COMMONWEALTH vs. JOSUE MOLINA.
SJC-12157
Supreme Judicial Court of Massachusetts
February 7, 2017
476 Mass. 388 (2017)
Suffolk. October 6, 2016. - February 7, 2017. Present: GANTS, C.J., BOTSFORD, LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
Obscenity, Child pornography, Dissemination of matter harmful to minor. Constitutional Law, Search and seizure, Confrontation of witnesses. Search and Seizure, Warrant, Computer. Evidence, Information stored on computer, Intent. Subpoena. Intent. Practice, Criminal, Subpoena, Restitution, Confrontation of witnesses. Restitution.
A Superior Court judge properly denied the defendant‘s pretrial motion to suppress computer evidence obtained pursuant to a search warrant, where the warrant established a sufficient nexus between the apartment to be searched and the evidence of child pornography reasonably expected to be located therein, where the seizure of over one dozen electronic devices found in the apartment did not exceed the warrant‘s scope, and where the execution of the search was reasonable [393-399]; further, the district attorney did not need probable cause before issuing an administrative subpoena to an Internet service provider for Internet subscriber records pursuant to
At a criminal trial, the evidence was sufficient to support the defendant‘s conviction of possession of child pornography with the intent to disseminate, where, although lascivious intent must be proved to establish any violation of
This court remanded a criminal matter to the Superior Court for further proceedings on the Commonwealth‘s request for a hearing on it motion for restitution in a case involving child pornography, where due process did not require the appearance of the victim at such a hearing. [406-409]
INDICTMENTS found and returned in the Superior Court Department on August 27, 2012.
A pretrial motion to suppress evidence was heard by Mitchell H. Kaplan, J.; the cases were heard by Brian A. Davis, J., and a motion for restitution was considered by him.
The Supreme Judicial Court granted an application for direct appellate review.
Ethan C. Stiles for the defendant.
Ryan E. Ferch, Assistant Attorney General (Nancy Rothstein, Assistant Attorney General, also present) for the Commonwealth.
The Commonwealth cross-appeals, arguing that it is entitled to a restitution hearing in this case, and that the victim for whom the Commonwealth seeks restitution is not required as a matter of law to appear and testify in order to protect the defendant‘s constitutional right of confrontation. We agree, and remand for the requested restitution hearing.
1. Background.1 a. File-sharing. The dissemination of child pornography is facilitated by free “peer-to-peer” file-sharing programs, which allow users to directly connect to other users’ computers in order to search and download files shared by other users. See United States v. McLellan, 792 F.3d 200, 205 (1st Cir.), cert. denied, 136 S. Ct. 494 (2015). Ares is one such file-sharing
Another version of the Ares program, known as Roundup Ares, is available only to law enforcement. By conducting searches using Roundup Ares of terms commonly associated with child pornography, a law enforcement investigator can generate the Internet protocol (IP) addresses2 of program users sharing suspected files of child pornography. Every computer file has a unique identifier known as a “secure hash algorithm” (hash value). Composed of thirty-two characters, hash values are like “digital fingerprints” allowing law enforcement agencies to recognize files previously identified as child pornography. See Commonwealth v. Martinez, 476 Mass. 410, 412 & n.1 (2017).
