EXECUTIVE OFFICE OF PUBLIC SAFETEY AND SECURITY INVESTIGATOIN FINDS OFFICE OF ALCOHOL TESTING MADE SERIOUS ERRORS OF JUDGMENT

On August 31, 2017, Secretary of Public Safety and Security Daniel J. Bennett directed that the Executive Office of Public Safety and Security (EOPSS) legal staff conduct an investigation into the circumstances under which the Commonwealth had failed to provide
certain documents maintained by the State Police Crime Laboratory’s Office of Alcohol Testing (OAT) to defense counsel in the case of Commonwealth v. Ananias et al., consolidated litigation
addressing a variety of challenges to the scientific validity of the Commonwealth’s breath testing program, and particularly the Draeger Alcotest 9510 breath testing instrument.

The report concluded that OAT leadership made serious errors of judgment in its responses to court-ordered discovery;  OAT has had a longstanding and insular institutional culture that was reflexively guarded, which frequently failed to seek out or take advantage of available legal resources, and which was inattentive to the legal obligations of the prosecution; OAT failed to turn over exculpatory information that prosecutors were obligated to provide to the defense as a result of discovery orders issued by Judges Brennan and McManus including:

1.) hundreds of “incomplete” certification worksheets, documentary evidence that breath testing instruments had failed to properly calibrate during OAT’s certification process;

2.) OAT generated records that reflected when breath test instruments were sent to their manufacturer for repair;

3.) internal testing records that would appear to fall squarely into the category of documents that had been ordered to be produced in pending criminal prosecutions.

In most counties, the breath test is not being introduced at OUI trials due to the continuing challenges to the breath test machine after the failure of OAT to provide discovery.

If you have been charged with OUI, call an experienced lawyer at 508-944-3397.

SJC LIMITS POLICE TESTIMONY IN OUI MARIJUANA CASES

One of the means by which the police prosecute Operating Under the Influence charges throughout the United States are field sobriety exercises(also commonly known as field sobriety tests or “FST’s”). These include the one legged stand and the walk and turn.  The FST’s were developed decades ago, and they are only considered to be indicators and not scientific tests that result in a pass or fail.  Nevertheless, police officers in Massachusetts have been allowed to testify that in his/her opinion the operator has “failed” a test.  I routinely object to this kind of testimony, and some judges agree with me and some do not.  

In  a recent decision, Commonwealth v. Gerhardt, the SJC limits the testimony regarding FST’s with respect to Operating Under the Influence of Marijuana.  Police officers may  describe observations of a “driver’s balance, coordination, mental accuity and other skills required to safely operate a motor vehicle…”  However, they are not allwed to testify as to “whether the driver’s performance would have been deemed a ‘pass’ or ‘fail,’ or whether the performance indicated impairment.”

The Court went on to rule that “[b]ecause the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.”

If you are charged with OUI, contact an experienced trial lawyer at the Law Office of Michael J. Brothers at 508-944-3397.

COURT REACHES DECISION IN TAUNTON JUVENILE COURT “TEXTING CASE”-COMMONWEALTH V. MICHELLE CARTER

On June 16, 2017, The judge in the case of Commonwealth v. Michelle Carter in Taunton Juvenile Court found Ms. Carter guilty of Involuntary Manslaughter Caused by Wanton and Reckless Conduct after a two week bench trial.  Ms. Carter was alleged to have encouraged her boyfriend, Conrad Roy, to commit suicide via text messages.  The act of suicide was poisoning by running exhaust from a gas powered water pump into his vehicle.

The judge read his decision in open court:  He started by noting that he divided the evidence into three components:  1) June 29, 2014 to end of text messages on July 12, 2014; 2) phone conversations to end of text messages through July 13, 2014; and 3) all other evidence not encompassed in the other periods.

The judge then summarized the evidence and legal precedent, including a case that is over 200 years old.  In his summary, he acknowledged that the defense had presented the testimony of a psychologist who believed that Ms. Carter did not have the ability to form the intent necessary to cause someone’s death, because she was on medication that altered her judgment.  However, the judge found that this witness was not credible.  The judge found that the actions as to June 30-July 12 constituted wanton and reckless conduct in serious disregard of another’s life, and he went on to say that the Commonwealth has not proven as to that time period that said behavior caused the death of Mr. Roy.    However, he did find her guilty based on the evidence for the period that included the day and time that Mr. Roy was in the process of committing suicide.  He found that she was in communication with Mr. Roy and encouraged him to go through with the suicide. The judge also noted that her failure to call for aid when she knew that he was dying factored into his decision.

