RECENT DECISIONS FROM THE APPEALS AND SUPREME JUDICAL COURTS

Obscenity, Dissemination of matter harmful to minor. Enticement of Minor. Practice, Criminal, Plea, Presence of defendant. Constitutional Law, Plea.:   Motion for new trial denied.

The defendant was indicted for dissemination  of harmful matter to a minor, G. L. c. 272, § 28, and enticement of a child under the age of sixteen, G. L. c. 265, § 26C. At  a scheduled  pretrial conference the Defendant entered a change of plea however it did not appear that the defendant was present as it wasn't specified in the record but it was inferred that he was present.  In accepting the pleas, the judge found, "[T]here certainly is  [a] sufficient factual basis for the pleas of guilty to the offenses on which the defendant now stands convicted." The defendant was sentenced to a committed term followed by three years' probation. 

After completion of his prison the sentence the Defendant  was found in violation of his probation conditions, and his probation was revoked.  Shortly thereafter, he moved to withdraw his guilty pleas and for a new trial, arguing that at the plea hearing the Commonwealth did not present an adequate factual basis as to each element of the charges, contrary to the requirements of Commonwealth v. Hart, 467 Mass. 322, 325-326 (2014), and Mass. R. Crim. P. 12 (c) (5), as appearing in 470 Mass. 1505 (2015). 

In denying the motion, the judge ruled, "The defendant was well aware of, and acknow[le]dged, the elements of each offense andthe factual basis for the offenses from the prosecution's  recitations at the dispositional on the record ('lobby')  conference on the same day of the plea hearing and during the plea hearing itself." 

The issue for the change of plea was whether  whether there was an adequate factual basis for the charges.  

The appeals concluded that the judge could consider the facts adduced at the first call hearing, and that those facts as well as the ones presented at the subsequent plea hearing established an adequate factual basis for the charges. Cf. Commonwealth v. Jenner, 24 Mass. App. Ct. 763, 773 (1987) (where defendant pleaded guilty during trial, judge could consider evidence adduced during trial, in addition to defendant's admissions during plea hearing).At the time of these pleas in November 2018, the judge was required before accepting a guilty plea to "make findings as to . . . whether there is an adequate factual basis for the charge."4 Mass. R. Crim. P. 12 (c) (5). See Hart, 467 Mass. at 325. Before the judge accepts the plea, there must be "sufficient facts on the record to establish each element of the offense." Id., quoting Commonwealth v. DelVerde, 398 Mass. 288,  297 (1986). Whether the record establishes that the judge had a factual basis for each crime charged is a different question from whether the defendant's plea was voluntary and intelligent.

See Hart, supra. Because by pleading guilty a defendant waives the right to be convicted on proof beyond a reasonable doubt, the factual basis for a guilty plea need not satisfy the standard of review for the denial of a motion for a required finding at trial. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Rather, in determining whether there is a sufficient factual basis for the charge, the judge need determine "only whether the evidence which [the judge] had heard, plus any information [the judge] has obtained in the plea hearing, is sufficient, when considered with reasonable inferences which may be drawn therefrom, to support the charge to which the defendant is offering a plea of guilty."  Commonwealth v. Armstrong, 88 Mass. App. Ct. 756, 758 (2015), quoting Jenner, 24 Mass. App. Ct. at 773. In doing so, the judge may consider the information presented at the plea hearing, including "the defendant's admission, or his admission  supplemented by the State's offer of proof." Hart, supra at 326, quoting DelVerde, supra at 300.

The court  concluded that the prosecutor's recitation of the facts of the crimes during the plea discussion at the first call hearing was part of the record of the plea hearing on which  the judge could determine the adequacy of the factual basis of the plea. That plea discussion was "recorded and made part of the record," as required by Mass. R. Crim. P. 12 (b) (2), as  appearing in 470 Mass. 1502 (2015). Indeed, the reason to require recording of the plea discussion is "so that the defendant may know what was said," Commonwealth v. Fanelli, 412Mass. 497, 501 (1992), lest there is later an allegation that the judge considered improper information during the discussion,  see, e.g., Murphy v. Boston Herald, Inc., 449 Mass. 42, 57 n.15 (2007). There was no such allegation here.

