Commonwealth v. Rex

469 Mass. 36

11 N.E.3d 1060

COMMONWEALTH

v.John REX.

SJC–11480.

Supreme Judicial Court of Massachusetts, Norfolk.

Submitted March 3, 2014.

Decided July 9, 2014.

Varsha Kukafka, Assistant District Attorney (Anne Yas, Assistant District Attorney, with her) for the Commonwealth.

Bruce W. Carroll for the defendant.

Carlo Obligato, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

A Norfolk County grand jury indicted the defendant, John Rex, on seven counts of possession of child pornography, G.L. c. 272, § 29C, and seven counts of being a habitual offender, G.L. c. 279, § 25.¹ Relying on Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982), the defendant filed a motion to dismiss the indictments, which the Commonwealth opposed. He claimed that the seven photocopies of photographs of naked children (excerpted from a National Geographic magazine, a sociology textbook, and a naturist catalogue) on which the indictments were based did not constitute child pornography within the meaning of G.L. c. 272, § 29C, and were protected by his right to free speech under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights. Following a hearing, a judge in the Superior Court allowed the motion to dismiss, concluding that none of the photocopies constituted a “lewd exhibition” of the children's body parts as described in G.L. c. 272, § 29C (vii). The Commonwealth filed an appeal pursuant to G.L. c. 278, § 28E, and Mass. R.Crim. P. 15(a)(1), as appearing in 422 Mass. 1501 (1996). The case was entered in the Appeals Court, and we transferred it to this court on our own motion. At issue is whether the judge properly dismissed the indictments on the ground that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography. Because we conclude that the photocopies did not depict a “lewd exhibition” as set forth in G.L. c. 272, § 29C (vii), we affirm the order of the Superior Court.²

1. Statutory framework.General Laws c. 272, § 29C, provides, in relevant part:

“Whoever knowingly purchases or possesses a ... photograph or other similar visual reproduction ... of any child whom the person knows or reasonably should know to be under the age of [eighteen] years of age and such child is ... (vii) depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child; with knowledge of the nature or content thereof shall be punished ...” (emphasis added).³

The Legislature's purpose in enacting this statute was to protect children from sexual exploitation.⁴ See St. 1997, c. 181, § 1. The focus of G.L. c. 272, § 29C, is the knowing purchase or possession of child pornography, not its dissemination. Contrast G.L. c. 272, § 29B (statute criminalizing dissemination of visual material of child in state of nudity or sexual conduct).

2. Factual background. The facts are drawn from the evidence presented to the grand jury. The defendant is an inmate at the Massachusetts Correctional Institution at Norfolk. On August 31, 2011, correction officers conducted a search of the defendant's cell, which he shared with another inmate. In a padlocked footlocker assigned to the defendant, the officers found an envelope containing seven photocopies of photographs that depicted naked children. ⁵ The photocopies, which will be described in detail later in this opinion, were black and white, and they appeared grainy.⁶ The defendant admitted that the photocopies were his, and he told the officers that they were “from a pamphlet from a nudist colony that he had gotten many, many years ago that he had cut out and stuck in the envelope.” ⁷ Based on his years of training and experience, Sergeant David McSweeney of the State police testified that all of the images were of real children (not computer depictions or morphed images) who were under the age of eighteen.

3. Standard of review. The Commonwealth contends that the proper standard of review is whether the evidence before the grand jury established probable cause to arrest the defendant for possession of child pornography. We agree with the Commonwealth, mindful of special considerations that arise when a case involves expression that may be protected by the First Amendment.

