Commonwealth v. Rollins , 470 Mass. 66 ( 2014 )

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SJC-11583
COMMONWEALTH vs. JOHN K. ROLLINS.
Hampden. September 4, 2014. - October 30, 2014.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Obscenity, Child pornography. Constitutional Law, Sentence,
Double jeopardy, Freedom of speech and press. Due Process
of Law, Sentence. Practice, Criminal, Sentence,
Duplicative convictions, Double jeopardy, Argument by
prosecutor. Evidence, Photograph, Relevancy and
materiality, Opinion.
Complaint received and sworn to in the Holyoke Division of
the District Court Department on May 7, 2010.
The case was tried before Laurie MacLeod, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Ines McGillion for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
Ryan M. Schiff, Committee for Public Counsel Services, for
Committee for Public Counsel Services, amicus curiae, submitted
a brief.
2
CORDY, J. In this case, we are asked to identify the
proper unit of prosecution for the possession of child
pornography pursuant to G. L. c. 272, § 29C. The defendant,
John K. Rollins, was charged with six counts of possessing child
pornography with each count premised on one or two distinct
photographs culled from a single cache on the defendant's
computer. A Hampden County jury returned guilty verdicts on
each count and a District Court judge sentenced the defendant to
consecutive and concurrent terms in a house of correction.
We granted the defendant's application for direct appellate
review and conclude that where the offending photographs come
from a single cache and the defendant is charged with possessing
them at the same point in time, the statutory structure
contemplates only a single unit of prosecution. Accordingly,
the entry of six separate convictions and sentences constituted
multiple punishments for the same offense in violation of the
defendant's constitutional and common-law rights to be free from
double jeopardy.
While double jeopardy principles bar multiple convictions
and sentences, they do not bar the Commonwealth from prosecuting
the possession of multiple photographs through separate counts,
each premised on a single photograph, as a single photograph is
sufficient to support a conviction. Accordingly, assuming the
sufficiency of the evidence on any or all of the multiple
3
counts, we would ordinarily vacate the convictions and remand
this case to the trial judge for the entry of a judgment of
conviction and resentencing on only one count. However, because
we conclude that numerous errors occurring at trial created a
substantial risk of a miscarriage of justice, we vacate the
convictions and remand for a new trial.1
1. Background. We summarize the facts as the jury could
have found them, reserving certain details for our analysis of
the issues raised on appeal. In late December, 2009, the
defendant brought his computer to a computer repair shop in
Holyoke seeking repairs. As the technician, Joshua Charland,
worked on the computer, the image of a young girl in a bikini
appeared on the computer's monitor. The defendant stated that
the image was a photograph of his daughter. Once Charland
completed his work on the computer, he returned it to the
defendant and reported the image to Holyoke police Officer James
Bartolomei.
Two days later, the defendant returned to the computer
repair shop and asked Charland for further repairs to the
computer. The defendant explained that he had attempted to
erase the computer's hard drive and reinstall the operating
system, following which, the "mouse" stopped working. Charland
1
We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
4
requested the defendant's personal information so that he could
contact him when the computer was ready. Charland, sensing that
"something was up," then used forensic recovery software to
search the defendant's computer for deleted files. During the
course of his search, Charland discovered approximately 1,200
images, including photographs depicting nude and scantily clad
young girls, which he recovered to a "flash drive."
Officer Bartolomei was once again notified, prompting him
to visit the computer repair shop, view the images on the flash
drive, and confiscate the defendant's computer. Officer
Bartolomei then telephoned the defendant, informed the defendant
that he had taken the computer, and requested that the defendant
come to the police station for questioning. The defendant
returned to the shop, where he learned that Charland had
discovered what he believed to be child pornography on the
computer. The defendant remarked that the images were probably
placed there by a friend.
The following day the defendant was interviewed by two
detectives. During the interview, the defendant explained that,
after unintentionally stumbling across a Web site depicting
child pornography a few months prior, he began conducting a
secret and independent investigation into child pornography on
the Internet. The defendant averred that it was his intention,
on completion of the investigation, to deliver the "proof" to
5
the Chicopee police department. At the conclusion of the
interview, the defendant confirmed his ownership of the computer
in police custody and consented to a search of its contents.
The defendant's computer was then transferred to a forensic
computer examiner at the New England State Police Information
Network (NESPIN). Using specialized software, the examiner
conducted a forensic examination of the computer and discovered
deleted files in the unallocated space of the computer's hard
drive. He then recovered and transferred 6,094 images to a
digital video disc (NESPIN disc) that he provided to the Holyoke
police department.
