Com. v. Wallace

877 N.E.2d 260

70 Mass. App. Ct. 757

COMMONWEALTH v. Brian J. WALLACE.

No. 06-P-672.

Appeals Court of Massachusetts, Barnstable.

Argued November 14, 2006.

Decided November 29, 2007.

The case was submitted on briefs.

Russell J. Redgate for the defendant.

J. Thomas Kirkman, Assistant District Attorney, for the Commonwealth.

Present: PERRETTA, COWIN, & MILLS, JJ.

PERRETTA, J.

On appeal from his conviction by a District Court jury on a complaint charging him with indecent assault and battery on a child under fourteen years of age, see G.L. c. 265, § 13B, the defendant claims that evidence was illegally seized from his motor vehicle and thereafter put before the jury notwithstanding the fact that its potential for prejudice far outweighed its probative value. We conclude that the defendant consented to the search of his vehicle and that the seized evidence was admissible to show his sexual intent, predatory motive, and intentional rather than accidental touching of the victim, and we affirm the judgment.

1. The evidence at trial. At about 11:00 A.M. on July 27, 2005, the twelve year old victim, her mother, and three family friends were preparing to leave a hotel after a short vacation. Both the victim's mother and another woman were in wheelchairs. As the group was making trips back and forth to the vehicle, the defendant approached the victim and asked if she needed help carrying suitcases. He then followed the victim to a patio area that could not be seen from the parking lot because of surrounding shrubbery.

While in the patio area, the defendant engaged the victim in conversation, asking if he could pet or rub the stuffed animal she was holding. When the victim acquiesced to the request, the defendant asked if he could rub her. The victim said no, but the defendant reached for her and squeezed her right breast. He then walked away, telling the victim, "Don't tell anyone. You made my day."

Within two minutes, the visibly upset victim found her mother and told her what had happened. The mother notified hotel personnel, and the police were summoned to the scene. The defendant was nowhere to be found. At the request of the police, the victim and her mother went to the police station, where a sketch artist drew a picture of the suspect based on information they provided. About one week later, they returned to the police station, where they were separately shown an array of eight photographs that included the defendant's picture. The victim and her mother each selected the defendant's photograph as depicting the man they had seen in the hotel parking lot.

Items taken from the defendant's car about one week after the incident were put in evidence over objection, his motion to suppress having been denied prior to trial. Photographs of young girls, pictures from a pornographic magazine, and a tube of KY lubricating jelly were found in the glove compartment. In the trunk of the car, in the space where a spare tire would be stored, the police found two small pairs of girls' or women's panties and bras, a plastic bag containing approximately twenty Polaroid photographs of different young girls at various outdoor locations, photographs of partially and fully nude adult women and men engaging in oral sex, a Polaroid camera, condoms, clothesline, duct tape, a ten-inch steak knife, two tubes of KY jelly, and two pornographic magazines entitled "Pure Eighteen."

The defendant testified that as he was returning to his car parked in the hotel parking lot, he saw the victim struggling with suitcases and noticed that two of the adults with her were in wheelchairs. He offered his help to the victim, she accepted, and he loaded her suitcases into her car. As he was about to leave, he spoke briefly with the victim and petted the stuffed animal she was carrying. He denied touching her or making any inappropriate statements. As for the physical evidence, the defendant acknowledged that the items put in evidence were taken from his vehicle. He stated that although the Polaroid camera was his, he did not take most of the photographs found in the trunk. The knife, lubricant, and duct tape were his, but he was "ninety percent sure" that the underwear belonged to his wife.

In his closing argument, defense counsel argued that the defendant had done nothing wrong and that even had he touched the victim's breast, the touching was accidental.

2. The evidence at the hearing on the motion to suppress. In denying the defendant's motion to suppress, the judge stated only, "The defendant executed a written consent form; based on the credible evidence presented at the hearing . . . the motion is denied." Although the judge made no specific findings of fact, the relevant facts are not in dispute. Thus, "we are in as good a position as the [motion] judge to determine the legal significance of those facts." Commonwealth v. Carrington, 20 Mass.App.Ct. 525, 526, 481 N.E.2d 224 (1985). See Commonwealth v. Kipp, 57 Mass.App.Ct. 629, 630, 785 N.E.2d 403 (2003).