b. Facts. On March 12, 2012, State police Trooper Michael Murphy conducted a search for child pornography by using the Roundup Ares program. His search indicated that a computer associated with the IP address 108.49.7.93 might then be sharing child pornography files. By connecting directly to that computer, Murphy was able to view a list of the files in its shared folder. Among the listed file titles, Murphy recognized terms commonly associated with child pornography and proceeded to download two complete video files. He viewed both and determined that
In order to identify the account holder associated with the IP address, at Murphy‘s request, the district attorney for the Essex district sent an administrative subpoena to Verizon Internet Services, Inc. (Verizon), pursuant to
As a member of that division, State police Trooper Daniel Herman conducted physical surveillance of the apartment, and observed outside the house a mailbox with five names on it, including Delcid‘s (and also including the defendant‘s). Herman performed as well a check of registry of motor vehicles records, which confirmed that address as Delcid‘s apartment. Based on this information, on April 2, 2012, State police Trooper Mark Walsh, also of the Attorney General‘s cyber crime division, applied for and obtained a warrant to search the apartment and in particular for the following: electronic devices containing evidence of child pornography; evidence of child pornography in any other format; evidence of use, control, ownership, or access to the Verizon Internet account of Delcid at that address; evidence of ownership, access, or control of the peer-to-peer network that was operating with IP address 108.49.7.93; evidence of custody or control of the apartment; and evidence of use, control, ownership, possession, or access to electronic devices at the apartment. Walsh‘s supporting affidavit detailed his experience, summarized the investigation, and provided background information on peer-to-peer file sharing and the Ares file-sharing program. See note 1, supra. The search warrant authorized the search of the apartment described without naming any person to be searched.
State police officers executed the search warrant on the morning of April 4, 2012; some officers proceeded into the apartment while others remained in the driveway. Inside the apartment, the officers found Delcid, his wife, and a small child. Forensic examiner Mark Scichilone3 “previewed” a computer located in the living room and belonging to Delcid, but excluded it from further search when his preliminary review yielded no files con-
sistent
In the driveway, officers observed an idling motor vehicle with someone sitting in the front passenger seat. State police Lieutenant Steven Fennessy approached the vehicle and spoke to its occupant, who was the defendant. After being informed by Fennessy that he was not under arrest, the defendant stated that he lived in the apartment,5 that he owned a laptop computer located in his bedroom at the front of the apartment, and that he used the Ares program. In response, Fennessy advised the defendant of the Miranda rights, and the defendant stated that he was willing to continue the conversation.
At that point, Fennessy and the defendant moved to an unmarked police vehicle, where the defendant signed a Miranda waiver form and the rest of the interview was recorded. The defendant admitted to being interested in child pornography and to having downloaded about twenty such video recordings, and cited several search terms he had used. He estimated that he had been downloading child pornography for about five years, and recalled having previously used another file-sharing program on the desktop computer in his room. He further stated that he owned an external hard drive. The defendant characterized child pornography as “when underage or any kids, they record it and it‘s like sex abuse basically“; he estimated the age of the girls depicted in recent downloads to be about nine. He denied knowing any of the children depicted or having ever sexually abused any children. The defendant was then arrested.
The State police search team seized numerous electronic devices from the apartment, including the defendant‘s laptop and desktop computers and his external hard drive.6 The hard drive from the laptop computer contained the Ares program; a large
c. Procedural history. On August 27, 2012, a grand jury indicted the defendant on one count of possession of child pornography with the intent to disseminate in violation of § 29B, one count of dissemination of child pornography in violation of § 29B, and three counts of possession of child pornography in violation of
2. Discussion. a. Overbreadth of the search. The defendant argues that the search warrant was impermissibly overbroad, as to both places and “things” to be searched. It is a given that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, probable cause, necessary for the issuance of a search warrant, requires a substantial basis for concluding that the items sought are related to
storage (flash drives and compact discs), and four appear to relate to nonelectronic items (notes, receipts, and packaging).
the
In reviewing a finding of probable cause, the affidavit supporting the warrant should be interpreted “in a commonsense and realistic fashion,” and “read as a whole, not parsed, severed, and subjected to hypercritical analysis” (citations omitted). Kaupp, 453 Mass. at 111. An inference drawn from the affidavit, “if not forbidden by some rule of law, need only be reasonable and possible; it need not be necessary or inescapable” (citation omitted). Id. A reviewing court gives considerable deference to a magistrate‘s determination of probable cause. Commonwealth v. Anthony, 451 Mass. 59, 69 (2008). Because such a determination is a conclusion of law, however, we review it de novo. Commonwealth v. Foster, 471 Mass. 236, 242 (2015).