Detective David Usher of the Holyoke police department
reviewed approximately 1,200 of the images on the NESPIN Disc
and then printed twelve photographs -- each depicting either
nude or scantily clad young girls. On May 7, 2010, the
Commonwealth filed a six-count criminal complaint against the
defendant. Each count charged him with the possession of child
pornography on December 30, 2009, in violation of G. L. c. 272,
§ 29C (§ 29C), and each was premised on distinct photographs
recovered from the defendant's computer. Specifically, counts
one through five were each premised on a separate, single
photograph culled from the twelve that Detective Usher printed
from the NESPIN disc, while count six was premised on two
photographs culled from those twelve.
6
At trial, the Commonwealth presented evidence that the
defendant knowingly downloaded the charged photographs,
including the defendant's statement to the Holyoke police that
he downloaded them in a purported effort to assist law
enforcement in the eradication of child pornography. The
Commonwealth introduced the seven charged photographs and five
uncharged photographs through the testimony of Detective Usher.
At the close of the Commonwealth's case, the defense moved for a
directed verdict based primarily on the Commonwealth's failure
to establish possession. The judge denied the defendant's
motion. The defense then rested, and the jury heard closing
arguments.
The jury were then provided with six verdict slips.
Attached to each slip for counts one through five was a single
image. By contrast, two images were attached to the slip for
count six. The jury returned guilty verdicts on all six counts.
On counts one, two, and three, the defendant was sentenced to
three concurrent terms of two and one-half years in a house of
correction. On counts four, five and six, the defendant was
sentenced to an additional three concurrent terms of two and
one-half years in a house of correction to commence upon the
defendant's completion of his sentences on counts one, two, and
three.
7
We granted the defendant's application for direct appellate
review, wherein he contended that, inter alia, his convictions
were duplicative and the errors occurring at trial raised a
substantial risk of a miscarriage of justice. We agree.
2. Discussion. a. Duplicative convictions. The double
jeopardy clause of the Fifth Amendment to the United States
Constitution and Massachusetts common law preclude the
imposition of multiple punishments for the commission of a
single crime. Marshall v. Commonwealth, 463 Mass. 529, 534
(2012). Our jurisprudence defines "multiple punishments" as
those "in excess of what a Legislature intended to be the
punishment for a particular offense." Commonwealth v. Selavka,
469 Mass. 502, 509-510 (2014), quoting Aldoupolis v.
Commonwealth, 386 Mass. 260, 272 (1982), S.C., 390 Mass. 438
(1983). Accordingly, the starting point for our analysis is to
ask what "unit of prosecution" the Legislature intended as the
punishable act for violations of § 29C. See Commonwealth v.
Rabb, 431 Mass. 123, 128 (2000).
This "inquiry requires us to look to the language and
purpose of the statute[], to see whether [it] speak[s] directly
to the issue of the appropriate unit of prosecution, and if [it]
do[es] not, to ascertain that unit, keeping in mind that any
ambiguity that arises in the process must be resolved, under the
rule of lenity, in the defendant's favor." Id. Similarly, we
 8
are mindful of the general rule that "criminal statutes must be
construed strictly against the Commonwealth." Commonwealth v.
Constantino, 443 Mass. 521, 523-524 (2005). With this framework
in place, we turn to the statute at issue, which criminalizes
the knowing possession of child pornography.
The statute provides, in pertinent part:
"Whoever knowingly purchases or possesses a negative,
slide, book, magazine, film, videotape, photograph or other
similar visual reproduction, or depiction by computer, of
any child whom the person knows or reasonably should know
to be under the age of [eighteen] years of age and such
child is . . . depicted or portrayed in any pose, posture
or setting involving a lewd exhibition of the unclothed
genitals, pubic area, buttocks or, if such person is
female, a fully or partially developed breast of the child;
with knowledge of the nature or content thereof shall be
punished by imprisonment in the [S]tate prison for not more
than five years or in a jail or house of correction for not
more than two and one-half years or by a fine of not less
than $1,000 nor more than $10,000, or by both such fine and
imprisonment for the first offense, not less than five
years in a [S]tate prison or by a fine of not less than
$5,000 nor more than $20,000, or by both such fine and
imprisonment for the second offense, not less than [ten]
years in a [S]tate prison or by a fine of not less than
$10,000 nor more than $30,000, or by both such fine and
imprisonment for the third and subsequent offenses."
G. L. c. 272, § 29C (vii).
The Commonwealth correctly observes that the singular tense
employed by the Legislature in § 29C demonstrates that a single
offending photograph is sufficient to support a conviction of
possession of child pornography. It does not necessarily
follow, however, that each photograph supports its own unit of
prosecution where they are collectively possessed at a single
9
point in time, as the mere use of singularity in a statute is
not, in and of itself, controlling. See G. L. c. 4, § 6, Fourth
("Words importing the singular number may extend and be applied
to several persons or things . . ."). Thus, the statute
prohibits both the possession of a single photograph as well as
the possession of multiple photographs.
