Opinion
18-P-1175
07-07-2020
COMMONWEALTH v. RODERICK ROONEY.
NOTICE: 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 in the Superior Court, the defendant, Roderick Rooney, was convicted of possession of child pornography, in violation of G. L. c. 272, § 29C, and three indictments charging dissemination of child pornography, in violation of G. L. c. 272, § 29B (b). On appeal he contends that the judge abused his discretion by permitting the Commonwealth to introduce excessive and unduly prejudicial images and descriptions of child pornography, that the evidence was insufficient, that the prosecutor's closing argument was improper, and that his speedy trial rights were violated. We affirm.
1. Pornographic images. The defendant claims that "multiple images of child pornography" admitted in evidence were "so overwhelming in both their quantity and egregious nature" that he was deprived of a fair trial. In his brief, the defendant erroneously asserts that the Commonwealth was permitted to introduce and show the jury three separate pornographic videotapes, when in fact, the judge excluded those videotapes as unduly prejudicial and did not permit the jury to view them. The defendant's brief also erroneously implies that the prosecutor presented sixty-five pornographic photographs, when in fact, only four were admitted.
At oral argument, defense counsel appropriately acknowledged her mistake and urged that the officer's verbal description of the videos was also prejudicial. Although we need not address a claim raised for the first time at oral argument, see Commonwealth v. Richardson, 479 Mass. 344, 357 n.17 (2018); Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1608 (2019), we do so here to foreclose any doubt about the viability of this claim.
"[T]rial judges must take care to avoid exposing the jury unnecessarily to material that might inflame the jurors' emotions and possibly deprive the defendant of an impartial jury." Commonwealth v. Simmons, 419 Mass. 426, 432 (1995). See Mass. G. Evid. § 403 (2020). "The question whether the inflammatory quality of a photograph outweighs its probative value and precludes its admission is determined in the sound discretion of the trial judge." Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). A defendant's offer to stipulate to the facts that the photograph tends to prove does not preclude its admission. See Commonwealth v. Pena, 455 Mass. 1, 12 (2009); DeSouza, supra.
The judge did not abuse his discretion in admitting the four photographs and the officer's verbal descriptions. To the contrary, the judge carefully and thoughtfully reviewed and weighed the evidence and allowed the Commonwealth to introduce no more than necessary to prove its case. See United States v. Ross, 837 F.3d 85, 91 (1st Cir. 2016) ("The Government's limited use of three videos and six images, among the many thousands of videos and images on [defendant]'s devices, demonstrated that [defendant] could not have somehow stumbled upon these items without immediately recognizing their graphic content"). The images and descriptions admitted in evidence, though disturbing, were not so overwhelming that they would elicit an emotional reaction from the jurors and overcome their ability to decide the case fairly.
We have viewed the photographs in question at the Suffolk County Superior Court, where they are currently being stored.
Moreover, a judge may mitigate the effect of disturbing images in several ways: "'alerting the venire during jury selection that graphic photographs might be admitted in evidence, and [asking] potential jurors if that might cause anyone particular difficulty'; limiting the number of photographs admitted; prohibiting the Commonwealth from displaying the photographs on a high-resolution video screen; and instructing the jury that they should not be swayed by emotion by the introduction of the photographs." Commonwealth v. Alleyne, 474 Mass. 771, 780 (2016), quoting Commonwealth v. Amran, 471 Mass. 354, 358 (2015). Although "a judge is not required to take all of these steps," Alleyne, supra, the judge in this case did. The judge's exercise of his discretion in the admission and handling of the pornographic evidence in this case was exemplary.
2. Sufficiency of evidence. The defendant claims that the evidence was insufficient to show that he possessed and disseminated the child pornography in question. When reviewing the denial of a motion for a required finding of not guilty, "we consider the evidence introduced at trial in the light most favorable to the Commonwealth, and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Oberle, 476 Mass. 539, 547 (2017). Inferences drawn from the evidence "need only be reasonable and possible; [they] need not be necessary or inescapable." Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 162 (2019), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).
The laptop computer on which child pornography and peer-to-peer file-sharing programs were stored was found in the middle of the bed in the bedroom that the defendant shared with his wife. The evidence established that the laptop belonged to the defendant and no one else. In addition to child pornography, it contained accounts, e-mail addresses, passwords, tax forms, bank account information, work-related documents, and other information associated with the defendant's name. Pointing to evidence that the defendant's young adult stepson could have obtained access to the laptop and other computers in the house, that the stepson had an interest in pornography, and other evidence impugning the stepson's character, the defendant suggests that the stepson, not he, possessed and disseminated the child pornography in question. For his part, the stepson testified that he did not use the defendant's laptop or place child pornography on it. The jury rejected the defendant's attempt to cast blame on the stepson. "The jury are free to believe or disbelieve any or all of the evidence they hear." Commonwealth v. Merry, 453 Mass. 653, 661 (2009). Viewed in the light most favorable to the prosecution, the evidence amply established the defendant's knowledge, possession, and control of the laptop and its contents.
