Opinion
No. 00-0528
Date: November 16, 2000 Corrected copy
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS
On March 30, 2000, the Suffolk County Grand Jury returned an indictment against the defendant charging him with one count of dissemination to a minor of matter harmful to minors in violation of G.L.c. 272, § 28, and two counts of knowingly possessing visual material depicting persons under the age of 18 who are engaged in sexual activity in violation of G.L.c. 272, § 29C. The defendant has filed a pretrial motion to dismiss the indictment on grounds that the evidence presented to the grand jury is not sufficient to establish probable cause to believe that he committed the crimes in question. See Commonwealth v. McCarthy, 385 Mass. 160 (1982). On October 25, 2000, a hearing was conducted on the defendant's motion.
By order of the Chief Justice of the Superior Court dated May 3, 2000, the case was transferred from Suffolk County to Middlesex County "for all purposes." Companion cases involving other defendants remain in Suffolk County.
BACKGROUND
The grand jurors heard testimony from Detective Sergeant Carl Borgioli of the Revere Police Department who recounted his review of a videotaped interview of Robert Zawaski, date of birth December 4, 1984. (Minutes of Proceedings before the Suffolk County Grand Jury, March 22, 2000 p. 3)(Hereafter, "GJ __"). He viewed the videotape at the District Attorney's office. (GJ 4). According to Sergeant Borgioli, Zawaski made contact with defendant Matthew Rubino, age 25, on January 29, 2000, by means of a "gay hotline telephone system," and met him in person several days later on February 4, 2000. (GJ 4-5). Defendant Rubino told Zawaski that he had to drop off "two pornographic tapes" at Gary Levin's house in Revere. Rubino asked Zawaski to accompany him, and the pair went to Levin's house. (GJ 5-6).
The grand jury minutes indicate that the videotape of the Zawaski interview was marked as an exhibit, but there is no indication that it was viewed by the grand jurors. GJ at 4. It was not made part of the record in the proceedings before me.
Gary Levin also stands indicted in Suffolk County for various charges arising out the same grand jury presentation.
Levin was at home when Zawaski and Rubino arrived. Levin took one of the videotapes brought by defendant Rubino and played seven or eight minutes of it. The three men — Levin, Rubino and Zawaski-watched a portion of one (and possibly portions of both) of the videotapes brought by Rubino. According to Levin's roommate, Rubino was supposed to bring over a couple of videotapes featuring a particular male "porno star." Levin then removed the first videotape (which Rubino had brought) and played a second videotape which was described by Sergeant Borgioli as "his (Levin's) own homemade tape."(GJ 6). Levin told Zawaski that there was someone on this second tape that he (Levin) wanted him to see. At some point, Levin paused at scenes depicting defendant Rubino "just kind of standing in the video; he wasn't doing anything pornographic." (GJ 23). Then Levin advanced the tape to other segments so Zawaski would see a male named John Catino who was 17 years old at the time the videotape was made. Levin said he could introduce Catino to Zawaski. Levin stopped and reset the tape player several times to move the tape to certain sections involving scenes depicting Catino. Among the scenes depicted on this second, so-called homemade tape were some in which Levin performed "oral sex" on John Catino. (GJ 6-7). During some of this time, defendant Rubino walked out onto Levin's balcony to have a cigarette. (GJ 24). Gary Levin's roommate, John Koherty, later told Sergeant Borgioli, that he arrived home that evening and found defendant Rubino, Levin, Zawaski and another male watching "a gay porno video." (GJ 20). He also stated that he was aware that defendant Rubino was "supposed to bring a couple of videos over" that evening. (GJ 20).
Detective Sergeant Borgioli testified that he viewed the two videotapes that were brought to Levin's apartment by Rubino (GJ 15). However, he did not inform the grand jury of what, if anything, he saw on those videotapes.
At some point during the playing of the second tape, Zawaski "got a little nervous" and signaled to defendant Rubino that he wanted to leave. However, before they left, Levin and Zawaski exchanged telephone numbers, and Levin offered to arrange for Zawaski to meet Catino. (GJ 7).
