COMMONWEALTH v. NASH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury convicted the defendant of two charges of rape, one charge of indecent assault and battery on a person over the age of fourteen, and one charge of secretly recording a nude person. The defendant appeals, challenging the denial of his motions to suppress, the sufficiency of the evidence supporting the charge of secretly recording a nude person, the exclusion of certain evidence about the victim, the use of a 911 call to impeach a defense witness, numerous jury instructions, and the imposition of GPS monitoring as a condition of the defendant's probation. We affirm the defendant's convictions but remand for a hearing on the GPS monitoring condition of probation.

Background. In January 2014 the victim attended a party at the home of her sister and the defendant (the sister's fiancé). The victim became intoxicated and was put to bed in a bedroom. Sometime later, the defendant entered the bedroom, pulled down the victim's pants and underwear, and inserted his fingers in her vagina and anus, all while she was sleeping. When she woke up, still “very intoxicated,” the defendant was standing over her, holding a cell phone as if he was “scanning” her with it.²

Discussion. Motions to suppress. 1. Cell phone evidence. We summarize the judge's factual findings, supplemented with facts drawn from testimony that the judge credited and from the documentary evidence. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018) (Tremblay I); Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 88 (2010).

Around 7 a.m., the morning after the party, police responded to the home of the victim's mother where the victim, her sister, and her mother were present. The victim reported that the defendant sexually assaulted her. She then went to the police station where she met with a detective at around 7:20 a.m. She told the detective that the assault occurred the prior night or in the early morning during a party at the home shared by her sister and the defendant. She further stated that she saw the defendant holding a cell phone during the assault as if he were making a recording.

Two officers traveled directly from the mother's house to the defendant's house to investigate. Several people were present, including the defendant. The officers “froz[e] the scene” and told the occupants that they needed their cell phones. The occupants placed their phones on a table.

Another officer arrived at the house and spoke with the defendant, who identified one of the phones as his. The officer asked the defendant to fill out a form labeled “CONSENT TO SEARCH” that authorized police to take the phone “and search it or send it to another agency to be searched.” The officer gave the defendant an opportunity to read the form, which advised the defendant of his right to refuse to consent. The defendant signed the form. His phone was then placed in a bag and taken to the police station, where it remained in a locked evidence room until police applied for a search warrant eleven days later.

The motion judge concluded that the search of the defendant's phone was justified both by the defendant's consent and a valid search warrant and therefore denied his motions to suppress the evidence extracted from the phone. The defendant claims that this was error because his consent was tainted by the prior warrantless seizure, the retention of his phone for eleven days exceeded the scope of his consent, and the search warrant lacked probable cause. In reviewing the judge's decision, “ ‘we accept the judge's subsidiary findings of fact absent clear error,’ but ‘independently review the judge's ultimate findings and conclusions of law.’ ” Commonwealth v. Jewett, 471 Mass. 624, 628 (2015), quoting Commonwealth v. Tyree, 455 Mass. 676, 682 (2010). We discern no error.

First, we agree with the judge that the defendant “freely and voluntarily” consented to the retention and search of his phone. Commonwealth v. Colon, 482 Mass. 162, 185 (2019). An officer testified that the defendant appeared calm and cooperative that morning. The consent form signed by the defendant informed him of his right to refuse to consent, and there was no suggestion that the officers tricked or coerced the defendant into signing. See id.

Contrary to the defendant's contention, his consent was not tainted by the initial warrantless seizure of the phone because, as the judge found and we agree, the seizure was justified by probable cause and exigent circumstances. “ ‘With probable cause, the police may seize property to prevent destruction or removal of evidence’ before obtaining a search warrant.” Commonwealth v. Cruzado, 480 Mass. 275, 283 (2018), quoting Commonwealth v. Gentile, 437 Mass. 569, 573 (2002). Here, the police had probable cause to seize the phone because the victim reported that the defendant assaulted her and appeared to be recording the assault with a phone. See Commonwealth v. Dorelas, 473 Mass. 496, 498 (2016). And combined with probable cause, exigent circumstances justified the seizure. Just hours after the party, the victim told the police about the assault and a possible cell phone recording. That same morning the police arrived at the defendant's house and discovered that apparent partygoers, including the defendant, were still there. In these circumstances it was reasonable for the police to freeze the scene and seize the defendant's phone without a warrant, based on the potential for tampering or destruction of evidence. See Commonwealth v. Parker, 481 Mass. 69, 73 (2018); Cruzado, supra. The seizure was thus lawful and did not taint the defendant's later consent to search.

