Community VOICES

There is no telling when Judge Jane Haggerty will decide what to do with the killer of James Alenson. She has been asked to reduce his life sentence to a term with parole, and is formulating her response.

Ever since the murder, on Jan. 19, 2007, the focus for Alenson's family has alternated between mourning and justice. They attended a three-week trial in Middlesex Superior Court in Woburn Massachusetts, and listened day after day to grueling testimony, detailed descriptions of how young James was stabbed repeatedly with a sharp kitchen knife, his final moments spent bleeding to death on the cold tile floor of a bathroom at Lincoln-Sudbury Regional High School.

Most wrenching was the testimony from another student hidden in another stall, of James pleading with his attacker, "What are you doing to me? You're hurting me! Stop!"

None of us, least of all his parents who tended to his scraped knees and runny nose as a boy, will ever know what he thought, how he felt, or how much pain he experienced as his puncture wounds multiplied. But one thing we know for sure is he suffered, and suffered as the result of another student whose troubled background made his very presence at the school a cause for internal debate.

We go through life never really understanding what justice means, until someone we know becomes the victim of a violent crime, and the word takes on a whole new meaning. In this case, the meaning of justice rang loud and clear on April 29, 2010, when John Odgren was found guilty of the murder by a jury of his peers and sentenced to life without the possibility of parole, as required under Massachusetts law: Justice.

For the Alenson family, parents and siblings, there will never be a satisfactory answer for what went on that day. Some consolation might be taken from the post-mortems that shed light on the life of John Odgren, a student with mental health issues who was neither a friend nor an enemy of the victim, just his killer.

Adding to the family's trauma comparisons have been made between Odgren's murder of Alenson and the recent suicide of student Phoebe Prince.

The now-19-year old Odgren was described in court as a very bright boy with a dark side and a keen appreciation for some of the more violent cartoons and video games, someone who likes to watch television of the CSI variety and whose self-education in police procedure is a source of evident pride, as when he told the police officers what their next move should be, and when he asked another what the sentence is for manslaughter, "15 to 20?"

Odgren supporters think he was not only too young at 16 to be jailed for life, but that his crime was the symptom of a sick community; it took a village to kill James Alenson.

It might be easier to appreciate that others were negligent in the care and custody of John Odgren if his lawyers didn't use words like "barbaric and uncivilized" in arguing for a reduced sentence, as if his random yet pre-meditated attack was anything other than barbaric and uncivilized.

To revisit the issue and decide now that Odgren should someday go free would be to hit the Replay button on the days of the notorious “Revolving Door" system of justice in Massachusetts.

Justice demands that an unrepentant, unreformed John Odgren gets the same chance of walking out of prison as James Alenson had of making it from the bathroom back to class on that fateful January day in 2007.

He never did. He wouldn't make it to summer that year, to his 16th birthday on July 28, or to any other family celebrations. His future was decided for him by John Odgren, whose fantasy used to be about killing a person, and lately is about getting away with it.

Laurie Myers is the president of Community VOICES, a victims’ advocacy organization and resident of Chelmsford Massachusetts. lmyers@communityvoices.net

Jeff Blanchard is a writer on Cape Cod. jeffreysblanchard@msn.com

Two indicted on child rape charges

2010-09-08T06:27:00.000-07:00

Two indicted on child rape charges

Cambridge man, an admitted gang member, declared sexually dangerous - Cambridge, Massachusetts - Cambridge Chronicle

2010-08-11T05:34:00.000-07:00

Cambridge man, an admitted gang member, declared sexually dangerous - Cambridge, Massachusetts - Cambridge Chronicle

Cops hunt man accused of raping child

2010-07-07T07:44:00.000-07:00

Cops hunt man accused of raping child

Sex offender out on time served, probation until he reaches age 70

2010-06-03T02:55:00.000-07:00

Sex offender out on time served, probation until he reaches age 70

Repeat flasher gets 6 months, equal to time already served

2010-05-29T11:45:00.000-07:00

Repeat flasher gets 6 months, equal to time already served

Naked man tries to kidnap girl

2010-05-29T11:39:00.000-07:00

Naked man tries to kidnap girl

Cops: Needham man coming to Marlborough for sex with teenager nabbed at police station - Needham, Massachusetts - Needham Times

2010-05-22T07:11:00.001-07:00

Cops: Needham man coming to Marlborough for sex with teenager nabbed at police station - Needham, Massachusetts - Needham Times

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Police Alert Women After Back Bay Assault - Boston News Story - WCVB Boston

2010-05-22T06:46:00.000-07:00

Police Alert Women After Back Bay Assault - Boston News Story - WCVB Boston

Latest conviction could send convicted sex offender away for good

2010-05-03T19:28:00.000-07:00

Latest conviction could send convicted sex offender away for good

Manhunt leads to arrest of New Bedford man wanted for stabbing ex-girlfriend | SouthCoastToday.com

