Commonwealth v. Sullivan

• Citation: 82 Mass.App.Ct. 293,972 N.E.2d 476
• Decision Date: 30 July 2012
• Docket Number: No. 10–P–1869.,10–P–1869.
• Parties: COMMONWEALTH v. Mark SULLIVAN.
• Court: Appeals Court of Massachusetts

82 Mass.App.Ct. 293

972 N.E.2d 476

COMMONWEALTH

v.Mark SULLIVAN.

No. 10–P–1869.

Appeals Court of Massachusetts, Plymouth.

Argued Feb. 1, 2012.

Decided July 30, 2012.

Carlo A. Obligato, Committee for Public Counsel Services, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Present: GRASSO, KAFKER, & MILKEY, JJ.

KAFKER, J.

The defendant, Mark Sullivan, was convicted of one count of possession of child pornography, G.L. c. 272, § 29C(vii), and possession of child pornography as a subsequent offense, G.L. c. 272, § 29C. ¹ He argues on appeal that the photograph of a naked adolescent girl that he printed from a computer at the Hingham public library (library) did not contain a lewd exhibition of the pubic area of the girl or of her breasts as required by G.L. c. 272, § 29C(vii). He contends that the jury instructions on lewd exhibition were incomplete, and that prejudicial, irrelevant evidence regarding other pictures he was viewing in the library was admitted. He also claims that defects in the indictment and O'Dell violations in the grand jury process required dismissal of the indictment. See Commonwealth v. O'Dell, 392 Mass. 445, 446–447, 466 N.E.2d 828 (1984). We affirm.

Background. A librarian, checking on a computer in an isolated alcove of the library, found the defendant printing out a photograph of a naked girl on a beach.² The librarian told the defendant this was not what the computers were to be used for, and he tried to take the photograph away from the defendant. The defendant ripped the photograph away, leaving the librarian with only a small piece of it. As another picture started to print, the librarian turned the printer off and told the defendant that he could lose his library privileges. The librarian then contacted his supervisor, who came to speak to the defendant. The defendant informed the supervisor that the “images were heavily censored,” to which the supervisor responded that it was irrelevant. The defendant then stated, “I couldn't help it. It was a pop-up.” The librarian then inquired, if that were so, why it printed. The defendant had no response. When asked his name, the defendant said, “Smith.”

After the library closed, the librarian reviewed the computer's Web site history and found the photograph the defendant had printed, as well as others of children on beaches and in other settings, with and without clothes. He determined the printed photograph came from a Russian-based Web site called “Photofile.RU.”

The grand jury were informed that the librarian also saw that the defendant had reviewed sex offender sites and that one of the names that the defendant had checked on the site was Mark Sullivan. The librarian “ran” a search for that name and found it to be the name of a level three sex offender from Norwell. The librarian retrieved a photograph of Mark Sullivan on the sex offender registry Web site and identified it as a photograph of the library patron who had printed out the photograph the librarian had seen. The librarian contacted the police.

The indictment. The defendant claims that the trial judge erred in not dismissing the indictment for failing to state a crime. Although very poorly drafted, the three-page indictment, when read as a whole, was sufficient.

An indictment will not be dismissed “if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him. It is not necessary for the Commonwealth to set forth in the ... indictment every element of the crime to withstand a motion to dismiss.” Commonwealth v. Fernandes, 430 Mass. 517, 520, 722 N.E.2d 406 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281, 120 S.Ct. 2755, 147 L.Ed.2d 1017 (2000) (citations omitted). See Commonwealth v. Roby, 462 Mass. 398, 402–405 (2012). Rather, it is acceptable for the indictment to contain “an appropriate legal term descriptive” of the criminal act. Commonwealth v. Green, 399 Mass. 565, 566, 505 N.E.2d 886 (1987), quoting from Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). Thus in Green, it was held sufficient to allege that the defendant “[d]id indecently assault and beat” the victim without specifying each element of the offense. Id. at 566–567, 505 N.E.2d 886.

The indictment here began with the following caption: “INDICTMENT[,] PURCHASE OR POSSESSION OF VISUAL MATERIAL OF CHILD DEPICTED IN SEXUAL CONDUCT [,] GENERAL LAWS CHAPTER 272, SECTION 29C[,] COUNT A.” Count A then provided that Mark Sullivan on or about February 14, 2007, in Hingham “did knowingly ... possess a ... photograph ... of any child whom the person knows or reasonably should know to be under the age of eighteen years. See Count B.”