Because the plain language of the statute is, at best,
ambiguous as to the appropriate unit of prosecution,2 we examine
the proposed penalty scheme through the lens of the rule of
lenity. See Rabb, 431 Mass. at 128. We observe initially that,
as a logical consequence of the Commonwealth's construction of
the statute, the defendant in this case, a first-time offender,
was essentially sentenced to five years in a house of
correction. Yet, the statute's penal framework provides that a
first-time offender only may be imprisoned for a maximum of
either two and one-half years in a house of correction or,
alternatively, five years in a State prison. G. L. c. 272,
§ 29C. The punishments also grow progressively more severe on
2
The Legislature will often insert qualifying, if not
explicit, language signaling its view that each violative act
may warrant separate punishment. See, e.g., G. L. c. 143,
§ 94 (a) ("Whoever violates any provision of the state building
code . . . shall be punished by a fine of not more than one
thousand dollars or by imprisonment for not more than one year,
or both, for each such violation. Each day during which a
violation exists shall constitute a separate offense" [emphasis
added]). Aside from the tiered penalty scheme for subsequent
offenders, no such language is employed in G. L. c. 272, § 29C
(§ 29C).
10
convictions of subsequent offenses. For example, for second and
third offenses, a defendant faces minimum State prison terms of
five and ten years, respectively. Id.
Notwithstanding this tiered framework, the Commonwealth
proposes that a first-time offender who downloads one hundred
violative photographs to the same location at the same time may
be sentenced to one hundred consecutive five-year State prison
terms -- that is, 500 years -- in State prison, whereas a
similarly situated defendant who purchases a magazine containing
one hundred offending images could, apparently, be sentenced to
only a maximum of five years in State prison. The prospect of
imposing what are essentially life prison terms for first
offenses risks nullifying the tiered penalty framework created
by § 29C. See Flemings v. Contributory Retirement Appeal Bd.,
431 Mass. 374, 375-376 (2000) ("If a sensible construction is
available, we shall not construe a statute to make a nullity of
pertinent provisions or to produce absurd results"). We doubt
that the Legislature intended to produce such an anomalous
result, and absent evidence to the contrary, we decline to
conclude that it did.
The Commonwealth argues that there is evidence to the
contrary in the legislative purpose statement in St. 1997,
c. 181, which inserted § 29C into the General Laws. It reads
that statement as evincing a clear legislative intent to protect
11
individual children from exploitation and victimization. St.
1997, c. 181, § 1 (2) ("each time such material is viewed the
child is harmed"). As such, urges the Commonwealth, the proper
course is to treat possession of child pornography in the same
manner as other crimes of violence, which generally follow a
victim-based approach in terms of unit of prosecution. See,
e.g., Commonwealth v. Crawford, 430 Mass. 683, 686-687 (2000)
("We have implicitly approved the imposition of consecutive
sentences for crimes of violence committed against multiple
victims because the appropriate 'unit of prosecution' for such
crimes is the person assaulted or killed, not the underlying
criminal act"). We do not read the purpose statement so
narrowly.
Although the purpose statement does reflect concern for the
protection of individual children, the Legislature also found
"that the [C]ommonwealth has a compelling interest in outlawing
the possession of any materials which sexually exploit children
in order to protect the privacy, health and emotional welfare of
children and society as a whole" (emphasis added). St. 1997,
c. 181, § 1 (6). The significance of this finding is bolstered
by the Legislature's placement of § 29C in a chapter devoted to
"Crimes Against Chastity, Morality, Decency and Good Order."
Such a placement is indicative of the Legislature's intent to
"punish[] the defendant for conduct offensive to society, as
12
distinct from punishing the defendant for the effect of that
conduct on particular victims." Commonwealth v. Botev, 79 Mass.
App. Ct. 281, 287 (2011).
Considering the purpose statement in conjunction with these
other statutory provisions, we understand § 29C to be aimed at
eradicating the harmful societal effects posed by the
circulation of child pornography, including, but not limited to,
the harm caused to the individual children depicted therein.
Accordingly, we reject the Commonwealth's victim-based approach
to determining the appropriate unit of prosecution for
possession of child pornography, concluding instead that a
conduct-based approach is more in keeping with the broad intent
of the statute and the tiered punishment framework that it
erects.3
In identifying the conduct underlying each unit of
prosecution for possession of child pornography, we find useful
analogies in other types of possession cases. See, e.g., Rabb,
3
The Washington Supreme Court reached a similar conclusion
in State v. Sutherby, 165 Wash 2d 870 (2009) (en banc). In that
case, the statute criminalizing child pornography also included
a legislative purpose statement suggesting concern regarding the
abuse and exploitation of children. However, as with § 29C,
that legislative purpose statement did not clearly identify the
victims as the units of prosecution. Sutherby, 165 Wash. 2d at
882 n.4. As in this case, it was "clear that the proscribed
conduct [was] the possession of child pornography" and, as such,
the proper unit of prosecution was "one count per possession of
child pornography, without regard to the number of images
comprising such possession or the number of minors depicted in
the images possessed" (emphasis in original). Id. at 879, 882.