2010-04-26T21:48:00.001-07:00

Manhunt leads to arrest of New Bedford man wanted for stabbing ex-girlfriend | SouthCoastToday.com

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Parole denied for ex-Westford man in series of 1980's rapes

2010-03-29T03:41:00.000-07:00

Lowell SUN
Parole denied for ex-Westford man in series of 1980s rapes
By Kris Pisarik, kpisarik@lowellsun.com
03/25/2010
WESTFORD -- A former Westford man, dubbed the "mall rapist" for sexually assaulting 20 women after kidnapping them from North Shore shopping centers more than 25 years ago, "should never see the light of day," a victim advocate warned yesterday.
Laurie Myers, of Community Voices, a Chelmsford-based watchdog group that monitors sex offenders, child-crime and missing-children's cases, applauded the Massachusetts Parole Board's unanimous decision in denying parole to Phillip Pizzo, 60.
Pizzo pleaded guilty in 1984 to 13 counts of aggravated rape, four counts of armed robbery while masked and two counts of armed robbery, for which he was sentenced to concurrent life terms. He was also convicted of seven counts of kidnapping. His sex crimes spanned Middlesex, Essex and Norfolk counties.
"Obviously, the board made the right decision, as much as the mental-health community thinks they (sex offenders) can be rehabilitated, they can't," said Myers, who is a former rape-crisis counselor in Lowell. "The more time they spend behind bars is a good thing."
The Parole Board released its Feb. 11 ruling on Tuesday. Pizzo's hearing was held Jan. 5, at which time he was quoted by the Boston Herald as stating, "I've hurt a lot of people in the past; I take full responsibility for that." But then Pizzo blamed his brutal crimes on his traumatic childhood, low self-esteem and rejection from women.
At that same hearing, Essex County Assistant District Attorney Kenneth
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Bresler called Pizzo "the worst rapist in the history of Massachusetts."
His boss, Essex District Attorney Jonathan Blodgett, said that "five years from now, when he is again parole eligible, we will be present to vigorously oppose his release under any circumstances."
According to a narrative in the Parole Board's decision, Pizzo would accost women as they got into their cars while wearing a ski mask. He'd hold a knife to their throats, force them to the passenger seat and tie them up, covering their faces with a ski mask. He would then drive them to his 10 Butternut St., his Westford home, sometimes pinching their breasts and genitals along the way, the Parole Board stated.
He would ask them personal questions, like "Where do you work? Do you have a boyfriend? Are you faithful to him?" the report stated.
"We never knew anything was going on," said Robert Freeman, who still lives across the street from where Pizzo committed many of his crimes. "I don't know that anybody knew," he said, adding that Pizzo wasn't in the neighborhood for long and appeared to live alone.
Once inside his home, according to the parole report, Pizzo would force the women -- usually in their late teens or early 20s -- to drink liquor. He'd uncover their faces and cover his while repeatedly raping them. He'd then force them to take a shower and he'd drive them back to the mall from which they were abducted, the board stated.
In one incident, Pizzo stabbed a woman in the face at the Meadow Glen Mall in Medford as she tried to escape. He was finally arrested when police spotted his blue 1976 Cadillac prowling a shopping mall parking lot, authorities said.
"Phillip Pizzo's crimes were both far reaching and extremely disturbing and his series of rapes and kidnappings committed against young women terrorized residents across Eastern Massachusetts," Middlesex District Attorney Gerard Leone said in a statement. "We are pleased with the Parole Board's decision to deny this inmate parole."
Pizzo was declared a sexually dangerous person in 1985 and was committed for a day to life at the Massachusetts Treatment Center. The court ruled in 2009 he was no longer sexually dangerous, but prosecutors strongly disagreed.
The Parole Board noted that Pizzo has been enrolled in treatment programs during his civil commitment, but had not finished the Core Program, which lasts three years.
In its decision, the Parole Board stated that it "does not believe that he is ready for community supervision. To release him at this time would be an injustice to Mr. Pizzo and the community. In this case, public safety requires further incarceration."
Myers, the victim advocate, believes that should be permanent.
"If our judicial system works the way it should, he should never see the light of day," Myers said. "Everything he did points to him reoffending when he gets out. The odds are stacked against society.

