Opinion
13-P-315
01-12-2015
COMMONWEALTH v. DANN SHANK.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Dann Shank, was convicted on two counts of statutory rape, pursuant to G. L. c. 265, § 23, to wit: (1) finger in child's genital opening, and (2) penis in child's mouth. The defendant's stepfather, Robert Grice, was tried jointly with the defendant, and was found guilty on different charges relating to the same underlying incident, including rape of a child. Prior to trial, Grice filed a motion to suppress evidence, specifically a toolbox and its contents, which were seized from the home Grice shared with the defendant. The defendant joined this motion, which was denied. On appeal, the defendant argues that (1) the motion judge improperly denied the joint motion to suppress; (2) the trial judge abused her discretion in admitting the toolbox and its contents in evidence in addition to multiple photographs of them; and (3) the prosecutor's improper closing argument resulted in a substantial risk of a miscarriage of justice. We affirm.
1. Motion to suppress. The affidavit supporting an application for a search warrant "must contain sufficient information to allow an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that the items reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Wilson, 427 Mass. 336, 342 (1998). See Commonwealth v. Almonte, 465 Mass. 224, 233 (2013). The defendant argues that the motion judge improperly denied the motion to suppress the toolbox and the items contained therein, as the warrant's supporting affidavit failed to establish that the items could be reasonably expected to be found at the defendant's home when the warrant was executed. The defendant specifically points to the timeliness of the information in the affidavit, the nature of the items seized, and the fact that Grice had been removed from the home a month prior to the warrant's execution.
Our inquiry as to the sufficiency of the search warrant application must begin and end within the "four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). See Commonwealth v. Thevenin, 82 Mass. App. Ct. 822, 825 (2012). The affidavit must be examined as a whole and interpreted in a commonsense fashion. See Commonwealth v. Scanlon, 9 Mass. App. Ct. 173, 179 (1980); Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). We give considerable deference to the magistrate's determination, and the resolution of doubtful or marginal cases is largely determined by the preference our courts accord to warrants. Thevenin, 82 Mass. App. Ct. at 825.
The information that served as the basis of the supporting affidavit, the victim's observation of the toolbox and its contents during the incident, stemmed from a video recording of a Sexual Abuse Intervention Network interview that was conducted at least nine months after the date of the alleged offense. Though "it is a necessary element that the observations recited in a supporting affidavit be reasonably contemporaneous with the time of the application," Commonwealth v. Javier, 32 Mass. App. Ct. 988, 988 (1992), the timeliness of the supporting information "must be 'determined by the circumstances of each case.'" Commonwealth v. Cruz, 430 Mass. 838, 843 (2000), quoting from Sgro v. United States, 287 U.S. 206, 210 (1932). Many additional factors are properly considered in analysis of the supporting affidavit, including the durability and utility of the items sought, Wilson, 427 Mass. at 343, and whether the items in question are "inherently incriminating to possess." Commonwealth v. James, 424 Mass. 770, 778 (1997). See Commonwealth v. Blye, 5 Mass. App. Ct. 817, 818 (1977).
Application of these factors distinguish the toolbox and the sex toys contained therein from drugs. The fact that these items are not inherently consumable or criminal relaxes the timeliness standard. See James, 424 Mass. at 778 (knives, sneakers, dark clothing, and face masks not inherently criminal); Blye, 5 Mass. App. Ct. at 817 (chain saws not inherently criminal); Commonwealth v. Malone, 24 Mass. App. Ct. 70, 73 (1987) (describing drugs as "readily disposable commodity"). Moreover, as the affidavit in this case points out, "people who have a sex toy collection typically keep it for a long time and replenish it when needed," which suggests that these items may be more properly analogized to child pornography when it comes to the question of how long said items are likely to remain in a person's possession. See and compare Commonwealth v. Kenney, 449 Mass. 840, 845-847 (2007); Commonwealth v. Anthony, 451 Mass. 59, 70-71 (2008).
These factors, in conjunction with the principle that a warrant application need not "exclude any and all possibility that the [sought after] items might be found elsewhere," Commonwealth v. Escalera, 462 Mass. 636, 646 (2012), outweigh any concerns raised by the defendant's argument. Thus, we conclude that the warrant was supported by probable cause and that the motion to suppress was properly denied.
2. Admission of toolbox. The defendant objects to the admission of the toolbox evidence, contending that its probative value was substantially outweighed by its prejudicial effect. Commonwealth v. Bonds, 445 Mass. 821, 831 (2006) ("trial judge to exercise discretion in admitting only relevant evidence whose probative value is not substantially outweighed by its prejudicial or cumulative nature"). We conclude that although the toolbox evidence was admissible as highly relevant and corroborative, and strongly substantiated the credibility of the victim, the amount of toolbox evidence introduced was excessive.
