41 Mass. App. Ct. 200 | Mass. App. Ct. | 1996
The defendant was convicted by a Superior
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.
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.
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.
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). The prosecution was entitled
3. Other matters relating to the trial. The remaining claims of error by the defendant concerning the conduct of the trial are susceptible of summary comment. Jane Weinstein, a therapist who testified as a fresh complaint witness, saw the children after their disclosures. She testified to the protocols used during the interviews. The defendant now argues that her testimony improperly “vouches” for the victims’ credibility. Weinstein’s testimony did not endorse the children’s testimony. She described her protocol for interviewing children generally. She refrained from comparing the complainants in the case with characteristics of sexually abused children. See Commonwealth v. Richardson, 423 Mass. 180, 186 (1996); Commonwealth v. Allen, 40 Mass. App. Ct. 458, 465-466 (1996). Contrast Commonwealth v. Trowbridge, 419 Mass. 750, 759-760 (1995); Commonwealth v. Perkins, 39 Mass. App. Ct. 577, 582-584 (1995); Commonwealth v. Brouillard, 40 Mass. App. Ct. 448, 451-454 (1996). Nothing appears in her testimony which amounts to an expert opinion that the children’s claims of sexual abuse were probably true or that otherwise “intruded on the function of the jury to assess the credibility of [a] child witness.” Commonwealth v. Trowbridge, 419 Mass, at 756.
Last, the defendant contends that Scott’s testimony regarding the defendant’s demeanor both at the time of his arrest and after he had been given his Miranda rights, constituted a violation of his right to remain silent under art. 12 of the Massachusetts Declaration of Rights and the Fifth Amendment to the United States Constitution. Asked by the prosecu
Judgments affirmed.
The officers entered and searched the defendant’s home and automobile pursuant to valid search warrants. The defendant stipulated during the motion hearing that the items seized were found in places where the police had a right to search. "