The next day, Zawaski called Rubino and asked him if he wished to "hang out together." Rubino picked him up and took him out to dinner. Later, the pair returned to Levin's apartment. They stayed only a few minutes before Rubino drove Zawaski home. (GJ 8). The next evening, Zawaski went to Levin's house. After watching the second of the two videotapes that defendant Rubino had dropped off a few days earlier, Zawaski and Catino had sex while Levin watched. (GJ 9). Zawaski stated that he told Levin that he was 17 years old. (GJ 12).
The defendant, Matthew Rubino, told Sergeant Borgioli, that he learned from Gary Levin that Robert Zawaski was only 15 years old and thereafter declined to see him again. (GJ 25-26).
Following a police investigation, a search warrant was executed at Levin's house. (GJ 13). The police seized a computer, a monitor, 28 floppy disks, still photographs, video tapes, and magazines. (GJ 13, 15-16). Most of the tapes and magazines depicted or pertained to "young boys." (GJ 13). Levin turned over the so-called homemade videotape referred to above, and Rubino later identified two of the tapes as those he had delivered to Levin on February 4, 2000. (GJ 14).
The so-called "homemade" videotape exhibited to Robert Zawaski by Gary Levin was marked as exhibit 2 before the grand jury. (GJ 14). The two tapes delivered to Gary Levin by defendant Rubino were marked exhibits 3 and 4 (one is marked "Muppet Movie" in handwriting and the other is titled "Young, Hard and Solo") (GJ 15). These items were marked as exhibits at the hearing on the defendant's Motion to Dismiss (exhibits 1,2 and 3, respectively).
Sergeant Borgioli testified further that some of the evidence seized from Gary Levin's house was turned over for analysis to Dr. Andrea Van Daven, a pediatrician at Children's Hospital in Boston. (GJ 16). She viewed portions of the two videotapes delivered by defendant Rubino to Levin on February 4 (exhibits 2 and 3 in this proceeding). As for exhibit 2 (the videotape marked "Muppet Movie"), she didn't look at the entire video, but she testified that the third subject she saw on the video was between 16 and 17 years old." (GJ 17). As for exhibit 3 (the videotape marked "Young, Hard and Solo"), "the first subject, number one, she believed was 16 years old. There were many subjects on these but she didn't view the whole tape." (GJ 18).
DISCUSSION
1. Standard of review. "Generally a court will not inquire into the competency or sufficiency of the evidence before the grand jury." Commonwealth v. Coonan, 428 Mass. 823, 825 (1999). An indictment may be based entirely on hearsay, Commonwealth v. St. Pierre, 377 Mass. 650, 654-655, (1979), at least so long as the hearsay is reasonably reliable. Id. at 656. In Commonwealth v. McCarthy, 385 Mass. 160 (1982), the Supreme Judicial Court recognized a narrow exception to that general rule by acknowledging that "at the very least the grand jury must hear sufficient evidence to establish the identity of the accused, and probable cause to arrest him. A grand jury finding of probable cause is necessary if indictments are to fulfil their traditional function as an effective protection `against unfounded criminal prosecutions.'" Id. at 163 (quotation omitted). Probable cause is based on "reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed . . . an offense." Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984), quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972).However, an indictment is not to be dismissed merely because "the evidence probably would not have been sufficient to overcome a motion for a required finding of not guilty at a trial." Commonwealth v. O'Dell, supra at 450. 2. Dissemination of matter harmful to minors. The defendant is charged in one count of the indictment with a violation of G.L.c. 272, § 28, in that he "disseminated to Robert Zawaski, a minor, matter harmful to minors," as defined in G.L.c. 272, § 31, "knowing it to be harmful to minors." See G.L.c. 272, § 28. The sole argument by the defendant is that the evidence presented to the grand jury was not sufficient to establish probable cause on the element of dissemination. The term "dissemination" is defined in G.L.c. 272, § 31 as "to import, publish, produce, print, manufacture, distribute, sell, lease, exhibit or display." In Commonwealth v. Lotten, 12 Mass. App. Ct. 625, 628 (1981), the Appeals Court had occasion to examine the meaning of this statutory definition in the context of a prosecution for possession of obscene material with the intent to disseminate it. The court stated that "[t]hese terms must be given their usual and accepted meaning so long as it is consistent with the statutory purpose. Webster's Third New International Dictionary 2105-2106 (1971) uses `show' as a synonym for `display' and defines `show' as `to cause or permit to be seen.' Black's Law Dictionary 514 (5th ed. 1979) defines `exhibit' as: `To show or display; to offer or present for inspection.'"