After a composite sketch of the victim's assailant was produced, Barnstable police Detective John York showed the sketch to numerous people in the area of the crime. Linda Rose, one of the people to whom he spoke, informed York that she had seen some items in a vehicle, pictures of young girls playing and walking in parks, and "some nude pictures, but not of little girls," that "in her opinion . . . could be related to the incident." About one week later, Rose called the police and reported that a man she thought resembled the individual depicted in the sketch was sitting in a brown Honda automobile that was parked in a handicap parking space in the Salvation Army parking lot.

York responded to Rose's call and arrived on the scene on a fully marked police motorcycle. The motorcycle unit was responsible for all traffic enforcement. York spoke briefly with Rose, who was standing to the rear of the vehicle, and he then walked to the Honda. He saw that the defendant was seated, alone, in the driver's seat and that there was neither a license plate nor a placard on the dashboard or hanging from the rearview mirror to indicate that the driver had the right to occupy a handicap parking space. As he spoke to the driver and asked for his identification, York noticed that he bore a strong resemblance to the man depicted in the composite sketch. He informed the defendant of his resemblance to the composite sketch of a man the police were investigating and asked if he would be willing to go to the police station and speak with officers conducting the investigation. When the defendant agreed to do so, York summoned a police cruiser to the parking lot. The defendant got into the cruiser and was taken to the police station.

As the defendant was being transported to the police station, York remained behind to speak briefly with Rose and to call for a tow truck to impound the defendant's vehicle. York explained that he usually arranged for a vehicle parked in a handicap zone to be towed rather than issuing a ticket, and that the towing of the defendant's vehicle was consistent with the police department's written protocol.¹ Upon the tow truck's arrival, York followed it to the police station and waited as the defendant's car was unhooked from the tow truck and left in the station's back lot. Once the vehicle was secured, York went into the station and located the defendant and Barnstable police Detective Reid Hall, the officer in charge of the investigation.

Hall told York that he had informed the defendant why he was at the police station and the nature of the incident involving the indecent assault and battery on the victim. York then advised the defendant of his Miranda rights, after which the defendant signed a form in which those rights were explained in detail. He then asked to speak with an attorney. Although the defendant was given an opportunity to use a telephone in Hall's office, there is nothing in the record before us to show that he availed himself of that opportunity.²

After an interval of about ten minutes, during which there was no conversation between the defendant and York or Hall, York informed the defendant that his vehicle was at the police station and asked the defendant if he would consent to a search of his vehicle. In response to the defendant's inquiries, York explained that the police wanted to search the car for evidence that could be related to the incident described to the defendant by Hall. When the defendant indicated his reluctance to the search because he "did [n]ot want his wife to know what was in his car," York assured the defendant that he had no intention of revealing the details of any search to the defendant's wife. The defendant then signed a form in which he acknowledged his consent to the search of his vehicle.³

3. Discussion. Because the items taken from the defendant's car were put in evidence, we take up first the defendant's argument that his motion to suppress was erroneously denied, and then his claim that the items found should have been excluded from evidence at his trial.

a. The motion to suppress. It is the defendant's argument that his consent to the search of his car was the product of the vehicle's illegal seizure, and consequently, the evidence discovered in the search was tainted and should have been suppressed. See Commonwealth v. Midi, 46 Mass.App.Ct. 591, 595, 708 N.E.2d 124 (1999) (when consent obtained through "exploitation" of prior illegality, consent not freely given, especially where consent close in time to illegality).

It was the Commonwealth's burden to show that the defendant's consent to the search of his vehicle was freely and voluntarily given, that is, his consent was "unfettered by coercion, express or implied." Commonwealth v. Krisco Corp., 421 Mass. 37, 46, 653 N.E.2d 579 (1995), quoting from Commonwealth v. Harmond, 376 Mass. 557, 561, 382 N.E.2d 203 (1978).

Whether the defendant's consent to the search of his...