"Read more:http://www.lowellsun.com/ci_14754856?IADID=Search-www.lowellsun.com-www.lowellsun.com#ixzz0jYqTUxS5

Lawrence man charged in rape of second Lowell student on his school bus

2010-03-29T03:39:00.000-07:00

Eagle Tribune
Lawrence man charged in rape of second Lowell student on his school bus
By Mark E. Voglermvogler@eagletribune.com
March 26, 2010
LOWELL — A 22-year-old Lawrence man has been charged with the rape of a second teen-age girl who rode on the bus he drove for Lowell Public Schools.
Gian Carlos Mirabal, of 30 Jennings St., was arrested last month in the sexual assault of a 16-year-old girl. He faces new allegations from a 15-year-old victim who recently came forward.
Middlesex District Attorney Gerry Leone revealed the second school bus rape victim yesterday after announcing that a grand jury at Lowell Superior Court earlier in the week had indicted Mirabal on two counts of forcible child rape.
District Attorney spokeswoman Cara O'Brien said the grand jury indictments relate to the alleged assaults on both victims.
A date for Mirabal's arraignment in Lowell Superior Court has not yet been set. Initially held on $50,000 cash bail, he had been scheduled for a probable cause hearing Monday in connection with the first case.
The rape allegations in connection with the first victim came to light last month after the manager of the North Reading Transportation Bus Company reviewed security footage of a bus that was involved in a minor accident on February 25. Mirabal has been a school bus driver for the company since last June.
While reviewing the footage, the bus company manager observed "suspicious behavior involving the bus driver and a 16-year-old female student on the bus," Lowell Police Captain Randall Humphrey said in a press statement earlier this month.
The bus company contacted a school official who alerted authorities.
The investigation determined that last fall Mirabal began to ask the first victim, then in the eighth grade, to remain on the bus after he dropped the other students off. He would allegedly drive the bus to another area and assault the victim, investigators said.
The victim, who first met Mirabal last spring when she was in still in the seventh grade, told authorities she did not want to be on the bus with him.
But Mirabal physically kept her from leaving at least once and ordered her not to tell anyone about the assaults, according to investigators.
"A second victim, 15 at the time, has since come forward also alleging inappropriate behavior by the defendant," Leone said.

War on sex crimes must be waged on many fronts

2010-03-28T17:28:00.000-07:00

The Patriot Ledger

Posted Mar 27, 2010 @ 06:00 AM

EDITORIAL —

A sex crime in California that captivated the nation for most of this month was a painful and frightening reminder of our vulnerability to such predators.

Local police and prosecutors say there’s no reason to believe the same type of brutal attack – which led to the Feb. 28 arrest of a convicted sex offender for the rape and murder of a 17-year-old girl in California – couldn’t happen here.

Registered sex offender John Albert Gardner III is accused of murdering Chelsea King and is a suspect in the murder of 14-year-old Amber Dubois as well.

His arrest has raised many questions.

Do sex offender registries work?

Should residency laws be strengthened to further corral where offenders can live and work?

Should the worst offenders serve longer sentences or be incarcerated for life?

Unfortunately, there are no simple answers.

Our prison system is already overburdened. And limits on where sex offenders can live and work push them further away from the support and services that are needed to keep them from re-offending.

“This problem doesn’t lend itself to one solution,” said William Keating, Norfolk County District Attorney.

Both he and Plymouth County District Attorney Timothy Cruz have lobbied for longer prison sentences, extended probation or lifetime parole for the worst offenders.

“Some of these people can’t be fixed or helped,” Cruz said. “Some of them should never be released.”

Opponents to such moves argue they violate our Constitution and would push the prison system to the point of collapse and bankrupt the state in the process.

The parents of Chelsea King have launched a campaign in California – with plans to push it as a federal law – that would strengthen oversight of child-sex predators.

They’ve introduced a bill, called Chelsea’s Law, that would increase electronic monitoring, including lifetime parole with GPS monitoring for certain offenders.

It’s an idea worth serious consideration.

Meanwhile, there are things that should change immediately, such as aggressively using existing laws.

That means judges imposing maximum-allowed sentences on the predators most likely to re-offend. That means vigilant enforcement of the existing terms of parole and probation. It also means parents taking advantage of access to information – either through the state or at local police departments – about potential threats.

Yes, the sex offender registry has it’s flaws. Some offenders do not register properly or at all.

But while it cannot pinpoint all possible threats, it gives parents more information than they would have without it.

Few things elicit the kind of visceral reaction we have to stories of sex crimes against children.

Elected representatives should continue to push for laws that improve protections without bankrupting us or gutting our system of justice.

At the same time, stories like Chelsea King’s are important reminders that even as legal protections evolve, we can never let down our guard.

