Opinion
20-P-1284
04-08-2022
COMMONWEALTH v. Robert BRIEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury found the defendant guilty of rape of a child aggravated by a more than five-year age difference, two counts of indecent assault and battery on a child under the age of fourteen, incest, and possession of child pornography. He now appeals, claiming that judges of the Superior Court erred in denying his motion to suppress evidence and his motion to sever the pornography possession charges. We affirm.
At the close of the Commonwealth's case, the judge entered a required finding of not guilty on a charge of disseminating material harmful to a minor. The jury found the defendant not guilty of a second count of rape aggravated by age difference.
Background. In July of 2012, the victim, who was six years old at the time, told a relative that her father was having sexual contact with her. The relative informed the victim's mother, the defendant's wife, who contacted the police. The victim provided more detail about the sexual abuse during a Sexual Abuse Intervention Network (SAIN) interview. In addition to disclosing various sex acts perpetrated by the defendant, she reported that he showed her pornographic videos on his computer.
Following the interview, the victim's mother told officers that she had confronted the defendant about the victim's claims. He acknowledged that the victim may have accidentally viewed pornographic videos on his computer. This information led police to visit the family's home, where the victim's mother showed them the shared family computer and signed a "Consent to Search" form allowing the seizure of the computer until police could secure a warrant.
Police interviewed the defendant later that same day. The defendant stated that the victim had watched him masturbate on multiple occasions, having sneaked up on him while he viewed pornography. He also acknowledged the likelihood of accidental sexual contact, though he denied purposefully engaging in sex acts.
Shortly after the interview, police arrested the defendant. On August 15, 2012, the police applied for a warrant to search the family computer as well as a "thumb drive and a PNY memory stick" for "any digital images, digital records, website history, website addresses stored, videos of adults engaged in sexual acts, [and] any and all evidence indicative of the crime(s) for which Robert [B]rien stands charged."
Police obtained the warrant, and their forensic investigator began a search of the computer. The investigator located a folder labeled "FrostWire" within a user account called "admin." Based on his training and experience, the investigator knew that FrostWire was a file sharing program that allows users to download and share videos. Within the FrostWire folder were two additional folders, one called "saved directory" and the other called "[i]ncomplete" directory.
The investigator began by examining the saved directory folder, where he noticed three video files with names characteristic of child pornography. The investigator opened one of the files to discern its contents. The video depicted child pornography. Next, the investigator opened the "incomplete" directory folder. There, he noticed that several of the sixty-eight files also had titles consistent with child pornography. Again, he opened one such file to ascertain its contents and confirmed that it depicted child pornography. At that point, the investigator halted his search so that police could obtain a new warrant to view the child pornography files. A magistrate promptly granted the warrant, and, after a second search of the computer files, a grand jury indicted the defendant on seven charges, including possession of child pornography.
The defendant filed a motion to suppress the child pornography obtained as a result of the searches. He also filed a motion to sever trial on the child pornography charges from the remainder of his case. Both motions were denied.
Discussion. 1. Motion to suppress. The defendant argues that all of the child pornography evidence obtained from the searches of his computer should be suppressed because the first warrant lacked particularity and the investigator exceeded its scope, thereby invalidating the second warrant.
The judge who ruled upon the motion to suppress (motion judge) determined that the first warrant was overbroad as it "did not specify the types of files within the defendant's computer, thumb drive and memory card that were subject to search," but that the evidence resulting from the search was nevertheless admissible since the warrant "properly authorized a search of any type of file that could reasonably contain the specific evidence sought," and because the investigator appropriately limited the scope of the search. The defendant challenges the latter part of this ruling.
The motion judge also denied the motion to suppress because the defendant filed it late and his supporting affidavits were inadequate.
Our review of whether an affidavit in support of a search warrant establishes probable cause is restricted to the "four corners" of the affidavit. Commonwealth v. O'Day, 440 Mass. 296, 297 (2003) ; Commonwealth v. Perez, 90 Mass. App. Ct. 548, 551 (2016). We review whether there was probable cause to issue a search warrant de novo, reading the warrant affidavit as a whole and "in a commonsense and realistic manner ... without overly parsing or severing it, or subjecting it to hypercritical analysis" (quotation and citation omitted). Commonwealth v. Perkins, 478 Mass. 97, 102 (2017). "An affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983).
