Supreme Judicial Court of Massachusetts, Plymouth
found and returned in the Superior Court Department on August
pretrial motion to suppress evidence was heard by Richard J.
Chin, J.; the cases were tried before Cornelius J. Moriarty,
II, J., and a motion for postverdict relief was heard by him.
Supreme Judicial Court granted an application for direct
A. Dolberg, Committee for Public Counsel Services, for the
L. Gauthier, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
defendant, a twenty-two year old woman, was convicted of
raping a fourteen year old boy and two thirteen year old
boys, in violation of G. L. c. 265, § 23. On appeal, the
defendant claims that there were three main defects with her
prosecution: (1) the incriminating statements she made to
police should have been suppressed; (2) the video recording
of these statements that was shown at trial should have been
further redacted; and (3) the prosecutor's closing
argument was improper. In addition, the defendant contends
that the trial judge's lack of authority to relieve her
from registering as a sex offender under G. L. c. 6, §
178E (f), constitutes a due process violation, as applied to
conclude that there was no reversible error and affirm the
convictions. We further conclude that, based upon the record
before us, there is no as-applied due process violation.
summarize the evidence the Commonwealth adduced at trial,
reserving further details for discussion of the specific
issues raised on appeal.
charges in this case stem from two separate but related
episodes that took place in June, 2012, in Brockton. The
first episode began when the defendant met up with two of the
victims, Roy,  then age thirteen, and David, then age
fourteen,  in a park. The boys, whom she knew before
these events, accompanied her to a liquor store and waited
outside. When the defendant left the store she was with a man
named Mike, who was in his thirties. They had purchased beer
and "nip" liquor bottles. The defendant seemed
"relatively intoxicated" and was drinking alcohol
after leaving the liquor store.
group made their way into the woods at the park. Mike asked
Roy and David if they had ever had sex before. Roy responded
with a "snide remark about [Mike] trying to have sex
with [him], " but Mike said he was talking about them
having sex with the defendant. Roy replied, "Oh,
okay." Mike then asked the defendant if "she was
okay" with performing oral sex on the boys. She
responded, "Yeah." The defendant then performed
oral sex on each boy, as well as on Mike. This first episode
in the woods lasted about ten to fifteen minutes.
David, and the defendant then went to a friend's house
that was near the park. At the house were two other boys, the
third victim, James, then age thirteen, and Arthur, who was
twelve. The group spent about one-half hour at the house.
During this time, Roy told James about his sexual encounter
with the defendant. James asked Roy to "get [the
defendant] to do it again." The boys convinced the
defendant to go with them to a store. All five walked toward
the store via a path through the park. The defendant was
stumbling as she walked, aided by two of the boys.
second episode began as the group proceeded down the path.
Roy and James coaxed the defendant into having sex with them.
The defendant had vaginal intercourse with James, Roy, and
David. She also had oral sex with James during the second
episode. Arthur did not participate.
group left the woods, Arthur's father, who had been
searching for his son, was waiting. Arthur told his parents
what he had observed, and the police were called.
weeks after the incidents, Brockton police went to the
defendant's house, and she agreed to accompany them to
the police station for an interview. There, she spoke with
two detectives who had observed an earlier interview of
James. During the defendant's interview, she acknowledged
that she had had oral sex with Roy and David during the first
episode and vaginal sex with Roy, David, and James during the
second episode. At the end of the interview, the defendant
was placed under arrest. She was eventually indicted on six
counts of statutory rape of Roy, David, and James in
violation of G. L. c. 265, § 23 .
trial, the defendant moved to suppress her statements to
police. The motion was denied after an evidentiary hearing.
a jury trial where Roy and Arthur both testified under grants
of immunity, the defendant was convicted on the three
indictments charging vaginal intercourse and found not guilty
on the three indictments charging oral penetration. The judge
imposed concurrent three-year probationary sentences with
several conditions. The judge also concluded that he could
not relieve the defendant from registering with the Sex
Offender Registry Board (SORB), G. L. c. 6, § 178E (f),
but stayed the registration requirement pending an appeal. We
granted the defendant's application for direct appellate
Voluntariness of confession.
trial, the defendant moved to suppress statements she made
during the police interview, alleging they were obtained in
violation of Miranda v. Arizona, 384 U.S. 436,
467-474 (1966), and that they were not voluntary. The judge
denied the motion in a written memorandum. On appeal, the
defendant argues only that this decision was in error because
the Commonwealth did not meet its burden to prove, beyond a
reasonable doubt, that her confession was voluntary because
the police (1) threatened to adversely affect her child
custody situation; (2) minimized the consequences of
confessing to statutory rape; and (3) used false and
deceptive tactics when they characterized Arthur's
allegations against her. Commonwealth v.
0'Brian, 445 Mass. 720, 724, cert, denied, 549 U.S.
reviewing a denial of a motion to suppress, we "review
de novo any findings of the motion judge that were based
entirely on documentary evidence." Commonwealth v.
Monroe, 472 Mass. 461, 464 (2015), quoting
Commonwealth v. Thomas, 469 Mass. 531, 539 (2014).
Because there is a video recording of the defendant's
interview with police, "we are in the same position as
the motion judge to determine what occurred during the
interview." Monroe, supra at 464,
quoting Thomas, supra at 535 n.4.
test for voluntariness ... is 'whether, in light of the
totality of the circumstances surrounding the making of the
statement, the will of the defendant was overborne to the
extent that the statement was not the result of a free and
voluntary act.'" Commonwealth v. Tremblay,
460 Mass. 199, 207 (2011), quoting Commonwealth v.
Souza, 428 Mass. 478, 483-484 (1998). A statement is
voluntary when it is "the product of a 'rational
intellect' and a 'free will, ' and not induced by
physical or psychological coercion." Monroe,
472 Mass. at 468, quoting Tremblay, 460 Mass. at
207. "Under this 'totality of the circumstances'
test, we consider all of the relevant circumstances
surrounding the interrogation and the individual
characteristics and conduct of the defendant."
Tremblay, 460 Mass. at 207, quoting Commonwealth
v. Selby, 420 Mass. 656, 663 (1995). The Commonwealth
must establish voluntariness beyond a reasonable doubt.
Commonwealth v. Baye, 462 Mass. 246, 256 (2012) .
Alleged coercion relating to defendant's
defendant claims that the detectives improperly threatened
that she might not regain custody of her children if she did
not cooperate. Concern for a child or loved one can, in
certain circumstances, make a statement involuntary.
Monroe, 472 Mass. at 469; Commonwealth v.
Scott, 430 Mass. 351, 355 (1999). Those circumstances
are not present here. In Monroe, supra, we
held that the police tactics were improperly coercive in part
because the interrogation was "rife with threats to the
defendant's ability to maintain contact with his infant
daughter." There, "the detectives threatened the
defendant with the loss of contact with his child by
repeatedly and falsely claiming that if he did not tell them
what happened, the child could be taken away and raised by
references to the defendant's children in the instant
case were quite different. As the detectives urged the
defendant to confess, the defendant said, "I have
children. I'm trying to protect myself." One of the
"If that's what's hanging you up is you're
afraid if you tell us, you're never going to get your
kids back, is that what you're afraid of? That's it,
isn't it? Yeah, okay. I mean, and I understand that,
okay. But listen, you're not doing yourself any good