Opinion
22-P-170
11-28-2022
COMMONWEALTH v. PETER WHITE.
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 2 3.0
A Superior Court jury convicted the defendant of two counts of rape of a child, one count of which was aggravated by age difference. In a motion for new trial, the defendant argued that his trial counsel was ineffective for failing to move to suppress certain inculpatory evidence found on a laptop. After a non-evidentiary hearing, that motion was denied. In this consolidated appeal, we affirm.
Background.
The victim was the defendant's neighbor. According to her testimony, the defendant started sexually abusing her in 2012, when she was approximately six years old, and he continued to do so for the next five years.
Admitted in evidence at trial were journal entries and photos of the victim, both located on a laptop the defendant had used. Although the journal entries were not sexual in nature, they conveyed the unnaturally close relationship between the defendant and the victim. For instance, in one journal entry the defendant wrote that, after receiving a "rare hug" from the victim, "that's all I needed." The prosecution argued that both the journal entries and photos conveyed the defendant's "fixation" with the victim and were thus probative of his intent. While the defendant objected to the admission of this evidence on several grounds both before and during trial, he never challenged the warrantless search of the laptop through which the police obtained the journal entries and photos.
The police had obtained the laptop from the defendant's wife who directed them to the journal. In his motion for new trial, the defendant argued that trial counsel should have moved to suppress the evidence found on the laptop on the grounds that the wife did not have authority to consent to its warrantless search. The relevant facts regarding the laptop -- which we draw from a combination of the trial testimony and the police report appended to the defendant's motion for new trial -- are essentially uncontested.
The wife is the one who purchased the laptop, and the sole username on it was hers. Nevertheless, she allowed her husband to use the laptop, and she herself began using it less in 2016, after she got a new computer from work. At some point, the defendant changed the password to the laptop, which prevented the wife from using it. In May of 2017, the defendant moved out and took the laptop with him. The defendant was living in the wife's truck. When the police arrested him in October 2017, they returned the truck and its contents, including the laptop, to the wife.
Unable to access the laptop, the wife had the password reset with the assistance of someone at her work. At some point, she found the defendant's journal. In October of 2018, two detectives came to collect the laptop from the wife. It is not clear from the current record whether she contacted the detectives, or whether they contacted her. In any event, the wife explained to the detectives how she, the original laptop owner, had reset the password to regain access. She even gave the detectives the sales receipt to prove her ownership. The wife signed a consent form, then directed the detectives to the journal entries, which she told them had "information pertaining to the investigation." The detectives located the journal entries, as well as photographs of the victim.
There was no evidence that the journal itself was password-protected. We therefore need not address whether this would make a difference to our analysis.
In July 2018 and again in September 2018, the defendant filed motions seeking to regain possession of the laptop. Given the proximity in time, we acknowledge the possibility that this may have prompted the detectives to contact the wife.
Discussion.
1. Failure to move to suppress.
Where an ineffective assistance of counsel claim involves counsel's failure to file 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). Here, the defendant argues that at the time the wife told the detectives they could search the laptop, she did not have actual, common, or apparent authority to consent to the search. He bears the burden of proving this. See id.
"A person has the actual authority to give consent in a variety of situations. It may be given from the individual whose property is searched" (quotation omitted). Commonwealth v. Lopez, 458 Mass. 383, 392 (2010). "[C]onsent c[an] [also] be obtained 'from a third party who possesse[s] common authority over or other sufficient relationship to the premises or effects sought to be inspected.'" Commonwealth v. Hernandez, 93 Mass.App.Ct. 172, 175 (2018), quoting United States v. Matlock, 415 U.S. 164, 171 (1974). There is a "common understanding that [co-users] . . . have a greatly diminished expectation of privacy vis-a-vis each other." Hernandez, supra at 177, citing Commonwealth v. Porter P., 456 Mass. 254, 262 (2010).
