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Commonwealth v. Hammond

Supreme Judicial Court of Massachusetts, Plymouth

July 21, 2017


         Indictments found and returned in the Superior Court Department on August 10, 2012.

         A 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.

         The Supreme Judicial Court granted an application for direct appellate review.

          Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant.

          Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.

          LOWY, J.

         The 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 her.

         We 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.

         1. Background.

         We summarize the evidence the Commonwealth adduced at trial, reserving further details for discussion of the specific issues raised on appeal.

         The 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, [1] then age thirteen, and David, then age fourteen, [2] 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.

         The 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.

         Roy, 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.

         The 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.

         As the 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.

         Several 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 .

         Before trial, the defendant moved to suppress her statements to police. The motion was denied after an evidentiary hearing.

         Following 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 review.

         2. Discussion.

         a. Voluntariness of confession.

         Before 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. 898 (2006).

         When 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.

         "The 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).[3] The Commonwealth must establish voluntariness beyond a reasonable doubt. Commonwealth v. Baye, 462 Mass. 246, 256 (2012) .

         i. Alleged coercion relating to defendant's children.

         The 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 strangers." Id.

         The 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 detectives responded:

"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 ...

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