Island Man Arrested on Rape Charges

2010-03-19T16:52:00.000-07:00

Vineyard Gazette
News Update: Friday, March 19

Island Man Arrested on Rape Charges

By JIM HICKEY
An Island man arrested this week is facing several charges of rape and indecent assault and battery against a mentally retarded person.
Peter Duart, 41, a registered Level II sex offender as well as a former assistant coach of the Martha’s Vineyard Regional High School football team, and an elected, currently serving member of the Tisbury planning board, was arrested by Massachusetts state police on Wednesday in Dartmouth after Oak Bluffs police issued a warrant for his arrest.
Mr. Duart was apprehended at a restaurant in Dartmouth. He was found to be in possession of over $5,000 in cash as well as his passport.
State police from the Oak Bluffs barracks traveled to Dartmouth to pick up Mr. Duart after his arrest, and he was brought back to the Island to be processed.
Oak Bluffs police obtained a search warrant to search Mr. Duart’s home on Daggett avenue in Tisbury, based on allegations that he possessed child pornography. During the search, police seized a laptop computer, DVDs as well as letters and notes.
He was arraigned on Thursday morning, bail was set at $50,000, and he was ordered to surrender his passport.
He is being held at the Dukes County Jail, according to a statement issued Friday by Oak Bluffs police.
In 2003 Mr. Duart was indicted by a grand jury on one count of rape and one count of indecent assault and battery on a retarded person.

Sex offender held in a rape of disabled man

2010-03-04T07:00:00.000-08:00

Salem News
3-4-2010
Sex offender held in rape of disabled man
By Julie ManganisStaff writer
BEVERLY — A Level 3 sex offender has been charged with forcing a disabled man to engage in sexual acts in a rooming house apartment, according to court documents.
Wayne Dion, 57, who was convicted of child rape and dissemination of obscene material to minors back in 1997, is considered at the highest risk of reoffending by the Sex Offender Registry Board.
He is now being held without bail pending a dangerousness hearing, after his arrest Monday on a charge of rape.
On Monday afternoon, police were called to 9 Park St., where Dion has been living, and met a 36-year-old disabled man who told police that Dion had forced him to engage in sexual acts, according to a police report.
The younger man said he had known Dion for two to three months and said Dion had repeatedly offered him marijuana if he would engage in sexual activity with him.
The younger man told police that he refused.
Police knocked on Dion's door and got no answer, though they could hear a television. According to the report, police went to the building manager when no one answered, because they were concerned that Dion might be in medical distress; he has diabetes and uses a machine to help him breathe at night because of sleep apnea.
He wasn't there.
Police arrested him when he showed up at the police station to re-register as a sex offender. It was unclear from the report what prompted that visit.
Prosecutors at Dion's arraignment Tuesday asked Judge Robert Brennan to hold Dion without bail as a danger to the community. Brennan allowed the request to hold Dion until a full hearing on March 8.
http://www.salemnews.com/punews/local_story_063001149.html

Lynn man sentenced for aggravated rape

2010-03-04T06:29:00.000-08:00

Lynn Item
3-4-2010
Lynn man sentenced for aggravated rape
By Karen A. Kapsourakis / For the Item

NEWBURYPORT - A Lynn man convicted of raping and beating a woman with a sword at his Alley Street home in 2008 may spend up to 25 years behind bars.Cornelius Moore, 52, of 82 Alley St., #2, Lynn, went on trial last week in Newburyport Superior Court on charges of aggravated rape and assault and battery with a dangerous weapon, a sword, in connection with a sexual assault at his home on Aug. 18, 2008.A 12-person jury comprised of eight women and four men deliberated for about three hours, finding Moore guilty as charged Tuesday afternoon.He was sentenced Wednesday afternoon by Judge Richard E. Welch, III, to serve 12-to-15 years in state prison on the aggravated rape charge and will serve another 8-to-10-years in prison on the assault and battery with a dangerous weapon charge.In essence, Moore will serve not less than 20 years and not more than 25 years in prison before he is released.Assistant District Attorney Greg A. Friedholm presented evidence at trial that on the night of Aug. 18 the victim, who was in her 50s, went to his apartment to apparently see an area where she could store some items. They were acquaintances at the time.While at his apartment, Moore forced himself on the woman while threatening and beating her with a sword.Defense lawyer Rebecca Whitehill argued during the trial that the women had fabricated the incident and that her client was innocent of all charges. Moore did not take the stand in his own defense.Friedholm sought a 25-to-30 year punishment, saying it was based upon "not only the violence perpetrated upon the victim, but also takes into consideration the violent criminal history of the defendant that spanned two decades," he said.Moore has numerous violence charges on his record, including a 2005 Lynn incident when he allegedly rammed his car at patrons standing outside Cesar's Palace Lounge on Buffum Street after bartenders had ejected him for being belligerent and verbally abusive.Moore is also a registered sex offender for being previously convicted of indecent assault and battery.Whitehill asked the judge for leniency, proposing a lesser punishment.Friedholm later credited the work of the Lynn Police Department for their investigation of the case.Moore was indicted by an Essex County grand jury in September of 2008 and has been held in custody in lieu of $50,000 cash bail since being arraigned. The judge credited him the 562 days he spent awaiting trial on the case.

