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13-P-932                                              Appeals Court

                 COMMONWEALTH   vs.   AARON M. TARJICK.


                              No. 13-P-932.

           Hampshire.      December 3, 2014. - May 18, 2015.

              Present:   Kantrowitz, Green, & Meade, JJ.


Practice, Criminal, Motion to suppress, Warrant. Constitutional
     Law, Search and seizure. Search and Seizure, Warrant,
     Plain view. Evidence, Digital image, Photograph, Prior
     misconduct.



     Indictments found and returned in the Superior Court
Department on September 22 and December 17, 2010.

     A pretrial motion to suppress evidence was heard by Mary-
Lou Rup, J., and the cases were tried before C. Jeffrey Kinder,
J.


     Elaine Fronhofer for the defendant.
     Joseph A. Pieropan, Assistant District Attorney, for the
Commonwealth.


    KANTROWITZ, J.       This matter involves the interplay between

twenty-first century technology and twentieth century search and

seizure principles.      We hold that the police, while executing a

search warrant for nude images of the defendant's thirteen year
                                                                     2


old stepdaughter on a video camera, cellular telephone (cell

phone), and computer, were justified in seizing three memory

cards from digital cameras that they came across.1

     The defendant challenges the propriety of the order denying

his motion to suppress the contents of a memory card removed

from one of the digital cameras.    He also challenges the

admission at trial of enlarged photographs of one young female

victim at various ages, the Commonwealth's references to the

defendant's status as a prisoner, and the playing of two

recordings of telephone calls that he made from jail.    We

affirm.

     Background.2   Carla was the defendant's stepdaughter.    She

lived with her biological mother and the defendant, who were

living together and were married when Carla was about seven or

eight years old.    Carla testified that in 2006, the defendant

began sexually abusing and raping her.    At one point, she

indicated that the defendant took at least one sexually explicit

photograph of her using his cell phone and made sexually

explicit video recordings of her with a video camera.    The


     1
       As it turns out, the only nude pictures that were
discovered were those of the defendant and his young sons. At
trial, the defendant was found not guilty of the single charge
that arose from that discovery, which involved nude images of
one son that were taken from one of the memory cards.
     2
       The names of the child victims, Carla and Nina, are
pseudonyms.
                                                                    3


police suspected that the defendant transferred or copied the

images to the family computer because Carla told authorities

that her mother had said that the defendant was viewing sexually

explicit images of young girls on the computer.   After Carla

disclosed the abuse, she went to live with her biological

father.   The second victim, Nina, was Carla's ten year old

friend from school.   The defendant sexually abused Nina on

multiple occasions when she visited.

    Members of the State police obtained a warrant to search

the defendant's home after Carla disclosed the abuse and

information about the sexually explicit recordings.   The warrant

listed the defendant's cell phone, the family computer, and the

family video camera as items to seize.   The police "seized three

memory cards that were in the camcorders or digital cameras."

The memory cards were not included in the warrant.    A second

warrant was obtained to search the contents of the memory cards.

From one particular memory card, introduced at trial as the

ADATA card, eight photographs were retrieved, some of which

included images of the defendant posing partially nude with his

young son, who was two or three years old.   No sexually explicit

photographs or video recordings of Carla or Nina were found.

    The defendant was charged with numerous counts related to

his abuse of Carla and Nina, and one count related to his son
                                                                   4