Second, although a seizure that is “reasonable at its inception ․ ‘may become unreasonable as a result of its duration,’ ” the police's retention of the phone for eleven days until they obtained a search warrant was reasonable and did not exceed the scope of the defendant's consent. Commonwealth v. White, 475 Mass. 583, 593 (2016), quoting Segura v. United States, 468 U.S. 796, 812 (1984). The judge found that the eleven-day delay was a result of the detective's schedule and adherence to other police duties. Cf. White, supra at 595 (no evidence “that the detectives' responsibility for other cases prevented them from working on this one”). There was no time limit on the consent form that the defendant signed, and there was no evidence that he made any statements limiting his consent, temporally or otherwise. Nor was there evidence that the defendant contacted police to ask about his phone or to rescind his consent. See Commonwealth v. Cantalupo, 380 Mass. 173, 178-179 (1980); Farnsworth, 76 Mass. App. Ct. at 94. On these facts the continued seizure over eleven days was reasonable.³

Third, the search warrant was supported by probable cause. Our probable cause determination “always begins and ends with the four corners of the affidavit” (citation and quotation omitted). Commonwealth v. Anthony, 451 Mass. 59, 68 (2008). Here, the affidavit stated that the victim spoke to police, identified the defendant (whom she had known for over ten years) as the person who sexually assaulted her, and reported that she saw the defendant holding a cell phone as if he were recording her. These statements established probable cause that the phone was “related to the criminal activity under investigation” and likely contained evidence of the assaults. Id., quoting Commonwealth v. Walker, 438 Mass. 246, 249 (2002). Although the defendant claims that the victim's veracity and reliability were inadequate under Aguilar-Spinelli,⁴ “the victim was more than a named informant -- she was the victim of the alleged crime.” Commonwealth v. Zorn, 66 Mass. App. Ct. 228, 234 (2006) (“A victim of a crime presumptively satisfies the veracity prong”). The judge thus did not err by denying the defendant's motions to suppress the cell phone evidence.

2. Statements. The defendant also argues that the judge erred by denying his motion to suppress statements that he made during an interview at the police station. For a defendant's statements to be admissible, due process requires that they “be voluntarily made, as a product of rational intellect and free will, and not as a result of ‘inquisitorial activity’ by the government such as coercion or threats.” Commonwealth v. Hoose, 467 Mass. 395, 403 (2014), quoting Commonwealth v. Walker, 466 Mass. 268, 277 (2013). Once the defendant sufficiently raises a voluntariness issue, the burden shifts to the Commonwealth to “prove beyond a reasonable doubt that ‘in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was [not] overborne,’ but rather that the statement was ‘the result of a free and voluntary act.” Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010).

Considering the totality of circumstances, and based on our de novo review of the interview video, see Tremblay I, 480 Mass. at 654-655, we conclude that the defendant's will was not overborne. The defendant, then twenty-eight years old, was not handcuffed during the approximately forty-minute interview. He was “sober, alert, oriented, and lucid.” Durand, supra at 597. He spoke clearly and articulately, and there is no suggestion that he was under the influence of alcohol or drugs or of insufficient intelligence to understand his actions.

The conduct of the police, which is just one factor in the analysis, does not demonstrate involuntariness. See Commonwealth v. Tremblay, 460 Mass. 199, 208-209 (2011). Although the defendant takes issue with comments about the forensic examiner's ability to recover deleted files, he has not shown that these comments were false, misleading, or otherwise improper. Moreover, one officer's comment that “now's the time [to speak]” was not equivalent to the “now or never” tactic condemned in Commonwealth v. Novo, 442 Mass. 262 (2004). Unlike in Novo, the officer did not imply that, by not speaking, the defendant would lose his chance to testify before a jury; rather, the officer encouraged the defendant to tell his side of the story, “suggesting broadly that it would be ‘better’ ” for him to tell the truth, which was permissible. Commonwealth v. Raymond, 424 Mass. 382, 395-396 (1997), quoting Commonwealth v. Meehan, 377 Mass. 552, 564 (1979). Finally, while the officers may have engaged in some minimization of the crime (by suggesting that the victim may have consented and that as “guys” they could understand a “moment of weakness”), these comments did not cause the defendant's will to be overborne. See Commonwealth v. Gallett, 481 Mass. 662, 671 (2019); Commonwealth v. Mazariego, 474 Mass. 42, 54 (2016). Instead, as the interview video demonstrates, the defendant made a measured decision to speak and was not “at the mercy of the interrogating officers.” Durand, 457 Mass. at 597.⁵