"This standard offers no sure mechanical guide for assessing sufficiency, but it has been employed primarily to strike down indictments in cases where a grand jury has heard no evidence identifying the defendant as the perpetrator of an offense or where the grand jury has heard no evidence whatever that would support an inference of the defendant's involvement. Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 3 37(2000) (citations omitted).
The evidence presented to the grand jury is sufficient to establish that the defendant went to Levin's home with the intention of exhibiting pornographic material to Zawaski, and that while at Levin's house he participated with Levin in exhibiting or displaying it to Zawaski. Rubino brought Zawaski to levin's apartment. He was present with Zawaski and others when the two videotapes he brought were handed over to Levin. He remained in the room while videotapes were displayed, including at least some sexually explicit material involving young men. It may be inferred that he watched at least some portions of these videos. The defendant was more than an onlooker who merely happens to be present when a crime is committed. See Commonwealth v. Soares, 377 Mass. 461, 470-72 (1979). In these circumstances, there is probable cause to believe that the defendant acted as a joint venturer in that he associated himself with criminal activity, and he participated in a significant way in the commission of a crime. Commonwealth v. Ortiz, 424 Mass. 853, 856 (1997). See Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 31, 36 n. 9 (2000) ("A joint venture exists when the defendant was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement is willing and available to help the other if necessary") (quotation omitted).
The mere fact that there is some evidence that suggests that the defendant's intention may have been simply to drop off the pornographic material at Gary Levin's house, see Defendant's Memorandum at 4, does not detract from the inference that can be drawn from other evidence, such as the statements attributed to Levin's roommate, John Koherty, as well as the defendant's conduct once he arrived at Levin's apartment, that he went to Levin's apartment intending to exhibit the videotapes to Zawarski.
3. Knowing possession of material containing depictions of a child under the age of 18 engaged in sexual activity. The defendant is charged in two counts of the indictment with violations of G.L.c. 272, § 29C in that he "knowingly possesses depictions by computer of children whom the person knows or reasonably should know to be under the age of eighteen years of age and such children are: actually or by simulation engaged in any act of sexual intercourse with any person; or actually or by simulation engaged in any act of masturbation; or, depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, public hair, buttocks . . . with knowledge of the nature or content thereof." See G.L.c. 272, § 29C. (A) Commonwealth must establish defendant's knowledge that actors were under the age of 18. In adopting G.L.c. 272, § 29C in 1997, the Legislature's goal was to prevent the sexual exploitation of children. For example, section 1 of St. 1997, c. 181, contains a declaration of legislative intent in which it is noted that there is a compelling governmental interest in preventing such exploitation, and it is declared that to accomplish this objective it is necessary to "ban the possession of any sexually exploitative materials" involving children. A similarly strong initiative has been undertaken at the federal level with the adoption of the Child Pornography And Prevention Act, 18 U.S.C. § 2252A which proscribes the knowing possession of visual images of minor children engaged in real or simulated sexual acts. See United States v. Hilton, 167 F.3d 61 (1st Cir. 1999). See also New York v. Ferber, 458 U.S. 747 (1982) (Child pornography, like obscenity, is not protected by the First Amendment, and the possession, use or sale of such material can be punished as a crime so long as it is adequately defined).
While not expressly raised by the parties, there is a variance between the terms of the indictment which charges possession of "depictions by computer" and the proof which relates specifically to two videotapes.