13
431 Mass. at 129-132. In Rabb, we noted "various considerations
for identifying when separate quantities of drugs exist to
justify two or more charges: 'Generally, courts which have
considered the issue [of multiple prosecutions under controlled
substance statutes] have determined that separate convictions
for possession of the same type of controlled substance [with an
intent to distribute] will not violate the Double Jeopardy
Clause if the possessions are sufficiently differentiated by
time, location, or intended purpose.'" Id. at 130, quoting
Rashad v. Burt, 108 F.3d 677, 681 (6th Cir. 1997), cert. denied,
522 U.S. 1075 (1998). See Commonwealth v. Beacon Distribs.,
Inc., 14 Mass. App. Ct. 570, 574-575 (1982) (indictment alleging
twenty counts of possessing obscene films in same place at same
time alleged single offense).
We conclude that similar considerations control the unit of
prosecution in this case.4 Thus, a defendant's possession of a
4
The logic of extending these considerations to possession
of child pornography is supported by the reasoning of United
States v. Chiaradio, 684 F.3d 265 (1st Cir.), cert. denied, 133
S. Ct. 589 (2012). Although the Federal analogues to § 29C
employ different language and sentencing schemes, the statute at
issue in Chiaradio criminalized the possession of "one or more"
matters containing depictions of child pornography -- a standard
not markedly different from § 29C. See 18 U.S.C.
§ 2252(a)(4)(B) (2012). The United States Court of Appeals for
the First Circuit, finding no "inkling that Congress intended to
allow prosecutors to divide simultaneous possession by a single
individual of several matters containing child pornography into
multiple units of prosecution, . . . [held] that the plain
language of [§] 2252(a)(4)(B) memorializes Congress's intent . .
14
single cache of one hundred offending photographs in the same
place at the same time gives rise to a single unit of
prosecution pursuant to § 29C.5 The imposition of multiple
punishments for such a singular possession is contrary to the
defendant's guaranty against double jeopardy. See Kuklis v.
Commonwealth, 361 Mass. 302, 308 (1972) ("it was not the
legislative intent that a defendant should be punished for both
possession of a drug and being present where the drug was kept,
where the two charges involve the same time and place, and the
identical mass of a single drug"). Importantly, the meaning of
"punishment" for double jeopardy purposes is not limited to
consecutive sentences, but extends also to concurrent sentences
and multiple convictions. Commonwealth v. Jones, 382 Mass. 387,
395-396 (1981).
. that one who simultaneously possesses a multitude of forbidden
images at a single time and in a single place will have
committed only a single offense." Chiaradio, 684 F.3d at 274.
5
To the extent the Commonwealth relies on Commonwealth v.
Dingle, 73 Mass. App. Ct. 274 (2008), in support of multiple
sentences for first-time offenders, that case is distinguishable
on its facts. We do not, therefore, opine on the question posed
in that case whether the possession of distinct formats of child
pornography enumerated in § 29C (photographs, computer discs,
and a computer hard drive) could constitute distinct units of
prosecution if found in the same location at the same time. See
id. at 282-283. Nor do we opine whether the Commonwealth could,
in another case, distinguish units of prosecution for possession
of child pornography of the same format by establishing
different periods of possession. The Commonwealth did not make
such an argument in this case.
15
Yet, double jeopardy principles do not necessarily extend
to simultaneous prosecutions. See United States v. Pires, 642
F.3d 1, 16 (1st Cir. 2011) (double jeopardy clause of Federal
Constitution does not protect against simultaneous prosecutions
for same offense, so long as no more than one punishment is
eventually imposed). As such, the Commonwealth may elect to
prosecute a single violation of § 29C by way of multiple counts.6
See, e.g., Beacon Distribs., Inc., 14 Mass. App. Ct. at 575
(Commonwealth entitled to proceed on twenty-count indictment
even though possession of twenty obscene films at issue
constituted single offense). Should that procedure result in
multiple guilty verdicts for the same offense, the duplicative
convictions must be vacated and merged into a single conviction
for sentencing purposes. Cf. Commonwealth v. Rivas, 466 Mass.
184, 191-192 (2013) (within judicial discretion to vacate either
of duplicative convictions); United States v. Chiaradio, 684
F.3d 265, 284 (1st Cir.), cert. denied, 133 S. Ct. 589 (2012)
6
Such an election may raise certain concerns. See, e.g.,
Commonwealth v. Hrycenko, 417 Mass. 309, 316-317 (1994)
(convictions reversed where Commonwealth's identically worded
indictments rendered it impossible to determine basis of jury's
acquittals and convictions); Commonwealth v. Jones, 382 Mass.
387, 395 n.10 (1981) (noting that Commonwealth may have to
choose between charges where "necessary to protect the
substantial rights of the defendant"); Commonwealth v. Benjamin,
358 Mass. 672, 677-678 (1971) (expressing disapproval of
repetitious and overlapping indictments where fewer will
suffice).