Sufficiency of the evidence. The defendant argues that there was insufficient evidence of his intent to secretly conduct or hide his video recording activity to support his conviction under G. L. c. 272, § 105 (b). We disagree. The videos extracted from the defendant's phone and played for the jury depict the victim as not conscious or not awake during the assaults. The victim testified that she was asleep during the recordings and was not aware that they were being made. At one point the victim appears to be nonresponsive to a voice that the jury could have found was the defendant's. Though she may have awoken briefly, the jury still could have found that the victim was asleep for some of the recording. Furthermore, the defendant displayed consciousness of guilt when he later deleted the videos from his phone, which he admitted to police. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Ayala, 481 Mass. 46, 51 (2018), this evidence was sufficient to permit the jury to find that the defendant intended to secretly conduct or hide his videotaping activity.

Exclusion of evidence about the victim. The defendant challenges the exclusion of four categories of evidence.

First, the defendant contends that the trial judge erred by excluding evidence that the victim previously feigned unconsciousness while her child cried. As the judge determined, the defendant offered the evidence to show that the victim “ha[d] a history of feigning unconsciousness to serve selfish purposes,” such as avoiding parental responsibility, and therefore should be considered more likely to have feigned unconsciousness in this case “to avoid sexual responsibility.” The judge concluded that this was an impermissible offering of prior bad act evidence to show bad character or untruthfulness. This ruling was well within the judge's discretion. See Commonwealth v. Lopes, 478 Mass. 593, 606 (2018); Commonwealth v. Bonds, 445 Mass. 821, 829 (2006).

Second, the defendant argues that the judge erred by excluding evidence that the victim previously made a false rape allegation. “In general, evidence of prior false allegations has been excluded as a consequence of the rule that evidence of prior bad acts may not be used to impeach a witness's credibility.” Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979). A “narrow exception” to this rule was set forth in Commonwealth v. Bohannon, 376 Mass. 90, 94-95 (1978), S.C., 385 Mass. 733 (1982). Commonwealth v. Talbot, 444 Mass. 586, 590 (2005). See Commonwealth v. LaVelle, 414 Mass. 146, 151 (1993) (discussing “special circumstances” of Bohannon). In determining whether this narrow exception applies, we have looked to whether there was a pattern of false allegations of the same crime, see id. at 152 n.4; Commonwealth v. Hicks, 23 Mass. App. Ct. 487, 490 (1987), and whether there was temporal proximity between the false allegation and the allegation at issue. See Commonwealth v. Wise, 39 Mass. App. Ct. 922, 922 (1995). Here, the victim's single prior rape allegation occurred in 2003 -- eleven years before she reported that the defendant assaulted her. Given the lack of both a pattern of false allegations and temporal proximity, the judge did not abuse his discretion in excluding the evidence. See Talbot, supra at 591 (judge did not err by excluding prior allegation where “the necessary ‘crying wolf’ pattern to the allegations” was not established).

Third, the defendant claims that the judge improperly excluded evidence that the victim kissed a woman during the party. Subject to exceptions not at issue here, evidence that a victim engaged in sexual behavior with persons other than the defendant is inadmissible in a criminal case involving alleged sexual misconduct. See G. L. c. 233, § 21B; Commonwealth v. Blair, 21 Mass. App. Ct. 625, 627 n.3 (1986); Mass. G. Evid. § 412 (2020). It was thus proper for the judge to exclude evidence of the victim's behavior towards others at the party.⁶

Last, the defendant argues that the judge erred by excluding the factual details underlying criminal charges against the victim. Because the defendant did not object at trial, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. DiGiacomo, 57 Mass. App. Ct. 312, 323 (2003). We discern no such risk where the judge allowed the defendant to elicit evidence of the nature of the charges -- specifically, that the victim was currently serving a committed sentence for heroin possession and that she had “open cases” of resisting arrest, heroin possession, and withholding evidence from a criminal proceeding. No substantial risk of a miscarriage of justice resulted from the exclusion of additional facts underlying the charges.