i. Place to be searched. The defendant argues that where, as here, the apartment was shared living space, a search warrant for the entire apartment was overbroad. The Fourth Amendment “protects people, not places” against unreasonable searches and seizures, Katz v. United States, 389 U.S. 347, 351 (1967), but just the same, warrants authorize the searches of particular places, and do so properly wherever there is a sufficient nexus between the items sought and the place to be searched. Commonwealth v. McDermott, 448 Mass. 750, 768, cert. denied, 552 U.S. 910 (2007). That nexus may be based on the type of crime, the nature of the missing items, the extent of the suspect‘s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide evidence of the crime. Id. “[T]he degree of specificity required when describing the goods to be seized may necessarily vary
Here, the warrant established a sufficient nexus, articulated with adequate particularity. The defendant argues that the police “knew next to nothing of the people and computing devices” inside the apartment to be searched. His emphasis on people, however, is misguided where the warrant appropriately substantiated a connection between the apartment and the evidence of child pornography reasonably expected to be located therein. Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6 (1978) (“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought“). See Martinez, 476 Mass. at 419, 422.
It is true that the police were aware prior to the search that the Verizon subscriber was not the apartment‘s sole occupant: there were five names on the apartment‘s mailbox. The search warrant, however, authorized a search of the location associated with the IP address, not a search of any single associated subscriber. Although IP addresses alone can be unreliable indicators of location,8 they suffice when corroborated by the Internet service provider (ISP), as occurred here. See United States v. Grant, 218 F.3d 72, 75 (1st Cir.), cert. denied, 531 U.S. 1025 (2000) (IP address corroborated by ISP supported probable cause). That reliability may be further strengthened by police surveillance, which here confirmed the connection between the IP address and the physical location when officers observed the ISP subscriber‘s name on the apartment‘s mailbox. See McLellan, 792 F.3d at 211 n.9, quoting United States v. Gillman, 432 Fed. Appx. 513, 515 (6th Cir. 2011) (finding sufficient nexus between illegality and defendant‘s apartment where “(1) child pornography was transferred to police from a specific IP address; (2) that IP address was registered to the defendant‘s residential address; and (3) the defendant actually lived at that address”
The search was indeed limited to the apartment. Within the apartment, however, the search was limited not to areas under Delcid‘s exclusive control but rather to those associated with the IP address. Cf. Commonwealth v. Dew, 443 Mass. 620, 626 (2005) (search warrant for entire multifamily home not overbroad where defendant had access to all units). Just as evidence could have been anywhere in an entire house to which the defendant had access in Dew, so here could computer devices using the monitored IP address be anywhere in the apartment. Where the defendant‘s unlocked bedroom showed no indicia of separate ownership from the rest of the apartment, a search of that bedroom as part of the physical address associated with the IP address was proper.
ii. Things to be searched. Molina further contends that the warrant was overbroad in allowing police to seize “all computing devices found in the apartment regardless to whom they belonged or where they may have been found.” The argument fails. The information available to the police was that suspected child pornography was being sent and received through a computer device connected to IP address 108.49.7.93 and that that IP address was assigned to a subscriber at the apartment. As discussed above, the warrant properly permitted a search of the entire physical location associated with the target IP address for any evidence (computers and related items) of child pornography. Because that evidence, in the form of electronic files, could be easily transferred between devices at the same location, police need not have limited the devices to be searched. See McDermott, 448 Mass. at 770 (warrant seeking evidence of defendant‘s mental state not overbroad where police “did not have information that would allow them further to limit the description of this category of items“).10 Where evidence of child pornography could thus have existed on any or all electronic devices at the
physical address to issue. See United States v. Chiaradio, 684 F.3d 265, 279 (1st Cir.), cert. denied, 568 U.S. 1004 (2012); United States v. Renigar, 613 F.3d 990, 991, 994 (10th Cir. 2010); Vosburgh, 602 F.3d at 526-527; United States v. Stults, 575 F.3d 834, 843-844 (8th Cir. 2009), cert. denied, 559 U.S. 915 (2010); United States v. Perrine, 518 F.3d 1196, 1205-1206 (10th Cir. 2008); United States v. Pérez, 484 F.3d 735, 740 (5th Cir.), cert. denied, 552 U.S. 952 (2007); United States v. Wagers, 452 F.3d 534, 539 (6th Cir.), cert. denied, 549 U.S. 1032 (2006); United States v. Hay, 231 F.3d 630, 635-636 (9th Cir. 2000), cert. denied, 534 U.S. 858 (2001).