What is Involuntary Manslaughter by Wanton and Reckless Conduct?  The Massachusetts Model Jury Instruction reads, in part, as follows:

Wanton and reckless conduct is intentional conduct that created a high degree of likelihood that substantial harm will result to another person. Wanton and reckless conduct usually involves an affirmative act. An omission or failure to act may constitute wanton and reckless conduct where the defendant has a duty to act.

To prove that the defendant is guilty of involuntary manslaughter because of wanton and reckless conduct, the Commonwealth must prove the following elements beyond a reasonable doubt:

1. The defendant caused the victim’s death;

2. The defendant intended the conduct that caused the victim’s death;

3. The defendant’s conduct was wanton and reckless.

Wanton and reckless conduct is conduct that creates a high degree of likelihood that substantial harm will result to another.  It is conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences of such conduct.  Whether conduct is wanton and reckless depends either on what the defendant knew or how a reasonable person would have acted knowing what the defendant knew.  If the defendant realized the grave risk created by his conduct, his subsequent act amounts to wanton and reckless conduct whether or not a reasonable person would have realized the risk of grave danger.  Even if the defendant himself did not realize the grave risk of harm to another, the act would constitute wanton and reckless conduct if a reasonable person, knowing what the defendant knew, would have realized the act posed a risk of grave danger to another.  It is not enough for the Commonwealth to prove the defendant acted negligently, that is, in a manner that a reasonably careful person would not have acted.  The Commonwealth must prove that the defendant’s actions went beyond negligence and amounted to wanton and reckless conduct as I have defined that term.

An intentional omission or failure to act that creates a high degree of likelihood that substantial harm will result to another may constitute involuntary manslaughter where the defendant has a duty to act.  Such a duty may arise out of a special relationship.   A duty may also arise where a person creates a situation that poses a grave risk of death or serious injury to another.  When such a duty is owed, a failure to act that creates a high degree of likelihood that substantial harm will result to another is wanton and reckless.

The case will be appealed, and the higher court may have a different view of the legal basis for finding Ms. Carter guilty.

TESTIMONY BY WITNESSES VOUCHING FOR ANOTHER WITNESS’S CREDIBILITY IS INADMISSIBLE

Many people I encounter in my practice are frustrated that a mere accusation without any additional evidence (such as a video, injuries, etc.) are suffient for someone to be charged with a crime.  It is the job of the defense to attack a witnesses credibility and to find motives to lie.  In Commonwealth v. Lopez, the defendant was charged with rape of a child by force and related offense.  The prosecution attempted to “bolster” the credibility of a witness through the testimony of a therapeutic mentor.   The judge admitted, for the purpose of proving that the child was incapable of telling lies, “testimony of the child’s ‘therapeutic mentor’ that the child lacked the ability to engage in ‘imagination play.’” The case was reversed on appeal.

The basic facts are as follows. “The only inculpatory evidence … was the testimony of the child, who was fifteen years old at the time of trial.” “When the child was twelve years old she lived next door to the defendant” (who was fifty-five years old at the time) and his girl friend. “According to the child, one night she went next door to babysit for” the children of the girl friend. “The defendant called her into a bedroom and sexually assaulted her.  “Much evidence was introduced” regarding the child’s troubled history. She was mildly mentally retarded and had bipolar disorder. “ Evidence was also introduced that the child had been raped by an older male cousin when she was seven or nine years old. She stated that she was at her aunt’s house” watching television with the cousin when he assaulted her.  The incident with the cousin traumatized the child. She started having flashbacks, in which upsetting thoughts of her cousin came to her involuntarily. She would ‘see him on the wall.’…. She started seeing counsellors and therapists to help her deal with the effects of this traumatic event…. After the alleged incident with the defendant, in her flashbacks she would see the defendant’s face on the wall instead of her cousin’s.”

