Lead Opinion
The defendant, John Carey, appeals from his convictions of armed home invasion, assault and battery (two of three
Background. The following facts were developed at trial. In the spring of 2007, the fifty-five year old victim lived in Hamilton with her twelve year old son. She and her husband were separated, with her husband living in an apartment in Arlington; they were in the process of reconciling. The defendant lived in Braintree with his girlfriend. His ex-wife lived in Hamilton, one street over from the victim’s house, and was a friend of the victim. The defendant and the victim’s husband were acquainted through their common interest in golf, and the defendant had assisted the victim’s husband with projects at the victim’s home.
On June 6, 2007, about 9:40 p.m., the victim was in the kitchen, working on her son’s school project, when she heard a knock on the sliding glass door separating the “kitchen area” from a rear deck. Thinking it was her husband, who had just left to return to his apartment, she walked toward the door; recognizing the defendant, whom she knew as her friend’s ex-husband and her husband’s golf acquaintance, she opened it. The defendant entered and asked where her husband was.
As she lapsed into unconsciousness, she heard her son run downstairs. He had been changing his clothes in his second-floor bedroom and ran down when he heard screaming, someone saying “help,” and the crashing of furniture. When he reached the first floor, he saw the defendant choking his mother with his hands crossed and near her neck, and holding and pulling something. His mother was on the ground, screaming and trying to get away from the defendant. When her son yelled, “What are you doing?” the victim told him to get a knife and stab the defendant. He got a knife from the kitchen and stabbed the defendant in the back; the blade broke and fell to the floor. He then dropped the knife handle, grabbed the defendant, and tried to punch and pull him away from his mother.
The defendant continued to strangle the victim, and at some point, he released his choke hold and ran after the son, but returned to the victim when he saw that she had regained her footing. He then punched her in the forehead and mouth. Still screaming, she ran out the sliding glass door to the back yard, followed by the defendant and her son. Once outside, the victim ran to the home of neighbors to one side and her son ran to other neighbors. The defendant got into his car (parked in her driveway) and drove off.
The victim sustained wounds to her forehead and above one eye, and displayed red abrasion marks on her neck that became
The neighbor called the Hamilton police a minute or two after the victim arrived, and at 9:50 p.m., Officer Arthur Hatfield was dispatched. In the victim’s home, the officer noticed signs of a struggle, including a tipped-over chair, a knife blade on the floor, a rug out of place, what appeared to be urine on a sandal, and a wall telephone receiver hanging off the hook.
Later, Hatfield and other members of the Hamilton police department conducted further investigation at the victim’s home and found, among other evidence, a piece of a necktie on a step leading up to the deck behind the house. The victim had never seen the remnant, which was of the “thin portion” of a man’s tie, almost thirty inches long, cut on one end and with a rip in the center. A deoxyribonucleic acid (DNA) analyst testified that hairs found on the tie matched the victim, and that “handler DNA” on the tie was a mixture from at least three people, including the victim and the defendant but excluding the victim’s husband and son. Prior to the attack, the victim had never had any problems with the defendant nor an intimate relationship with him.
As part of their investigation, State police conducted a forensic examination of the defendant’s computer. State police Sergeant Thomas Neff found “400 or more” photographs “that were strangulation-oriented or had strangulation themes.” Of these, eight were offered and received in evidence.
Sergeant Neff also searched the defendant’s computer for the term “asphyxia” and found 978 “hits” and forty-seven files. One of the searches resulted in a link to an article, accessed by the defendant, about a man suspected in a “ligature strangulation” murder whose previous convictions of four strangulation murders twenty years earlier had been reversed on appeal. Sergeant Neff also located “remnants” of ten or so other articles and Web sites involving strangulation.
Discussion. 1. Consensual sexual activity as a defense. The defendant testified, and his counsel argued, that the defendant’s intent was not to kill the victim but to have sex with her, that his interest in sexual asphyxiation did not mean that he wanted to kill her, and that the events on the evening in question, including their “asphyxiation activities,” were consensual. According to the defendant, they had engaged in similar activity on two prior occasions. He contends, therefore, that the judge should have instructed the jury that consent was a defense to the charges of armed home invasion and assault and battery by means of a dangerous weapon. The defendant neither requested such an instruction nor objected when the judge did not so instruct, both during the main portion of his instructions and in answer to specific jury questions. As the case on which the defendant relies, Lawrence v. Texas, 539 U.S. 558 (2003), does not overrule existing Massachusetts precedent that consent is not a defense to harmful conduct, we hold that the instruction was not required.
