Commonwealth v. Bryant

852 N.E.2d 1072, 447 Mass. 494, 2006 Mass. LEXIS 542
CourtMassachusetts Supreme Judicial Court
DecidedAugust 25, 2006
StatusPublished
Cited by38 cases

This text of 852 N.E.2d 1072 (Commonwealth v. Bryant) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bryant, 852 N.E.2d 1072, 447 Mass. 494, 2006 Mass. LEXIS 542 (Mass. 2006).

Opinion

Ireland, J.

In 2001, the defendant, an attorney, was tried and found guilty of three indictments charging conspiracy to commit larceny of insurance companies in violation of G. L. c. 274, § 7. The defendant appealed, arguing that a Superior Court judge erred in denying a motion to suppress computer files seized from the law firm for which the defendant worked because the analysis of the electronically stored files (computer data) took more than seven days in violation of G. L. c. 276, § 3A. We granted the Commonwealth’s application for direct appellate review. Because we conclude that the defendant has no standing to challenge the seizure of the computer files, and that there is no merit to the defendant’s other claims of error, we affirm the convictions.1

Facts and procedural background. We recite the essential facts drawn from the trial record and, where relevant, from the uncontested facts found by the motion judge (who also was the trial judge) in his 1999 memoranda concerning two motions to suppress that the defendant had joined.2 Certain details will be reserved for our discussion of the issues raised.

In May, 1996, a Superior Court judge issued search warrants for the various premises of the law firm of Ellis & Ellis and to seize, inter alla, computers and computer files. As a result of the May, 1996, search, the same judge issued a second search warrant in February, 1998.

In June, 1998, the defendant, an attorney at the firm, was [496]*496charged in eleven indictments that included larceny, attempted larceny, insurance fraud, and conspiracy to commit larceny. Subsequent to the judge’s decisions on the motions to suppress, the defendant was tried and found guilty of the three indictments charging conspiracy to commit larceny in a jury trial. The three indictments charged that the defendant conspired with James N. Ellis, Jr., Nicholas J. Ellis, a client, and a doctor to commit larceny of insurance companies concerning three motor vehicle accidents the client had in 1992 and 1993.3 The defendant’s motions for required findings of not guilty were denied. For each guilty verdict, the defendant was sentenced to serve twelve months of a two and one-half year sentence in a house of correction, with the balance suspended for five years. The defendant was to serve the sentences concurrently. A single justice of the Appeals Court granted a stay of the defendant’s sentence pending appeal.

Discussion. In his brief, the defendant concedes that at trial, the Commonwealth presented sufficient evidence to convict him.4 On appeal, he argues that the judge erred in denying the motion to suppress computer data seized pursuant to a search warrant; that he was denied a right to a fair and impartial jury because the judge denied the defendant his right to challenge jurors for cause; and that the judge abused his discretion in denying a motion for a mistrial after a witness’s remark. We consider each in turn.

1. Motion to suppress computer data. The Commonwealth argues that, as a threshold matter, the defendant has no standing to challenge the seizure of the computer data because, as an employee of the law firm, he had no reasonable expectation of privacy in the law firm’s premises or the files seized. The judge’s memorandum of decision dated August 27, 1999, on the motion to suppress the computer files did not address the issue of standing. However his decision dated August 18, 1999, did address the issue (see note 2, supra). In that memorandum of [497]*497decision the judge found, “The files were open and accessible to any employee in the law firm who had occasion to use a particular file. None of the employee defendants has established that the documents that they seek to have suppressed were maintained in such a way that would entitle him or her to any privacy in the document.”

It is not clear from the record before us whether the judge assumed (or intended) that his decision on standing applied to the motion to suppress the computer files or whether the Commonwealth raised this argument in its opposition to the defendant’s motion concerning the computer files. Moreover, the defendant does not address the standing issue in his brief.

However, the record does contain evidence that the defendant did not own the premises from which the computer files were seized. Indeed, part of the defense was that the defendant had no authority at the law firm and was just doing what he was told by the firm’s owners.5 6 Moreover, the files were freely accessible to others in the law firm, including the owners and secretaries. See Commonwealth v. Welch, 420 Mass. 646, 653-654 (1995) (reasonable expectation of privacy determined by such factors as “whether the defendant owned the place involved . . . whether the defendant controlled access to the area . . . and whether the area was freely accessible to others” [citations omitted]). The defendant had no authority to exclude others from using the computers. Id. at 654. Accordingly, on this record, we conclude that the defendant has not established that he has standing to challenge the seizure of the files. See Commonwealth v. Cruz, 430 Mass. 838, 844 (2000), citing Commonwealth v. Va Meng Joe, 40 Mass. App. Ct. 499, 503 n.7 (1996), S.C., 425 Mass. 99 (1997) (“The motion judge was correct in denying the defendants’ motion to suppress, although we rely on a different ground”); Commonwealth v. Albert, 51 Mass. [498]*498App. Ct. 377, 379 (2001) (court may affirm denial of motion to suppress on basis of standing even if Commonwealth or judge did not raise issue). Thus, the documents seized were properly admitted at his trial.

Moreover, we decline to take the opportunity to discuss the underlying issue of first impression concerning the seizure and examination of computer files from a law office. The parties rely on the memoranda of decision on the motions to suppress, but have not included in the record the materials underlying those decisions. Thus, the issue whether the review of computer files that were seized from a law office pursuant to a warrant was required to be completed within the seven days’ return time, G. L. c. 276, § 3A, is best left for another day. We now address the defendant’s claims of error at his trial.

2. Jury empanelment. The defendant argues that he was denied his right to a fair and impartial jury because the judge summarily denied the defendant’s challenges for cause and limited him to six peremptory challenges. We disagree.

At trial, just before the empanelment of the jury began, the clerk told the defendant, in relevant part, that he had six peremptory challenges “and such others as you may have good cause to challenge. If you object to any of them, you must do so after they are called and before they are sworn.”

The judge began by addressing the entire group of potential jurors, introducing the defendant and attorneys and reading a list of potential witnesses. Then he asked the group a number of questions, including those that probed their ability to be impartial and their understanding and acceptance of the burden of proof and the presumption of the defendant’s innocence. See G. L. c. 234, § 28. He also told potential jurors that they would have an individual opportunity to speak to him about their responses to any one of the questions, once the list of questions was read.

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Bluebook (online)
852 N.E.2d 1072, 447 Mass. 494, 2006 Mass. LEXIS 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bryant-mass-2006.