked adults and children. Colin described some of them as "porn" and people "having sex." In October, 2010, the defendant was arrested for possession of child pornography. He admitted to the charge and pleaded guilty. Prior to trial, both the Commonwealth and the defendant filed motions in limine regarding the defendant's conviction. The Commonwealth sought to introduce evidence that the defendant possessed child pornography for the purpose of corroborating Colin's testimony. The defendant opposed the motion and moved to exclude it. Ultimately, this evidence was presented to the jury by way of a stipulation. As the defendant observes in his brief, the stipulation was the result of "an effort to strike a balance between unfair prejudice and [the] probative value" of evidence that the defendant had admitted to possessing child pornography when the offenses allegedly occurred. The stipulation, which was marked as an exhibit and introduced in evidence, reads as follows:
We adopt the pseudonym utilized by the parties in their briefs. See G. L. c. 265, § 24C.
Colin testified that the defendant touched his penis both over and under his clothing, touched his "butt," and forced him to engage in oral sex.
"On October 25, 2010, William McDonagh was arrested for possession of child pornography in Hull, Massachusetts. His home was searched that day and his computers, digital camera, and other digital evidence were seized. The defendant admitted to possessing child pornography. He denied ever having any sexual contact with his child or any child."
The defendant denied the allegations at trial. He claimed that Colin fabricated the charges as a result of his mental illness, and because he wanted to live with his uncle rather than his father. The defendant also argued that Colin's disclosure of sexual abuse was the result of suggestive questioning by a forensic interviewer employed by the district attorney.
Approximately five months after he disclosed the abuse, Colin was hospitalized in a psychiatric facility for auditory hallucinations; he was hearing voices telling him to kill himself.
Colin (and two siblings) lived with his uncle at various intervals and was living with him at the time of the trial.
At the conclusion of the presentation of evidence, the judge held a charge conference to discuss the instructions she intended to give to the jury. During that discussion, the prosecutor sought guidance from the judge regarding the parameters of her closing argument. Specifically, the prosecutor asked: "just so I understand, the Commonwealth is not precluded from arguing that [the defendant's] admission to child pornography, that the jury can infer from that that he was sexually attracted to children?" Defense counsel objected. The judge overruled the objection, stating that the prosecutor was "not going to use the words criminal character. She's going to say that his admission to possessing child pornography is evidence that he was attracted to children. I don't know how you can argue with that." Consistent with the judge's ruling, the prosecutor argued:
Defense counsel did not renew his objection nor did he object following the Commonwealth's closing argument. However, relying on Commonwealth v. Connolly , 49 Mass. App. Ct. 424, 426 n.2 (2000), the defendant argues that his objection was sufficient to preserve the issue. The Commonwealth agrees and maintains that we should apply the prejudicial error standard. On the basis of this concession, we do so.
"[T]he defendant himself admitted to possessing child pornography. You'll have the stipulation as an exhibit that was read to you. The defendant admitted to possessing child pornography, and that corroborates the testimony of [Colin], that he was shown child pornography. You know from the defendant's admission that that child pornography existed and he possessed it. And [Colin] told you he was shown that item.
"Another thing you know from the defendant's admission to possession of child pornography is that the defendant was sexually attracted to children. The defendant possessed child pornography. He was sexually attracted to children. [Colin] told you about the abuse he suffered at the hands of his father. The defendant's inclination, or interest sexually in children corroborates [Colin]' s testimony that his father sexually assaulted him."
Discussion . The defendant argues that the prosecutor crossed the boundary of permissible argument when she urged the jury to infer that his possession of child pornography showed he was sexually attracted to children. This inference, the defendant claims, was not supported by the evidence. The defendant also argues that the prosecutor effectively informed the jury that they could consider his possession of child pornography for the improper purpose of concluding he had a propensity to commit the crimes. The defendant further argues that the judge's instructions were not sufficient to cure the prejudice resulting from the challenged remarks.
We evaluate the prosecutor's remarks "in light of the entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial." Commonwealth v. Coren , 437 Mass. 723, 731 (2002) (quotation omitted). "In closing argument, '[p]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it.' " Commonwealth v. Roy , 464 Mass. 818, 829 (2013), quoting from Commonwealth v. Drayton , 386 Mass. 39, 52 (1982). "Those inferences need only be reasonable and possible." Ibid . Here, the comments in question were based on the stipulation that the defendant had possessed child pornography and were therefore based on the evidence presented at trial. Moreover, contrary to the defendant's claim, we do not view the prosecutor's remarks as inviting the jury to find the defendant guilty because of his bad character. We agree, however, that the prosecutor's statement, albeit sanctioned by the judge, that possession of child pornography demonstrates a sexual attraction to children is problematic.
"Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense." Commonwealth v. Lao , 443 Mass. 770, 779 (2005) (quotation omitted). Here, the judge implicitly ruled that common sense supported an inference that a person who possesses child pornography would be sexually attracted to children. We need not decide whether the judge was correct because we conclude that, even if there was error, any potential prejudice would have been adequately cured by the judge's clear and forceful instructions regarding the drawing of inferences from the evidence, coupled with the instruction limiting the use of the stipulation and her admonition that closing arguments are not evidence. "Jurors are presumed to follow a judge's instructions," Commonwealth v. Williams , 450 Mass. 645, 651 (2008), and we presume they followed the instructions here.
We note that none of the articles upon which the defendant relies to contradict this inference were provided to the trial judge. Accordingly, we do not consider them.
The judge stated: "An inference is a permissible deduction that you may make from evidence that you have accepted as believable. Inferences are things you do every day. You make little steps in reasoning in which you take some known information, apply your experience in life to it, and then draw a conclusion. You may draw an inference even if it is not necessary or inescapable, so long as it is reasonable and warranted by the evidence, but you may not indulge in conjecture or guesswork in drawing inferences."
The judge instructed the jury:
"I instruct you emphatically now that any ... evidence of the defendant's arrest in Hull may not, indeed must not be considered by you the jury as evidence that he has a bad character, or as evidence that he has a propensity to commit the crimes that have been charged in the present case.
"In other words, you may not take any evidence of the arrest in Hull as any direct proof or as any substitute for direct proof that the defendant committed the crimes with which he is now charged here in Suffolk County. You are not to consider the evidence offered about the arrest in Hull as any proof that the defendant has a criminal personality, and you may not infer that if he was arrested in Hull that he must also have committed the particular acts with which he is now charged."
Accordingly, the defendant's judgment of conviction on one indictment for dissemination of obscene matter is reversed, the verdict is set aside, and the indictment is dismissed. The remaining judgments are affirmed.
So ordered .
Reversed in part; affirmed in part.