location associated with the target IP address, the seizure of over a dozen electronic devices found in the apartment did not exceed the warrant‘s scope.
iii. Minimization protocol. Although we conclude that there was probable cause to justify the search of the apartment in this case, the execution of the search warrant must itself satisfy the “ultimate touchstone” of reasonableness. See Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert. denied, 568 U.S. 1129 (2013). The defendant does not squarely challenge the scope or reasonableness of the search of his electronic devices or his digital files once police had seized the devices, nor does he suggest that police should be required to develop and implement a minimization protocol to govern the execution of any such digital search. We note, moreover, that in this case the police and associated personnel conducting the search promptly, and commendably, screened and excluded at least Delcid‘s computer from further search or seizure; it also appears that when the seized electronic devices were seized thereafter, the personnel conducting the searches did so by searching for file names containing terms commonly associated with child pornography in order to preview only a limited sample of files consistent with those terms.
On the record before us in this case, nothing indicates that execution of the search in this case was unreasonable. Nevertheless, the fact that the target apartment appeared to be the residence of multiple individuals11 is significant. Where, as the search warrant return in this case indicates, multiple electronic devices
way of knowing where the images were stored” [citation omitted]); United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (warrant limiting search of entire home to “[a]ny and all computer software and hardware, computer disks, disk drives... [a]nd any and all visual depictions, in any format or media, of minors engaging in sexually explicit conduct” sufficiently particular because search and seizure of computer and all available disks was “narrowest definable [one] reasonably likely to obtain images“); United States v. Clark, 524 F. Supp. 2d 896, 901 (W.D. Mich. 2006), aff‘d, 257 Fed. Appx. 991 (6th Cir. 2007), cert. denied, 555 U.S. 829 (2008) (warrant limiting
that may well belong to multiple individuals are seized and searched, the reasonableness of the undertaking will be judged, at least in part, by whether the searches of those devices are conducted in a manner that seeks to limit the scope of the search as much as practicable in the particular circumstances. In the future, we may consider whether to require, as some courts have, a digital search protocol that would affirmatively demonstrate “a high regard for rights of privacy and take all measures reasonable to avoid unnecessary intrusion.” Commonwealth v. Vitello, 367 Mass. 224, 262 (1975). Compare United States v. Galpin, 720 F.3d 436, 451 (2d Cir. 2013) (declining to require “specific search protocols or minimization undertakings as basic predicates for upholding digital search warrants“), with United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1176-1177 (9th Cir. 2010) (en banc) (per curiam) (requiring minimization protocol).
In McDermott, we explained that no advance approval was required for computer search methods because the magistrate issuing the warrant “likely does not have the technical expertise to assess the propriety of a particular forensic analysis.” McDermott, 448 Mass. at 776. It is for precisely this reason, however, that additional guidance at the present time would be very useful concerning ways that those conducting digital searches can minimize intrusions into the private electronic files of individuals who may have no connection at all with the child pornography or other suspected criminal activity being investigated. Nearly a decade‘s worth of technological advancements have taken place since this court decided McDermott, and as was clear at oral argument in this case, we are concerned about the lack of protocols or formal guidelines for executing search warrants for digital evidence. Cf. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech. L. Rev. 1, 17-18 (2015) (“The best way to minimize the unwarranted intrusions upon privacy for computer searches is to impose use restrictions on the nonresponsive data revealed in the course of the search“). The Attorney General‘s existing digital evidence guide offers helpful parameters,12 and we invite the Attorney General to develop further guidance for the conduct of digital searches that could be made available to both State and local officers conduct-
names on it, and when the police entered the apartment, we infer that it was quite obvious that more than Delcid and his family were living there.
ing digital
b. Administrative subpoena. Pursuant to
The defendant challenges the validity of the administrative subpoena sent by the district attorney to Verizon in this case, arguing that it could only be sent if supported by probable cause, and that the § 17B standard requiring only a showing that the records sought are “relevant and material to an ongoing criminal investigation” was constitutionally insufficient. Accordingly, he claims, because the administrative subpoena was invalid, the invalidity applied as well to the search warrant because probable cause for it was supported in part by information obtained through this subpoena, requiring the reversal of his conviction.
