Commonwealth v. Robertson

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation5 N.E.3d 522,467 Mass. 371
Decision Date05 March 2014

467 Mass. 371
5 N.E.3d 522


Supreme Judicial Court of Massachusetts,

Argued Nov. 4, 2013.
Decided March 5, 2014.

[5 N.E.3d 523]

Michelle Menken for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.



At issue is whether G.L. c. 272, § 105 ( b ) (§ 105 [ b ] ), which prohibits secretly photographing or videotaping a person “who is nude or partially nude” in certain circumstances, includes “upskirting.” 1 The Commonwealth alleged in two criminal complaints that the defendant, Michael Robertson, while riding as a passenger on the Massachusetts Bay Transportation Authority (MBTA) trolley on two occasions, aimed his cellular telephone camera at the crotch area of a seated female passenger and attempted secretly to photograph or videotape a visual image of the area in violation of § 105 ( b ). The defendant sought relief from the denial of his motion to dismiss the two complaints. He contends that § 105 ( b ) does not criminalize the conduct he is charged with having committed. We agree and reverse the order of the Boston Municipal Court judge denying the defendant's motion to dismiss.

1. Facts and procedural history. We summarize the facts as alleged by the Commonwealth.2 At approximately 8:30 a.m. on August 11, 2010, while the defendant

[5 N.E.3d 524]

was a passenger on an MBTA trolley in Boston, he turned on his cellular telephone camera and held it by his waist. A woman wearing a skirt was seated across from him, and an image of the woman's upper leg appeared on the screen of the defendant's cellular telephone. A passenger who observed the defendant's actions reported the incident to the MBTA transit police (transit police) and stated that the woman being photographed appeared to be unaware that she was being photographed. At approximately 5 p.m. that same day, a second MBTA passenger reported to the transit police that she saw the defendant attempting to photograph a woman's crotch area. With her own cellular telephone, she captured images of the defendant taking those photographs and forwarded them to the transit police.

As a result of these two reports, transit police officers initiated a decoy operation the next day at around 5 P.M. When the officers saw a man whom they identified as the defendant 3 board the MBTA trolley, the officers boarded as well. The defendant stood in a stairwell of the trolley, and the female decoy officer, who was wearing a dress, sat across from him. Between the Park Street and Government Center MBTA stations, the defendant directed his cellular telephone camera lens to within two to three feet of the decoy officer, focusing on her crotch area, and steadily held the telephone in that position for approximately one minute. In addition, a red light on the defendant's telephone was illuminated, indicating that it was videotaping.

After observing this event, the other transit police officers approached the defendant, advised him to stop, and attempted to seize his cellular telephone, an attempt that the defendant resisted. Ultimately, the officers succeeded in securing the telephone and noted that it had been recording until the officers turned off the recording function. The defendant was placed under arrest.

On December 8, 2011, two criminal complaints issued charging the defendant under G.L. c. 274, § 6, with attempting to commit the offense of photographing, videotaping, or electronically surveilling a nude or partially nude person in violation of § 105 ( b ).4,5 On March 6, 2012, the

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defendant filed a motion to dismiss the complaints, which a Boston Municipal Court judge denied on August 3. Thereafter, the defendant filed a petition under G.L. c. 211, § 3, in the county court, seeking interlocutory review of the denial of his motion to dismiss. On December 21, 2012, the single justice reserved and reported the case to the full court.

2. Discussion. a. Relief under G.L. c. 211, § 3. The Commonwealth contends that relief under G.L. c. 211, § 3, is unavailable to the defendant here because the denial of a motion to dismiss is an interlocutory ruling, and the defendant has failed to satisfy his burden to “demonstrate both a substantial claim of violation of his substantive rights and irremediable error, such that he cannot be placed in status quo in the regular course of appeal.” Morrissette v. Commonwealth, 380 Mass. 197, 198, 402 N.E.2d 492 (1980). It is true, as the Commonwealth asserts, that our power under G.L. c. 211, § 3, is to be used sparingly. See, e.g., Burke v. Commonwealth, 373 Mass. 157, 158, 365 N.E.2d 811 (1977). However, “[w]here the single justice has, in [her] discretion, reserved and reported the case to the full court, we grant full appellate review of the issues reported.” Martin v. Commonwealth, 451 Mass. 113, 119, 884 N.E.2d 442 (2008). See Commonwealth v. Goodwin, 458 Mass. 11, 14–15, 933 N.E.2d 925 (2010); Burke, supra at 159, 365 N.E.2d 811. Accordingly, we consider the merits of this case.6