16
(directing judge to merge duplicative convictions of possession
of child pornography).
Here, the Commonwealth charged the defendant with six
counts of possession of child pornography -- each premised on
photographs contained in the same cache at the same time -- and
the jury returned guilty verdicts on each of those six counts.
The imposition of six convictions and sentences for the
defendant's singular act of possession violated the guaranty
against double jeopardy. See Jones, 382 Mass. at 395-396.
Accordingly, were we to hold that any of those convictions could
stand, the appropriate remedy would be to vacate the duplicative
convictions and remand for resentencing on the remaining count.
Yet, as we explain below, a retrial is the appropriate remedy in
this case.
b. First Amendment protection regarding counts one through
three.7 The defendant appeals his convictions on counts one
through three on grounds that the photographs underlying each
count were protected by the First Amendment to the United States
Constitution and were insufficient to support a conviction under
§ 29C. Specifically, the defendant asserts that one of the
photographs did not exhibit the nudity required by § 29C and,
7
The defendant has not challenged counts four and five on
the grounds of the First Amendment to the United States
Constitution or sufficiency.
17
even if it did, none of the three photographs exhibited
lewdness.
Where, as here, a defendant charged with possessing child
pornography seeks the cloak of First Amendment protection, we
undertake a de novo review of the challenged images. See
Commonwealth v. Rex, 469 Mass. 36, 42-43 (2014); Commonwealth v.
Sullivan, 82 Mass. App. Ct. 293, 303 (2012). Although it is
clear that "depictions of nudity, without more, constitute
protected expression," it is equally clear that States retain
the authority to criminalize the possession of lewd exhibitions
of nude minors. Osborne v. Ohio, 495 U.S. 103, 112-114 (1990).
Section 29C accomplishes the latter, but does not define
lewdness. In determining whether a particular image constitutes
a "lewd exhibition," we have looked to the criteria articulated
in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal.
1986), aff'd, 812 F.2d 1239 (9th Cir.), cert. denied, 484 U.S.
856 (1987) (Dost factors), specifically:
"1) whether the focal point of the visual depiction is on
the child's genitalia or pubic area;
"2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated
with sexual activity;
"3) whether the child is depicted in an unnatural pose, or
in inappropriate attire, considering the age of the child;
"4) whether the child is fully or partially clothed, or
nude;
18
"5) whether the visual depiction suggests sexual coyness or
a willingness to engage in sexual activity; [and]
"6) whether the visual depiction is intended or designed to
elicit a sexual response in the viewer."
These factors, while neither comprehensive nor dispositive,
provide important guidance and should be applied in a manner
that furthers the legislative intent underlying § 29C. Rex, 469
Mass. at 45. In particular, we note the Legislature's concern
over the "wrongful invasion of a child's right to privacy" and
the "permanent record of an act or acts of sexual abuse and
exploitation of a child," and "that such material is used to
break the will and resistance of other children." St. 1997,
c. 181, § 1 (1)-(3). We now review the three disputed
photographs, keeping in mind that "[a] visual depiction need not
involve all of the Dost factors in order to be deemed lewd."
Rex, supra.
Trial exhibit 6 (count one) is a photograph of two fully
nude girls standing close together. The girl on the left is in
a sexually suggestive pose with her hands on her head, back in a
severe arch, and torso jutting forward and touching the girl on
the right. The girl on the right has a coy smile, suggesting a
willingness to engage in sexual activity. Her right and left
hands are placed on the buttocks and undeveloped breast,
respectively, of the girl on the left. The image is pixelated
and embellished with sporadic text, but is clear enough that
19
part of each girl's genital area is visible. The placement of
the text draws the viewer's attention to the girls' genital
areas. Given the nudity, posing, and touching, it is apparent
that the picture is designed to elicit a sexual response in the
viewer.
Trial exhibit 7 (count two) is a photograph of two wet,
nude girls in a bathtub. Although the genitals are not exposed,
we disagree with the defendant's assertion that the image lacks
the requisite nude exposure. The viewer can see the partially
developed breasts of the girl on the right and the side of the
buttock of the girl on the left. As was aptly observed in
Sullivan, 82 Mass. App. Ct. at 305, these girls are "well past
the age of the 'Coppertone girl.'" The girl on the left is
smiling, holding soap bubbles, and standing with her knees bent,
back arched forward, and buttocks jutting out. The girl on the
right is sitting and making a kissing face with her head pressed
against the torso of the girl on the left. The posing and
facial expressions suggest a sexual coyness that, we conclude,
is designed to elicit a sexual response in the viewer.