Defense counsel for Grice submitted a motion in limine prior to trial "to preclude the Commonwealth . . . from introducing in evidence . . . the contents of [the] tool box." The defendant's counsel joined in the motion. After the motion was denied, counsel for Grice periodically renewed this general objection based on the motion in limine but did not specifically object to most of the evidence discussed below, even though he "under[stood] from the case law, that in general a blanket on-going objection is not acceptable on an appeal," and was warned by the trial judge that he was acting at his "peril." The defendant does not appear to have joined in this general objection. Where there were objections from either defense counsel, we will, however, note them.
At trial, evidence regarding the toolbox came in through the victim and Officer Mattson, the officer who had applied for and executed the search warrant. The victim first described the toolbox, including its removable tray, and stated that it contained "a lot of sex toys." The victim further testified that during the incident Grice presented her with a "silver bullet" vibrator, and she was shown a bottle of blue, flavored lubricant and asked to taste it. Most importantly, she described the lubricant as being used by Grice during the commission of her rape. Grice also removed a condom from the toolbox, which he gave to the defendant.
We conclude that the toolbox, sex toys, and lubricant provided important corroborative evidence and was therefore admissible. The defense was based on attacking the victim's credibility and denying that any sexual touching occurred. The toolbox, sex toys, and lubricant corroborated the victim's detailed account -- particularly in light of defense testimony that the toolbox was kept locked in Grice's bedroom, that no one besides Grice and his wife knew the combination to the lock, and that other members of the household knew they were not allowed to go inside the toolbox. The amount of detail regarding the toolbox, however, presents a separate question.
Without objection, the Commonwealth introduced photographic evidence of the toolbox and its contents, including two photographs depicting the top tray of the toolbox and a photograph of the contents on the bottom of the toolbox. Among other things these photographs showed the silver bullet vibrator and some lubricants. During Officer Mattson's testimony, the toolbox itself was also apparently introduced. Defense counsel for Grice and the defendant both objected to the admission in evidence of the toolbox. The objection was overruled. Mattson thereafter described opening the toolbox and observing, on the top tray, a pink velvet bag, a darker velvet bag, a solar vibrator, lubricant, the silver bullet vibrator, and a "pink piece" sex toy inside a bag. There were no specific objections to this testimony or to Officer Mattson's recounting of removing the top tray and locating several additional sex toys underneath, which she described as taking up the majority of the space in the box. After this evidence had been admitted, the trial judge expressed a desire to limit "whatever prejudice" could result from "the defendant or somebody having all this garbage." She stated that she would allow testimony regarding individual items identified by the victim, but told the prosecutor and defense counsel that other items should be discussed as a group. Thereafter counsel for Grice stated that he "objects to the officer's characterizations or observations of the materials in the tool box. If they're going to be published to the jury, the jury can independently observe them and make their own determination." He further stated that he "want[s] to put on the record that there is an on-going objection to each and every one of them." The defendant's counsel did not join in this objection.
Defense counsel for both Grice and the defendant expressly stated that they had no objection to the photographs.
The transcript on this point as well as others is not always clear.
After Grice's counsel's general objection, Mattson made the following observations of the toolbox's contents, again without specific objection from either counsel:
Q. "And how did these various items appear to you when you made observations of them in the box?"The prosecutor characterized Mattson's description of the toolbox's contents as "dirty and used" during closing argument.
A. "They appeared to have been used."
Q. "And what makes you think that?"
A. "They weren't packed. There was dirt and stuff that was located on the different toys."
Q. "Did you make any other observations of various materials that may have been on the items?"
A. "There appeared to be some hair as well on some of the items."
Mattson finally described, without objection, seizing a bottle of blue, flavored lubricant, which she identified from its label as "screaming orgasm love liquor for the frisky." The lubricant was found on the headboard in the bedroom, not in the toolbox.
We conclude that the Commonwealth was entitled to present the photographs of the toolbox, the silver bullet vibrator, and the bottle of blue lubricant, and sufficient testimony regarding them to corroborate the victim's testimony. However, the introduction of some of the additional toolbox evidence and testimony was error as it was excessive, unnecessary, and of little probative value. Cf. Commonwealth v. King, 387 Mass. 464, 475 (1982) (admission of testimony regarding a vibrator found in a box of sexual paraphernalia belonging to defendant was not error, although court noted that none of the sexual paraphernalia was admitted in evidence or displayed to the jury); Commonwealth v. Halsey, 41 Mass. App. Ct. 200, 203-204 (1996) (while upholding admission of testimony regarding sexually explicit images, court emphasized that trial judge had offered detailed limiting instructions); Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56, 61 (2005) (admission of large quantity of pornography, much of which was not shown to complainant, and permitting explicit discussion of it, as well as substantial portion to be published to jury, was an abuse of discretion); Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 765-769 (2007) (holding that pornographic magazines and photographs of nude adult men and women engaged in sexual activity found in defendant's possession were properly admitted to establish defendant's voyeuristic interest in sexual matters but lubricant, knife, rope, and duct tape were erroneously admitted in evidence; there was no prejudice from erroneous admission).