With regard to the indictment against defendant Rubino, the principal argument advanced by the defendant is that the Commonwealth did not present sufficient evidence to establish probable cause to believe that the defendant was knew or should have known that the videotapes in question involved actual or simulated sexual activity involving a child under the age of 18. Some criminal statutes in Massachusetts relating to the exploitation of children do not require proof that the defendant knew or should have known that the child was under a certain age. For example, in Commonwealth v. Montalvo, 50 Mass. App. Ct. 85 (2000), the Appeals Court held that a conviction of exploiting a minor to sell drugs in violation of G.L.c. 94C, § 32K, does not require proof that the defendant knew or should have known that the child used to sell drugs was under the age of eighteen. Other examples are the offenses of statutory rape in violation of G.L.c. 265, § 23, s ee Commonwealth v. Miller, 385 Mass. 521, 522 (1982), and indecent assault and battery on a child under the age of fourteen in violation of G.L.c. 265, § 13B. See Commonwealth v. Knapp, 412 Mass. 712, 714-15 (1992). In each of these case, the Legislature either avoided use of the word "knowingly" or positioned in the statute in such a way that it does not refer to the age of the child. In the case of G.L.c. 272, § 29C, on the other hand, a conviction requires proof that the defendant "knows or reasonably should know [the child] to be under the age of 18 years of age." See Commonwealth v. Montalvo, supra.
The charges against the defendant are based on his possession of two videotapes which were brought to Levin's apartment, viewed at least in part by the defendant, Levin, Zawaski and possibly others, and later seized by the police. The evidence offered to support the charges consists of the following: (1) background evidence about the defendant's interest in young males, including, in particular, pornography involving young males; (2) evidence that the defendant was present at Levin's house and watched a videotape of young males engaged in sexual activity (the so-called homemade videotape supplied by Levin); (3) the two videotapes which the defendant brought to Levin's apartment, including their titles; and (4) the opinion testimony by Dr. Van Daven. Also, it may even be inferred from all the facts and circumstances that the defendant was aware that some of the young males with whom he and Levin associated with and with whom he may have engaged in sexual relations with were under the age of 18.
(B) It should not be presumed that grand jurors viewed a videotape marked as an exhibit. The Commonwealth's contends that the court should assume that the grand jurors viewed the two videotapes and made their own judgment about what a reasonable person should know regarding the age of the actors, and that nothing more is required to establish probable cause. Commonwealth's Response to Defendant's Motion to Dismiss at 3 ("Grand Jurors were in a position to determine what a reasonable person should have known regarding the age of the actors"). However, the grand jury minutes do not indicate that the grand jurors viewed the contents of the videotapes. Unlike a book, a picture, or a map, or sundry other types of real or physical evidence, a videotape is not an object whose contents are readily discoverable by a simple inspection or examination. If the grand jury is to perform its historic role to safeguard "the innocent against hasty, malicious and oppressive public prosecutions" by insisting on a demonstration by the Commonwealth that there is probable cause to believe that the defendant committed a crime, Jones v. Robbins, 8 Gray 329, 344 (1857), it is necessary that the grand jurors assess and weigh the evidence presented to them. This is one of the reasons that a record is made of the testimony presented to the grand jury. See Superior Court Rule 63 (" Stenographic notes of all testimony given before any grand jury shall be taken by a court reporter. . . .") (emphasis added). At a minimum, the grand jury should have a copy of a transcript or summary of an audio or video tape exhibit, or a synopsis prepared by someone who is familiar with the original. See Commonwealth v. Angiulo, 415 Mass. 502, 513-14 (1993) (federal agent summarized transcripts of recorded conversations for the grand jurors). To simply offer into evidence exhibits that require special equipment to view or to understand without demonstrating that the grand jury made use of such equipment does not establish that the grands jurors did any more than examine or inspect the items by means of the unaided eye. (C) Specific knowledge of the age of the actors is not an inference that can be drawn from the titles of films. Alternatively, the Commonwealth argues that "the titles of the movies lead the viewer to believe that young actors will be in the movie." Commonwealth's Response to Defendant's Motion to Dismiss at 3. However, a fair assessment of the evidence leads to just the opposite conclusion. One film, exhibit 2 before the court, is contained in a nondescript videotape box and labeled "Muppet Movie oooo." The evidence before the grand jury certainly warrants, if not compels, an inference that this videotape consists of male, homosexual pornography, but there is nothing to suggest that the males depicted in that film are under the age of eighteen years of age. The second film, exhibit 3 before the court, is professionally titled "Young, Hard Solo #2," but also contains the following printed language on the label: "copyright 1994, Club 1821, Box 5282 Santa Monica, California, all models 18+." If there is an inference to be drawn from the labels, it is that the film does not include depictions of children under the age of 18. Contrast United States v. Knox, 32 F.3d 733, 754 (3d Cir. 1994). An inference to the contrary would be based on sheer speculation.