Trial exhibit 8 (count three) is a photograph of a fully
nude girl. She is facing the viewer, but standing in front of a
mirror such that her backside is visible as well. Although the
image is grainy, her buttocks, undeveloped breast, and genital
area are visible to the viewer. She is smiling with one hand
20
covering her mouth and one arm unnaturally twisted behind her
back. The placement of the mirror and the twisted arm render
the girl's buttocks the focal point of the image. The pose is
suggestive of either mischief or domination and thus seems
designed to elicit a sexual response in the viewer.
It is evident that these photographs go beyond the mere
depiction of nudity. Contrast Rex, 469 Mass. at 47-48. The
first two images depict children who are touching each other
while donning sexually suggestive poses and facial expressions.
The third image, depicting a child unnaturally posed in front of
a full-length mirror, exposing both sides of her entirely naked
body, creates precisely the type of permanent record of invasion
and exploitation that the Legislature sought to eradicate
through the enactment of § 29C. See St. 1997, c. 181, § 1 (2).
Consequently, these photographs are not entitled to protection
under the First Amendment, and the judge could properly have
determined that the evidence on counts one through three was
sufficient for their submission to the jury.
c. Duplicity of count six. The defendant next contends,
for the first time on appeal, that his conviction on count six
must be vacated as duplicative. This argument is not sound.
"Duplicity is the charging of several separate offenses in a
single count." Commonwealth v. Barbosa, 421 Mass. 547, 553 n.10
(1995), quoting R.M. Kantrowitz & R. Witkin, Criminal Defense
21
Motions § 9.7 (1991). Compare Commonwealth v. Fuller, 163 Mass.
499, 499-500 (1895) (quashing as duplicative single indictment
charging multiple acts of adultery), with United States v.
Valerio, 48 F.3d 58, 63 (1st Cir. 1995) (attacks on evidence
underlying single possession charge do not sound in duplicity).
The Commonwealth submitted two photographs to the jury in
support of a single charge of possession of child pornography.
As we explain today, the possession of those two photographs
formed part of the same unit of prosecution. The Commonwealth
is free to charge the possession of multiple images under a
single count on the theory that any of those images may be
sufficient to support the conviction. See Beacon Distribs.,
Inc., 14 Mass. App. Ct. at 575. Thus, there is no duplicity
problem here. See Valerio, 48 F.3d at 63.
Nonetheless, when the Commonwealth elects to proceed in
this manner, it runs the risk of violating the rule articulated
"in Commonwealth v. Matchett, 386 Mass. 492, 511 (1982), . . .
that if the evidence presented to the jury would warrant a
conviction on one ground, but not on another, and it is
impossible to tell on which ground the jury relied, the verdict
must be set aside on appeal" (citations omitted). Chambers v.
Commonwealth, 421 Mass. 49, 51-52 (1995). See Hrycenko, 417
Mass. at 316-317. Here, the first photograph submitted by the
Commonwealth on count six, exhibit 11A, depicts a young girl
22
inserting a power drill into her mouth. None of the body parts
enumerated in § 29C is visible to the viewer. Conversely, in
the second photograph, exhibit 11B, the same young girl is
depicted nude holding the same power drill.
The Commonwealth casts exhibit 11A as mere relevant context
for the lewdness of the power drill, and concedes that its
possession does not violate the statute, whereas exhibit 11B
"was clearly the image upon which the complaint was issued."
This argument is contrary to the record. Detective Usher
specifically testified that he premised the complaint on both
photographs, which he contrasted with the five remaining
photographs printed and introduced for context. The jury were
simply provided with two photographs attached to a single
verdict slip, but were never instructed that exhibit 11B was the
only charged photograph. Accordingly, we conclude that the more
reasonable inference was that the Commonwealth was proceeding on
both photographs.
The jury were given neither specific unanimity instructions
nor special verdict slips. Cf. Commonwealth v. Accetta, 422
Mass. 642, 646 (1996) ("where there is evidence of separate
incidents, each of which could warrant a guilty verdict, the
jury must be instructed that specific unanimity is required at
least as to one incident. . . . In addition, we would expect in
such a case that any guilty verdict would be accompanied by an
23
indication on the verdict slip of the theory or theories on
which the jury based that verdict"). We are left with no way of
discerning whether the jury premised their guilty verdict solely
on the basis of exhibit 11A, which the Commonwealth concedes
would have been plainly insufficient to support a conviction
pursuant to § 29C. Consequently, the conviction on count six
must be set aside.8
d. Trial errors and ineffective assistance of counsel.
Last, the defendant contends that an amalgamation of improper
admissions of irrelevant and prejudicial evidence, improper
testimony by Detective Usher, improper closing argument by the
prosecutor, and inadequate jury instructions deprived him of a
fair trial. The defendant also maintains that he received
ineffective assistance of counsel. "[W]hen the claim of
ineffectiveness is predicated, as it is here, on counsel's
failure to object to something that occurred at trial, the
standard for evaluating the ineffectiveness claim is not
significantly different from the substantial risk standard that
is applicable to our review of the underlying, unpreserved
error." Commonwealth v. Azar, 435 Mass. 675, 686 (2002), S.C.,
444 Mass. 72 (2005).
8
If the Commonwealth includes several photographs that it
alleges are lewd in a single count, which it is entitled to do,
the jury's verdict must clearly record the specific photographs
that the jury unanimously agreed were violative of the statute
in order to ensure proper appellate review.
