COMMONWEALTH v. HENNESSEY (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Joseph Hennessey, was convicted of four counts of secretly videotaping a person in a state of nudity, in violation of G. L. c. 272, § 105 (b).² On appeal he argues that the evidence before the grand jury and at trial was insufficient to prove that he videotaped anyone “without that person's knowledge and consent” as required by the statute. He also contends that the judge erred in admitting video recordings (videos) that were not properly authenticated. We affirm.

Background. The jury could have found the following facts. On September 5, 2014, a female employee of the Kickstand Cafe in Arlington observed the defendant speaking loudly on a cellphone in the vestibule area outside the women's restroom. She entered the restroom and noticed that it “was in disarray.” A plant stand used to hold a basket of paper towels had been moved, the basket had been moved under the sink, the paper towels had been moved onto the edge of the sink, and the plant stand “was sitting in the corner” with another basket of “tacky, like brightly colored, odd assortment of flowers” on it. She reorganized the restroom, and, as she exited, noticed the defendant still in the vestibule area sitting on crates, speaking on his cellphone, adjacent to an unzipped and empty duffel bag. This caught her attention because the vestibule was not an area “that a customer would normally hang out.”

Shortly thereafter, the employee saw the defendant leave the bathroom area. She noticed that “he was carrying his duffel bag and it was full.” He looked in the employee's direction, made eye contact, and exited the cafe. To the employee's knowledge, the defendant had neither purchased anything nor had any food or drink while at the cafe. The employee then returned to the women's restroom “to check on things,” and saw that “the flowers were gone.” The employee completed her shift, but left a note for the owner of the cafe explaining her observations. She did so because the incident involving the flowers and the defendant “seemed really strange.”

On September 13, the employee returned to the cafe with her husband around 7:30 a.m. to buy coffee and sandwiches. While waiting for her food, she went to the women's restroom and noticed that “the flowers that [she] had seen on the 5th were there ․ sitting on the floor.” The flowers sat on top of a “flowerpot turned upside down.” The flowers were “at a little angle kind of leaned back against the wall a little bit.” She had never seen the flowerpot prior to this occasion. She picked up the flowers, examined them, pulled some flowers out, and “dug a little bit into the stuffing, and [she] saw wires and electrical tape in there.” As she did this, “[s]omeone started knocking on the door and a man's voice started saying, excuse me, excuse me, I need to get in there, excuse me.” The employee grabbed the flowers, opened the door, and walked out of the vestibule and back into the cafe. She gave the flowers to the owner and asked her to call the police.

After the employee returned to the cafe, the defendant approached her and said that “he needed the flowers back.” He said that the flowers “were his daughter's and that she took them everywhere with her, and that he needed them back because they were very important to her.” The defendant was not accompanied by anyone at the cafe. He was also carrying his duffel bag again. The employee told him that she would look for the flowers. Meanwhile, the manager of the cafe observed the defendant and saw him heading for the cafe exit. She “kind of ran to get in front of him and reached the door right before him.” In order to stall him, she said that they had something that belonged to him. Police officers arrived about ten to twelve minutes later.

The officers were shown the flowerpot and observed a hole in the side and a camera inside. Inside the defendant's duffel bag they observed a handheld wireless remote monitoring and digital video recording (DVR) device, which they later determined was linked to the hidden camera in the flowerpot that had been placed in the restroom. The duffel bag also contained batteries that matched another set of batteries that the employee had discovered in the vestibule area.

The officers spoke to the defendant outside the cafe. He said that he had found the flowers in a cemetery and they belonged to his daughter. He claimed that his daughter had left the flowers in the bathroom. However, his daughter was not with him at the cafe. He also indicated that he had a doctor's note that authorized him to enter any bathroom due to his medical condition (irritable bowel syndrome).³

The DVR device contained four videos depicting women using the restroom at the cafe. Their vaginas and buttocks are visible in the videos. The DVR also contained similar videos, taken in another restroom, of women in a state of partial nudity while using the restroom. In addition, the DVR contained a video of a man who appeared to be arranging or setting up the video device. A police officer identified the individual depicted in this video as the defendant.⁴

The defendant did not testify at trial. His wife testified that the defendant was not proficient in technology, often needed to use restrooms due to his medical condition, and had brought items home from the cemetery in the past when he worked as a park employee. She also testified that she controlled the family's finances and bills, and would have noticed if the defendant had purchased a camera.

Discussion. 1. Sufficiency of evidence. The defendant first claims that the evidence before the grand jury failed to show that the defendant videotaped the victims without their knowledge and consent. We disagree. In his written decision and order denying the defendant's motion to dismiss brought under Commonwealth v. McCarthy, 385 Mass. 160 (1982), a Superior Court judge determined as follows:

“The Commonwealth presented evidence to the grand jury from which it could infer that the unknown victims did not consent to being videotaped in the bathroom. The most obvious circumstance from which lack of consent can be inferred is the location of the videotaping, a bathroom where privacy is a generally expected feature. Also suggestive of lack of consent is the reaction of the cafe waitress who discovered the hidden camera; she rebuffed Defendant's entreaties to return the plant to him, instead taking it to the cafe manager and asking her to call the police. These actions strongly indicated that the waitress had not consented, and the grand jury was free to infer that the four videotaped victims would similarly have displayed a lack of consent if they had known of the camera. Defendant's own ‘frantic’ efforts to retrieve the flowerpot once the waitress found the recording device ․ could also serve as a basis for a grand jury inference that he was well aware that he had no one's consent. So could Defendant's statements to the police that he had no idea there was a camera inside his flowerpot[.] So could Defendant's possession of electronic communication and recording equipment (which, the grand jury knew, was marketed as a tool for private investigators to make secret recordings) in the duffel bag he had with him in the cafe.”