We acknowledge that the defendant may well have changed the password on the laptop to prevent others, including the wife, from gaining access to it. This also could be characterized as providing him a greater subjective expectation of privacy in the laptop's contents. However, a subjective expectation of privacy is not sufficient; a defendant also must show that "society is willing to recognize that expectation as reasonable." Porter P_., 456 Mass. at 259 (quotation omitted) . Where the defendant unilaterally changed the password on a laptop that his wife owned -- either outright or, at a minimum, jointly with the defendant -- any expectation he had that she would not seek to reset the password would not have been reasonable. Put differently, without the wife having any other means to access her laptop, it was eminently reasonable for her to have the password reset.
We additionally note that the defendant has not shown that the resetting of the password involved any State action. See District Attorney for the Plymouth Dist. v. Coffey, 386 Mass. 218, 220-221 (1982) ("It is well settled that the Fourth Amendment to the United States Constitution applies only to searches and seizures conducted by or at the direction of the State") .
By the time the wife gave the detectives the laptop, she had regained complete control over it. As the laptop's owner and co-user, she had actual authority to consent to a search of it, regardless of whatever motivated her to allow such a search. See Commonwealth v. Noonan, 48 Mass.App.Ct. 356, 362 (1999) ("Antagonism that may spring up between the occupants does not invalidate the consent, for 'the relevant analysis in . . . consent cases focuses on the relationship between the consenter and the property searched, not the relationship between the consenter and the defendant'" [quotation omitted]).
We note that we are relying on the wife's actual authority, not apparent authority. Apparent authority comes into play when the police have a reasonable belief that the person offering consent has authority to do so, but that belief turns out to be mistaken. See Commonwealth v. Dej arnette, 75 Mass.App.Ct. 88, 96 (2009) ("The standard for apparent authority is whether the facts available to the officer at the moment . . . warrant a man of reasonable caution in the belief that the consenting party had authority to allow the search of the property" [quotation omitted]). Here, the wife told the detectives all relevant details.
The defendant thus has failed to establish that a motion to suppress would have been successful. See Cavitt, 460 Mass. at 626. See also Noonan, 48 Mass.App.Ct. at 362 ("Such a motion might have been made pro forma, but it would have been unavailing"). Accordingly, even if it may have been prudent for the detectives to obtain a warrant before searching the laptop, trial counsel's failure to file a motion to suppress did not amount to ineffective assistance, see Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), and the judge did not abuse her considerable discretion in denying the defendant's motion for a new trial.
2. Authentication.
On appeal, the defendant seeks to raise -- for the first time -- an additional ground as to why his trial counsel was ineffective. Specifically, he claims that counsel should have challenged the journal evidence on the ground that it was not authenticated. In this regard, he suggests that the wife might have planted the journal on the laptop or meddled with its entries during the period in which she had exclusive control of it.
As an initial matter, we note that the defendant did challenge the authenticity of the journal evidence, objecting to it as "unverified and unsubstantiated hearsay." Thereafter, the Commonwealth laid a sufficient foundation to authenticate the journal entries, by verifying much of their contents through the testimony of the victim, her mother and brother, and the defendant's wife. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 546 (2011) ("The requirement of authentication as a condition precedent to admissibility of real evidence is satisfied by a foundation sufficient to support a finding that the item in question is what its proponent claims it to be"). Even the defendant affirmed through his own testimony the journal entries and many of the events contained therein.
To be sure, trial counsel did not specifically challenge the admission of the journal entries, as he does now, on the ground that the wife may have "tamper[ed]" or "compromised" them. But nothing before us suggests that she did, and the defendant bears the burden of proving ineffective assistance. See Commonwealth v. Wentworth, 482 Mass. 664, 677 (2019). In fact, the trial evidence established that the journal entries were "last modified" before the wife regained access to the laptop. There is thus no merit to the defendant's argument that trial counsel was ineffective for failing to challenge the journal evidence on authenticity grounds.
There is nothing to suggest that the wife had the technical wherewithal to alter the "last modified" date and then cover her tracks.
Judgments affirmed.
Order denying motion for new trial affirmed.
The panelists are listed in order of seniority.