Supreme Judicial Court of Massachusetts, Middlesex
Argued September 2, 2014
Indictments found and returned in the Superior Court Department on September 10, 2009.
The cases were tried before Maureen B. Hogan, J.
The Supreme Judicial Court granted an application for direct appellate review.
David B. Hirsch for the defendant.
Robert J. Bender, Assistant District Attorney, for the Commonwealth.
M. Chris Fabricant & Karen Newirth, of New York, Joshua D. Rogaczewski & Johnny H. Walker, of the District of Columbia, & Kevin M. Bolan, for Innocence Network, amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[21 N.E.3d 161] Gants, C.J.
The defendant was convicted by a Superior Court jury on two indictments of possession of child pornography, in violation of G. L. c. 272, § 29C.
We granted the defendant's application for direct appellate review. In his
appeal, the defendant claims that the trial judge made three errors that warrant
a new trial. First, he contends that the judge erred in admitting in evidence
the in-court identifications of the defendant by two eyewitnesses who had not
previously participated in an out-of-court identification procedure. Second, the
defendant claims that, where the defendant admitted to police that he had used
library computers on the day in question but denied having used them to view
child pornography, the judge erred in allowing in evidence the admission but
excluding from evidence the denial. Third, he argues that the judge erred in
admitting in evidence three pornographic drawings of children that were found in
the defendant's possession ten months after he allegedly viewed the child
pornography charged in the indictments. We establish a new standard for the admission of in-court identifications where the eyewitness had not previously participated in an out-of-court identification procedure and conclude that the in-court identifications in this case would not have been admissible under that standard. We also conclude that the judge erred in excluding from evidence the defendant's denial and in admitting in evidence the drawings, and that the errors and the admission of the in-court identifications, considered together, resulted in unfair prejudice that requires that the convictions be vacated and a new trial ordered.,
We summarize the evidence at trial, reserving discussion of the evidence that pertains to the issues on appeal. On January 21, 2009, between approximately 3:30 p.m. and 4 p.m., an eighth grade student, M.S., was doing homework at a computer in the basement technology center of the Central Square branch of the Cambridge Public Library. A man she described as short, white, and bald, with a " little beard" and eyeglasses was sitting at an adjacent computer to the right of her. She went to the library " [m]ostly every day," but had never seen the man before. When she looked at his computer screen, she saw an image of " a girl about ten years old, covering her chest." She could not tell whether the girl was wearing any clothes, because she saw only a " top view" and the man was " cover[ing] the computer screen" with the " umbrella-type" cover that was on it. She " waved" at her friend, R.M., a ninth grade [21 N.E.3d 162] student, who was also in the technology center of the library, and urged him to look at the man's computer. R.M. testified that he " just got a quick glimpse of the computer," and could only see " a small portion" of the screen, which displayed a young child wearing no clothes. He saw only the side of the man's face; he described the man as bald with a goatee. He went to the library every day after school, but had not seen the man before. During trial, both M.S. and R.M.
identified the defendant as the man that they had seen at the computer on January 21.
M.S. and R.M. walked over to Ricardo Negron, a library employee who was working at the staff desk in the technology center that afternoon, and they told him that a person was looking at children wearing no clothes on the computer. Before M.S. and R.M. approached him, Negron had observed M.S. at computer no. one and a white male, " perhaps" in his " early thirties," bald, with eyeglasses, whom he had seen before at the technology center, at computer no. two. The police later showed Negron an array of photographs, but he was unable to identify anyone from the array.,
Library users were required to log on to a computer by entering their library bar code, so when the two teenagers alerted Negron to what they had seen, Negron looked up the log-in information for computer no. two. While he was doing so, the man using computer no. two logged off and left the room. The log inquiry revealed that a person using the library card of an eighteen year old male, " perhaps of Asian descent," had logged on to computer no. two at 3:08 p.m. and logged off at 3:55 p.m. At some time after
3:55 p.m., Negron went upstairs to speak to the library manager, Esme Green. Green went downstairs to the technology center, looked at two " video clips" saved on computer no. two, saw that they depicted an approximately twelve year old girl, " either naked or almost naked, masturbating," and telephoned the police.