At trial, the child’s therapeutic mentor, Jill Larson, testifying as the first complaint witness, stated, “over objection, … that the child looks at the world ‘in a very black-and-white … manner.’” Later, again over objection, “Larson … testified that the child had difficulty ‘engaging in play.’…. Larson then explained that the child ‘struggled with imagination play….’ She described an outing to ‘Plaster Fun Time,’ where the child was given ‘a scenario of being princesses’ and ‘had to pretend that we were painting a castle and we had to slay the dragon. And the child really got frustrated because she wasn’t able to really higher-order think….’ At this point, the judge sustained defense counsel’s objection and forcefully instructed the jury to “‘disregard the last part of the answer about inability to engage in a higher-order thinking.’ Redirected to describe the incident at Plaster Fun Time, Larson resumed her testimony, stating that the child ‘became upset when she wasn’t able to participate like the other children who were being able to pretend that they were princesses and being able to come up with characters and name their dragons and she wasn’t able to make a story line.’” In closing argument, “defense counsel argued that the jury should discredit the child’s testimony because ‘her story about the defendant was too close to her story about her cousin.’” “The prosecutor countered” by arguing to the jury that the child was “‘not intelligent enough, … not sophisticated enough to perpetuate a cold, calculating fabrication.’” In its decision, the Appeals Court ruled that “evidence that the child was unable to engage in imaginative play, or that she got upset because she was unable to pretend to be a princess or slay a dragon at Plaster Fun Time, should not have been admitted.” The Court opined that “Larson’s testimony obviously was not probative of anything that occurred between the child and the defendant.” Rather, it pertained to “an attenuated collateral matter.” The defendant’s “defense was that the child used the details of the rape by her cousin to accuse the defendant … as a product of trauma and confusion. The defendant did not suggest that the child engaged in an imaginative exercise to come up with her accusations against him…. Evidence demonstrating the child’s inability to engage in imaginative play had no bearing on the defendant’s claim that the child was confusing or conflating her real life experiences.” “Thus, the Plaster Fun Time incident was relevant only for an improper purpose: to suggest to the jury that the child was incapable of lying and therefore must have been telling the truth. A reasonable juror hearing” Larson’s testimony “could think that the therapist was implicitly vouching for the child’s credibility.” However, “vouching by a witness for the credibility of another witness, whether explicitly or implicitly, is impermissible.”

BLOOD DRAW EVIDENCE ADMISSIBLE IN OUI INVOLVING ACCIDENT

In Commonwealth v. Ackerman. the SJC affirmed the lower court’s admission of blood alcohol test evidence against Ackerman. “Ackerman was charged in a complaint with operating while under the influence of intoxicating liquor, second offense,” and a related offense. “The charges resulted from a single vehicle accident in which the vehicle that Ackerman was driving struck a utility pole and rolled over. After the accident, Ackerman was transported to the hospital where medical personnel administered several scans and conducted several tests, including a blood alcohol test.” The defendant “filed a motion in limine to exclude evidence of the blood alcohol test from the hospital records based on her right to confrontation under the Sixth Amendment…. A judge in the District Court allowed the motion.” This decision was overruled on appeal and Ackerman appealed.

The SJC ruled that there was no abuse of discretion or clear error of law by the single justice “in ordering that the blood alcohol test evidence was admissible.” The Court noted that “pursuant to well-established Massachusetts law, the statute ‘permits the admission in evidence, in the judge’s discretion, of certified hospital records “so far as such records relate to the treatment and medical history”’ of the patient.  We construe the statute liberally; ‘thus, a “record which relates directly and mainly to the treatment and medical history of the patient, should be admitted, even though incidentally the facts recorded may have some bearing on the question of liability.”’ If, in short and as is relevant here, the blood alcohol test administered to Ackerman was ‘performed as a routine medical practice in the course of the treatment of the defendant following a motor vehicle accident,’, then the evidence related to the test is admissible.” In this case, the blood test “was just one of a battery of tests and CT scans that medical personnel performed in the course of treating Ackerman. She had been in a single vehicle accident; a police officer who responded to the scene of the accident had reason to believe that Ackerman was intoxicated; and numerous entries in her medical record similarly so indicate. Because Ackerman was agitated and unable to remain still while medical personnel were treating her, she was administered Ativan, a sedative. In the circumstances, it is clear on this record that the blood alcohol test was merely one of a number of tests conducted as a part of assessing the condition of and treating the patient as presented. Indeed, it is eminently logical that, as the Commonwealth suggests, medical personnel would need to know whether Ackerman was intoxicated prior to administering Ativan to her.”

 

SJC FINDS NEXUS SUFFICIENT TO ESTABLISH PROBABLE CAUSE TO SEARCH TOWNHOUSE

Before a court can issue a warrant of a residence based on criminal activity, it must find there is a relationship (or nexus) between the residence and the criminal activity to the extent that the court would expect evidence to be found at the residence.    