Assuming, without deciding, that the defendant has standing to challenge the administrative subpoena for Delcid‘s Verizon subscriber records, we reject the defendant‘s contention that the issuance of such a subpoena requires probable cause. Previous decisions of this court have reviewed and upheld the constitutional validity of the “relevant and material” standard contained in § 17B, at least as applied to certain types of telephone records. See Commonwealth v. Vinnie, 428 Mass. 161, 178, cert. denied, 525 U.S. 1007 (1998), adopting reasoning of Commonwealth v. Feodoroff, 43 Mass. App. Ct. 725, 729-730 (1997). Section 17B specifically prohibits disclosure of the contents of subscriber communications, including Internet browser history.
bly
Because we have rejected the defendant‘s challenges to the search warrant - the overbreadth challenge as well as the challenge to the supporting information obtained through the § 17B administrative warrant - we affirm the motion judge‘s order denying the defendant‘s motion to suppress evidence obtained in the search of the apartment.14
c. G. L. c. 272, § 29B: proof of lascivious intent requirement. Molina contests the sufficiency of the evidence supporting his conviction of possession of child pornography with the intent to disseminate under § 29B (b). He argues that the Commonwealth failed to prove that he had the lascivious intent he claims is required to be proved as an element of the crime. The Commonwealth responds that proof of lascivious intent is not necessary to convict a defendant of possession with intent to disseminate under § 29B (b), but that in any event there was proof of lascivious intent, and indeed proof of all the elements of the crime of possession with intent to disseminate. We agree with Molina that lascivious intent must be proved to establish any violation of § 29B, including in particular possession of child pornography with intent to disseminate under § 29B (b), but we disagree that the evidence was insufficient to do so here.
Section 29B has two subsections, the first of which, § 29B (a), focuses on child pornography depicting child nudity, and the second of which, § 29B (b), addresses child pornography depicting children engaging in sexual conduct. Each subsection punishes both acts of dissemination as well as possession with intent to disseminate. Sections 29B (a) and (b) provide in relevant part
access the internet. No recipient of a subpoena issued pursuant to this section shall provide any such content or records accessed, in response to such subpoena.”
“(a) Whoever, with lascivious intent, disseminates any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity involving the use of a child who is under eighteen years of age, knowing the contents of such visual material or having sufficient facts in his possession to have knowledge of the contents thereof, or has in his possession any such visual material knowing the contents or having sufficient facts in his possession to have knowledge of the contents thereof, with the intent to disseminate the same, shall be punished . . . .
“(b) Whoever with lascivious intent disseminates any visual material that contains a representation or reproduction of any act that depicts, describes, or represents sexual conduct participated or engaged in by a child who is under eighteen years of age, knowing the contents of such visual material or having sufficient facts in his possession to have knowledge of the contents thereof, or whoever has in his possession any such visual material, with the intent to disseminate the same, shall be punished . . . .” (Emphases added.)
As used in § 29B, the term “lascivious intent” is defined in
We are not persuaded that such a distinction between the two subsections can properly rest on the presence of a second “whoever” in § 29B (b), and the absence of two commas. In Commonwealth v. Dingle, 73 Mass. App. Ct. 274, 279 (2008), the Appeals Court, reviewing the legislative history of the statute, interpreted § 29B (a) and (b) as “describ[ing] different means of committing the same offense.” We agree, and based on the same legislative history, we conclude that the lascivious intent requirement applies to all four means of violating the statute contained in the two subsections.