24
On the morning of the first day of trial, the Commonwealth
disclosed for the first time its intention to introduce five
uncharged photographs as a "representative sample" of the
approximately 1,200 images that Detective Usher viewed on the
NESPIN disc. Defense counsel objected to the introduction of
these items as cumulative, prejudicial, and irrelevant. The
judge opined that the images could show absence of mistake,
pattern of conduct, or modus operandi. Following a review of
about 200 of the approximately 1,200 images that Detective Usher
had reviewed, the judge concluded that the Commonwealth could
introduce the sample photographs so long as a proper foundation
was laid for their representative character.
At trial, Detective Usher explained that the NESPIN disc
contained more than 6,000 photographs and that he had viewed
approximately 1,200 of those photographs. He then printed seven
for charging purposes and five as an "average sample of what
other photos were on that dis[c]." These five "representative"
photographs were then introduced as exhibits 12A through 12E.
"Whether evidence is relevant in any particular instance,
and whether the probative value of relevant evidence is
outweighed by its prejudicial effect, are questions within the
sound discretion of the judge." Commonwealth v. Dunn, 407 Mass.
798, 807 (1990). It is the defendant's contention that the
admission of the representative photographs constituted an abuse
25
of that discretion. The Commonwealth counters that the
admission of the photographs was relevant to the defendant's
intentional or knowing possession of child pornography.
The defendant has the better of the arguments on this
point. To the extent the judge relied on the reasoning of
Commonwealth v. Darby, 79 Mass. App. Ct. 1107 (2011)
(unpublished), in accepting the Commonwealth's theory, that
reliance was misplaced.9 In Darby, the defendant stipulated that
the representative video recordings were, in fact, child
pornography. Id. By comparison, here, the Commonwealth
concedes that the representative photographs did not contain
nudity and, thus, were not child pornography as defined by
§ 29C. We fail to see how the possession of legal photographs
is probative of the defendant's knowing or intentional
possession of illegal photographs.
This is particularly true where, as here, the jury viewed a
videotaped interview of the defendant stating that he
intentionally downloaded the images. Accordingly, it is highly
unlikely that the jury would have used the representative sample
as evidence in rebuttal of a mistake defense. Conversely, there
9
Defense counsel, having lost on her initial objection to
the admission of these photographs, did not object when they
were individually offered in evidence. Although the
Commonwealth contends that these failures to object may have
been strategic, any such strategy would have been manifestly
unreasonable. See Commonwealth v. Lane, 462 Mass. 591, 598-599
(2012).
26
was a substantial risk that the jury would use the photographs
as evidence of the bad character of the defendant, as several of
the photographs depicted young girls, while not nude, posed in
highly sexualized positions even more provocative than the nude
images underlying the charges. Cf. Commonwealth v. Prashaw, 57
Mass. App. Ct. 19, 25-26 (2003) (prejudicial error to admit
sexually suggestive photographs not probative of guilt).
The prejudice arising from this error was compounded by the
improper testimony of Detective Usher. Despite only viewing
approximately 1,200 of the more than 6,000 images on the NESPIN
disc, Detective Usher testified, without objection, that the
five representative photographs were an "average sample of what
other photos were on that dis[c]." Detective Usher then opined,
on cross-examination, that he "could have charged [the
defendant] with many counts" but "decided after six counts, that
would be enough."
Essentially, the jury were left to form the unfounded
conclusion that the defendant would be fortunate to be convicted
on only six counts -- regardless of whether those six
convictions corresponded precisely to the images that Detective
Usher selected for each count. This theme continued during the
Commonwealth's closing argument, when the prosecutor offered his
own view regarding the purpose of § 29C:
27
"[W]hen the Legislature made a law making child
pornography, possession of child pornography, illegal,
. . . they noted, every time someone possesses and looks at
those pictures, that child is harmed. And that is why the
statute was done. With that in mind, I would ask you to
look at all the evidence that you have in front of you, to
consider all the testimony you heard, and when you do, I'd
suggest you'll find the defendant guilty on all six
counts."
We have repeatedly warned that, in "closing argument,
'[l]awyers shall not and must not misstate principles of law.'"
Commonwealth v. Bins, 465 Mass. 348, 367 (2013), quoting
Commonwealth v. Haas, 373 Mass. 545, 557 (1977), S.C., 398 Mass.