b. Scope of § 105 ( b ).General Laws c. 272, § 105 (§ 105),7 begins with a brief definitional subsection, § 105 ( a ); has two

[5 N.E.3d 526]

separate provisions defining crimes, § 105 ( b )-( c ); and also has two exemption provisions, see § 105 ( d )-( e ).8Section 105 ( b ), at issue here, provides as follows:

“Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person's knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.”
As its text indicates, § 105 ( b ) has five elements that the Commonwealth must prove: (1) the defendant willfully photographed, videotaped, or electronically surveilled; 9 (2) the subject was another person who was nude or partially nude; (3) the defendant did so with the intent to secretly conduct or hide his photographing activity; (4) the defendant conducted such activity when the other person was in a place and circumstance where the person would have a reasonable expectation of privacy in not being “so photographed”; and (5) the defendant did so without the other person's knowledge or consent.

At least for purposes of the motion to dismiss, the defendant does not contest that the conduct alleged by the Commonwealth in each complaint satisfies the first, third, and fifth of these elements—i.e., that (1) he attempted willfully to photograph a person with his cellular telephone camera; (3) he did so secretly with the intent to hide such conduct; and (5) he did so without the knowledge or consent of the person being photographed. He argues, however, that insofar as the Commonwealth's specific claim here is that his attempt was to photograph up the skirt of a clothed female passenger on the MBTA trolley, the charged conduct does not come within the scope of either the second or fourth element of the § 105 ( b ) offense because the female passenger was not “nude or partially nude,” and also was not in a place where she had a reasonable expectation of privacy not to be “so photographed.” 10 We turn to the two challenged elements.

i. “Another person who is nude or partially nude.”Section 105 ( b ) focuses on a person who “willfully photographs, videotapes or electronically surveils another person who is nude or partially nude ” (emphasis added).11 In seeking to determine the meaning of this provision, we consider first the meaning of the actual

[5 N.E.3d 527]

language used by the Legislature. See International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853, 443 N.E.2d 1308 (1983) (“the primary source of insight into the intent of the Legislature is the language of the statute”). Accord Commonwealth v. Rahim, 441 Mass. 273, 274, 805 N.E.2d 13 (2004).

Section 105 ( a ) defines “[p]artially nude” as “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.” “Exposure” is not defined in the statute, but is generally defined as “an act of exposing,” “a condition or instance of being laid bare or exposed to view.” Webster's Third New International Dictionary 802 (2002). “Expose,” in turn, means “to lay open to view; lay bare; make known,” with “display” and “exhibit” noted as synonyms. Id. See American Heritage Dictionary of the English Language 626 (4th ed. 2006) (defining “expose” as “to make visible”).12 With these two definitions in mind, the defendant argues that “partially nude” refers to having one or more private parts of the body uncovered by any clothes and exposed or openly visible to another person's eyes; and that in proscribing the secret photographing of “a person who is ... partially nude,” the Legislature sought to protect against “Peeping Toms,” that is, to punish secret photographing—by electronic means or otherwise—of such persons. The Commonwealth disagrees. It focuses on the definition of “exposure” or “expose” as “to cause to be visible or open to view,” and appears to contend that the term “partially nude” includes the “exposure” “caused” by one person of an otherwise private part of another person's body through the creation of a photographic image; the fact that this other person was wearing some layer of clothing over that otherwise private body part is irrelevant. In essence, the Commonwealth reads § 105 ( b ) to apply to one who secretly...

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