Opinion
No. 12–P–159.
12-27-2016
COMMONWEALTH v. David P. HAY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions on two indictments for possession of child pornography, and from orders denying his motion for a new trial, his motion for funds for an expert to help him prepare the motion for a new trial, and his motion for reconsideration. We affirm.
Background. In 2009, a State police sergeant, using a publicly available peer-to-peer (P2P) software client, was investigating the use of the Gnutella P2P file-sharing network to possess and distribute child pornography. The sergeant connected to the network and observed a computer, with an Internet protocol (IP) address indicating a location in Massachusetts, reporting that it was sharing files that the sergeant suspected contained child pornography. The sergeant connected to the computer and obtained a list of 7,237 files that the computer was displaying as available for sharing. The majority of the file names contained terms known to the sergeant to be associated with child pornography, and one of the files had an associated file attribute, a "secure hash algorithm" (SHA) value, that uniquely identified it as one that the sergeant had previously viewed and believed to contain child pornography. The computer was using the "LimeWire" P2P client software.
As later explained in a State police trooper's affidavit:
"Millions of users are using peer-to-peer (P2P) file sharing networks to share many types of files. P2P application software allows networked computer users, generally through the Internet, to share many types of files with other users. These files typically include music, graphics, images, movies and text."
Through a subpoena to an Internet service provider, the State police learned that the IP address was associated with a subscriber living at a street address in Waltham. Registry of motor vehicles records showed that the subscriber and the defendant lived at that address. Using this and other information, the police obtained a warrant to search the premises for the computer using LimeWire and for associated materials for evidence of possession of child pornography.
State police executed the warrant and spoke with the subscriber (who owned the residence) and the defendant (the subscriber's wife's cousin, who lived in the attic). The police arrested the defendant and brought him to a State police barracks, where he was read his Miranda rights and agreed to a recorded interview. He was later indicted on two counts of possession of child pornography; one count concerned material on his computer and the other concerned digital video disks (DVDs) found during the search. A jury returned guilty verdicts on both counts.
Discussion. 1. Denial of new trial motion. On appeal of a ruling on a motion for a new trial, we review for "whether there has been a significant error of law or other abuse of discretion," and we "extend[ ] special deference to the action of a motion judge who was also the trial judge," as was the case here. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). In his motion, the defendant asserted that trial counsel was ineffective for failing to challenge various aspects of the prearrest investigation and the Commonwealth's alleged failure to preserve certain evidence. We discuss the various asserted grounds in turn.
a. Validity of search. The defendant argued that trial counsel was ineffective in failing to move to suppress the fruits of the search conducted pursuant to the warrant. The defendant argued that because he had used an unsecured wireless (WiFi) network to which anyone in the neighborhood could have had access, the IP address alone did not establish probable cause to believe that the suspect files were located on his computer. He also argued that trial counsel should have requested a hearing under Franks v. Delaware, 438 U.S. 154, 155156 (1978), on whether the affiant had made "a false statement knowingly and intentionally, or with reckless disregard for the truth," or had "[i]ntentionally or recklessly omitted material," Commonwealth v. Long, 454 Mass. 542, 552 (2009), because the search warrant affidavit did not state that the WiFi network was unsecured.
The judge correctly rejected these arguments. First, the mere possibility that someone else in the neighborhood had used the WiFi connection emanating from the defendant's residence did not negate the probable cause finding. The residence associated with the IP address was a likely place to find evidence of illegal activity using that IP address.
Probable cause does "not require a prima facie showing ... [but] only a fair probability that evidence of ... a crime would be found in particular locations." Commonwealth v. Anthony, 451 Mass. 59, 72 (2008). Probable cause for a search "does not mean that it must appear more likely than not that the items are in a particular place to be searched." Matter of a Grand Jury Investigation, 427 Mass. 221, 225, cert. denied, 525 U.S. 873 (1998). See Commonwealth v. Dolby, 50 Mass.App.Ct. 545, 547–548 (2000).
Second, the defendant was not entitled to a Franks hearing, both because (1) the unsecured nature of the WiFi connection was immaterial to the probable cause analysis, and (2) he made no showing, let alone the requisite "substantial preliminary showing," that the affiant had recklessly disregarded the truth in omitting that information. Commonwealth v. Winquist, 87 Mass.App.Ct. 695, 705 (2015) (Franks hearing required only upon "substantial preliminary showing" that affiant made "material" false statement intentionally or with reckless disregard for truth), S.C., 474 Mass. 517 (2016). The defendant failed to support his motion with any evidence that the police, when applying for the warrant, knew that the defendant was using a WiFi connection of any type. Accordingly, the warrant was properly issued, there was no basis for a Franks hearing, and trial counsel was not ineffective in failing to raise these issues.