Massachusetts, like most States, does not recognize an individual’s ability to consent to “such violence that bodily harm is likely to result.” Commonwealth v. Appleby, 380 Mass. 296, 311 (1980), quoting from Commonwealth v. Farrell, 322 Mass. 606, 620 (1948). In such circumstances, “consent ... is immaterial.” Ibid. Appleby involved beatings that the defendant claimed were requested by the victim for the purpose of sexual gratification. Id. at 301. The immateriality of consent under such circumstances is a principle both long-standing and recently reasserted. See, e.g., Commonwealth v. Parker, 9 Met. 263, 265 (1845); Doe v. Moe, 63 Mass. App. Ct. 516, 521 n.7 (2005) (“one cannot, as a matter of public policy, consent to becoming the victim of an assault and battery by means of a dangerous weapon in the course of a sexual relationship”).
The defendant asserts, however, that this rule does not survive constitutional scrutiny in the aftermath of the United States Supreme Court’s decision in Lawrence v. Texas, supra. In
The violent and physically harmful nature of the defendant’s acts defeats his argument — an argument among several anticipated and rejected by the language of Lawrence itself: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused.” Ibid. In sum and in the context of the due process clause, there is a legitimate societal and governmental interest in prohibiting violent and physically harmful acts, a prohibition that does not apply to private consensual behavior involving neither injury nor coercion.
2. Admission in evidence of photographs, video, and computer search records. As narrated above, eight of the more than 400 pictorial images of strangulation and related material that State police discovered on the defendant’s computer were admitted in evidence. The police testified regarding their discovery of 978 entries and forty-seven files related to “asphyxia,” and remnants of ten additional articles and Web sites relating to strangulation. As also mentioned, the ninety-second video clip, showing a man strangling a naked woman until she appears to have died, was played for the jury.
The defendant asserts that these graphic materials were of negligible relevance but highly prejudicial and that their admission was a clear abuse of discretion and constituted error, whether considered as highly inflammatory or as bad act evidence.
Our case law has traditionally examined the admission of such evidence, including the evidence of which the defendant here complains, under a standard that recognizes that “[t]he fact that photographs may be inflammatory does not render them inadmissible if they possess evidential value on a material matter. . . . The determination whether a photograph possesses such value is within the discretion of the trial judge.” Commonwealth v. Medeiros, 395 Mass. 336, 351 (1985), quoting from Commonwealth v. Stewart, 375 Mass. 380, 385 (1978). “Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge’s broad discretion and are not disturbed absent palpable error.” Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). On appeal, the admissibility of evidence is not reviewed de novo. Instead, we may reverse a trial judge’s exercise of discretion only when the defendant demonstrates
On this record, the defendant has not shown that the judge’s decision to admit this evidence was an abuse of discretion.
In Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 765 (2007), this court opined that photographs of fully clothed young girls at play at various outdoor locations, photographs of nude adult men and women engaged in sexual activity, two pornographic magazines entitled “Pure Eighteen” containing pictures of teenage girls, and small-sized underwear “were properly admitted in evidence. They were substantive evidence of the defendant’s voyeuristic interest in sexual matters and young females. On that basis, the exhibits were probative and substantive evidence on the sole question before the jury, that is, whether the defendant intentionally squeezed the victim’s breast or accidentally touched her while in the performance of a good deed.”
In Wallace, this court also had occasion to distinguish Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56 (2005), a case relied upon by the defendant in Wallace and the defendant in this case. In Jaundoo, supra at 58, the defendant objected to the
Unlike Jaundoo, the number of exhibits admitted here was limited. The judge conducted a proper analysis weighing the probative value of the evidence against unfair prejudice to the defendant, found the evidence to be highly relevant on the issue of the defendant’s intent and the defense of voluntary sexual acts, and gave strong cautionary instructions on four distinct occasions: before any photographs were introduced, when the first three photographs were introduced, when the video clip was played, and in his charge. If the judge recognizes his discretion to consider the issue, and then properly exercises that discretion, we are not free to substitute our judgment to say that we would or would not have done the same if presented with the question. “On appellate review ‘[t]he question is not whether we . . . should have made an opposite decision from that made by the trial judge.’ ” Commonwealth v. Medeiros, 395 Mass, at 351, quoting from Commonwealth v. Bys, 370 Mass. 350, 361 (1976). See Commonwealth v. Anderson, 445 Mass. 195, 209 (2005). The record demonstrates that the judge was aware of the evidentiary issue to be determined, recognized his discretion, and exercised it properly.
Judgments affirmed.
The grand jury indicted the defendant for (1) attempted murder by strangulation (G. L. c. 265, § 16); (2) armed home invasion (G. L. c. 265, § 18C); (3) assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A[¿>]); and (4) assault and battery (two counts) (G. L. c. 265, § 13A).
There was evidence from the victim’s husband that he and the defendant had spoken by cellular telephone just prior to the events in question, during which the victim’s husband had told the defendant that he was on his way back to his apartment.
An emergency medical technician testified to seeing severe, swollen ligature marks around the victim’s neck.
The defendant included in the record appendix all fourteen pictures submitted by the Commonwealth with its motion in limine to admit such evidence. As noted, only eight were offered and admitted at trial.
We acknowledge the Commonwealth’s argument that the defendant failed to preserve this issue below; since we conclude that there was no error, we do not address the standard of review.