In the experience of this court, prosecutors have always taken the time to screen films and videotapes to the members of the grand jury when such material has been marked as an exhibit, and to ensure that the grand jury minutes clearly indicate that the contents of the exhibits were viewed by the grand jury. There is no reason to believe, as suggested by the prosecutor at oral argument, that the grand jury viewed the videotapes while "off the record." Moreover, this practice would violate the requirements of Superior Court Rule 63. "If matters could be presented off-the-record to a grand jury, prejudicial evidence could unfairly influence the grand jurors in a defendant's disfavor, or potentially exculpatory evidence could unfairly be kept from the defendant. Moreover, a defendant inevitably is at a disadvantage in attempting to show prejudice in such a situation as neither he nor his attorney is present at the grand jury proceedings, and the prosecutor, and possibly also the stenographer, are employees of the district attorney and have interests adverse to the defendant's." Commonwealth v. Carpenter, 22 Mass. App. Ct. 911, 913 (1986).
For this reason, the court did not view any of these films because the determination of the defendant's motion to dismiss must be based solely upon a consideration of the evidence presented to the grand jury.
(D) the opinion testimony of a pediatrician is sufficient to establish probable cause. The final category of evidence before the grand jury that could warrant a finding that the defendant knew or should have known that the films involve children under the age of eighteen is the testimony of the pediatrician that in her opinion some of the actors were 16 or 17 years of age.
In some cases, opinion evidence, like that expressed by Dr. Van Daven, was received as lay opinion evidence. See People v. Hirsch, 221 Ill. App.3d 772, 776 (Ill.App. 1991). See also United States v. Yazzie, 976 F.2d 1252, 1255-56 (9th Cir. 1992). However, this view is not in keeping with Massachusetts law. For example, one common use of lay opinion testimony is in circumstances in which the Commonwealth maintains that a partially obscured image in a photograph or videotape is that of the defendant, and a there is a witness who has special familiarity with the defendant. The opinion may be admissible if it is rationally based on the witness's perception, and if deemed helpful to the jury. See Proposed Mass. R. Evid. 701, quoted in Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 325 (2000). However, our cases indicate that it is essential that the witness relies on factors that ordinary people are capable of understanding. See Commonwealth v. Austin, 421 Mass. 357 (1995); Commonwealth v. Sturtivant, 117 Mass. 122 (1875). Moreover, when dealing with lay opinion testimony, the fact finder should be provided with the photograph, videotape or other image that forms the basis of the lay opinion to ensure that the opinion can be properly evaluated. See Commonwealth v. Pleas, supra at 329. In the present case, there is nothing in the record to suggest that the pediatrician was personally familiar with any of the young males in the two videotapes in question such that her opinion would qualify as lay opinion evidence.
