Commonwealth v. Hampton ( 2017 )

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16-P-1355 Appeals Court
COMMONWEALTH vs. RAYMOND HAMPTON.
No. 16-P-1355.
Barnstable. June 5, 2017. - July 24, 2017.
Present: Sullivan, Henry, & Shin, JJ.
Indecent Assault and Battery. Minor. Evidence, Admissions and
confessions, Relevancy and materiality.
Complaint received and sworn to in the Barnstable Division
of the District Court Department on November 2, 2015.
The case was tried before John M. Julian, J.
Darla J. Mondou for the defendant.
Elizabeth M. Carey, Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. The defendant, Raymond Hampton, appeals from
his conviction of indecent assault and battery on a minor under
the age of fourteen, in violation of G. L. c. 265, § 13B.1 The
1
The defendant was charged with two counts of indecent
assault and battery on a minor under the age of fourteen; he was
acquitted of one charge.
2
defendant contends that the trial judge abused his discretion
when he allowed the Commonwealth to introduce evidence that the
defendant had watched adult pornography. We agree that the
admission of this evidence was error, but, under the
circumstances presented, we affirm.
Background. Adele2 testified that she lived at home with
her parents, her sister, other tenants, and the defendant. The
defendant was the child's great uncle. While living in the
home, the defendant slept in a bedroom belonging to Adele and
her sister. For this reason, the sisters slept on the couch or
with their parents. The sisters often went back to the bedroom
to play games, get toys, or watch movies on the defendant's
computer.
On October 1, 2015, Adele, then nine years old, was in the
defendant's room, when the defendant grabbed her wrist tightly.
At trial she testified that he put her hand under his clothes,
forcing her to touch the skin of his penis. Before trial, Adele
told an interviewer that the defendant forced her to touch him
over his clothes. Adele also testified at trial that the
defendant touched her chest, a fact not previously reported.
2
A pseudonym.
3
Adele told her sister about the incident the next day, but told
her not to tell anybody.
The second reported incident occurred on October 4, 2015.
Adele testified that the defendant touched her vagina with his
finger, under her clothes, and caused her to bleed. The
defendant told her not tell anybody about what happened. Adele
told her sister about this incident at some later point.
Adele did not tell anyone else about the incidents until
October 21, when she told her counselor. The counselor then
called the child's parents, who called the police.3
The defendant was arrested on October 30, 2015. During an
interview with Detective David Foley, the defendant denied the
allegations of abuse. He also denied watching pornography with
the children. The detective asked the defendant whether, if he
got a search warrant for the computer, he would find any
pornography related to children. The defendant told the
detective that "he had recently watched a pornographic movie
involving two Chinese girls, but that they were not children."
Before trial, the defendant filed a motion in limine to
exclude testimony regarding his statement, and any description
3
The counselor testified as a designated first complaint
witness. The defendant did not object to Adele's testimony that
she had also told others. At trial, inconsistencies in the
child's reports formed one basis of the defense.
4
or portrayal of the images found after a forensic analysis of
the computer. The trial judge allowed the motion in part,
ruling that the images could not be introduced, but that the
detective would be allowed to testify to what the defendant
said.4 At trial, the defendant renewed his objection, which was
overruled.5
Discussion. The defendant contends that the trial judge
abused his discretion when he allowed the Commonwealth to
introduce evidence that the defendant had recently watched adult
pornography. We review the trial judge's ruling for prejudicial
error. Commonwealth v. Coates, 89 Mass. App. Ct. 728, 732
(2016).
4
The defendant waived his Miranda rights.
5
At the time of the motion in limine, the prosecutor
represented that the child had seen a pornographic cartoon on
the defendant's computer. No cartoon pornography was found on
the computer. Over objection, the judge allowed testimony about
the defendant's statement, and the detective's description of
what he found, but not the pictures or videos themselves. At
trial, the child testified, over objection, that she saw
something she shouldn't have on the defendant's computer,
without elaboration. The detective testified to what the
defendant said, but nothing else. The judge admitted the
statement on the basis that "this is a sex crime," but later, at
the defendant's urging, precluded the prosecutor from using the
statement for impeachment purposes and barred any reference to
it in closing argument. Because the interview with the
defendant was not recorded, the judge also gave a DiGiambattista
instruction. See Commonwealth v. DiGiambattista, 442 Mass. 423
(2004).