806 (1986). Moreover, prosecutors especially must take care to
limit their closing "to the evidence and fair inferences that
can be drawn from the evidence," Commonwealth v. Kelly, 417
Mass. 266, 270 (1994), and to avoid interjecting personal
opinions or playing to the emotions of the jury, Commonwealth v.
Kozec, 399 Mass. 514, 516-517 (1987). Although a judge may
"inform a jury about the legislative purpose of a statute," even
then, he or she must do so accurately. Commonwealth v.
Brunelle, 361 Mass. 6, 12 (1972).
As indicated above, the prosecutor's selective reading of
the legislative findings painted an incomplete, and thus
inaccurate, picture of the legislative intent. It was also not
particularly probative of whether the defendant possessed child
pornography. Cf. United States v. Norton, 639 F.2d 427, 429
(8th Cir. 1981) (prosecutor's "testimony" during closing
28
argument regarding purpose of Federal gun control act not
relevant to defendant's possession of gun). Rather, it invited
the jury to gloss over the question of possession as to the
photographs that formed the bases of the six counts and to
convict the defendant based on their sympathy for those harmed
by each viewing. Although the judge instructed the jury that
the closing arguments were not evidence, she did not provide a
curative instruction targeted at the prosecutor's erroneous
explication of the legislative history. See Commonwealth v.
Coren, 437 Mass. 723, 731-733 (2002).
The judge's instruction on lewdness was also insufficient.
The judge instructed the jury, without objection, that "to prove
that there was a lewd exhibition of the unclothed genitals,
pubic area, or buttocks, or, if a female, her fully or partially
developed breast, I will inform you that the term 'lewd' under
our statutes and case law means 'indecent or offensive.' That's
the definition of 'lewd.'" By contrast, the judge had
previously informed counsel that she would include an
instruction that "proof that an image contains nudity, alone, is
not sufficient for a conviction." When the judge omitted this
language, defense counsel should have lodged an objection.
It is, of course, true that "judges are not required to
deliver their instructions in any particular form of words, so
long as all necessary instructions are given in adequate words."
29
Commonwealth v. Sinnott, 399 Mass. 863, 878 (1987). The precise
contours of the instruction can and should be informed by the
physical evidence, testimony, and other conduct of the trial
that precede it. The Sullivan case is a comparable example.
There, the Appeals Court found no error in the trial judge's
failure to give a "mere nudity is not enough" instruction where
the judge recited the Dost factors and instructed the jury that
certain uncharged photographs introduced by the Commonwealth
were:
"only to be used . . . to determine whether [the defendant]
intended to download this particular photograph, and
whether that is the absence of mistake or inadvertence, and
may be used . . . secondly to go to his knowledge of what
he was downloading. But it . . . should not be used at all
for evidence of bad character or whether the other pictures
were appropriate or not."
Sullivan, 82 Mass. App. Ct. at 308-310. The Dost factors were
not included in the instructions in this case.
Here, in view of the prejudicial evidence, testimony, and
argument presented by the Commonwealth at trial, the judge was
required to do more than simply instruct the jury that lewd
means "indecent or offensive."10 The judge seems to have agreed,
10
We are mindful that Instruction 7.540 of the Criminal
Model Jury Instructions for Use in the District Court
(Possession of Child Pornography) was not available until
January, 2013, after the trial in this case. The model
instruction provides, in relevant part: "Proof that an image
contains nudity is not alone sufficient for a conviction. The
image must be of a person engaged in (an activity) (one of the
activities) specified in the second element." The instructions
30
but inadvertently omitted an instruction that "nudity, alone, is
not sufficient." As in Sullivan, that omission alone was not
enough to render the instructions inadequate. The instructions
were rendered inadequate by the concomitant lack of a limiting
instruction and a practical roadmap -- such as the Dost factors
-- to aid the jury in discerning whether the stated definition
of lewdness had been satisfied.
In sum, the Commonwealth used photographs not violative of
the statute to suggest to the jury that the NESPIN disc
contained thousands of images that were, at minimum, reflective
of the defendant's bad character, if not criminally
pornographic. The testimony of Detective Usher, along with the
misleading soliloquy on legislative intent by the prosecutor,
invited the jury to draw adverse conclusions regarding the
defendant's culpability for harms extending well beyond the
evidence presented at trial. The jury instructions were too
feeble to cleanse the trial of the unfairness wrought by the
Commonwealth in this case. For all these reasons, we hold that
the errors at trial gave rise to a substantial risk of a
miscarriage of justice.
then define "lewd" as "indecent or offensive," and offer the
factors articulated in United States v. Dost, 636 F. Supp. 828,
832 (S.D. Cal. 1986), aff'd, 812 F.2d 1239 (9th Cir.), cert.
denied, 484 U.S. 856 (1987), as a guide to aid the jury in
determining whether that definition has been met.
31
3. Conclusion. The judgments of conviction are vacated,
the verdicts are set aside, and the case is remanded to the
District Court for a new trial.
So ordered.