and the nude photographs.3   On May 18, 2012, a judge denied the

defendant’s motion to suppress the memory cards.4    The

Commonwealth introduced three nude images of the defendant and

his son as exhibits at trial and placed poster-size

reproductions of the images in front of the jury.5



     3
       The defendant was indicted by a Hampshire County grand
jury of aggravated rape of a child (Carla), three counts of
indecent assault and battery on a child under age fourteen
(Carla), and one count of open and gross lewdness and lascivious
behavior (Carla). A Berkshire County grand jury indicted the
defendant on three counts of rape of a child with force (Carla),
eight counts of indecent assault and battery on a child under
age fourteen (Carla), one count of rape of a child with force
(Nina), and one count of posing a child in a state of nudity
(defendant's son). The Berkshire County charges were
transferred to Hampshire County. The defendant was found not
guilty on the count of posing his son in a state of nudity. He
was found guilty of the lesser included offense of rape without
force for the count involving Nina, and he was convicted of all
other charges.
     4
       The defendant moved to suppress all evidence outside the
scope of the warrant to search his home, including all the
memory cards. In a supporting memorandum, while he specifically
mentioned the ADATA card containing the nude images, he argued
for suppression of all the memory cards.
     5
       Exhibits 26, 27, and 28 in the defendant's record appendix
are the nude images. Each of those images contains white strips
or markings that partially obscure the face and/or genital area
of the people in the photographs, apparently as an attempt to
redact the sexually explicit nature of the images. The record
and briefs of the parties are unclear on whether the poster-size
versions used at trial contained similar markings to redact the
images. Without explaining further, the defendant states in his
brief that "'edited' versions were used" during Carla's direct
examination. The defendant testified that his wife took the
photographs and that he was making this particular pose, which
involved the defendant tucking his penis between his legs, as a
joke based on the movie "The Silence of the Lambs."
                                                                   5


     Motion to suppress.    The defendant argues that his motion

to suppress the memory cards, including the ADATA card, should

have been allowed because the memory cards were not specified in

the warrant to search his home.6

     Exhibit 26 shows a close-up of the defendant's naked groin

with his penis tucked between his legs several inches from his

son's face.   Exhibit 27 shows the defendant in a similar pose

while holding his own shirt above his waist and simultaneously

lifting his son's shirt to expose his son's penis.    Exhibit 28

shows the defendant leaning against a door frame and holding his

shirt above his waist to expose his naked groin while his son

stands nearby and stares.

     We note at the outset that the defendant was found not

guilty of the one charge involving the nude images of his son.

The defendant also exploited this lack of evidence in cross-

examination and in closing, by demonstrating that pictures that


     6
       Other images taken from the ADATA memory card showed the
defendant nude with his sons, also nude, in a child-size
swimming pool outside his house. These images were not part of
the charge against the defendant for posing a child in a state
of nudity. The defendant apparently introduced the swimming
pool images to provide context for a telephone call with his
wife wherein she informed him that the memory cards had been
seized, and he responded, "I told you not to take those f-ing
pictures." The Commonwealth played this telephone call for the
jury and suggested that the defendant made this statement to his
wife in reference to the nude images of his one son that were
the basis of the single charge. The defendant suggested that
his statement to his wife was in reference to the swimming pool
images.
                                                                  6


the victim indicated were taken were not recovered.   While the

matter under these circumstances might be considered moot, the

defendant argues that the images were prejudicial for various

reasons, including that they bolstered Carla's testimony that he

shaved his pubic area.7   As we agree that the pictures in fact

bolstered Carla's testimony, we address the issue raised.

     Evidence may be seized without a warrant if it is found in

plain view.   Commonwealth v. Balicki, 436 Mass. 1, 8 (2002).

The doctrine applies

     "(1) where the police are lawfully in a position to
     view the object; (2) where the police have a lawful
     right of access to the object; and (3) in cases
     concerning (a) contraband, weapons, or other items
     illegally possessed, where the incriminating character
     of the object is immediately apparent; or (b) other
     types of evidence ('mere evidence'), where the
     particular evidence is plausibly related to criminal
     activity of which the police are already aware."

Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-307 (2010)

(citations omitted).   Under the plain view doctrine, the

evidence must be discovered inadvertently, which "means only

that the police lacked probable cause to believe, prior to the




     7
       The defendant's genitalia was visible in the photographs,
though the images that the Commonwealth introduced at trial were
partially covered and masked to some extent. See note 5, supra.
The defendant argues that in addition to bolstering Carla's
testimony, these images suggested to the jury that he had a lewd
character and made Carla's testimony more credible insofar as
she made uncharged allegations that the defendant had taken nude
photographs of her as well.
                                                                     7


search, that specific items would be discovered during the

search."   Commonwealth v. Balicki, supra at 10.

