Opinion
18-P-1261
04-03-2020
COMMONWEALTH v. Gerber DELEON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendant, Gerber DeLeon, from his conviction of one count of knowingly possessing child pornography. The defendant raises two issues on appeal. First, the defendant contends that the Commonwealth failed to introduce sufficient evidence on an essential element of the crime, namely that in the video in his possession, the females, whose images showed them engaged in sexual activity, were under the age of eighteen. Second, the defendant maintains that the motion judge, who was not the trial judge, erred in ruling that statements made by the defendant in his home to State police troopers were admissible despite the absence of a valid waiver of his Miranda rights because, in that setting, the questioning was not custodial. We affirm.
The defendant was charged with three counts of unlawful possession of child pornography. The defendant was convicted on counts one and two, which involved a video recording (video) (count one) and a still image (count two), and was found not guilty on count three, which involved a second video. After denying the defendant's motion for judgment notwithstanding the verdict, the trial judge dismissed the conviction on count two and sentenced the defendant on count one.
Motion to suppress. The sole witness at the pretrial hearing on the defendant's motion to suppress was Trooper Josh Ulrich, a Spanish-speaking officer who translated the conversation between the other troopers and the defendant, who also is Spanish-speaking. Following the hearing, the judge dictated findings of fact and rulings of law. On the morning of April 3, 2012, State police troopers executed a search warrant at the defendant's home. The troopers informed the defendant and his wife that they were conducting an investigation concerning child pornography and wanted to speak to the defendant. The defendant accepted an invitation to speak to the police away from his family in one of the bedrooms, a twelve-foot by twelve-foot room off the living room. The bedroom door remained open during the interview, which lasted less than twenty minutes. The interview was recorded with the defendant's consent, and a copy of the transcript is included in the record on appeal. The conversation was polite and the defendant was cooperative. Although the defendant signed a Miranda waiver form, the motion judge found that Trooper Ulrich omitted to inform the defendant that an attorney would be provided for him before questioning if he could not afford one. Accordingly, the motion judge ruled that there was no valid waiver of Miranda rights.
The question then became whether the police interrogation was custodial. The motion judge considered the setting and found that questioning the defendant in a bedroom in his own home was a factor weighing in favor of the Commonwealth. The defendant knew he was the focus of the investigation and that the police were in his home to execute a search warrant. The motion judge also considered the nature of the interrogation and found that the questioning was not aggressive, that the police remained polite and respectful throughout, and that that there was no evidence of coercion or inappropriate behavior. This factor also weighed in the Commonwealth's favor. The motion judge found that the defendant was free to leave throughout the interview and was not arrested. Based on these findings, the motion judge ruled that the defendant was not in custody during the interview.
"The police are not required to give warnings every time they interview a witness, but only when the witness is in ‘custody.’ ‘By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ " Commonwealth v. Bryant, 390 Mass. 729, 736 (1984), quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966). Here, the judge properly considered the four factors set forth in the Bryant case, and properly concluded that the defendant was not in custody when questioned by the police in his home. See Bryant, supra at 737. As in Bryant, the police questioning was brief, it was not aggressive, the police made no threats, the defendant exhibited no signs of distress, and he was free to leave at all times.
With regard to the defendant's argument that the Commonwealth failed to offer evidence sufficient to prove one of the essential elements of the crime, namely that the females were under the age of eighteen when they were depicted in the video that is the subject of count one (that resulted in a guilty verdict), we are guided by the analysis in Commonwealth v. Kenney, 449 Mass. 840, 856-857 (2007). In Kenney, the court stated that, when the physical disparity between the subject of the sexually explicit video or photograph and a person who is eighteen years of age "is such that it would be obvious (beyond a reasonable doubt) to a reasonable person that the material was proscribed," id. at 857, the Commonwealth has met its burden of proof despite the absence of expert witness testimony. In the present case, the members of the panel viewed the video in question that formed the basis of the jury's verdict of guilty. We are satisfied that a rational trier of fact could have concluded beyond a reasonable doubt that the ages of the females in question were young enough to fall into a "marked extreme[ ]" from eighteen years of age. Id. at 856. Commonwealth v. Pittman, 25 Mass. App. Ct. 25, 28 (1987). See United States v. Koch, 625 F.3d 470, 479 (8th Cir. 2010). Furthermore, at one point during his interview with the police when the search warrant was executed, the defendant stated that he had downloaded images of "children making sexual acts," and that he knew that looking at such material was illegal.
Our conclusion is buttressed by the fact that, during their deliberations, the jury asked a question about the video that was the subject of count three and that ultimately resulted in a verdict of not guilty. The jury's question was, "if we cannot decide unanimously on the age of the girl in the video (‘Copia de Peruana’) what do we do?" The judge responded with an instruction that emphasized that, for a charge to be proved beyond a reasonable doubt, they must find "that a person depicted in each of the charged images is under, or was under the age of [eighteen]."
As for the so-called expert studies that are cited and relied upon by the defendant in his brief on appeal, none of this material was presented to the judge at trial or in support of a motion for a new trial. Just as it is not appropriate for the Commonwealth to supply an essential element of proof by asking an appellate court to consider facts presented for the first time on appeal, it is not appropriate for the defendant to attempt to offer evidence in the form of factual statements contained in secondary authorities in connection with a motion for a required finding of not guilty for the first time on appeal. See Commonwealth v. Ferola, 72 Mass. App. Ct. 170, 174 (2008).
Judgment affirmed.