The evidence was also sufficient to establish the elements of dissemination. See Commonwealth v. Molina, 476 Mass. 388, 389-390, 405-406 (2017). The motions for required findings of not guilty were properly denied.
3. Closing argument. The defendant argues that he is entitled to a new trial because the prosecutor on four occasions used the word "disgusting" to refer to the child pornography possessed and disseminated in this case, attacked the credibility of the defendant's wife and stepson, and misstated the evidence. These claims do not withstand closer scrutiny.
"A prosecutor may argue forcefully for a conviction based on the evidence and on reasonable inferences drawn from the evidence." Commonwealth v. Young, 461 Mass. 198, 206 (2012). "There is a distinction between a dramatic description in an argument and an argument designed to appeal to the jury's emotions." Commonwealth v. Seng, 436 Mass. 537, 555 (2002). While it is improper to appeal to the jury's emotions, dramatic description is appropriate "so long as the argument falls on the side of 'enthusiastic rhetoric, strong advocacy, and excusable hyperbole.'" Young, supra at 205, quoting Commonwealth v. Costa, 414 Mass. 618, 629 (1993).
The prosecutor's use of the term "disgusting," used four times over the course of an argument that takes up fifteen transcript pages, was strong but not excessive. The first two times the prosecutor referred specifically to the evidence: "that disgusting child pornography" and "those disgusting videos." The description was warranted by the evidence. The third time the prosecutor used the term to argue that the stepson did not download the images, stating that "he couldn't describe one of those disgusting videos." And the last time, she argued that the defense was suggesting that the stepson "had this disgusting habit." The prosecutor did not use the term to describe or demean the defendant personally. The fact that the defendant did not object to this rhetoric is evidence that it was not inflammatory in context.
Indeed, defense counsel referred to the pornography as "horrendous" and "awful."
The prosecutor fairly attacked the credibility of the testimony of the defendant's wife and stepson, particularly their testimony that tended to divert responsibility away from the defendant. "A prosecutor can address, in a closing argument, a witness's demeanor, motive for testifying, and believability, provided that such remarks are based on the evidence, or fair inferences drawn from it, and are not based on the prosecutor's personal beliefs." Commonwealth v. Freeman, 430 Mass. 111, 118-119 (1999). Cf. Mass. G. Evid. § 607 (2020) ("Any party, including the party that called the witness, may attack the witness's credibility").
Finally, the prosecutor described as "absolutely ridiculous" the notion that if the stepson wanted to view and disseminate child pornography he would use the defendant's computer (rather than his own computer equipment) to do so. This comment did not misstate the stepson's testimony and was a fair comment on the defense. See Commonwealth v. Ortiz, 463 Mass. 402, 417 (2012) (where defense counsel insinuated guilt of victim's son-in-law, prosecutor properly responded that evidence pointed to defendant and that accusation against victim's son-in-law was "ridiculous and absurd").
4. Speedy trial. The defendant claims that the delays in bringing his case to trial violated his speedy trial rights under Mass. R. Crim. P. 36, 378 Mass. 909 (1979). However, the defendant did not assert his speedy trial rights while his case was pending. Indeed, according to the docket entries, most of the continuances in the case were entered either "by agreement" or at the defendant's request; in some cases, he specifically waived his rule 36 rights. Delay in which a defendant acquiesces does not count toward the speedy trial clock, and "[a] failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994). See Commonwealth v. Fling, 67 Mass. App. Ct. 232, 235 (2006) ("the defendant may be deemed to have acquiesced in the delay by failing to object to continuances or to take any action when a trial date passes"). "If the rule is read to relieve defendants of the obligation to press their case through the criminal justice system, the public interest often will be thwarted by those defense counsel who decide that delay is the best defense tactic." Barry v. Commonwealth, 390 Mass. 285, 296-297 (1983). See Commonwealth v. Atkinson, 15 Mass. App. Ct. 200, 205 (1983) (treating rule 36 raised for first time on appeal as waived).
Although the caption of the defendant's argument invokes his constitutional right to a speedy trial, the defendant's argument is based solely on rule 36. See Commonwealth v. Dirico, 480 Mass. 491, 504 (2018) ("rule 36 is a rule of case management and, accordingly, is wholly separate from [a defendant's] constitutional right to a speedy trial" [citation and quotation omitted]).
By our count, the delay attributable solely to the Commonwealth is far less than 365 days.
Judgments affirmed.
By the Court (Massing, Shin & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 7, 2020.