Argued September 4, 2014.
Hampden. Complaint received and sworn to in the Holyoke Division of the District Court Department on May 7, 2010.
The case was tried before Laurie MacLeod, J.
The Supreme Judicial Court granted an application for direct appellate review.
Ines McGillion for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.
Ryan M. Schiff, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[18 N.E.3d 673] Cordy, J.
In this case, we are asked to identify the proper unit of prosecution for the possession of child pornography pursuant to G. L. c. 272, § 29C. The defendant, John K. Rollins, was charged with six counts of possessing child pornography with each count premised on one or two distinct photographs culled from a single cache on the defendant's computer. A Hampden County jury returned guilty verdicts on each count and a District Court judge sentenced the defendant to consecutive and concurrent terms in a house of correction.
We granted the defendant's application for direct appellate review and conclude that where the offending photographs come from a single cache and the defendant is charged with possessing them at the same point in time, the statutory structure contemplates only a single unit of prosecution. Accordingly, the entry of six separate convictions and sentences constituted multiple punishments for the same offense in violation of the defendant's constitutional and common-law rights to be free from double jeopardy.
While double jeopardy principles bar multiple convictions and sentences, they do not bar the Commonwealth from prosecuting the possession of multiple photographs through separate counts, each premised on a single photograph, as a single photograph is sufficient to support a conviction. Accordingly, assuming the sufficiency of the evidence on any or all of the multiple counts, we would ordinarily vacate the convictions and remand this case to the trial judge for the entry of a judgment of conviction and resentencing on only one count. However, because we conclude that numerous errors occurring at trial created a substantial risk of a miscarriage of justice, we vacate the convictions and remand for a new trial.
[18 N.E.3d 674] 1. Background.
We summarize the facts as the jury could have found them, reserving certain details for our analysis of the issues raised on appeal. In late December, 2009, the defendant brought his computer to a computer repair shop in Holyoke seeking repairs. As the technician, Joshua Charland, worked on the computer, the image of a young girl in a bikini appeared on the computer's monitor. The defendant stated that the image was a photograph of his daughter. Once Charland completed his work on the computer, he returned it to the defendant and reported the image to Holyoke police Officer James Bartolomei.
Two days later, the defendant returned to the computer repair shop and asked Charland for further repairs to the computer. The defendant explained that he had attempted to erase the computer's hard drive and reinstall the operating system, following which, the " mouse" stopped working. Charland requested the defendant's personal information so that he could contact him when the computer was ready. Charland, sensing that " something was up," then used forensic recovery software to search the defendant's computer for deleted files. During the course of his search, Charland discovered approximately 1,200 images, including photographs depicting nude and scantily clad young girls, which he recovered to a " flash drive."
Officer Bartolomei was once again notified, prompting him to visit the computer repair shop, view the images on the flash drive, and confiscate the defendant's computer. Officer Bartolomei then telephoned the defendant, informed the defendant that he had taken the computer, and requested that the defendant come to the police station for questioning. The defendant returned to the shop, where he learned that Charland had discovered what he believed to be child pornography on the computer. The defendant remarked that the images were probably placed there by a friend.
The following day the defendant was interviewed by two detectives. During the interview, the defendant explained that, after unintentionally stumbling across a Web site depicting child pornography a few months prior, he began conducting a secret and independent investigation into child pornography on the Internet. The defendant averred that it was his intention, on completion of the investigation, to deliver the " proof" to the Chicopee police department. At the conclusion of the interview, the defendant confirmed his ownership of the computer in police custody and consented to a search of its contents.
The defendant's computer was then transferred to a forensic computer examiner at the New England State Police Information
Network (NESPIN). Using specialized software, the examiner conducted a forensic examination of the computer and discovered deleted files in the unallocated space of the computer's hard drive. He then recovered and transferred 6,094 images to a digital video disc (NESPIN disc) that he provided to the Holyoke police department.
Detective David Usher of the Holyoke police department reviewed approximately 1,200 of the images on the NESPIN disc and then printed twelve photographs -- each depicting either nude or scantily clad young girls. On May 7, 2010, the Commonwealth filed a six-count criminal complaint against the defendant. Each count charged him with the possession of child pornography on December 30, 2009, in violation of G. L. c. 272, § 29C (§ 29C), and each was premised on distinct photographs recovered from the defendant's computer. Specifically, counts one through five were each premised on a separate, single photograph culled from the twelve that Detective Usher printed from the NESPIN disc, [18 N.E.3d 675] while count six was premised on two photographs culled from those twelve.
At trial, the Commonwealth presented evidence that the defendant knowingly downloaded the charged photographs, including the defendant's statement to the Holyoke police that he downloaded them in a purported effort to assist law enforcement in the eradication of child pornography. The Commonwealth introduced the seven charged photographs and five uncharged photographs through the testimony of Detective Usher. At the close of the Commonwealth's case, the defense moved for a directed verdict based primarily on the Commonwealth's failure to establish possession. The judge denied the defendant's motion. The defense then rested, and the jury heard closing arguments.
The jury were then provided with six verdict slips. Attached to each slip for counts one through five was a single image. By contrast, two images were attached to the slip for count six. The jury returned guilty verdicts on all six counts. On counts one, two, and three, the defendant was sentenced to three concurrent terms of two and one-half years in a house of correction. On counts four, five and six, the defendant was sentenced to an additional three concurrent terms of two and one-half years in a house of correction to commence upon the defendant's completion of his sentences on counts one, two, and three.
We granted the defendant's application for direct appellate review, wherein he contended that, inter alia, his convictions were
duplicative and the errors occurring at trial raised a substantial risk of a miscarriage of justice. We agree.
a. Duplicative convictions.
The double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law preclude the imposition of multiple punishments for the commission of a single crime. Marshall v. Commonwealth, 463 Mass. 529, 534, 977 N.E.2d 40 (2012). Our jurisprudence defines " multiple punishments" as those " in excess of what a Legislature intended to be the punishment for a particular offense." Commonwealth v. Selavka, 469 Mass. 502, 509-510, 14 N.E.3d 933 (2014), quoting Aldoupolis v. Commonwealth, 386 Mass. 260, 272, 435 N.E.2d 330 (1982), S. C., 390 Mass. 438, 457 N.E.2d 268 (1983). Accordingly, the starting point for our analysis is to ask what " unit of prosecution" the Legislature intended as the punishable act for violations of § 29C. See Commonwealth v. Rabb, 431 Mass. 123, 128, 725 N.E.2d 1036 (2000).
This " inquiry requires us to look to the language and purpose of the statute[ ], to see whether [it] speak[s] directly to the issue of the appropriate unit of prosecution, and if [it] do[es] not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant's favor." Id. Similarly, we are mindful of the general rule that " criminal statutes must be construed strictly against the Commonwealth." Commonwealth v. Constantino, 443 Mass. 521, 523-524, 822 N.E.2d 1185 (2005). ...