In Commowealth v. Clagon, the SJC reversed both the trial court and the appellate court’s decision to allow the codefendants’ motion to suppress evidence obtained pursuant to a search warrant. The main issue was whether the affidavit submitted by the police in support of their application for the search warrant had established probable cause to believe that there was a nexus between the alleged drug dealing and the premises to be searched, in this case a single-family townhouse in Boston.  The main focus of the affidavit was an effort to establish a “nexus” or relationship between the townhouse and codefendant Gerald’s serial drug sales to a confidential informant in controlled buys arranged by the police at various undefined locations.  One factor that the SJC considered to be suggestive of Gerald’s connection to the townhouse was the fact that  his “father was able to come and go from the premises using a key.”  The Court disagreed with the lower court regarding deficiencies in the affidavit which the motion judge and the Appeals Court had found significant, especially “the absence of various details …, such as the quantity of the substance sold at each controlled purchase, the time of day, and the amount of time it took Gerald to travel from the premises to the sale.”  The court noted:  “We do not think it fatal that the affidavit does not positively identify the premises as Gerald’s personal residence.  Although the nexus requirement is an outgrowth of the special constitutional protection afforded to a person’s home, … it does not follow that the affidavit must establish a suspect’s legal relationship to the premises.  Whether the suspect owns the premises, lives there, or merely conducts business there, the question is whether evidence is likely to be found there.  And, as we have discussed, the affidavit establishes that Gerald was making use of the premises, even if it did not establish ownership or residence.” Ultimately, the Court concluded that, although the case was a “close” one, the affidavit was sufficient to establish probable cause to search the townhouse.

 

SJC UPHOLDS TRIAL COURT’S DENIAL OF MOTION TO IMPOUND VIDEO RECORDING

In Commonwealth v. Chism, the SJC affirmed the judge’s denial of the “defendant’s motion to impound a video recording and transcript of a police interview with the defendant that was the subject of a motion to suppress and that was subsequently suppressed.” In so ruling, the Court concluded (1) “that the judge applied the correct legal standard in deciding the motion,” i.e., whether there was “good cause” to impound the video; and (2) “that, where the judge considered both the presumption of public access to judicial records and the defendant’s right to a trial decided by a fair and impartial jury, and where he subsequently forbade the duplication of the video recording and transcript, the judge did not abuse his discretion in denying the motion.” The background was as follows. The fourteen year old defendant was questioned by the police regarding the killing of a teacher at Danvers High School. During the videotaped interview in Danvers, the defendant admitted that he was the perpetrator. After he was indicted for first-degree murder and other crimes, “the defendant filed a motion to suppress the statements he made at the … police stations, claiming, among other grounds, that he did not knowingly and intelligently waive the Miranda rights and that the statements were not made voluntarily.” While the motion to suppress was pending, “the defendant filed a motion to impound ‘the contents of the videotaped interrogation … and the transcript of that interview, should either or both be entered into evidence as exhibits in the course of the hearing on the motion to suppress.’” Other parties, including the Boston Globe, intervened and opposed the motion to impound.  “After two of the four days of hearings on the motion to suppress, the judge heard argument on the motion to impound…. At this time, the videotape … of the defendant’s interview at the Danvers police station had been admitted in evidence at the suppression hearing and the transcript of that interview had been marked for identification, but the recording had not been played in open court and neither the recording nor the transcript had been made publicly available.” The judge denied the motion to impound and ordered that the public could view the videotape and read a transcript of it at the Essex County Superior Courthouse, but could not make copies of those items. The judge “allowed that part of the defendant’s motion that sought to suppress his statements at the Danvers police station.” “The defendant applied for interlocutory relief from a single justice of the Appeals Court pursuant to Rule 12 of the Uniform Rules of Impoundment Procedure, seeking review of the judge’s denial of the motion to impound, claiming that the judge ‘abused his discretion and committed an error of law in concluding that “good cause” did not exist for the requested impoundment.’”

The defendnant appealed and the matter was heard by the SJC.