The remaining alternative is to consider the testimony of the pediatrician as expert witness testimony. As a general proposition, the rules of evidence do not apply to grand jury proceedings. Commonwealth v. Gibson, 368 Mass. 518, 522-25 (1975). See also United States v. McKenzie, 678 F.2d 629, 632 (5th Cir.), rehearing den., 685 F.2d 1386, cert. den., 459 U.S. 1038; Rule 1101(b)(2) of the Proposed Massachusetts Rules of Evidence; Fed.R.Evid. 1101(d)(2). There are sound policy reasons for this rule relating to the character of the institution of the grand jury as a body of lay people, the potential for interminable delay, and the very modest burden of proof required to return an indictment. See Costello v. United States, 350 U.S. 359, 362 (1956). And, as noted above, an indictment may be based entirely on hearsay. Mass.R.Crim.P. 4(c). Nonetheless, there is a requirement that the quantum of evidence presented to the grand jury must be "reasonably trustworthy" and "sufficient to warrant a prudent man in believing that the defendant had committed . . . an offense." Commonwealth v. O'Dell, 392 Mass. 445 (1984), quoting Commonwealth v. Stevens, 362 Mass. 24, 26 (1972). See also Commonwealth v. LaVelle, 414 Mass. 146, 149-50 (1993). Mindful that the rules of evidence do not apply before the grand jury, and that the character of that institution would be dramatically altered if prosecutors had to submit expert opinion evidence to judges as gatekeepers prior to presenting it to the grand jury, I conclude that the testimony of Dr. Andrea Van Daven, identified as a "pediatrician" employed at "Children's Hospital," GJ 16, that she viewed at least portions of the two videotapes in question and was of the opinion that several young males who appear in the two videotapes are between sixteen and seventeen years of age, GJ 17-18, is "reasonably trustworthy" evidence that is sufficient, in the circumstances, to establish probable cause to believe that the defendant knew or reasonably knew that the young males were under the age of eighteen. See In the Matter of a Grand Jury Investigation, 427 Mass. 221, 225 (1998) (Probable cause does not require that the evidence be sufficient to meet the `more likely than not' standard).
In cases involving charges of possession or dissemination of child pornography, pediatricians have been permitted to testify at trial that young children were under a particular age or were of a particular age. See, e.g., United States v. Muick, 167 F.3d 1162, 1166 (7th Cir. 1999); United States v. Black, 116 F.3d 198, 200 (7th Cir. 1997); United States v. Hilton, 2000 WL 894679 *8 (D.Me. 2000). Moreover, in G.L.c. 272, § 29B, adopted in 1982 and most recently amended by St. 1988, c. 226, which criminalizes the dissemination of child pornography, the legislature provided that "the determination whether the child in any visual material prohibited hereunder is under eighteen years of age may be made by the personal testimony of such child, by the testimony of a person who produced, processed, published, printed or manufactured such visual material that the child was known to him to be under eighteen years of age, by testimony of a person who observed the visual material, or by expert medical testimony as to the age of the child based upon the child's physical appearance, by inspection of the visual material, or by any other method authorized by any general or special law or by any applicable rule of evidence." G.L.c. 272, § 29B(c) (emphasis added).
What is troubling about the testimony of Detective Sergeant Borgioli regarding the opinion of the pediatrician is not only that on the critical question of the defendant's knowledge the Commonwealth chooses to offer hearsay, but more importantly that there is a lack of foundation. For example, there is nothing in the record about the education, training, or experience of the pediatrician. There is no indication that the pediatrician has ever before expressed such an opinion. There is nothing in the record to indicate the basis for her opinion, and, in particular, about the significance of certain physical characteristics of young males that the pediatrician may have observed. See G.L.c. 272, § 29B(c). It would have been more appropriate for the prosecutor to have laid a foundation for the testimony of this expert by setting forth her qualifications and the basis for her opinion. Indeed, it is unclear whether her opinion is based on any particular medical or scientific theory.
While there are certainly many questions that would need to be addressed in order to establish the admissibility of the physician's testimony at trial, I believe that current law regarding the limited scope of judicial review of grand jury proceedings and the fact that our rules of evidence do not apply in such proceedings, see Commonwealth v. Gibson, supra, coupled with the modest standard of proof required to support a valid indictment require that the defendant's motion should be denied. If a more demanding standard should be applied to the evidence presented to the grand jury, it should be the result of a change in the law adopted by the Supreme Judicial Court or the Legislature.
This result is based solely on the record of the evidence presented to the grand jury. I have not relied on the affidavit submitted by the defendant of Dr. Norman P. Spack, who identifies himself as a physician and endocrinologist with an expertise in the field of male puberty, and who asserts that after reviewing the videotapes, none of the actors could be conclusively determined to be under the age of 18.
ORDER
For the above reasons, the defendant's motion to dismiss is DENIED.
______________________________ Peter W. Agnes, Jr. Justice of the Superior Court
Date: November 16, 2000