Section 29B was originally enacted in 1977. See St. 1977, c. 917, § 2. In its original version, the statute did not have separate subsections, and provided in relevant part:
“Whoever disseminates any visual material that contains a representation or reproduction of any posture or exhibition in a state of nudity or of any act that depicts, describes, or represents sexual conduct participated or engaged in by a child who is under eighteen years of age, knowing the
(5) whether the depiction denotes sexual suggestiveness or a willingness to engage in sexual activity;
(6) whether the depiction is of a child engaging in or being engaged in sexual conduct, including, but not limited to, sexual intercourse, unnatural sexual intercourse, bestiality, masturbation, sado-masochistic behavior, or lewd exhibition of the genitals.”
contents of
such visual material or having sufficient facts in his possession to have knowledge of the contents thereof, or whoever has in his possession any such visual material knowing the contents or having sufficient facts in his possession to have knowledge of the contents thereof, with the intent to disseminate the same, shall be punished . . . .” (Emphases added.)
Id. As this quoted language indicates, the statute combined the four means of committing the crime - dissemination of visual material depicting child nudity, dissemination of visual material depicting child sexual acts, and possession with the intent to disseminate both types of pornographic visual material - in a single section, and there was no lascivious intent requirement for any of these means. In 1988, this court struck down a statute closely related to § 29B,
d. Sufficiency of the evidence. The defendant argues that there was insufficient evidence to support his convictions of dissemination of child pornography and possession of child pornography with the intent to disseminate under § 29B (a) and (b), respec-
tively.
i. Evidence of lascivious intent. The evidence in this case showed that the defendant was downloading and uploading - i.e., sharing - files containing children “exhibit[ed] in a state of nudity” who were “engaging in or being engaged in sexual conduct” that included one or more of the acts (“sexual intercourse, unnatural sexual intercourse, bestiality, masturbation, sadomasochistic behavior, or lewd exhibition of the genitals“) described in the definition of “lascivious intent” set out in
ii. Evidence of dissemination and of possession with intent to disseminate. The defendant argues that the evidence on dissemination showed only that he had failed to take any steps to change the default download folder from the “My Shared Folder” to one that was not shared with other Ares program users, and that this evidence was insufficient to support a conviction for actual dissemination with lascivious intent. The trial judge reasoned that the file-sharing program, displaying simultaneous downloads and uploads, and explicitly identified as such on the Ares program screen on the defendant‘s computer, provided sufficient evidence to prove the dissemination charge under § 29B (a). We agree. “When an individual consciously makes files available for others to take and those files are in fact taken, [knowing] distribution has occurred. The fact that the defendant did not actively elect to
The same evidence reflecting the actual file-sharing activity on the defendant‘s computer also was sufficient to prove the charge of possession with the intent to disseminate: in order to disseminate these files containing child pornography, by definition the defendant first had to possess these files, and the file-sharing activity reflects an intent to disseminate.
e. Restitution. The Commonwealth appeals with respect to the denial of its request for a hearing on its motion for restitution. The trial judge based his denial of the request and related denial of the motion for reconsideration on the ground that a hearing on the motion was a necessary prerequisite to the motion‘s allowance, and the defendant‘s right to due process required that, at such a hearing, the victim identified by the Commonwealth, referred to by the pseudonym “Vicky,” appear and testify. We disagree, and accordingly remand for a hearing at which the victim need not appear.
The relevant background facts are these. Following the judge‘s finding of the defendant to be guilty of all charges, the Commonwealth requested that as a component of his sentence, the defendant be required to make restitution to Vicky, a victim of some of the child pornography in the defendant‘s possession,21 and requested a hearing to establish the amount of restitution. In support of its motion, the Commonwealth filed a memorandum accompanied by exhibits, including a sworn victim impact statement signed by Vicky, psychological evaluations, and an economic analysis of lost wages. The judge agreed with the Commonwealth that Vicky qualified as a victim of the defendant‘s crimes who might be eligible for restitution, but declined to hold a restitution hearing because he found that to do so would require the victim‘s presence, and he wanted to spare her that experience.22 The judge
A judge unquestionably has the power to order restitution as a condition of probation. See Denehy, 466 Mass. at 737, and cases cited. In a case where restitution is sought, if the defendant does not stipulate to the restitution amount, the judge should conduct an evidentiary hearing, at which the victim may testify regarding the amount of the loss. Commonwealth v. Henry, 475 Mass. 117, 120 (2016). A restitution hearing “need not be elaborate,” but must be “reasonable and fair.” Commonwealth v. Nawn, 394 Mass. 1, 7 (1985). The opportunity to cross-examine witnesses is one, but by no means the only, measure of such fairness. See Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 755-756 (2006) (hearsay, if reliable, is admissible to carry Commonwealth‘s burden at restitution hearing). The hearing must be flexible in nature, and all reliable evidence should be considered. See id. (restitution process “should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial” [citation omitted]).