    Here, Carla stated that the defendant, using his cell

phone, took sexually explicit photographs of her and, using his

video camera, recorded her nude.    Carla also stated that her

mother told her that the mother had found the defendant viewing

pornographic images of young girls on the family computer in

their living room.   An affidavit from a State police officer

included this information and sought to retrieve the defendant's

cell phone, the family computer that the officer suspected

contained images of Carla, and the family video camera.     In

executing the warrant, the police came across various digital

cameras, which contained memory cards.     The officers seized the

memory cards, but not the cameras from which the cards were

removed, and prepared a second search warrant to view the images

stored on the cards.

    Although the original warrant did not include memory cards,

the cards were "plausibly related to criminal activity" of which

the officers executing the original warrant were already aware.

The officers were also aware that data may be freely transferred

from one device to another through memory cards, and they could

reasonably have concluded that the memory cards might have

contained the alleged recordings.    See Commonwealth v. Sliech-

Brodeur, 457 Mass. at 306-307.     The inadvertence requirement is
                                                                   8


also satisfied because there is no indication that the police

had probable cause to believe, prior to the search, that these

specific memory cards or the cameras containing them would be

found.    See Commonwealth v. Balicki, 436 Mass. at 10.

     The seizure was within the plain view doctrine because the

police acted on "knowledge of the facts and circumstances that

would have warranted a person of reasonable caution in believing

that the thing possessed is evidence of crime."    Commonwealth v.

Pierre, 71 Mass. App. Ct. 58, 64 (2008), quoting from

Commonwealth v. Cullen, 62 Mass. App. Ct. 390, 402 (2004).

Importantly, the police also obtained a second warrant before

conducting a forensic examination of the contents of the memory

cards.8

     Considering the constantly evolving nature of technology,

we do not reach the issue of whether the police in this case

could have included, in their application for the original

warrant, any memory cards capable of storing digital images or

recordings.   We hold only that on these particular facts, the

memory cards were plausibly related to the victim's allegations



     8
       On discovery of the memory cards, the officers were also
justified in recognizing the possibility that any evidence
contained on them could be at risk of erasure or destruction,
making it reasonable for the officers to seize the cards to
preserve the evidence while applying for the second warrant.
See Commonwealth v. Gentile, 437 Mass. 569, 573 (2002).
                                                                    9


and were properly seized under the plain view doctrine.      See

Commonwealth v. Sliech-Brodeur, 457 Mass. at 306-307.

    Photographs of victim.     The defendant argues that school

portraits of Carla should have been excluded from evidence

because the images were inflammatory and created sympathy for

the victim.   The Commonwealth placed poster-sized versions of

these various school portraits of Carla before the jury.

    "Evidence is relevant if it has a rational tendency to

prove an issue in the case, or render a desired inference more

probable than it would be [otherwise]."    Commonwealth v.

Wallace, 70 Mass. App. Ct. 757, 764 (2007) (citations and

quotations omitted).   Mass. G. Evid. § 401 (2014).   "Whether

evidence is relevant in any particular instance, and whether the

probative value of relevant evidence is outweighed by its

prejudicial effect, are questions within the sound discretion of

the judge."   Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).

    Here, the judge did not abuse his discretion in ruling that

the photographs of Carla had probative value as they depicted

her at relevant times, particularly when she was younger and

first knew the defendant.   See Commonwealth v. Wallace, 70 Mass.

App. Ct. at 764.   As the judge noted, even if some of the

photographs predated the defendant's abuse of Carla, the earlier

images were relevant as they depicted her during the period when

the defendant first met her.   There was no abuse of discretion
                                                                  10