Reject Senate bill on CORI reform

2010-02-25T15:21:00.000-08:00

Reject Senate bill on CORI reform
The Lowell Sun
02/24/2010
By Laurie Myers

It has been three years since Deval Patrick became the governor of Massachusetts, and one of the items that topped his agenda was "reforming" Criminal Offender Record Information (CORI). He claimed the existence of criminal records prevented criminals from obtaining jobs and housing, but those of us who are involved in supporting victims of violent crime argue that sealing criminal records at all would provide the secrecy that only perpetuates more crimes.
In 2008 and throughout his campaign, the governor announced that sex offender records would not be eligible for sealing. This was something we had hoped for and with which CORI activists agreed. The governor stayed true to his word during his first two years in office, but the bill died during the last legislative cycle. Along with it died the governor's word that he would not give a free pass to those convicted of crimes against the most vulnerable.

In the governor's second filing of his CORI reform bill, he decided to allow sex offenders who have been relieved of their obligation to register with the Sex Offender Registry to have their records sealed. What he failed to address is the loophole in our law that allows judges to waive the sex-offender registration requirement. According to Kevin Burke, former secretary of public safety and security, the change was the result of the governor wanting to be "fair."
Let's talk about what's fair.

Every court from the U.S. Supreme Court to the Massachusetts Supreme Judicial Court has agreed that the public has the right to know if a person convicted of a sex crime lives or works in their community, but the governor would rather err on the side of secrecy and create a new set of "privacy" rights to those who choose to commit a crime than honor the decisions handed down by the courts.

The CORI "reform" legislation goes even one step further and exempts the government and businesses from liability if a person hired under the new veil of secrecy commits a crime. "No employer or person relying on volunteers shall be liable for negligent hiring practices by reason of relying solely on criminal offender record information received from the department and not performing additional criminal history background checks."

So who suffers? You! And it gets better. If this law passes and you happen to be lucky enough to obtain criminal information and decide to not hire someone based on what you've learned, you could be brought before "the commissioner" or his designee whose new job it will be to "investigate" complaints pertaining to misuse of the public safety information and issue sanctions and penalties for "misuse," including fines up to $5,000 for each violation." The new commissioner would also have the power to forward information for criminal prosecution if he interpreted its use to "cause a reasonable person to suffer emotional distress" and if found guilty, the person "shall be punished by a fine of not more than $5,000 or imprisoned in a jail or house of correction for not more than one year, or both."

This new law would create a new group of criminals in Massachusetts -- the law abiding -- along with the final stage of moral bankruptcy, an all new low for even the state of Massachusetts.
This bill passed the Massachusetts Senate in November, currently awaits action by the House of Representatives and is close to becoming law. We all agree that people deserve second chances, but at what cost? More than 20 other states make all criminal conviction information public and CORI, as it stands now, limits the public's access to criminal information. We should eliminate CORI all together and dedicate the resources to making sure all information is correct. If a citizen makes a request for criminal information it should be accurate and up to date, not hidden because the governor thinks he knows what's best.

Sorry, governor, ignorance is not bliss, and the way to stop the pattern of abuse is not to wave a magic wand and make the records disappear. Just ask the family members of the victims of Amy Bishop. Contact your legislators and let them know that S2220 is misguided and should not be acted on.

Laurie Myers is the president of Community VOICES, a victims' rights organization, a former rape crisis counselor and a resident of Chelmsford.

Read more:http://www.lowellsun.com/ci_14460692?IADID=Search-www.lowellsun.com-www.lowellsun.com#ixzz0gaogqxi7

Haverhill man gets 23 year sentence for raping child

2010-02-20T04:29:00.000-08:00

http://www.eagletribune.com/punewshh/local_story_048224418.html?keyword=topstory
Eagle Tribune
Haverhill man gets 23-year sentence for raping child

LAWRENCE — A Haverhill man could spend more than two decades behind bars after being convicted last week of raping a young Lawrence girl in 1997.
Lawrence Superior Court Judge Leila Kern yesterday sentenced Kevin Quinn, 44, to 23 years in state prison for rape of a child with force and two counts of indecent assault and battery on a child under 14.
The victim, who is now 19, disclosed the sexual abuse in June 2007 — 10 years after two separate instances.
After hearing testimony in a weeklong trial, the jury deliberated for close to three hours before finding Quinn guilty of indecently assaulting the girl.
Quinn, who was already registered as a Level 3 sex offender, had previously received a 10- to 15-year prison sentence after pleading guilty for aggravated rape in 1986.
The victim in that case also was from Lawrence.
Once released from prison, Quinn will be on probation for five years. Judge Kern ordered him to have no direct or indirect contact with the victim or her family.
The judge also ordered him to have no contact with any children under 16, comply with the requirements of the Sex Offender Registry Board, and participate in a sex offender treatment program.
Essex County Assistant District Attorney Karen Hopwood prosecuted Quinn, who was represented by attorney Lynette Leos of the Committee for Public Counsel Services.
Hopwood praised the work of victim/witness advocate Amy Snow and Lawrence Detective Daniel Fitzpatrick.