An order to pay restitution forms part of a criminal sentence that includes probation, but a hearing on restitution shares some common features with a probation revocation proceeding. See Casanova, 65 Mass. App. Ct. at 755-756. In the probation revocation context, strict evidentiary rules are not imposed, see Commonwealth v. Durling, 407 Mass. 108, 114 (1990), and the same is true of restitution hearings. See Casanova, supra at 755. More relevant to the issue raised in the present case, however, is the point that in a probation revocation hearing, although a defendant has a presumptive right to call witnesses, that presumption may be overcome by countervailing interests. See Commonwealth v. Hartfield, 474 Mass. 474, 481 (2016). In particular, in determin-
Commonwealth‘s motion for reconsideration, the judge stated that he “remain[ed] persuaded that any restitution order in the present case would require an evidentiary hearing at which the [d]efendant would be entitled to cross-examine Vicky regarding her claimed damages.”
ing
These same considerations are relevant to a restitution hearing, and they support the conclusion that in the restitution context a trial judge possesses the discretionary authority not to require a victim such as Vicky to appear as a witness, and specifically to preclude the defendant from calling her, if the judge were to find, based on the record before him, that the interest in insulating the victim from further trauma overcomes the defendant‘s presumptive right to call her.24 If a judge makes such a determination of unavailability, this does not require denial of a request for a hearing on a motion for restitution. Nor does such a determination of unavailability mean that the defendant, after hearing, could not be ordered to make restitution payments on the victim‘s behalf.
“‘[T]he right to confront adverse witnesses and the right to present a defense are distinct due process rights separately guaranteed to probationers’ and should not be conflated.” See Hartfield, 474 Mass. at 479, quoting Commonwealth v. Kelsey, 464 Mass. 315, 327 n.12 (2013). If there is “good cause” for the Commonwealth not to call a witness with personal knowledge to testify but to offer instead reliable hearsay or other evidence to establish the basis for its request for restitution, the requirements of due process are likely to be satisfied. Cf. Durling, 407 Mass. at 115, 118-119 (because probationer‘s liberty interest is conditional, so too is probationer‘s right to confront witnesses, and that right can be denied for “good cause“). Cf. also Rule 7(b) of District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Rules of Court, at 742 (Thomson Reuters 2016).
We emphasize a point previously made: a hearing on a request for restitution is necessary if the basis for the request or the amount of restitution to be ordered is in dispute. This follows from the fact that the purpose of restitution is to compensate the injured party for losses incurred as a result of the defendant‘s criminal conduct. See Commonwealth v. Rotonda, 434 Mass. 211, 221 (2001).
3. Conclusion. The judgments of convictions are affirmed. The denial of the Commonwealth‘s request for a hearing on its motion for restitution is vacated, and the case is remanded to the Superior Court for further proceedings, and specifically a restitution hearing, consistent with this opinion.
So ordered.
Notes
(1) whether the circumstances include sexual behavior, sexual relations, infamous conduct of a lustful or obscene nature, deviation from accepted customs and manners, or sexually oriented displays;
(2) whether the focal point of a visual depiction is the child‘s genitalia, pubic area, or breast area of a female child;
(3) whether the setting or pose of a visual depiction is generally associated with sexual activity;
(4) whether the child is depicted in an unnatural pose or inappropriate attire, considering the child‘s age;