A defendant may challenge a warrant lacking particularity as overbroad. Commonwealth v. Molina, 476 Mass. 388, 394 (2017). Our courts have urged police to use special caution when requesting a warrant to search an electronic device like a computer. See Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016). Such devices can properly be searched where there is "probable cause to believe they contain particularized evidence." Id. While officers must be "clear about what they are seeking on the device," the Supreme Judicial Court has recognized that "requiring a search warrant application to identify specific locations or files on [an electronic device] to be searched places an unrealistic burden on law enforcement and restricts legitimate search objectives." Commonwealth v. Henley, 488 Mass. 95, 119 (2021). "In most cases, at the time of the seizure, officers are unable to know where [the] information [is] located in the [device] or in what format" (quotation and citation omitted). Id. at 119-120.
Both the defendant's argument and the motion judge's ruling that the first warrant was overbroad rely heavily on the Dorelas decision. Setting aside that Dorelas issued more than three years after the police applied for the first warrant and therefore the police could not have known that more particularity may have been required, the Supreme Judicial Court subsequently "clarifi[ed]" the Dorelas holding when it declared in Henley that requiring police to identify specific locations where they expect to locate evidence on a computer is "impractical." See Henley, 488 Mass. at 119-120. In Henley, supra at 120, the Court approved the issuance of a warrant based on an affidavit in which the police identified eight categories of evidence without knowledge of the "precise identity or content of the evidence that would be found," and "without limiting where in the electronic contents of the cell phone the search would take place."
The motion judge considered the motion to suppress well before the Henley decision.
The Henley decision governs the result in this case and leads us to conclude that the first warrant was not overbroad for two reasons. First, police were sufficiently clear about the types of files they sought to locate when they indicated that the warrant was to "search [for] any digital images, digital records, website history, website addresses stored, [and] videos of adults engaged in sexual acts." See Henley, 488 Mass. at 119-120. And second, their failure to identify particular locations on the device to be searched was not fatal.
For this reason, we reject the defendant's argument that the affidavit was insufficient to authorize a search of the defendant's password-protected account.
The defendant also argues that the investigator exceeded the scope of the first warrant by opening files with labels that suggested they contained child pornography where the warrant permitted a search for "videos of adults engaged in sexual acts." "If the scope of the search exceeds that permitted by the terms of a validly issued warrant ... the subsequent seizure is unconstitutional without more." Commonwealth v. Balicki, 436 Mass. 1, 9 (2002), quoting Horton v. California, 496 U.S. 128, 140 (1990). Police did not exceed the scope of the first warrant here because, in addition to specifying that they could search for videos of adults engaged in sexual acts, the warrant also authorized a search for "any and all evidence indicative of the crime(s) for which [the defendant] stands charged." Child pornography falls cleanly within these boundaries, as the defendant was charged with disseminating material harmful to a minor.
Furthermore, the investigator only opened two out of several dozen files with titles indicative of child pornography for the sole purpose of confirming their contents. Once he did, the investigator terminated the search to obtain a new warrant. The police acted entirely reasonably and there were no constitutional violations. See Henley, 488 Mass. at 120 n.17 ("in a case where police do come across [digital] evidence inadvertently, but are within the scope of the search authorized by the warrant, the proper course is for police to stop their search and apply for another warrant"). See also Commonwealth v. Fernandes, 485 Mass. 172, 185-186 (2020) (pursuant to warrant authorizing search for "cameras," police seized camera, turned it on, and found images depicting murder; suppression not required where police then obtained second warrant before viewing pictures).
2. Joinder. The defendant also argues that the trial judge erred in declining to sever the child pornography charges from the other charges in the indictment because they were unrelated to the contact offenses and unduly prejudicial.
The trial judge found that all seven of the charges against the defendant were "based on the same criminal conduct and ar[ose] out of a series of criminal episodes connected together occurring within the same time frame and involving the same alleged victim." The judge further determined that evidence of the defendant's dissemination of harmful materials and possession of child pornography would be admissible at a separate trial on the rape and indecent assault and battery charges for "non-propensity issues [such] as the defendant's intent, motive, and to rebut the defendant's contention that the sexual conduct was accidental, a mistake, or initiated by the child." Because the child pornography charges were related and relevant to the remaining counts, the trial judge further found that the defendant failed to meet his burden to show that joinder would result in unfair prejudice.