Because we conclude that the admission of an excessive amount of the toolbox and sex toy evidence was error, we are confronted with evaluating the prejudicial effect of this evidence, and determining whether there were any proper objections to the evidence that should have been excluded. As an initial matter, we conclude that the motion in limine and a general ongoing objection to the toolbox evidence was improper, as specific objections were required. This was especially necessary here because the toolbox evidence was not an all or nothing proposition: some of the toolbox evidence presented was clearly admissible and some should have been excluded, had proper objections been made. In particular there was no need for Mattson to describe the individual sex toys in the toolbox not identified by the victim nor to include the description of the sex toys as having dirt and hair on them. There was, however, no specific objection to this evidence so we review its admission only to discern if there was a substantial risk of a miscarriage of justice.
As far as we can tell from the record before us, the defendant's counsel did not join in the general ongoing objection.
In undertaking this analysis, we must separate the prejudicial effect of the admissible from the inadmissible toolbox evidence. As explained above, evidence establishing the existence of the toolbox, the silver bullet vibrator, and the bottle of blue lubricant (which the jury could have found to have been used as an instrumentality of the crime), was all highly probative and properly admitted and considered by the jury. This evidence, we recognize, would likely have had a powerful effect on the jury, as it provided dramatic proof that Grice and the defendant presented sex toys to the fourteen year old victim and then sexually assaulted her.
That other sex toys were in the box and were described by Mattson as having dirt and hair on them was, we believe, gratuitous. Had specific objections been made it would have behooved the trial judge to strike the testimony. Nonetheless, we are unpersuaded that the incremental effect of this evidence created a substantial risk of a miscarriage of justice. We do not believe the additional sex toy evidence would have prejudiced the jury's critical analysis of the credibility of the victim, which had already been strongly corroborated by the admissible sex toy evidence.
Moreover, any prejudice resulting from the erroneous admission of evidence may have been limited by defense counsel's use of that evidence. Commonwealth v. Munoz, 461 Mass. 126, 140 (2011). In the instant case, both the defendant's and Grice's counsel made use of the toolbox evidence to highlight inconsistencies in the victim's testimony regarding the presence of handcuffs, which were ultimately not found by the police. In this way, the evidence supported the defendant's challenges to the Commonwealth's case. Given these considerations, we conclude that the error did not give rise to a substantial risk of a miscarriage of justice.
3. Prosecutor's closing argument. Lastly, the defendant argues that the prosecutor used her closing argument to improperly liken the victim to a sex toy and to imply that the defendant had a duty to protect the victim from Grice. The defendant did not object to these comments at trial. As such, we review the defendant's "claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice." Commonwealth v. Shanley, 455 Mass. 752, 773 (2010).
The prosecutor's comment that the defendant and Grice wanted to and did in fact use the victim "as the ultimate sex toy" was "hyperbole," and we do not consider it grounds for reversal. Commonwea1th v. Silva, 455 Mass. 503, 515 (2009), quoting from Wilson, 427 Mass. at 350. The prosecutor was marshaling the evidence and suggesting inferences that the jury might reasonably draw from it. Silva, supra at 516. Furthermore, "[a] certain measure of jury sophistication in sorting out excessive claims on both sides fairly may be assumed." Commonwealth v. Kozec, 399 Mass. 514, 517 (1987).
The prosecutor's statements regarding the defendant's failure to stand up to Grice are as follows:
"[The defendant] might not have known how far things would go, but he did nothing to stop what happened in that room that day. And not only did he fail to do anything to stop it, but his actions encouraged things to happen. Think about what was going on. He didn't say, no. He didn't tell his dad, knock it off, cut it out, inappropriate, we're getting out of there. He didn't help [the victim] get out of the room. He didn't refuse. He didn't stand up to his step-dad. This is his step-dad. He didn't even make any excuse to get out of there. Even a lame excuse to get out of there.
. . .
"[H]e failed her. He failed to get his girlfriend out of a horrific situation. He failed to help the weaker person in that room. He did nothing to stop a 33-year-old man from raping a 14-year-old child right in front of his eyes. Rather, he took the opportunity to put his own sexual wants above the safety and welfare of a 14-year-old girl."
Immediately following these comments, however, the prosecutor highlighted the defendant's affirmative actions -- including taking off the victim's bra and underwear, holding her hand and attempting to kiss her during the commission of Grice's offenses, and committing two alleged offenses of statutory rape -- and told the jury to "keep in mind that [the defendant] is only charged with his conduct and those sexual acts that he perpetrated on [the victim] on that summer day only." The Commonwealth argues that the comments at issue, taken within the context of the prosecutor's entire argument, properly address the defendant's complicity and participation in the offense. Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009) (jury shall weigh whether "defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense"). We agree. Although implications of duty, when not an element of the offense charged, "are better left unsaid, because they might be understood as suggesting that the defendant should be held to a higher standard," Commonwealth v. Blache, 450 Mass. 583, 599 n.22 (2008), the prosecutor's argument as a whole was not improper.
Conclusion. For the reasons stated above, we affirm the denial of the defendant's motion to suppress. We also affirm the defendant's convictions after considering the challenged evidence and the prosecutor's closing argument.
Judgments affirmed.
By the Court (Kafker, Cohen & Milkey, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 12, 2015.