5
1. Relevance. "All evidence, including that of a violent
or sexual nature, must meet the threshold test of relevancy."
Id. at 738, quoting from Commonwealth v. Carey, 463 Mass. 378,
387 (2012). Irrelevant evidence is not admissible. Mass. G.
Evid. § 402 (2017). "To be relevant, evidence 'must have a
"rational tendency to prove an issue in the case,"' or 'render[]
the desired inference more probable than it would have been
without it.'" Coates, supra, quoting from Commonwealth v.
Petrillo, 50 Mass. App. Ct. 104, 107-108 (2000). We agree, and
the Commonwealth properly concedes, that the detective's
testimony that the defendant admitted to recently watching adult
pornography was wholly irrelevant to prove the charges of sexual
assault on a child. Moreover, the statement did not corroborate
any aspect of the child's trial testimony, nor was the evidence
probative of the defendant's state of mind, that is, a sexual
interest in children. See Commonwealth v. Jaundoo, 64 Mass.
App. Ct. 56, 63-64 (2005); Commonwealth v. Christie, 89 Mass.
App. Ct. 665, 671-672 (2016). Contrast Commonwealth v. Halsey,
41 Mass. App. Ct. 200, 203-204 (1996); Commonwealth v. Vera, 88
Mass. App. Ct. 313, 322 (2015). Once it became apparent that
there would be no testimony that the defendant showed Adele the
adult pornography found on his computer, the defendant's
statement became irrelevant. See Jaundoo, supra at 63
("Moreover, there is no indication on the record that much of
6
the material . . . bore any probative weight toward
corroborating the complainant's testimony"). The testimony
should have been excluded.
2. Prejudice. It remains to assess whether the error was
so prejudicial as to warrant a new trial. Here the objection to
the evidence was repeatedly preserved. See note 5, supra. In
these circumstances, a conviction will be affirmed only if the
appellate court can say "with fair assurance . . . that the
judgment was not substantially swayed by the error."
Commonwealth v. Meas, 467 Mass. 434, 455, cert. denied, 135 S.
Ct. 158 (2014), quoting from Commonwealth v. Flebotte, 417 Mass.
348, 353 (1994).
As the defendant points out, there was no limiting
instruction cautioning the jury not to conflate an interest
adult pornography with a propensity to engage in sexual behavior
with children. Compare Christie, 89 Mass. App. Ct. at 670. The
case rested largely if not exclusively, on the jury's assessment
of the credibility of Adele and the defendant, who testified.
However, the improper testimony consisted of a single reference
on direct examination of the detective, and a passing reference
in the ensuing cross-examination. "[T]he inflammatory potential
of the pornographic material was diminished by the fact" that
only the statement that the defendant watched adult pornography,
"and not the images, was submitted to the jury." Coates, 89
7
Mass. App. Ct. at 740. Contrast Jaundoo, 64 Mass. App. Ct. at
63-64. The judge also precluded cross-examination of the
defendant on this topic. At the judge's direction, no reference
was made to the statement in closing arguments. Compare
Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 769-770 (2007).
Most importantly, the defendant was acquitted of one of the
indecent assault and battery charges. As noted above, the
child's version of events at trial was contradicted by other
testimony. The acquittal indicates that the jury parsed the
evidence carefully and "suggest[s] that [the evidence] did not
have a prejudicial effect on the jury." Petrillo, 50 Mass. App.
Ct. at 109-110. That is, "the conviction is sure that the error
did not influence the jury, or had but very slight effect."
Flebotte, 417 Mass. at 353.
Judgment affirmed.