Another issue was the whether there was sufficiency of factual basis for victim's age and  defendant's intent. The facts that the prosecutor recited at the first call hearing, combined with those adduced at the subsequent plea hearing later that afternoon, provided the judge  with an adequate factual basis for the charges. That factual basis included that the defendant knew that the victim was a minor within the meaning of the dissemination statute, and that the defendant intended to sexually assault, within the meaning of the child enticement statute, a person he knew to be a minor. To the extent that the language of the indictments could be "commonly understood," the judge could also consider the language of the indictments as read by the clerk, and the defendant's corresponding admissions of guilt. Hart, 467 Mass. at 328. See Commonwealth v. Donald, 101 Mass. App. Ct. 383, 388-389 (2022). As to the victim's age, the indictments read aloud by the clerk included language that the person to whom the defendant had disseminated harmful matter was "a person he kn[e]w[] or believe[d] to be a minor," and that the person whom the defendant had enticed was "a child under the age of [sixteen], or someone he believe[d] to be a child under the age of [sixteen]." In response to the reading of each indictment,  the defendant stated that he was "[g]uilty" of that offense.   Accordingly, the order denying the motion to withdraw the guilty pleas and for a new trial is affirmed.

Issues: Search of other occupants during search warrant execution:  SEARCH UPHELD

On September 28, 2018, the Boston police executed a search warrant for the residence of Tony Burt, the defendant's brother-in-law. The warrant authorized the police to search the residence, and Burt's person, for illegal drugs and firearms.  During the search, the police located narcotics and a firearm inside a safe. They arrested Burt and removed him from the premises. The search continued and, about one half-hour after it began, the defendant unexpectedly opened the locked front door and walked into the residence.   The Defendant opened the door and entered the premises.  While bringing the defendant's hands to his waist the officer felt something hard in the waist area and found a firearm.  

Discussion. The United States Supreme Court long ago recognized the need for police executing a search warrant to be able to seize "occupants" of the premises during the search.

See Michigan v. Summers, 452 U.S. 692, 705 (1981) ("for Fourth Amendment purposes . . . a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted"). Allowing police this leeway serves many purposes, including the protection of the officers who are conducting the search. Id. at 702-703. As the Supreme Judicial Court has recognized, "[i]t is important to recognize the need of law enforcement officers to 'exercise unquestioned command' of a search site and detain persons on the premises in the interest of the safety of all involved, and to prevent the destruction of evidence." Commonwealth v. Charros, 443 Mass. 752, 763 (2005), quoting Summers, supra at 702-703. This authority "arises from necessity, that is, from the need to control the inherent volatility produced by the search environment . . . [and] [i]t requires no special showing."

Charros, supra. "Inherent in Summers' authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention." Muehler v. Mena, 544 U.S. 93, 98-99 (2005). In arguing that Summers and its progeny do not apply, the defendant focuses on whether the defendant here was an "occupant" of the premises or some sort of mere visitor.

The police here had an objectively reasonable basis to conclude that someone who just had let

himself into a residence through a locked door may well in fact live there. Commonwealth v. Mattier (No. 2), 474 Mass. 261, 270-271 (2016) ("facts known to police demonstrated that he was an occupant of the apartment to be searched"). The appeals court further recognized the officer may not have had time to deliberate about whether the defendant was an occupant before seizing him, but this hurts rather than helps the defendant: The officer had to act immediately to address the potential threat that the defendant's surprise entrance posed.

The officer felt a hard object in the defendant's waist area, there was a reasonable suspicion that the defendant was armed and dangerous. See Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 744 (2021) ("In assessing whether an officer has reasonable suspicion to justify a patfrisk, we ask whether a reasonably prudent [person] in the [officer's] position would be warranted in the belief that the warrant. It would appear that the police were present in sufficient numbers to have secured the premises and prohibited entry during execution of the search warrant had the officers chosen to do so." Id. at 192, citing Commonwealth v. Snow, 363 Mass. 778, 789 (1973). In the case before us, the police in fact took steps to prevent third parties from entering the premises during the search. For instance, even after the

officers guarding the front door left the premises (for reasons not resolved), that door remained locked. We do not interpret Souza as precluding the application of Summers merely because of the possibility that the police might have been able to do more to prevent occupants from entering the premises.