In its decision, the SJC noted in ruling on the defendant’s motion to impound, the judge properly “applied the good cause test,” as demonstrated by the fact that “in making both his oral and written rulings on the motion …, he began by quoting the good cause standard of the Uniform Rules on Impoundment Procedure.” The SJC described the test as follows. “We balance the competing interests of public access and the right to a fair trial by making the common-law presumption of public access rebuttable for ‘good cause shown.’  The Uniform Rules on Impoundment Procedure apply to all ‘public case records that are filed in civil and criminal proceedings. Under the rules, ‘in determining good cause, the court shall consider all relevant factors, including, but not limited to, (i) the nature of the parties and the controversy, (ii) the type of information and the privacy interests involved, (iii) the extent of community interest, (iv) constitutional rights, and (v) the reason(s) for the request.’” The Court noted that “a recording admitted in evidence as an exhibit at a motion to suppress hearing, and a transcript of that recording marked for identification, are judicial records,” regardless of whether that evidence is ultimately suppressed. “Having concluded that the judge did not commit legal error in considering the defendant’s motion to impound under the good cause standard applicable to presumptively public judicial records, the Court addressed the defendant’s claim that the judge abused his discretion in applying that standard.” The Court “concluded … that the judge, having subsequently ordered that the video recording could not be duplicated, did not abuse his discretion in denying the motion to impound.”

 

SJC AFFIRMS DISMISSAL OF PARK ZONE CHARGE WHEN DEFENANT PASSGENGER DRIVING BY PARK

In Commonwealth v. Peterson, the SJC affirmed the dismissal of a park zone charge against the defendant. Police officers observed a vehicle stopped at a red light at an intersection that was within one hundred feet of a public park. The defendant was a passenger in the vehicle. “The three officers learned through their onboard computer that the vehicle’s inspection sticker had expired. When the light turned green, the vehicle proceeded through the intersection. The officers activated their lights and sirens and stopped the vehicle a short distance away, … at which point the vehicle was no longer within one hundred feet of [the] [p]ark.” As one of the officers stood near the vehicle, he “noticed the defendant remove a clear plastic bag from his left front pants pocket and drop it on the floorboard behind him…. The officer opened the front passenger door to investigate, and a struggle ensued when the defendant pushed him away.” After the defendant and the other occupants were removed from the vehicle, “the officers searched the vehicle and found the clear plastic bag. It contained … what appeared to be ‘crack’ cocaine.” The defendant was arrested and charged with g possession of cocaine with intent to distribute and committing a drug offense within one hundred feet of a public park. “The defendant sought to dismiss the park zone charge, arguing that the statute is unconstitutional as applied to him, and that prosecution in these circumstances would violate his right to due process, ‘given that he was a passenger in a vehicle driven by another individual and his presence within one hundred feet of a park zone was entirely fortuitous’ and not the sort of circumstance the Legislature intended to reach in enacting the school zone statute.”   “The judge allowed the motion for the reasons argued by the defendant” and the Commonwealth appealed.

In its decision, the SJC noted that “at issue in this appeal is the extent of the strict liability aspect of … c.94C, §32J,” i.e., the statutory language providing that “lack of knowledge of school [r park boundaries shall not be a defense to any person who violates the provisions of this section.” “Specifically, we are asked to determine whether the Legislature possibly could have intended the school zone statute to apply to someone like the defendant, who, albeit in possession of drugs with intent to distribute, does nothing more than simply travel as a passenger in a motor vehicle on a public roadway past a school, park, or playground.” The Court concluded that “given the Legislature’s stated reasons for enacting the statute to protect children from the harmful impact of drug dealing, we do not think the Legislature possibly intended … c.94C, §32J, to apply to an individual who merely passes momentarily by a school or a park while traveling on a public roadway in an automobile driven by another person, which would not have stopped but for a change in a traffic signal…. There was no evidence that the defendant’s momentary presence as he passed by the area in these circumstances posed any real or potential risk to children or anyone else in the park.” The Court “emphasized that this ruling is limited to the specific facts presented here and to the predicate offense of possession of a controlled substance with intent to distribute.”

 

DEFENDANT’S ABILITY TO QUESTION MEMBERS OF JURY PANEL IN DISTRICT COURT IS LIMITED IN MASSACHUSETTS

Jury selection is actually not a process of selection but one of elimination.  At jury selection, defendants are allowed to strike two jurors for cause or and two for any reason other than race or ethnicity.  The rules for jury selection have been modified in superior court since the following case, but in District Court, lawyers are limited in their ability to question jurors.  They are allowed to review questionnaires and they can only request that the judge call individuals to the bench and question them based on responses that raise issues of the ability to be fair and impartial.  In contrast, in other states, such as Florida, lawyers are allowed to stand in front of the jury panel (venire) and question them individually.  This practice allows lawyers to get the true attitudes of those on the venire.  In Massachusetts, when the judge asks general questions of the group, they respond as a group and do not necessarily give answers as they would if questioned individually.