DA: Rapist strikes again

2010-02-20T03:58:00.000-08:00

http://wbztv.com/video/?id=86938@wbz.dayport.com

DA: Rapist strikes again
Sex offender was free despite violating probation
By Laura CrimaldiSaturday, February 20, 2010 -

A Framingham rapist and Level 3 sex offender is accused of breaking his GPS monitoring bracelet and committing another rape and kidnapping after he violated his probation last month but was allowed to remain free.

Prosecutors say William French, 29, raped a woman in Framingham on Thursday, just two days after Middlesex Superior Court Judge Howard Whitehead ordered French to wear a GPS monitoring bracelet for one year because he violated the terms of his probation by testing positive for smoking pot Jan. 4.

“This is a terribly disturbing case,” Middlesex District Attorney Gerard Leone said in a statement. “We allege that the defendant’s chilling actions occurred . . . just days after he was placed on GPS monitoring by the Probation Department for a probation violation.”
Prosecutors say probation officials were alerted at 11:25 p.m. on Thursday after French removed his GPS monitoring bracelet. A warrant for his arrest was issued 20 minutes later.
It was unclear yesterday what limits were placed on French’s movements under the terms of his electronic monitoring. French lives with his grandparents in Framingham, court records show.
A spokeswoman for the Office of the Commissioner of Probation responded only to e-mailed questions yesterday and stated without providing further details that a warrant was issued Thursday after probation officials learned French had cut off the bracelet. A judicial spokeswoman could not be reached late yesterday to comment on Whitehead’s decision Tuesday to let him remain free.

Details of the latest rape and kidnapping allegations were not released. Framingham District Court Judge Sarah B. Singer ordered the police report impounded and police refused to discuss it. A police log shows French was arrested at 2:50 a.m. yesterday at Framingham police headquarters.

French, who appeared in court wrapped in a blanket that covered his face, was charged with aggravated rape, kidnapping, assault and battery, unarmed robbery, burglary, armed assault and making threats. He is due back in court Thursday for a dangerousness hearing.
French was sentenced to eight to nine years in state prison after pleading guilty to aggravated rape in 2002, according to the Middlesex District Attorney’s Office.
French was released on probation June 24, said Department of Correction spokeswoman Diane Wiffin.

The terms of French’s six-year probation require him to stay drug- and alcohol-free, submit to random drug screens, undergo sex offender treatment and have no contact with the victim.
In the prior rape case, French told the victim he had a gun and threatened to kill her and her 13-year-old daughter, who was sleeping in another room, if she did not comply, court records show.
French’s record also includes a string of prior arrests for larceny, assault, threats and burglary.

Police: Southie man charged in global child porn network

2010-01-29T14:29:00.000-08:00

Boston Herald

Police: Southie man charged in global child porn network

By Laura CrimaldiFriday,
January 29, 2010

Investigators probing a South Boston man who allegedly amassed one of the world’s largest child-porn collections found movie files showing girls as young as 5 or 6 years old having sex with men, records show.
George A. Shipps, 47, who has a criminal record going back to 1975, was held this morning on $100,000 bail on one count of possession of child pornography and one count of distributing child pornography.
A state police arrest report states a depraved movie depicting young girls engaged in sex acts was one of 16,000 child porn files officers allegedly found last night on file sharing software on Shipps’ computer.
Shipps, a father of five adult children, allegedly confessed when officers showed up at his home, said Assistant Attorney General Christopher Kelly.
“He admitted he had child porn on his computer system. He admitted it was his,” said Kelly. “He said he didn’t know what he would do if his children were the ones depicted in these files.”
Shipps pleaded not guilty to both counts at his arraignment in South Boston District Court. He is due back in court on Feb. 26.
Kelly said Bay State authorities began investigating Shipps earlier this month after being informed he was sharing thousands of child-porn files by Pennsylvania law enforcement.
Child pornography is typically swapped using special file sharing software, Kelly said.
Shipps’ criminal record includes 18 entries on his juvenile record and 55 entries on his adult record, Kelly said. He added Shipps spent time in jail in 1990 and 1994. Among the charges on his adult record are assault and assault and battery on a police officer, Kelly said. Court records show he received psychiatric care for violence.
His court-appointed attorney said Shipps denies the charges and described the technology used by investigators to trace child porn as flawed.
“There are things he says are pop-ups,” said defense attorney Robert Menton. “I believe a lot of it is hunch rather than solid information.”
Menton also questioned Kelly’s claim that Shipps had amassed one of the world’s largest child porn collections.
“I haven’t seen a list and I don’t believe there’s a list,” he said. “It has very little relevance to the case at all.”
Menton said Shipps was recently laid off from his store manager position at True Value Hardware in Newton. He said Shipps attended Quincy College and previously worked for eight years at Home Depot.
A female associate of Shipps who was in court declined comment.