as the judge could have reasonably found that the danger of

unfair prejudice did not substantially outweigh the probative

value of the images.   See Commonwealth v. Dunn, 407 Mass. at

807; Mass. G. Evid. § 403.9

     References to imprisonment.   Lastly, the defendant argues

that the Commonwealth undercut his presumption of innocence by

referring to his status as an inmate and playing audio

recordings of two telephone calls that he made from jail while

awaiting trial.10

     "Evidence of a defendant's prior incarceration may be

admitted if it is offered for a relevant purpose other than to

show the defendant's criminal propensity or bad character, and

if the probative value of its relevant purpose outweighs the

     9
       The judge also instructed the jury to focus only on the
evidence: "You must determine the facts solely on the evidence
as you've heard it and seen it in this courtroom and on nothing
else. You may not be influenced by any bias or prejudice for or
against the Commonwealth or the defendant. You're not to be
swayed by any personal likes or dislikes. Emotion or sympathy,
passion or prejudice have no place in your deliberations. The
Commonwealth and the defendant have a right to have the case
judged by fair and impartial jurors."
     10
       In her opening statement, the prosecutor told the jurors
that they would hear from a witness who would describe what the
defendant said while they were "incarcerated" and "were
cellmates." The prosecutor also told the jury that they would
hear audio recordings of what the defendant said "while he was
in jail." The jury later heard two telephone calls, made from
jail, that included prerecorded language before the calls that
identified the defendant as an inmate. While cross-examining
the defendant, the prosecutor made reference to those
conversations. The Commonwealth's closing argument also made a
reference to calls that the defendant "made from the jail."
                                                                    11


risk of unfair prejudice."    Commonwealth v. Brown, 462 Mass.

620, 628 (2012).

    Here, the telephone calls made from jail each had

independent relevance because each call had "a rational tendency

to prove an issue in the case, or render a desired inference

more probable than it would be [otherwise]."     Commonwealth v.

Wallace, 70 Mass. App. Ct. at 764 (citations and quotations

omitted).    See Mass. G. Evid. § 401.   The telephone calls also

had a "relevant purpose other than to show the defendant's

criminal propensity or bad character."     Commonwealth v. Brown,

462 Mass. at 628.

    In the first telephone call, the defendant spoke with

another male and indicated that someone named "Joe" was with him

in jail.    "Joe" was a prisoner with the defendant and a witness

whom the Commonwealth planned on calling to testify to

conversations he had with the defendant.    That the witness, at

some later point during the middle of trial, became

uncooperative and did not wish to testify does not detract from

the fact that at the time the prosecutor made the statements in

her opening and played the telephone call to the jury, she

reasonably believed that the witness would be testifying.

    In the second telephone call, the defendant spoke with his

wife, who told him that police had seized from a camera a memory

card that contained nude pictures of the defendant and his sons
                                                                  12


in their pool.   See note 6, supra.   The defendant then told his

wife, "I told you not to take those f-ing pictures."    The

Commonwealth introduced this second telephone call to show that

the defendant had knowledge of the existence of the nude images

of his sons, which related to the charge against him of posing

one son in a state of nudity.   See Commonwealth v. Wallace, 70

Mass. App. Ct. at 764.

    The prosecutor's references in the opening statement were

necessary to place in context the evidence that the Commonwealth

reasonably expected to produce at trial.    They were neither

unfairly prejudicial nor impermissibly reflective of bad

character.   See Commonwealth v. Brown, 462 Mass. at 628;

Commonwealth v. Wallace, 70 Mass. App. Ct. at 764.

    Regarding the prerecorded language before each telephone

call that identified the defendant as an inmate, the

Commonwealth concedes that the better practice would have been

to remove that language before placing the evidence before the

jury.   The judge, however, delivered extensive instructions that

the jury should consider only the facts and not become swayed by

prejudice or emotion.    The jury are presumed to have followed

these instructions and disregarded any biases or prejudice that
                                                                  13


may have arisen from the references to his inmate status.   See

Commonwealth v. Maynard, 436 Mass. 558, 571 (2002).11

                                   Judgments affirmed.




     11
       The defendant's observation that the Commonwealth made
improper use of his prior convictions does not rise to the level
of appellate argument. See Commonwealth v. O'Brien, 423 Mass.
841, 851 n.17 (1996). Regardless, after a discussion at
sidebar, the judge instructed the jury to consider the evidence
solely for the purpose of evaluating the defendant's credibility
as a witness. Defense counsel later stated that he was
satisfied. There was no error.