We review a trial judge's decision on whether charges should be joined for an abuse of discretion. Commonwealth v. Aguiar, 78 Mass. App. Ct. 193, 199 (2010). "Failure to sever a trial is only an abuse of discretion when the prejudice from a joint trial deprives the defendant of a fair trial." Henley, 448 Mass. at 122-123.
"[T]o prevail on a claim of misjoinder, the defendant ‘bears the burden of demonstrating that the offenses were unrelated, and that prejudice from joinder was so compelling that it prevented him from obtaining a fair trial.’ " Commonwealth v. Pillai, 445 Mass. 175, 180 (2005), quoting Commonwealth v. Gaynor, 443 Mass. 245, 260 (2005). Offenses are related where they are "based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Mass. R. Crim. P. 9 (a) (1), 378 Mass. 859 (1979). "Factors a judge may consider in determining whether offenses are related include factual similarities and closeness in time and space" (citations omitted). Pillai, 445 Mass. at 180. As to the issue of prejudice, the inquiry "largely turns on whether evidence of the other offenses would be admissible in separate trials on each offense," keeping in mind that "evidence of other criminal conduct is inadmissible to prove the propensity of the defendant to commit the indicted offense" but may be admissible for another purpose, such as "to show a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive" (quotation and citation omitted). Commonwealth v. Elliott, 87 Mass. App. Ct. 520, 524 (2015).
Relevant here, conduct means "an act or omission to act." Commonwealth v. Jacobs, 52 Mass. App. Ct. 38, 40 (2001).
To establish prejudice, it is not enough for a defendant to show that his chances for acquittal would have been greater at separate trials. See Commonwealth v. Wilson, 427 Mass. 336, 346-347 (1998). Nor can he merely assert the loss of a potential defense. See Gaynor, 443 Mass. at 262.
We discern no abuse of discretion in the trial judge's determination that the offenses in this case were related, as they were close in time and space and shared factual similarities. The seven offenses occurred during the same period during the summer of 2012, involved illicit sex acts with children, and may have even involved the child victim, who reported that the defendant showed her pornography without specifying whether it depicted adults or children. It was not enough to "render joinder inappropriate" that some changes alleged contact and others did not, as "[t]here is no requirement that the circumstances of the case be identical." Gaynor, 443 Mass. at 261.
Likewise, the defendant has not met his burden to show undue prejudice resulting from the joinder. Were the offenses tried separately, the child pornography evidence would have been admissible for the non-propensity purposes of establishing intent and lack of accident, which were in dispute at trial as to the charges of indecent assault and battery on a child. The Commonwealth was required to prove that the defendant intended to commit the touching and that the touching was not accidental. See Jones v. Maloney, 74 Mass. App. Ct. 745, 748 (2009) ; Massachusetts Superior Court Criminal Practice Jury Instructions §§ 3.6, 5.9 (Mass. Cont. Legal Educ. 2018). The defendant also placed both intent and accident at issue when, in a recorded interview with police that was played to the jury, he maintained that certain sexual contact between himself and the victim was accidental. Under these circumstances, it was within the range of reasonable alternatives for the judge to find the other act evidence highly probative such that it would be admissible at separate trials. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). There was no abuse of discretion.
We are not persuaded by the defendant's suggestion that where other act evidence supports a non-propensity purpose but does so by way of a propensity-based inference, the evidence must be excluded. Although he cites several Federal court opinions, the defendant cites no Massachusetts cases to support this proposition.
This fact distinguishes the present case from others the defendant relies on where our courts found no such permissible non-propensity purpose, and, therefore, a high risk of prejudice. See Commonwealth v. McDonagh, 480 Mass. 131, 141-142 (2018) ; Commonwealth v. Crayton, 470 Mass. 228, 250-251 (2014).
Further evidencing the lack of prejudice is the defendant's acquittal on one of the charges of rape aggravated by age difference. See Commonwealth v. Hampton, 91 Mass. App. Ct. 852, 855 (2017) (acquittal of indecent assault and battery "indicate[d] that the jury parsed the evidence carefully and ‘suggest[ed] that [the evidence] did not have a prejudicial effect on the jury’ " [citation omitted]).
Judgments affirmed.