http://www.bostonherald.com/news/regional/view/20100129man_charged_with_possession_dissemination_of_child_porn/srvc=home&position=2

City man guilty of raping boy

2010-01-29T05:15:00.000-08:00

The Eagle Tribune
City man guilty of raping boy

January 29, 2010

By Jim Patten
jpatten@eagletribune.com

HAVERHILL — A man accused of molesting a 12-year-old boy for nearly a year will spend five to eight years in state prison.
Jeffrey Perry, 39, of 99 Emerson St., received the sentence yesterday in Salem Superior Court after pleading guilty. His prison term will be followed by three years of supervised probation upon his release, according to the sentence.
Perry also was ordered to comply with the requirements of the state Sex Offender Registry Board, complete sex offender treatment, have no contact with the victim, no unsupervised contact with any child under 16, and be subject to GPS monitoring.
The plea, agreed upon by the prosecution and defense, was done to prevent any further trauma the victim would have suffered by having to take the stand at trial, said Steve O'Connell, spokesman for the district attorney's office.
Perry pleaded guilty to a total of 12 charges during the hearing before Judge David Lowy.
They included eight counts of indecent assault and battery, one count of disseminating pornography to a minor, and three counts of rape of a child.
Perry was arrested Aug. 10 while Detective Carl Rogers and state police Detective Sgt. Paul Zipper were investigating an Aug. 9 arson fire in the apartment of Patricia Mandigo, 55, of 99 Emerson St.
Perry and his elderly mother had been staying in a bedroom at Mandigo's apartment, and when Rogers and Zipper returned there on Aug. 10 to continue their investigation, they encountered Perry and the boy.
While they were interviewing them, the officers quickly realized the two were sharing a bed, police said. The boy is known to Mandigo, police said.
The officers said that when they questioned Perry later at the police station, he admitted to molesting the boy. They called in Detective Andrea Fogarty, who was able to speak with the boy, police said. The boy confirmed what Perry told Rogers and Zipper, and Perry was then arrested, police said.
At the time of his arrest, police described Perry as a classic sexual predator who bought the victim gifts to gain his trust before luring him into sexual acts.
Perry told police the sexual activity began in September 2008 while he was living in Lawrence, and continued when he moved to Haverhill and until his arrest in August of last year.
Police said at the time of the arrest that Perry was a convicted Level 1 sex offender.
Assistant District Attorney Kate MacDougall prosecuted the case. Perry was represented by Amanda Barker from the state's Committee for Public Counsel Services.
When Rogers and Zipper discovered the relationship between Perry and the boy, they were in the middle of investigating three fires that had been set in and around Mandigo's apartment the day before.
That investigation led them to charge her with eight counts of arson of a dwelling, which included a fire in her apartment at 94 Emerson St., where she had been living the previous December. The fire destroyed the building.
Mandigo continues to be held without bail and is awaiting trial on arson charges.

http://www.eagletribune.com/punewshh/local_story_029002216.html?keyword=secondarystory

Quincy sex offender denies rape charges

2010-01-27T03:30:00.000-08:00

Boston Herald
Quincy sex offender denies rape charges

2 victims have no memory of encounter

By Laura Crimaldi Wednesday, January 27, 2010

A Level 2 sex offender accused of raping two women he hooked up with in a Quincy bar first told cops he stayed awake to care for the drunken women but then admitted he had sexual encounters with both.
But Patrick Banks, 21, of Quincy insisted the woozy all-nighter with the two women, ages 23 and 24, was not rape.
Banks was ordered held yesterday on $25,000 bail at his Quincy District Court arraignment on five counts of rape and two counts of indecent assault and battery on a person over 14.
Norfolk County Assistant District Attorney Beth Walston said the two alleged victims have “no recollection” of what happened after drinking a beer and a fruity drink Banks bought for them at a Quincy bar Friday night.
Walston said the women learned what happened from what Banks told them Saturday morning and from text messages he sent to them over the weekend.
Both women submitted blood and urine samples for testing to determine whether they were drugged. Walston said the test results are pending.
Banks was arrested Monday afternoon at the Quincy police station after being interviewed by cops, said police Capt. John Dougan. Banks initially told police after leaving the bar he accompanied the women to one of their homes, where one of the alleged victims threw up for 25 minutes in the bathroom.
“He stated he was concerned because the girls were so intoxicated,” Walston said. Banks later changed his story, saying he had sexual intercourse with one woman and touched the breasts and put his tongue in the mouth of the second woman, Walston said.
She added Banks told the second woman they did not have sex, but then informed her they did in a text message.
Banks’ defense attorney, Robert Tutino, said the police report has “major inconsistencies” and noted one of the alleged victims sent Banks a text message earlier on Friday about going to the bar.
Banks had to register as a sex offender and serve time in the Department of Youth Services for a juvenile conviction for two counts of open and gross lewdness, assault with intent to rape and witness intimidation, Walston said.
Three restraining orders have been issued against Banks, including one that is permanent. An affidavit submitted on behalf of a juvenile girl for the permanent order states Banks tried to rape the girl in a playground on Oct. 27, 2004, records show.
Banks is due back in court on Feb. 18.