The sergeant's initial investigation was conducted over the Internet from a location in western Massachusetts, and nothing in the record suggests that he could discern whether the defendant was using a WiFi rather than a wired Internet connection. Nor is there any other evidence that the police, before seeking the search warrant, investigated or learned whether the defendant used a WiFi connection.
The defendant also argued that probable cause was lacking because the sergeant's discovery of a single file with a SHA value known to be associated with child pornography, was insufficient to make it probable that the defendant had ever viewed or otherwise "knowingly" possessed that file, as is required to violate G.L. c. 272, § 29C. That argument fails because, inter alia, the sergeant was also able to see a list of 7,237 files, the majority of which had file names associated with child pornography, available for sharing on the defendant's computer.
b. Voluntariness of statements at time of arrest. The defendant also argued that counsel was ineffective in failing to move to suppress the defendant's statements made to the police during execution of the search warrant. In an affidavit accompanying the motion, the defendant claimed that he "did not want to talk to the police, but yielded to their authority," and "did not feel free to leave." The judge rejected this claim, finding that the defendant had not been subjected to a custodial interrogation, and no Miranda warnings were required.
We see no error or abuse of discretion. See Grace, 397 Mass. at 307. To succeed on his claim, the defendant was required to "demonstrate a likelihood that the motion to suppress would have been successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004). "The defendant has the burden of proving that interrogation was custodial." Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007). The judge was not required to credit the defendant's affidavit, even if nothing in the trial record directly contradicted it—particularly where the judge, having heard the defendant's trial testimony, was in a position to evaluate his credibility. See Commonwealth v. Rzepphiewski, 431 Mass. 48, 55–56 (2000). See also 439 Mass. 571, 578 (2003) (defendant's self-serving affidavit in support of new trial motion raised no substantial issue warranting evidentiary hearing). As the judge correctly observed, it is not ineffective for counsel to decline to file a motion with little likelihood of success. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
Here, moreover, the affidavit, replete with self-serving details about allegedly coercive police conduct, contrasted markedly with the defendant's trial testimony, in which he generally described a low-key interview, but volunteered that it involved circumstances and statements he "really [didn't] remember."
c. Pre-warrant investigation of defendant's shared files. The defendant further argued that trial counsel was ineffective in failing to challenge the State police sergeant's original investigation as an unconstitutional warrantless search of the defendant's computer. The judge properly rejected this argument, concluding that "individuals who share computer files with other users of a peer-to-peer file-sharing network do not have a reasonable expectation of privacy in those files." See Commonwealth v. Kaupp, 453 Mass. 102, 107 (2009). See also United States v. Stults, 575 F.3d 834, 843 (8th Cir.2009), cert. denied, 559 U.S. 915 (2010), and cases cited. Although it is possible, as the defendant argued, that a file-sharing network open only to a small group of known individuals might give rise to different privacy expectations, the defendant has not argued, much less shown, that Gnutella as used with LimeWire is such a network. See generally United States v. Lewis, 554 F.3d 208, 211 & n. 3 (1st Cir.), cert. denied, 556 U.S. 1276 (2009) (discussing Gnutella network as used with LimeWire).
We reject the defendant's further claim that he had a reasonable expectation of privacy in the contents of the "shared file folder" on his computer, premised on his argument that a computer user's placement of files in such a folder "does not necessarily indicate intent to share or knowledge of sharing." Regardless of what a hypothetical computer user might understand, the defendant himself acknowledged knowing that he was sharing files in a folder on his own computer.
The defendant maintains that the sergeant's initial investigation constituted a "search" because the sergeant used specialized SHA technology to identify a particular file on the defendant's computer that was likely to contain child pornography. See Kyllo v. United States, 533 U.S. 27, 40 (2001) (government's use of device not in general public use "to explore details of the home that would previously have been unknowable without physical intrusion" constitutes search). This argument fails, because the defendant offered no evidence that the SHA technology enabled the sergeant to learn any more about the files the defendant made available for sharing than could any other file-sharing network user. In short, there was no search, and thus trial counsel was not ineffective in failing to raise the issue.
d. Loss or destruction of metadata. The defendant further argued in his motion for new trial that trial counsel was ineffective in failing to seek relief based on the Commonwealth's claimed loss or destruction of exculpatory metadata for two electronic files. See generally Commonwealth v. Kee, 449 Mass. 550, 553–555 (2007). The judge rejected these arguments, and we see no error or abuse of discretion. See Grace, 397 Mass. at 307.
i. Metadata for recording of State police interview. A trooper recorded the defendant's post-Miranda interview on a digital recorder, uploaded the recording to her desktop computer, copied it to a disk, and then erased what was on her digital recorder. Before trial, the defendant unsuccessfully moved to suppress the recording on the disk on the grounds that three particular discussions had been deleted and that the recording was "missing" approximately two minutes of the interview. After an evidentiary hearing, the judge found that there were no obvious gaps in the recording of the interview, which flowed logically and smoothly; he credited the trooper's testimony that neither she nor anyone else had altered the recording; he found an innocent explanation for the allegedly missing two minutes of the recording; and he found that "there was no intentional alteration or deletion of any material on the [recording]." He also concluded that, in any event, none of the three allegedly missing discussions, as described by the defendant, would have been exculpatory.