Impeachment of witness with 911 call. The victim's sister testified for the defense that the victim was calm at their mother's house the morning after the party and only began crying once police arrived. The Commonwealth sought to impeach the sister on this point by playing a recording of a 911 call placed by the victim's mother, during which the victim can be heard yelling and crying in the background. The trial judge permitted the Commonwealth to do so over the defendant's objection. The defendant raises several challenges to this ruling but primarily argues that allowing the jury to hear statements of the victim's mother violated his confrontation rights.

The record suggests that the judge intended to limit the playing of the 911 call to those portions where the victim's mother states her name and then where the victim can be heard yelling and crying in the background. If the audio was limited to those portions, we conclude that the judge did not abuse his discretion. The 911 call impeached the sister on a collateral matter, and the judge gave a proper limiting instruction as to the jury's use of the impeachment evidence. See Commonwealth v. Ferguson, 425 Mass. 349, 355 (1997) (“A judge, in his discretion, may permit impeachment by extrinsic evidence on collateral matters”); Commonwealth v. Balboni, 89 Mass. App. Ct. 651, 662 (2016) (no error in allowing use of extrinsic evidence for impeachment purposes).⁷

Although the defendant claims that additional statements were audible to the jury, we are unable to determine on this record what, if any, additional statements the jury heard.⁸ We thus cannot assess whether there was error or resulting prejudice. The appropriate vehicle for any other claims based on the playing of the 911 call is a motion for a new trial.

Jury instructions. Pointing to numerous aspects of the jury charge, the defendant argues that they lessened the Commonwealth's burden of proof and warrant reversal. His main contention is that the trial judge, while instructing the jury on impairment and incapacity to consent, erred by stating: “In this case, there has been evidence that the complainant had consumed drugs and/or alcohol, and was unconscious at the time of the alleged rape.” This was an accurate statement because there was, in fact, evidence presented that the victim was intoxicated and not conscious or awake during the assault. Even assuming error, however, no substantial risk of a miscarriage of justice resulted.⁹ Both before and after the statement, the judge instructed at length that the Commonwealth had the burden of proving lack of consent. The judge also instructed that the jury “alone [were] going to determine the overall weight, effect, and value of the evidence.” We presume that the jury followed these instructions. See Commonwealth v. Kirker, 441 Mass. 226, 230 (2004).

We have reviewed the remainder of the defendant's numerous challenges (many of which are argued summarily and were not preserved at trial) and the entirety of the jury charge. Based on our review, we conclude that the defendant's other claims are also without merit. The totality of the instructions correctly conveyed the Commonwealth's burden of proof, and nothing therein warrants reversal of the defendant's convictions.

Probation condition. The defendant argues, relying on Commonwealth v. Feliz, 481 Mass. 689 (2019), that imposition of GPS monitoring as part of his probation is unconstitutional as applied to him and requests that we either vacate that part of his sentence or remand for a hearing. The Supreme Judicial Court held in Feliz that, based on art. 14 of the Massachusetts Declaration of Rights, a judge must make an “individualized determination of reasonableness” before imposing GPS monitoring under G. L. c. 265, § 47. Feliz, supra at 690-691. Here, the record does not show that the judge -- who did not have the benefit of Feliz -- made that individualized determination. The Commonwealth agrees with the defendant that this matter should therefore be remanded for a hearing under Feliz. As we also agree, we affirm the defendant's convictions but remand for a hearing on the GPS monitoring probation condition.

So ordered.

Convictions affirmed.

Case remanded for further proceedings.

FOOTNOTES

2.   Video recordings extracted from the defendant's cell phone were introduced in evidence and played for the jury.

3.   In so concluding, we do not suggest that the presence of consent gives the police license to hold onto a person's property for an indefinite amount of time. The touchstone is reasonableness. See Cantalupo, 380 Mass. at 178-179.

4.   See Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).

5.   To the extent the defendant argues that he did not voluntarily waive his Miranda rights, his argument fails for the same reasons, even assuming he was in custody.

6.   The redaction error identified by the defendant does not alter our conclusion. The error was cured by the judge's instruction to the jury not to consider sexual or flirtatious actions of the victim towards people other than the defendant.

7.   To the extent the defendant independently challenges the Commonwealth's closing argument, we conclude that the closing was properly grounded in the evidence.

8.   The recording of the 911 call was not entered in evidence. We allowed the defendant's motion, made after oral argument, to expand the appellate record to include the “For the Record” recording of the relevant portion of the trial. After listening to that recording, we are still unable to ascertain what the jury heard.

9.   The defendant did not object to the instruction.