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Commonwealth v. Hamilton

Appeals Court of Massachusetts, Worcester

August 23, 2019

COMMONWEALTH
v.
MICHAEL L. HAMILTON.

          Heard: March 8, 2019.

         Indictment found and returned in the Superior Court Department on February 25, 2011.

         A motion for a new trial was considered by Daniel M. Wrenn, J.

          Barry A. Bachrach for the defendant.

          Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

          Present: Wolohojian, Milkey, & Shin, JJ.

          SHIN, J.

         A Superior Court judge revoked the defendant's probation after determining that he violated the special condition that he not possess pornography and that he failed to report to probation officers on two occasions. The defendant now appeals from the denial of his motion for a new trial, [1]arguing that the term "pornography" is vague as applied to his conduct and that the judge's finding that he failed to report to probation was based on unreliable hearsay. We conclude that the defendant had fair warning that at least one of the categories of materials he possessed -- explicit stories describing the rapes of young children -- constituted pornography in violation of the special condition. Although we conclude that the defendant did not have fair warning that some of the other materials he possessed were pornographic, and agree with his contention that the judge's finding of failure to report rested on unreliable hearsay, we need not remand the matter because the judge made clear that in determining the disposition he considered only the fact that the defendant committed a probation violation, along with the underlying crime for which he was on probation. We therefore affirm.

         Background.

         The defendant pleaded guilty in November 2012 to two charges of possession of child pornography and one charge of failure to register as a sex offender. He was sentenced to a term of incarceration on the child pornography convictions and five years' probation on the failure to register conviction. A special condition of his probation was that he "not possess pornography."

         In May 2014 the probation department served the defendant with a surrender notice alleging that he violated several of his probation conditions. After an evidentiary hearing, held in May 2015, the judge made oral findings that the defendant twice failed to report to probation and that he possessed pornography, which the judge defined as "pictures or writings of sexual activity intended solely to excite lascivious feelings of a particularly blatant and aberrant kind." Finding the defendant in violation on these grounds, the judge revoked his probation and sentenced him to State prison for not less than five years and not more than five years and one day.

         Discussion.

         1. Possession of pornography.

         The defendant argues that he was not on fair notice that the materials he possessed qualified as pornography in violation of the special condition. The materials in question consisted of letters, photographs, and stories that the defendant sent to various inmates at the house of correction from which he had been recently released. Portions of the letters are nonsexual in nature while others describe, with varying degrees of detail, sexual acts involving the defendant, the letters' intended recipients, and other adults.[2] The photographs, which accompanied some of the letters, are of fully clothed adults, adults in their underwear, and the defendant unclothed but with his hand covering his genitals. Last, the defendant included with two of the letters what he characterizes as "fantasy stories." We need not ...


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