The defendant further claimed that the Commonwealth's alleged destruction of the original recording's metadata prevented him from showing how long that recording was (and thus whether any portions had later been deleted), and that trial counsel was ineffective for having failed to pursue this issue. The judge rejected the argument, ruling that this approach would not have "change[d][his] determinations of credibility regarding the recording of the interview." We defer to the judge's assessment of the weight and credibility of the testimony at the suppression hearing, and we accept his subsidiary findings of fact, which are not clearly erroneous. See Commonwealth v. Gomes, 453 Mass. 506, 508–509 (2009).
Moreover, a defendant seeking relief from the alleged loss or destruction of evidence must "establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [evidence] would have produced evidence favorable to his cause." Kee, 449 Mass. at 554, quoting from Commonwealth v. Dinkins, 440 Mass. 715, 717 (2004) (other quotation omitted). We review the judge's determination on this issue for abuse of discretion. See Kee, supra. See also Grace, 397 Mass. at 307. We see no abuse of discretion in the judge's determination that none of the three discussions allegedly missing from the recording would have been exculpatory. It follows that the judge did not abuse his discretion in rejecting the defendant's ineffective assistance argument regarding the metadata for the original recording.
ii. Metadata for file identified in search warrant affidavit. The defendant also argued that counsel was ineffective for failing to press the Commonwealth's alleged loss of metadata for the file, as it existed on the defendant's computer, that the sergeant's original investigation identified as containing known child pornography. Such metadata, the defendant argued, would have allowed him to establish whether he might have inadvertently downloaded the file in a large batch and whether he had ever viewed the file. The judge ruled that the defendant had not shown that such metadata would have helped his defense.
An affidavit filed by successor counsel in support of the defendant's new trial motion asserted that she had asked the Commonwealth for metadata from all of the files on the defendant's computer but had been informed that the Commonwealth had already produced all of the metadata in its possession. The judge made no finding about whether the Commonwealth had ever made any record of, produced, lost, or destroyed the particular metadata concerning the file in question.
Reviewing this ruling for abuse of discretion, see Kee, 449 Mass. at 554, we see none. Even if the metadata might have shown that the defendant had not knowingly downloaded or viewed that particular file, there was ample evidence that the defendant knowingly possessed other child pornography files. Accordingly, the defendant failed to establish a reasonable possibility that the metadata in question would have assisted in his defense, and thus trial counsel was not ineffective in failing to pursue the issue.
A trooper testified at trial that the defendant had admitted to copying files that he believed to contain child pornography from his computer to disks. A digital evidence investigator testified that the metadata on certain child pornography files found on the defendant's computer indicated that they were not all downloaded in a batch. And a forensic report from the Commonwealth concerning certain files found on the defendant's computer listed metadata suggesting that the files contained child pornography and had been viewed.
In sum, the judge did not commit any error of law or abuse his discretion in denying the motion for new trial.
2. Presentation of visual evidence at trial. The defendant claims that the judge abused his discretion in allowing the Commonwealth to show the jury a PowerPoint presentation consisting of enlarged digital versions of some of the images found on the defendant's computer. The Commonwealth had argued that the printed versions of these images already in evidence did not accurately portray some of their pornographic features, which would be more visible in digital projections and would more closely resemble what the defendant would have been able to see on his computer screen. The defendant had objected that the PowerPoint images were larger than any "thumbnail" images the defendant would have seen on his computer screen while downloading or sorting through files, and so would unduly prejudice the jury and mislead them as to the defendant's principal defense: that any child pornography images on his computer had been downloaded and saved without him knowing what they were.
The judge ruled that some of the images did need to be enlarged and projected so that the jury could see what they portrayed. In the presence of counsel, he reviewed the images proposed for inclusion, rejected some as already sufficiently visible on paper, and limited the amount of time that the others would be displayed. Ultimately, of the fifty-four images in evidence, thirteen were included in the PowerPoint shown to the jury, for six seconds each.
The admissibility of photographic evidence and the use of court room demonstrations are matters left to the discretion of the trial judge. See Commonwealth v. Waters, 399 Mass. 708, 715 (1987) ; Commonwealth v. McGee, 469 Mass. 1, 9 (2014). A demonstration is permissible "so long as it ‘sufficiently resembles the actual event so as to be fair and informative.’ " Commonwealth v. Hartnett, 72 Mass.App.Ct. 467, 473–474 (2008), quoting from Commonwealth v. Perryman, 55 Mass.App.Ct. 187, 193–194 (2002). We see no abuse of discretion in the judge's determination that use of the PowerPoint, as limited, was permissible.