During the hearing on the motions in limine, the parties referred to this evidence as “prior bad act” evidence, which, like gruesome or potentially
The judge stated: “[T]he prior bad act evidence here is certainly prejudicial to the defendant, there’s just no doubt about that, but, of course, if it [were not] prejudicial the Commonwealth wouldn’t want to introduce it. Here I have to balance the prejudicial aspect to the probative aspect of it. There’s a very high probative value to this evidence. . . . The balance, I find, favors the Commonwealth. ”
Our colleague, in dissent, would hold that the judge abused his discretion because he did not actually view the video clip before admitting it in evidence. We need not reach this issue because first, the defendant has never claimed that it was the failure to view the video or any of the objected-to material that constitutes an abuse of discretion. Second, the defendant neither stated nor suggested to the judge that any particular aspect of the video (or any other item under discussion) needed to be seen in order to properly rule on its admissibility.
Substantively, the judge neither failed to exercise nor abused his discretion in deciding to admit the video without having viewed it. Before trial began, the judge discussed the contents of this material to determine appropriate questions for jury voir dire and immediately thereafter conducted a hearing on the parties’ cross motions in limine, during which the Commonwealth and the defendant further discussed in detail the items the Commonwealth sought to have admitted in evidence, namely, images and articles from the defendant’s computer, searches performed on the computer, and Web sites visited, as well as the ninety-second video clip on which our dissenting colleague has focused. The prosecutor specifically described the video clip: “[T]he video actually depicts a woman who is seated naked in a chair with a man behind her and is apparently strangled and appears dead at the end of footage.” Later, during discussion of the motions in limine, the prosecutor added further description of the video: “The woman’s face, you can see stages of blue, red turning to blue, then she’s lying with her eyes wide open, not moving, and it certainly is the appearance that she’s dead.” Both during this discussion, and later in the trial, the judge indicated that he had viewed the photographs that were the subjects of the motions in limine.
Given these discussions and the photographs the judge had viewed, he did not need to also view the video clip to understand what it contained and to then rule on its admission. The judge expressed sufficient understanding of the content and the reasons proffered by the parties for admission or exclusion.
We do not intend to suggest, however, that to admit such evidence without having viewed it sufficiently to understand its contents ought to be a rule rather than an uncommon exception. On our view of the video we are satisfied that the judge had a fair and complete enough description of its contents to make an informed decision and to exercise his discretion.
Dissenting Opinion
(dissenting). I respectfully dissent from the majority’s conclusion that a judge can properly ascertain — sight unseen — the prejudicial and probative character of demonstrative evidence. It is axiomatic that the judge’s obligation to provide a fair trial to a criminal defendant requires attentiveness to ensure that jury findings are based on proper evidence, properly admitted, and not on what our cases refer to as “inflamed emotions.” See Commonwealth v. Berry, 420 Mass. 95, 109 (1995) (“trial judges must take care to avoid exposing the jury unnecessarily to inflammatory material that might inflame the jurors’ emotions and possibly deprive the defendant of an impartial jury”).
The defendant objected repeatedly to the admission of the ninety-second video “clip” here at issue.
I must also differ with my colleagues on the claimed salutary effect of the judge’s review of other materials, or his discussions with counsel about the graphic images and the video clip. In blunt terms, ninety seconds is a long time to watch a man
The fact that the judge viewed still photographs and other evidence exacerbates the problem in my opinion, because it is the effect of all the admitted evidence that is at issue. An essential aspect of balancing probative value with prejudicial effect is considering cumulative effect; the judge cannot consider each piece of evidence as though the others did not exist. See Commonwealth v. Lawrence, 404 Mass. 378, 390 (1989) (judge properly excluded photographs “he found cumulative and possibly prejudicial”). See also Mass. G. Evid. § 403 (2011).
The Commonwealth points out that only a small portion of the total materials found on the defendant’s computer was admitted. The obvious corollary is that there was good reason for drastic editing. Materials of this nature must be carefully selected to ensure that prejudicial material, even assuming probative value, is not needlessly repetitive.
A judge has no discretion whether to exercise discretion;
For the reasons set forth above I conclude the error was prejudicial. Simply stated, it deprived the defendant of the judge’s obligation to determine independently whether the passions of the jury would be inflamed to a degree that outweighed the probative value of evidence indicating only a propensity to commit the crime.
The convictions should be vacated and the case remanded for proceedings which include a proper basis for evidentiary rulings.
The judge noted on the record that the defendant had preserved the issue.
Even on this record it is clear that the probative value of the video clip was secondary; it had no relevance to the actual crime and went exclusively to state of mind.
Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56, 63 (2005) (reversible error to admit “great quantity of [sexual] materials, much of which had no direct bearing on the complainant’s testimony”).
See, e.g., Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 107 (2000), cert. denied, 532 U.S. 1030 (2001) (harmless error in admission of portion of videotape after “the judge observed the videotapes”).