Opinion
11-P-83
04-18-2012
COMMONWEALTH v. JOSEPH S. FROUGHTON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The evidence in this case was sufficient to support the jury's conclusion beyond a reasonable doubt that the video described at trial was 'harmful to a minor' within the meaning of the statute. G. L. c. 272, §§ 28, 31, as appearing in St. 1982, c. 603, § 6. With respect to this question, the case is controlled in material respects by Ferrari v. Commonwealth, 448 Mass. 163 (2007).
Article 12 of the Massachusetts Declaration of Rights 'protects against the admission in a criminal proceeding of evidence that is (1) made under compulsion from the government and (2) 'testimonial or communicative' in nature.' Commonwealth v. Lopes, 459 Mass. 165, 169 (2011), quoting from Commonwealth v. Brennan, 386 Mass. 772, 777 (1982). Article 12 is violated where the Commonwealth introduces evidence that a defendant refused to consent to a requested testing or examination, because such evidence is testimonial in nature and made under compulsion because the defendant must 'choose between two alternatives, both of which are capable of producing evidence against him.' Commonwealth v. Delany, 442 Mass. 604, 608-609 (2004), quoting from Opinion of the Justices, 412 Mass. 1201, 1211 (1992).
The prosecution introduced evidence in this case that the defendant refused to consent to a requested DNA test. The only distinction between the present case and Commonwealth v. Conkey, 430 Mass. 139, 141-143 (1999) (Conkey), is that the defendant in the present case initially suggested he submit to a test, in this case a DNA test, before any police request that he do so. This is, however, a distinction without a difference. In this case, the police officer both asked the defendant if he would provide a sample, essentially immediately, and presented him with a waiver form he would have to sign before taking any samples. These actions converted the conversation from one in which the defendant had 'suggested' he might take a DNA test into one in which he was confronted with an immediate choice whether to do so and a form asking him to waive his rights. Compare Commonwealth v. Lopes, 459 Mass. at 171 ('[B]y notifying the defendant of the right [to a medical examination], the police do not . . . compel[], or even ask[], to provide an on-the-spot response'). Thus, just as in Conkey, supra, the defendant's subsequent actions were in response to government compulsion, and the admission of the evidence violated art. 12.
The defendant's initial assent to this request does not render either his initial assent or his later refusal admissible. 'The fact that the defendant first agreed to provide [a DNA sample] and then failed to do so does not eliminate the compulsion. The defendant had only two alternatives, each of which could be adverse to his interests.' Conkey, 430 Mass. at 143.
On the other hand, Commonwealth v. O'Laughlin, 446 Mass. 188 (2006), is distinguishable. In O'Laughlin, the defendant revoked his initial grant of permission to the police to search his apartment when confronted by a red stain on a closet door. Id. at 205-206. The defendant also refused to let the police test the stain and then removed the stain before the police returned with a warrant. Ibid. The evidence that the defendant revoked his initial grant of permission was deemed admissible because it was necessary to explain the loss of evidence and to put the defendant's destruction of the evidence in context. Id. at 206. There was no similar contextual reason to admit the evidence regarding the DNA test here. The Commonwealth asserts that the defendant's statements regarding DNA testing are necessary to explain his inconsistent statement about whether the victim was wearing his clothing on the night in question. However, the defendant's statements add nothing to his vacillation about whether the victim wore his clothing on the night in question.
The defendant's suggestion that he submit to DNA testing prior to the police officer's request that he do so is not admissible independently of that subsequent testimony. On its own, the defendant's suggestion is of dubious relevancy and, due to the lack of DNA evidence submitted at trial, is highly prejudicial because it serves as a back door way for the defendant's refusal to submit to a DNA test to get into evidence. See, e.g., Commonwealth v. Stuckich, 450 Mass. 449, 457 (2008) (discussing back door admission of first complaint evidence). This evidence, standing alone, should thus have been be excluded. See Mass. G. Evid. § 403 (2011), and cases cited therein.
The defendant objected to the relevant testimony. As a result, we review to determine whether the error was harmless beyond a reasonable doubt. See Comomnwealth v. Vermette, 43 Mass. App. Ct. 789, 797-798 (1997). The question is whether such erroneously admitted evidence 'had, or might have had, an effect on the jury and whether the error contributed to, or might have contributed to, the verdicts.' Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 373 (2006). Where, as here, there is no forensic evidence and the case rests primarily on the relative credibility of the defendant and the victim, it cannot be said that the erroneously admitted evidence could not possibly have contributed to the jury's decision. Consequently, the defendant is entitled to a new trial. The judgment is reversed and the verdict is set aside.
So ordered.
By the Court (Kantrowitz, Rubin & Agnes, JJ.),