We reject the defendant's argument that, under Commonwealth v. Fidler, 377 Mass. 192, 201 (1979), the burden was on the Commonwealth to show beyond a reasonable doubt that the enlarged photographs were not prejudicial. Fidler concerned the introduction of extraneous matter into jury deliberations, an issue far afield from the use of the PowerPoint here.
The defendant also argues that the judge abused his discretion in declining to allow the defendant to use his own computer to demonstrate to the jury the small size of the "thumbnail" images as the defendant testified they appeared to him. The judge declined to do so, based on concerns that the defendant could alter the evidence in the process. The judge did accept the defendant's alternate proposal to perform the demonstration using another computer, and the innocuous sample photographs of nature scenes pre-installed on it. The defendant did so, and he further testified about the difference between what the jury were seeing compared to what he had seen on his own computer.
We see no abuse of discretion. Permitting the defendant to perform the demonstration using another computer rather than his own did not fall "outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
3. Expert funds for new trial motion. The defendant (who is indigent) appeals the denial of his motion pursuant to Mass.R.Crim.P. 30(c)(5), as appearing in 435 Mass. 1501 (2001), for funds to retain a computer expert to assist with his motion for a new trial. The defendant principally argued that an expert was necessary to help him establish that the sergeant's original investigation constituted an unconstitutional warrantless search of the defendant's computer. The judge denied the motion because there plainly had been no search (for the reasons we have discussed above), and thus the defendant had not shown a viable claim for postconviction relief.
The defendant's first motion was denied on the merits, and his appeal from that denial was dismissed as untimely. The defendant's motion for reconsideration of the denial was denied, and the defendant appealed from that denial. The defendant's second motion for funds was denied for the same reasons as the first motion, and the defendant appealed that denial.
His motion also mentioned without explanation the need for funds for an expert to assist with his appeal. Although such funds may in theory be available as a part of "extra fees and costs" under G.L. c. 261, § 27C(4), as appearing in St.1980, c. 539, § 7, where "reasonably necessary to assure the applicant as effective a[n] ... appeal as he would have if he were financially able to pay," the defendant has not articulated how that would be applicable here.
The motion and supporting affidavit did not specify any other possible basis for a new trial motion for which expert funds were necessary. The motion purported to incorporate by reference the defendant's prior motions and supporting affidavits regarding his request for expert funds, but the judge was not required to pore through these materials in search of another viable theory. The defendant's appellate brief includes a single sentence suggesting that a metadata expert might have assisted in his motion. This does not rise to the level of appellate argument, and we decline to consider it. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Under rule 30(c)(5), a judge "may ... exercise discretion" to allow such costs associated with preparing a new trial motion. "[T]he judge should take into account the likelihood that the expenditure will result in the defendant's being able to present a meritorious ground for a new trial." Reporters' Notes to Rule 30(c)(5), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1777 (LexisNexis 2016–2017). See Commonwealth v. Candelario, 446 Mass. 847, 859 (2006) ; Commonwealth v. Dubois, 451 Mass. 20, 33 (2008). Where the judge ruling on the motion also presided at trial, additional deference is due the judge's exercise of discretion. Compare Commonwealth v. Murphy, 442 Mass. 485, 509–510 (2004). Accordingly, and in light of our conclusion that the defendant's articulated theory was not viable, we see no abuse of discretion in the denial of the motion for funds.
Because the court may do so only "after notice to the Commonwealth and an opportunity to be heard," Mass.R.Crim.P. 30(c)(5), we reject the defendant's argument here that the Commonwealth, by opposing the motion, improperly interfered with his access to funds. Nor did the Commonwealth's opposition violate his due process rights. See Commonwealth v. Davis, 410 Mass. 680, 684 n. 7 (1991).
The cases the defendant relies upon are inapt. Commonwealth v. DiCicco, 470 Mass. 720, 736–739 (2015), concerned the denial of additional expert funds after an initial award of such funds. Commonwealth v. Lockley, 381 Mass. 156, 160 (1980), and Commonwealth v. Dotson, 402 Mass. 185, 186–187 (1988), concerned pretrial requests for funds under G.L. c. 261, § 27C, which does not authorize funds to present a new trial motion based on ineffective assistance. See Commonwealth v. Carter, 429 Mass. 266, 270 (1999). United States v. Abreu, 202 F.3d 386, 389–391 (1st Cir.2000), concerned a Federal statute with provisions materially different from Mass.R.Crim.P. 30(c)(5).
Conclusion. For the foregoing reasons, the judgments are affirmed. The orders denying the motion for a new trial, the motion for expert funds, and the motion to reconsider the denial of the motion for expert funds are affirmed.
So ordered.