Ordinarily, a “court will not inquire into the competency or sufficiency of the evidence before the grand jury.” Commonwealth v. Robinson, 373 Mass. 591, 592, 368 N.E.2d 1210 (1977), quoting Commonwealth v. Galvin, 323 Mass. 205, 211–212, 80 N.E.2d 825 (1948). See Commonwealth v. Coonan, 428 Mass. 823, 825, 705 N.E.2d 599 (1999), citing Commonwealth v. McCarthy, 385 Mass. at 161–163, 430 N.E.2d 1195. However, in Commonwealth v. McCarthy, supra at 163, 430 N.E.2d 1195, we recognized a limited exception to this general rule, concluding that a court must dismiss an indictment where the grand jury “fail[ ] to hear any evidence of criminal activity by the defendant.” ⁸ See Commonwealth v. Moran, 453 Mass. 880, 883–884, 906 N.E.2d 343 (2009), quoting Commonwealth v. Coonan, supra. At the very least, the grand jury must hear enough evidence to establish the identity of the accused ⁹ and to support a finding of probable cause to arrest the accused for the offense charged. Commonwealth v. McCarthy, supra, citing Connor v. Commonwealth, 363 Mass. 572, 573–574, 296 N.E.2d 172 (1973), and Lataille v. District Court of E. Hampden, 366 Mass. 525, 531, 320 N.E.2d 877 (1974). See Commonwealth v. Roman, 414 Mass. 642, 643, 609 N.E.2d 1217 (1993). “A grand jury finding of probable cause is necessary if indictments are to fulfil their traditional function as an effective protection ‘against unfounded criminal prosecutions.’ ” Commonwealth v. McCarthy, supra, quoting Lataille v. District Court of E. Hampden, supra at 532, 320 N.E.2d 877.

It is well established that “[p]robable cause to arrest ‘requires more than mere suspicion but something less than evidence sufficient to warrant a conviction.’ ” Commonwealth v. Roman, supra, quoting Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982). See generally K.B. Smith, Criminal Practice and Procedure § 3.51 (3d ed. 2007). “The evidence before the grand jury must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.” Commonwealth v. Roman, supra. See Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984), quoting Commonwealth v. Stevens, 362 Mass. 24, 26, 283 N.E.2d 673 (1972). See also Commonwealth v. McCarthy, 385 Mass. at 163, 430 N.E.2d 1195. Where the Commonwealth has not produced any evidence to support a finding of probable cause to arrest, an indictment must be dismissed. See Commonwealth v. Levesque, 436 Mass. 443, 447, 766 N.E.2d 50 (2002). Conversely, where the Commonwealth satisfies the probable cause standard, the determination whether a visual depiction constitutes a “lewd” exhibition within the meaning of G.L. c. 272, § 29C (vii), is one for a fact finder. See Commonwealth v. Robinson, 373 Mass. at 592–594, 368 N.E.2d 1210 (sufficiency of evidence reserved for trial on merits).

We proceed to consider whether, in this case, the grand jury were presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography under G.L. c. 272, § 29C (vii).¹⁰ The defendant has conceded that he possessed the photocopies, that the children depicted in them were real children, that they were under the age of eighteen, and that they were nude. Therefore, the probable cause determination turns on whether the photocopies depicted a “lewd exhibition.” G.L. c. 272, § 29C (vii). Typically, when considering an appeal from the allowance of a motion to dismiss an indictment, we review the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Washington W., 462 Mass. 204, 210, 967 N.E.2d 615 (2012), citing Commonwealth v. Moran, 453 Mass. at 885, 906 N.E.2d 343. See also Commonwealth v. Levesque, supra at 444, 766 N.E.2d 50. However, because this case involves depictions of naked children, we must be sure that the grand jurors “have not encroached on expression protected by the First Amendment.” ¹¹Commonwealth v. Sullivan, 82 Mass.App.Ct. 293, 303, 972 N.E.2d 476 (2012). Accordingly, we undertake a de novo review of the challenged pictures. See Commonwealth v. Bean, 435 Mass. 708, 714, 761 N.E.2d 501 (2002) ( Bean ). See also Commonwealth v. Sullivan, supra at 303–307, 972 N.E.2d 476 (conducting de novo review of photograph of naked adolescent to determine lewdness); Commonwealth v. Militello, 66 Mass.App.Ct. 325, 331, 848 N.E.2d 406 (2006).

In Bean, supra at 708, 761 N.E.2d 501, following a bench trial in the Superior Court, the defendant was convicted of posing a fifteen year old girl for photographs with her breast exposed in violation of G.L. c. 272, § 29A ( a ). The photographs were the primary evidence of whether the defendant had acted with “lascivious intent,” which is a necessary element of the crime of posing or exhibiting a child in a state of nudity or sexual conduct. Id. at 708–709, 714, 761 N.E.2d 501, citing G.L. c. 272, § 29A. In determining that de novo review of the photographs was appropriate, we pointed out that the United States Supreme Court had emphasized in Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 504–505, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), that “cases involving speech under the First Amendment require independent appellate review of the offending material to ensure that protected speech is not infringed.” Bean, supra at 714, 761 N.E.2d...