The indictment then continued with the caption to Count B, which provided: “PURCHASE OR POSSESSION OF VISUAL MATERIAL OF CHILD DEPICTED IN SEXUAL CONDUCT, SUBSEQUENT OFFENSE[,] GENERAL LAWS CHAPTER 272, SECTION 29C.” The language from Count A was then repeated, followed by the clause, “after having been previously been convicted in.” His ten previous convictions of possession of child pornography or posing or exhibiting children in a state of nudity were then listed.

The defendant argues that the indictment failed to charge him with a crime because he was accused only of knowing possession of a photograph of a child under eighteen. No crime was charged, he contends, because the indictment omitted the substance of subsection (vii) of c. 272, § 29C, inserted by St.1997, c. 181, § 2, which provides that the child in the photograph the defendant possessed “be depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person is female, a fully or partially developed breast of the child.”

We conclude that the entire indictment, which includes the captions and the subsequent offense portions of the indictment, provided the defendant with sufficient information to know both the nature of the accusation against him and the law that he was accused of violating. The indictment references the date and place of the offense. It also states that the defendant is being prosecuted for possession of a photograph of a child arising out of these events. The caption references the chapter and section of the statutory violation and further describes the conduct proscribed: visual material of a child depicted in sexual conduct.

Reliance on the caption is not improper. “The caption on an indictment has been used in aid of interpreting the text of an indictment.” Commonwealth v. Fernandes, 46 Mass.App.Ct. 455, 459, 707 N.E.2d 371 (1999), S. C.,430 Mass. 517, 722 N.E.2d 406 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281, 120 S.Ct. 2755, 147 L.Ed.2d 1017 (2000). So long as they are not inconsistent with each other, the caption may be used to “illuminate[ ]” the meaning of the body of the indictment. Ibid. Compare Commonwealth v. Williams, 73 Mass.App.Ct. 833, 903 N.E.2d 222 (2009) (may not use caption to justify amendment of complaint after trial to include new form of vehicular homicide with additional elements and more severe maximum sentence). Here the body of the indictment is incomplete without the caption, but it is not inconsistent with the caption.

The subsequent offense portion of the indictment also informs the defendant of the nature of the accusation and the statutory violation. “[T]he counts for the current offense and for the repeat offense are viewed as parts of one indictment and charge only one crime with a sentence enhancement provision.” Commonwealth v. Fernandes, 430 Mass. at 520–521, 722 N.E.2d 406. The defendant's numerous prior convictions of possession of child pornography are listed in the indictment. The indictment informs the defendant that the new crime he is being charged with involving child pornography is a repeat offense, of which he is undoubtedly aware. “Here, a reader of count B of the indictment would require practiced obtuseness not to understand the nature of the offense charged.” Id. at 523, 722 N.E.2d 406, quoting from Commonwealth v. Fernandes, 46 Mass.App.Ct. at 459, 707 N.E.2d 371.

The indictment need not contain reference to the particular subsection or theory of culpability with which the defendant is being charged. Cf. Commonwealth v. DePace, 442 Mass. 739, 743, 816 N.E.2d 1215 (2004), cert. denied, 544 U.S. 980, 125 S.Ct. 1842, 161 L.Ed.2d 735 (2005) (“The statutory form of an indictment alleging murder that is not self-limiting to murder in the second degree encompasses all theories of murder in the first degree and is sufficient to charge murder by whatever means it may have been committed”); Commonwealth v. Morales, 453 Mass. 40, 52, 899 N.E.2d 96 (2009). Just as the Commonwealth is not required to “present to the grand jury evidence of each theory under which the defendant may be found guilty at trial,” Commonwealth v. Clayton (No. 1), 63 Mass.App.Ct. 608, 612, 827 N.E.2d 1273 (2005), it need not reference the particular theory upon which it is proceeding in the indictment.³

In sum, after reading the indictment in its entirety, the defendant was well informed of which statute he was accused of violating and why. This was sufficient to justify the judge's decision to deny the motion to dismiss the indictment.

Integrity of the grand jury process. The defendant contends that by presenting unnecessary and prejudicial “bad acts” evidence to the grand jury, the Commonwealth “impaired the integrity of the grand jury proceedings,” necessitating dismissal of the indictment obtained thereby. Commonwealth v. Rice, 441 Mass. 291, 309, 805 N.E.2d 26 (2004). See Commonwealth v. O'Dell, 392 Mass. at 446–447, 466 N.E.2d 828.

“It is the general rule that a court should not inquire into the adequacy or competency of the evidence upon which an indictment is based.” Commonwealth v. Salman, 387 Mass. 160, 166, 439 N.E.2d...