Recently in COMMONWEALTH vs. JOHN CAREY 79 Mass. App. Ct. 587 (2011) the Appeals court upheld the evidence in an attempted murder conviction. The defendants were also charged with armed home invasion and assault and battery by means of a dangerous weapon. The defendant on appeal claimed the judge made a mistake in declining to give an instruction that consent the assault was a defense to those charges. Massachusetts does not recognize an individual’s ability to consent to “such violence that bodily harm is likely to result, and where the defendant’s conduct did not involve a constitutionally protected liberty interest.”
The evidence in question related to pictorial images of strangulation and related material that police officers found on the defendant’s computer, testimony regarding the officers’ discovery of computer entries and files related to asphyxia and articles and Web sites relating to strangulation, or a video “clip” showing a man strangling a naked woman until she appeared to have died. According to the appeals court, the evidence was highly probative on the issue of the defendant’s motive and intent, the number of exhibits was limited, and the judge gave strong cautionary instructions on four distinct occasions.
The court in deciding the issue stated in part “The defendant, John Carey, appealed his convictions of armed home invasion, assault and battery (two of three counts), and attempting to murder the victim by strangulation. He contended that pursuant to the holding of Lawrence v. Texas, 539 U.S. 558 (2003), that the judge should have provided an instruction that the jury consider whether the attack was part of consensual sexual activity, which, if found, mandated his acquittal on the charge of attempted murder by strangulation. He also complains of the prejudicial admission in evidence of sexual and violent images and related material taken from his computer.
Admission in evidence of photographs, video, and computer search records. As narrated above, eight of the more than 400 pictorial images of strangulation and related material that State police discovered on the defendant’s computer were admitted in evidence. The police testified regarding their discovery of 978 entries and forty-seven files related to “asphyxia,” and remnants of ten additional articles and Web sites relating to strangulation. As also mentioned, the ninety-second video clip, showing a man strangling a naked woman until she appears to have died, was played for the jury.
The defendant asserts that these graphic materials were of negligible relevance but highly prejudicial and that their admission was a clear abuse of discretion and constituted error, whether considered as highly inflammatory or as bad act evidence. The judge made a finding on the record that the prejudicial impact of the evidence was outweighed by its probative value. Our case law has traditionally examined the admission of such evidence, including the evidence of which the defendant here complains, under a standard that recognizes that “[t]he fact that photographs may be inflammatory does not render them inadmissible if they possess evidential value on a material matter. . . . The determination whether a photograph possesses such value is within the discretion of the trial judge.” Commonwealth v. Medeiros, 395 Mass. 336 , 351 (1985), quoting from Commonwealth v. Stewart, 375 Mass. 380 , 385 (1978). “Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge’s broad discretion and are not disturbed absent palpable error.” Commonwealth v. Sylvia, 456 Mass. 182 , 192 (2010). On appeal, the admissibility of evidence is not reviewed de novo. Instead, we may reverse a trial judge’s exercise of discretion only when the defendant demonstrates “that no conscientious judge, acting intelligently, could honestly have taken the view expressed” by the judge. Commonwealth v. Medeiros, supra at 351.
On this record, the defendant has not shown that the judge’s decision to admit this evidence was an abuse of discretion. Here, the Commonwealth introduced this evidence to prove the defendant’s intent to murder by showing the defendant’s interest in engaging in asphyxiation with an unknowing partner. The judge properly recognized that he must determine whether the probative value of the evidence is substantially outweighed by the risk of unfair prejudice to the defendant. While he observed that all inculpatory evidence is prejudicial, he determined that the evidence was admissible because it was highly probative on the issue of the defendant’s motive and intent. Specifically, he determined that the evidence was directly relevant to the defendant’s claim of “voluntary sexual activity.” See Commonwealth v. O’Brien, 432 Mass. 578 , 589 (2000) (in a murder case, a newspaper article found on the defendant’s bureau dated one month before the murder about three men’s fascination with the movie “Natural Born Killers” was admissible as “probative as to the defendant’s state of mind”); Commonwealth v. Guy, 454 Mass. 440 , 441, 443-444 (2009) (evidence that the defendant discussed and read articles and books about serial killers “was relevant to [his] motive and state of mind and to explain what otherwise might be seen as an inexplicable act of violence”). See also Commonwealth v. Scott, 408 Mass. 811 , 820 n.9 (1990) (court determined the judge did not abuse his discretion in admitting testimony about a magazine article found in the defendant’s apartment about a serial killer who gagged and strangled young women, agreeing that it was not unduly prejudicial; “The way in which the serial killer murdered his victims, and the way in which the victim in the instant case died, were sufficiently similar for the testimony to be admitted as evidence of sexual desire and contemplation of modus operandi”).
In Commonwealth v. Wallace, 70 Mass. App. Ct. 757 , 765 (2007), this court opined that photographs of fully clothed young girls at play at various outdoor locations, photographs of nude adult men and women engaged in sexual activity, two pornographic magazines entitled “Pure Eighteen” containing pictures of teenage girls, and small-sized underwear “were properly admitted in evidence. They were substantive evidence of the defendant’s voyeuristic interest in sexual matters and young females. On that basis, the exhibits were probative and substantive evidence on the sole question before the jury, that is, whether the defendant intentionally squeezed the victim’s breast or accidentally touched her while in the performance of a good deed.”
In Wallace, this court also had occasion to distinguish Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56 (2005), a case relied upon by the defendant in Wallace and the defendant in this case. In Jaundoo, supra at 58, the defendant objected to the admission of the following evidence: “twenty-one pornographic videotapes, several magazines with pornographic pictures, over one hundred additional pornographic images,” and a crystal cup or shot glass emblazoned with pictures of individuals engaged in sexual acts. “Because the large number of exhibits put before the Jaundoo jury . . . had little relevance to the complainant’s testimony and were concluded to have little probative value, and because it appeared that the judge neither conducted any analysis to determine whether those exhibits were more probative than prejudicial nor gave a sufficiently curative limiting instruction to overcome the prejudicial effect of the large quantity of material shown to the jurors, this court concluded that ‘in the circumstances of this case’ . . . the court did not have the requisite ‘fair assurance’ that the judgments were not ‘substantially swayed’ by the erroneously admitted exhibits.” Commonwealth v. Wallace, supra at 766- 767, quoting from Commonwealth v. Jaundoo, supra at 64.
Unlike Jaundoo, the number of exhibits admitted here was limited. The judge conducted a proper analysis weighing the probative value of the evidence against unfair prejudice to the defendant, found the evidence to be highly relevant on the issue of the defendant’s intent and the defense of voluntary sexual acts, and gave strong cautionary instructions on four distinct occasions: before any photographs were introduced, when the first three photographs were introduced, when the video clip was played, and in his charge. If the judge recognizes his discretion to consider the issue, and then properly exercises that discretion, we are not free to substitute our judgment to say that we would or would not have done the same if presented with the question. “On appellate review ‘[t]he question is not whether we . . . should have made an opposite decision from that made by the trial judge.’ ” Commonwealth v. Medeiros, 395 Mass. at 351, quoting from Commonwealth v. Bys, 370 Mass. 350 , 361 (1976). See Commonwealth v. Anderson, 445 Mass. 195 , 209 (2005). The record demonstrates that the judge was aware of the evidentiary issue to be determined, recognized his discretion, and exercised it properly.
Attorney Ronald A. Sellon