We have reviewed the grand jury minutes and agree with the judge's thorough and well-supported decision. We conclude that the evidence before the grand jury, including the testimony of Detective Stephen Krepelka of the Arlington Police department, the videos showing the women in a state of nudity in the cafe restroom, photographs showing the crime scene and other evidence, and the surreptitious nature of the defendant's actions, established probable cause to satisfy the “lack of knowledge and consent” element.

The defendant also contends that the Commonwealth introduced insufficient evidence at trial that the videotaping was done without the victims' knowledge and consent.⁵ In evaluating whether a motion for required finding of not guilty was properly denied, the reviewing court “must consider whether, viewing the evidence in the light most favorable to the Commonwealth, notwithstanding the contrary evidence presented by the defendant ․ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Rivera, 425 Mass. 633, 648 (1997). See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). “Circumstantial evidence is sufficient to find someone guilty beyond a reasonable doubt and inferences drawn from such circumstantial evidence need only be reasonable and possible; it need not be necessary or inescapable” (quotation omitted). Commonwealth v. Grandison, 433 Mass. 135, 141 (2001). Indeed, knowledge is a question of fact, proof of which is often made through circumstantial evidence. See Commonwealth v. Tavares, 87 Mass. App. Ct. 471, 475 (2015).

The present circumstances do not present a close case, because the Commonwealth presented abundant circumstantial evidence to establish that the victims of the crime neither knew of nor consented to the surreptitious videotaping. The evidence, viewed in the light most favorable to the Commonwealth, would enable a rational juror to find that the defendant was present at the crime scene approximately one week before the crime; set up the flowerpot containing the video camera in the women's restroom at that time; left the cafe with the flowerpot and camera; returned on the date of the offense and set up the flowerpot again; was caught in the act or in the aftermath by the employee; and attempted to reclaim the tools of the crime to no avail. The video evidence, as well as the handheld recording device, batteries, and other materials found in the defendant's duffel bag not only showed that he had the ability and opportunity to commit the crime; it would be difficult under this set of facts to infer otherwise. The jurors also could have viewed the defendant's inconsistent statements and lies to the employee and the police officers as evidence of consciousness of guilt.⁶ See Commonwealth v. Lavalley, 410 Mass. 641, 649 (1991) (“It is well-settled that false statements made by a defendant are admissible to show consciousness of guilt”). From all of this evidence, a reasonable juror could have concluded not only that the defendant had committed the crime, but that he knew that no victim had or would have consented to having her genitalia videotaped. Indeed, in view of the secretive nature of the crime, no victim even had the ability to consent. Based on all of the aforementioned circumstances, the evidence of lack of knowledge and consent was more than sufficient to sustain the convictions. See Commonwealth v. Shore, 65 Mass. App. Ct. 430, 433 (2006) (“Although manifest objections by the victim would have made this a simpler case, we do not require an explicit verbal or physical rebuff to prove lack of consent. Instead, we analyze lack of consent based on the totality of the circumstances”).

2. Videotape evidence. The defendant also contends that the judge erred in admitting the videos into evidence because they were not properly authenticated. We need not dwell at length on this issue. The evidence reflects that the Commonwealth produced ample evidence to support a finding that the videos depicted what the Commonwealth claimed -- i.e., a women's restroom at the Kickstand Cafe showing women in a bathroom stall in a state of partial undress.⁷ See Mass. G. Evid. § 901(a) (2019) (“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is”). The evidence detailed above was more than sufficient to show the defendant's possession of and connection to the camera found in the flowerpot, as well as his possession of the wireless DVR device and the videos taken at the Kickstand Cafe. Witnesses identified the restroom depicted in the videos as the restroom at the Kickstand Cafe. The Commonwealth also established a proper chain of custody regarding the evidence seized at the cafe and from the defendant. Put simply, the Commonwealth presented sufficient evidence to authenticate the videos and the content therein.

The defendant also claims that the videos from the DVR device that depicted women in a restroom stall at a location other than the Kickstand Cafe were not authenticated and were unduly prejudicial. This argument is likewise unavailing. The videos were properly authenticated for the reasons delineated above. Even assuming, arguendo, that the videos should not have been admitted, we discern no harmful error or substantial risk of a miscarriage of justice in view of the overwhelming evidence of guilt and the clear limiting instruction provided by the judge in his jury instructions.

In short, appellate relief is not warranted in view of the overpowering evidence adduced at trial, the judge's careful instructions, and the proper steps taken by the Commonwealth to authenticate the videos.

Judgments affirmed.

FOOTNOTES

2.   The defendant was also indicted on one count of interception of an oral communication, G. L. c. 272, § 99. Before trial, a Superior Court judge allowed the defendant's motion to dismiss that count.

3.   At the police station, after receiving Miranda warnings, the defendant participated in a videotaped interview. He claimed, among other things, that he had found the flowerpot in the Arlington cemetery trash, and also found a small device that he had not used. A compact disk recording of the interview was played for the jury at trial.

4.   The videos displayed a default date stamp of January 2005. The defendant argued that the absence of an accurate date stamp, and the existence of the 2005 date stamp, undermined the reliability and sufficiency of the Commonwealth's proof.

5.   At trial, the defendant moved for a required finding of not guilty at the close of the Commonwealth's case. At that time the defendant argued that there was no evidence that the defendant “actually filmed these encounters in the bathroom,” but he did not argue or mention the “lack of knowledge or consent” issue now on appeal. We nonetheless review under the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

6.   The judge instructed the jury on consciousness of guilt. The defendant does not challenge that instruction on appeal.

7.   The parties dispute whether the defendant preserved the authentication issue for appellate review. Insofar as the judge properly admitted the videos into evidence, we need not decide the correct standard of review.