Commonwealth v. Halsey

669 N.E.2d 774, 41 Mass. App. Ct. 200, 1996 Mass. App. LEXIS 784
CourtMassachusetts Appeals Court
DecidedAugust 26, 1996
DocketNo. 94-P-477
StatusPublished
Cited by8 cases

This text of 669 N.E.2d 774 (Commonwealth v. Halsey) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Halsey, 669 N.E.2d 774, 41 Mass. App. Ct. 200, 1996 Mass. App. LEXIS 784 (Mass. Ct. App. 1996).

Opinion

Greenberg, J.

The defendant was convicted by a Superior [201]*201Court jury on four indictments for rape of two children (brothers) under sixteen (G. L. c. 265, § 22A); two indictments for unnatural and lascivious acts on a child under sixteen (G. L. c. 272, § 35A); two indictments for assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A); eight indictments for assault by means of a dangerous weapon (G. L. c. 265, § 15B); and nine indictments for assault and battery (G. L. c. 265, § 13A). Except for three of the assault and battery counts, all of the convictions involved eight year old twin brothers as victims. Two principal issues are raised on appeal: (1) whether seizure of adult pornographic materials that were not particularly described in the search warrant from the defendant’s home and car was unlawful; and (2) whether admission of evidence concerning the defendant’s possession of these materials denied him a fair trial. There are two other evidentiary points which we shall also discuss.

1. Motion to suppress. The defendant argues that the seizure of a “black light” poster depicting a naked man and woman, a box containing eight X-rated video tapes, a scrapbook containing pornographic pictures, five photographs of nude women, and a pornographic cartoon, which were not mentioned in the search warrant, violated his rights under both the State and Federal Constitutions. All of the items found during the course of the search were in plain view.1 We conclude that the seizure of the materials was lawful as evidence relevant to establish the defendant’s connection to the crimes for which he was charged.

As the principal investigating officer, Lieutenant Robert Scott, who was present at the defendant’s home at the time the search warrant was executed, testified at the motion hearing (over the defendant’s objection) that pedophiles often use various forms of pornography as a way to initiate children into sexual activity. His opinion was based upon specialized training. During a twenty-year career Scott had investigated nearly 200 such cases. In his view, the children’s story was corroborated by the defendant’s possession of these materials even though they had not yet specifically mentioned any of them in their statements to the police.

[202]*202The United States Supreme Court has held that the Fourth Amendment to the United States Constitution does not require a distinction prohibiting the seizure of items of evidential value only (mere evidence), as opposed to the seizure of contraband or of the instrumentalities or fruits of a crime. Warden v. Hayden, 387 U.S. 294, 300-301 (1967). The Supreme Judicial Court is in accord. See Commonwealth v. Wojcik, 358 Mass. 623, 627 (1971); Commonwealth v. Murray, 359 Mass. 541, 547 (1971). Evidence not described in a valid search warrant but inadvertently discovered and having a nexus with the crime under investigation may be seized at the same time as the material described in the warrant. Commonwealth v. Rodriguez, 378 Mass. 296, 303 (1979). The two-pronged test in the case of “mere evidence” (as distinct from contraband or instrumentalities used to perpetrate a crime) is whether the officers recognize it to be plausibly related as proof of criminal activity of which they were already aware, Commonwealth v. Bond, 375 Mass. 201, 206 (1978), and whether “the evidence sought will aid in a particular apprehension or conviction.” Warden v. Hayden, supra at 307.

The instant case passes muster because Scott’s experience in this type of case reasonably led him to believe that the materials were connected to the defendant’s suspected pederastic involvement. That circumstance was already known to the police, by virtue of the children’s reports of being sexually abused by him. See Texas v. Brown, 460 U.S. 730, 746 (1983) (Powell, J., concurring). Further, there is no reason to assume that the police were engaged in a general exploratory search for anything that might incriminate the defendant not mentioned in the warrant. Cf. Commonwealth v. Rand, 363 Mass. 554, 558 n.2 (1973). The items were found in plain view in the defendant’s bedroom, and Scott reasonably recognized the pornography as a potential “tool of the trade” and as evidence.

One commentator puts it thus: “Because the situations are so varied, it is difficult to state precisely what it takes to establish a sufficient nexus, on a probable cause standard, between a discovered but unnamed item and the crime for which the warrant issued.” LaFave, Search and Seizure § 4.11(c), at 695 (3d ed. 1996). In this case, because of Scott’s knowledge of the children’s reports of sexual activity with the defendant and his opinion about the possible role of pornographic materials, seizure of them did not depend upon speculation.

[203]*203That the defendant could have legitimately possessed these items for lawful personal use does not negate the propriety of the seizure. As stated, the officers had probable cause to believe that the materials bore a nexus to the crimes under investigation. Commonwealth v. Feijoo, 419 Mass. 486, 498 (1995). All of the items were “plausibly” related to the criminal activity of which the officers were already aware. Commonwealth v. Bond, 375 Mass, at 206. Commonwealth v. Rodriguez, 378 Mass, at 303. Here, we conclude that the prosecution satisfied its burden to show that the seizure fell within the narrow exception of permissible seizures conducted outside the scope of valid warrants.

2. Admission of Scott’s testimony regarding the items seized. None of the materials seized in the search was admitted as evidence at trial. However, Scott testified to the nature and content of the items involved. In his view, the children’s story was corroborated by what was discovered during the search. The defendant’s trial counsel made no objection to this testimony, which is, therefore, reviewed only to determine if its admission created a substantial risk of a miscarriage of justice. Commonwealth v. Ramos, 402 Mass. 209, 217 (1988).

Scott’s testimony concerning the seized materials was properly admitted. It corroborated what the children told the jury. One child testified that the defendant showed him pictures of people “mating” and of “people naked.” He also stated that while he was inside the defendant’s house, the defendant showed him movies of “naked people.” His brother’s account on the point was different only in form, not in substance. Their testimony, coupled with Scott’s testimony regarding the defendant’s initial denial that he possessed the items, provides a sufficient basis for the admission of the contested testimony.

On appeal, the defendant argues that the evidence was so inflammatory as to deny him a fair trial. It is settled that, on proper foundation, the prosecution may adduce relevant evidence of lawfully seized materials and comment upon such materials seized under the authority of a search warrant. Whether sexually explicit photographs or other similar materials “are so inflammatory as to outweigh their probative value is a determination to be made by the trial judge in the exercise of sound discretion.” Commonwealth v. Hrycenko, 31 Mass. App. Ct. 425, 431 (1991).

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Bluebook (online)
669 N.E.2d 774, 41 Mass. App. Ct. 200, 1996 Mass. App. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-halsey-massappct-1996.