[21 N.E.3d 163] When Negron went upstairs, another library employee, Ricardo Ricard, went downstairs to staff the technology center. Having learned of the allegation, Ricard logged on to computer no. two, saw a folder on the computer with the label " W," and looked at a video file inside the folder, which showed a nude female child. Because he was concerned that the library computers deleted all files when they were shut down for the night, Ricard transferred the folder containing the file to a universal serial bus (USB) drive, which he later gave to Green. He then disabled the computer's " reboot" software so that the computer would retain the files that were then on it.
Ricard had not seen the man who used computer no. two on January 21, but he was aware of the man's physical description. On January 22, when he saw a man who matched that description in the library lobby, he told Green of the man's presence, and Green notified the police.
Detectives Brian O'Connor and Pam Clair of the Cambridge police department arrived at the library and saw the defendant at a computer with another individual. The detectives observed the defendant for approximately twenty to thirty minutes at a computer that displayed a " MySpace" profile page, " looking at MySpace." As the defendant was leaving the library, Detective O'Connor asked to speak with him, and the defendant agreed. The defendant admitted that he had been in the library's computer room the previous day. He said he had used one of the computers for five minutes and then switched to another computer, which he identified as computer no. two, to check his electronic mail (e-mail). The defendant said that his e-mail address was email@example.com. He also said that he did not have his own MySpace profile, but used his friend's profile.
After this conversation, Detective O'Connor obtained the USB drive that Ricard had given to Green, seized computer no. two, and copied the folder labeled " W" onto a compact disc. After
obtaining a search warrant, Detective O'Connor conducted a forensic search of the hard drive of computer no. two. That search revealed twenty-seven " cookies," which O'Connor described as " text file[s]" that store information on an Internet browser regarding a Web site that a particular user has visited on the Internet. The first of these cookies, entitled " magic-Lolita(1).txt," was created at 3:14 p.m. on January 21; the last, entitled " www.innocentgirls(1).txt," was created at 3:48 p.m. that day. Detective O'Connor also uncovered " Yahoo searches" on computer no. two that had been conducted between 3:14 and 3:25 p.m. on January 21 using such search terms as " One hundred percent Lolita" and " Top Lolita." Detective O'Connor also located temporary Internet files on the computer's hard drive in which images were automatically downloaded by the Internet browser from a Web site that the user visited. In those temporary files, he found approximately 210 photographs where children were engaged in sexual acts, of which seven were printed out and admitted as exhibits at trial. These seven images were created on the computer between 3:27 and 3:50 p.m. on January 21. The detective also located six video files on the hard drive of the computer, of which two video files were located in a temporary Internet file folder and four video files were located in a folder entitled " W." The four video files in the " W" folder, which were played for the jury, were created on the computer between 3:43 and 3:54 p.m. that day. Detective O'Connor also located a MySpace page in the temporary Internet files reflecting a [21 N.E.3d 164] log-in date and time of January 21 at 3:13 p.m. The MySpace page identifies the user as " Walter" ; the e-mail address associated with the MySpace page was C-Blizzard69@MySpace.com.
1. In-court identifications of the defendant.
Before trial, neither the police nor the prosecutor asked M.S. or R.M. to participate in an identification procedure to determine whether they could identify the man they had seen at the computer on January 21, 2009. They were never shown a photographic array or asked to view a lineup. The first time they were asked to identify the man was on April 7, 2011 -- more than two years after the first and only time they had seen him -- when they were asked by the prosecutor on the witness stand at trial whether they saw the man in the court room, and each identified the defendant.
The defendant moved before trial to preclude the Commonwealth from eliciting an in-court ...