Commonwealth v. Carey
79 Mass. App. Ct. 587
Mass. App. Ct.2011Background
- Defendant John Carey was convicted of attempted murder by strangulation, armed home invasion, and two counts of assault and battery with a dangerous weapon.
- The conviction arose from an June 6, 2007 incident in Hamilton, where the 55-year-old victim and her 12-year-old son were present.
- Carey allegedly restrained the victim with a tie, strangling her while the son intervened with a knife, leading the attacker to flee by car.
- DNA on a necktie remnant found at the scene matched the victim and Carey, with mixed handler DNA including Carey.
- Police found extensive strangulation-related images on Carey’s computer, eight of which were admitted at trial, plus a 90-second video clip depicting strangulation.
- Carey argued Lawrence v. Texas supports a defense of consensual sexual activity, and challenged the admission of the images and video as prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consent as a defense to the charged offenses | Carey contends Lawrence protects private sexual activity, so consent should negate guilt. | Consent to asphyxiation negates intent for murder or harm. | Consent not a defense; convictions affirmed. |
| Admission of photographs, video, and computer-related evidence | The materials were highly prejudicial and not probative. | The materials were highly prejudicial and violated proper evidentiary standards. | Judge’s balancing of probative value against prejudice was proper; evidence admissible. |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (privacy liberty interests; not extending to violent acts)
- Commonwealth v. Appleby, 380 Mass. 296 (Mass. 1980) (consent immaterial where bodily harm is likely)
- Commonwealth v. Farrell, 322 Mass. 606 (Mass. 1948) (consent cannot excuse violent crime)
- Doe v. Moe, 63 Mass. App. Ct. 516 (Mass. App. Ct. 2005) (consent to assault and battery invalid as public policy)
- Commonwealth v. Medeiros, 395 Mass. 336 (Mass. 1985) (photographs may be admissible if probative and not unduly prejudicial)
- Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (Mass. App. Ct. 2007) (photographic evidence linked to specific mental state or motive)
- Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56 (Mass. App. Ct. 2005) (large quantity of sexual material may be unduly prejudicial)
- Commonwealth v. Petrillo, 50 Mass. App. Ct. 104 (Mass. App. Ct. 2000) (post-trial evidentiary rulings and harmless error analysis)
- Commonwealth v. O’Brien, 432 Mass. 578 (Mass. 2000) (evidence of state of mind; probative value matters)
- Commonwealth v. Guy, 454 Mass. 440 (Mass. 2009) (motive and state of mind evidence admissible if probative)
- Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (Mass. App. Ct. 2007) (photographs as substantive evidence on a sexual interest issue)