 In Commonwealth v. Reavis, the SJC affirmed the defendant’s conviction of first-degree murder for the stabbing death of his wife in the context of their highly volatile relationship.  The Court rejected the defendant’s contention “that the judge abused his discretion in denying the defendant’s motion for individual voir dire of the venire with respect to their experience with domestic violence.” Although this case did not involve charges requiring individual voir dire (e.g., interracial murder or interracial rape), the defendant argued for that procedure because “domestic violence went to the heart of the case,” in that “the crime was ‘very gruesome,’ was committed ¼ in the presence of the couple’s children, and involved drugs and alcohol, as well as assertions of the defendant’s ‘paranoia’ about his wife being unfaithful.” Although the judge denied the defendant’s request for individual voir dire, he did “ask a general question whether any member of the venire felt so strongly against domestic violence that he or she would be unable to be impartial.” The judge’s rationale for rejecting individual voir dire was that “his more general question, unlike the defendant’s proposed questions, did not require potential jurors to identify that they had had any personal experience with domestic violence, whether as victims or otherwise¼. Unlike the situation requiring prospective jurors to identify themselves as having been sexually molested or as having some racial bias, the judge did not believe prospective jurors would be reluctant to answer the general question on domestic violence.” Despite its conclusion that the judge did not abuse his discretion, the SJC stated, “We do not intend to suggest that the procedure followed here, ¼ was necessarily the best practice. In many instances, individual voir dire on the issue of domestic violence may well be the more appropriate procedure.” And the Court added a cautionary note: “Before posing his general question, the judge told the venire that he presumed that most prospective jurors would be against domestic violence, and that his question was whether any prospective juror had such strong feelings that it would not be possible to be impartial. To the extent that such comments could be understood as discouraging prospective jurors from responding affirmatively to the posed question, they are better avoided.”

ERRORS IN CHILD PORNOGRAPHY CASE REQUIRE REVERSAL

It is a crime to possess child pornography on a computer. If someone is charged with this crime(or any crime), it is important to be represented by a zealous advocate who will put aside any personal opinions or feelings about the nature of the charges and provide an aggressive defense.  In the following case, the trial court and prosecution ignored the law and procedures that protect a defendant.  Forturnately, the SJC called them on their decisions and reversed the convicions. 

In Commonwealth v. Rollins, the SJC reversed the defendant’s convictions on six counts of possession of child pornography. There were four trial errors that created a substantial risk of a miscarriage of justice.  The defendant was charged after a computer repair person discovered “photographs depicting nude and scantily clad young girls.” There were 1200 photographs and seven images were the basis for six charges on the complaint.  The Court ruled “that where as here the offending photographs come from a single cache and the defendant is charged with possessing them at the same point in time, the statutory structure contemplates only a single unit of prosecution. Six separate convictions constituted multiple punishments for the same offense in violation of the defendant’s constitutional and common-law rights to be free from double jeopardy.”

There were four trial errors requiring reversal of the defendant’s convictions.   First, the judge abused her discretion in admitting “five uncharged photographs as a ‘representative sample’ of the approximately 1,200 images that the police had viewed.”  Several of those photographs “depicted young girls … posed in highly sexualized positions even more provocative than the nude images underlying the charges.” Therefor, “there was a substantial risk that the jury would use the uncharged photographs as evidence of the bad character of the defendant.” The second error was the improper testimony of the detective who had viewed the 1,200 images that he “‘could have charged the defendant with many counts’ but ‘decided after six counts, that would be enough.’ Essentially, the jury were left to form the unfounded conclusion that the defendant would be fortunate to be convicted on only six counts — regardless of whether those six convictions corresponded precisely to the images that the detective  selected for each count.” The third error was an inappropriate comment by the prosecutor in closing argument, “offering his own view” that the Legislature enacted the statute because “‘every time someone possesses and looks at those pictures, that child is harmed.’” The Court noted that these comments violated the principles that closing arguments must not misstate legal principles and must “avoid interjecting personal opinions or playing to the emotions of the jury.” The prosecutor’s selective emphasis on harm to individual children “painted an incomplete, and thus inaccurate, picture of the legislative intent.”  The fourth error was the judge’s inadequate instruction on the definition of child pornography. While the judge told the jury that the statutory term “lewd” meant “indecent or offensive,” she failed to provide “a practical roadmap — such as the Dost factors “– to aid the jury in discerning whether the stated definition of lewdness had been satisfied.” Also, the judge failed to inform the jury that “‘proof that an image contains nudity, alone, is not sufficient for a conviction.’”