Holliston man gets seven years in child porn case

2010-01-21T13:25:00.000-08:00

Holliston Tab
Holliston man gets seven years in child porn case
By Norman Miller/Daily News staff
Thu Jan 21, 2010

WOBURN - A Holliston man who once told police he treated his son's friend like a son was sentenced Tuesday to at least seven years in prison for raping the boy.
Michael Finos, 46, pleaded guilty to raping the boy, sexually assaulting the boy and several child pornography-related charges in Middlesex Superior Court on Tuesday.
He had originally pleaded not guilty to all of the charges.
Finos was arrested on July 19, 2009, at his 256 Fiske St. home.
Finos pleaded guilty to rape of a child by force, two counts of indecent assault and battery on a child younger than 14, two counts of posing a child in a state of nudity, inducing a minor into sexual intercourse, possession of child pornography and dissemination of matter harmful to a minor.
Finos was sentenced to seven to eight years in prison for the rape charge and the two counts of indecent assault and battery, all to run concurrently.
He was also sentenced to 10 years supervised probation once he is released from MCI-Cedar Junction on the rest of the charges.
At Finos' Framingham District Court arraignment on July 21, the victim's mother said she felt betrayed by him. The Daily News is not identifying the mother because it would identify her son.
"He's not sick. Sick people can be cured," the woman said after the arraignment. "Poor little boys are innocent lambs to him. He told the police, 'I treated him like a son.' He told me a year ago, 'He is like a third son."'
(Norman Miller can be reached at 508-626-3823 or nmiller@cnc.com.)
http://www.wickedlocal.com/holliston/news/x1685419196/Holliston-man-gets-seven-years-in-child-porn-case

Commonwealth vs. Paul Shanley

2010-01-15T09:11:00.000-08:00

COMMONWEALTH vs. Paul SHANLEY.
SJC-10382

September 10, 2009. - January 15, 2010.Child Abuse. Evidence, Expert opinion, Qualification of expert witness, Scientific test. Witness, Expert. Constitutional Law, Assistance of counsel. Practice, Criminal, Assistance of counsel, New trial, Judicial discretion, Argument by prosecutor. Practice, Civil, Instructions to jury. Limitations, Statute of. Indecent Assault and Battery.INDICTMENTS found and returned in the Superior Court Department on June 9, 2002.The cases were tried before Stephen E. Neel, J., and a motion for a new trial, filed on November 14, 2007, was heard by him.The Supreme Judicial Court granted an application for direct appellate review.Robert F. Shaw, Jr., for the defendant.Loretta M. Lillios & Bethany Stevens, Assistant District Attorneys, for the Commonwealth.The following submitted briefs for amici curiae:R. Christopher Barden & Eric Tennen for International Committee of Social, Psychiatric, Psychological, Cognitive Science, Neuroscience, and Neurological Scientists.Paul R. Rudof, Committee for Public Counsel Services, for Committee for Public Counsel Services.Wendy J. Murphy for Leadership Council for Child Abuse and Interpersonal Violence. Thomas A. Pavlinic for False Memory Syndrome Foundation.Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.CORDY, J.On February 7, 2005, Paul Shanley was convicted of sexual abuse of a child: two indictments charging rape, in violation of G.L. c. 265, § 23; and two indictments charging indecent assault and battery on a person under the age of fourteen years, in violation of G.L. c. 265, § 13B. The abuse occurred between 1983 and 1989 when the victim was attending Confraternity of Christian Doctrine (CCD) classes at the church where the defendant served as a Catholic priest. The victim testified that he did not remember being abused by the defendant until nearly twenty years later, when he learned that other individuals had publicly made allegations that the defendant had sexually abused them when they were children. The victim's testimony about what he remembered of that abuse constituted the core of the evidence against the defendant at trial.The defendant appealed from his convictions, and subsequently filed a motion for a new trial. The appeal proceedings were stayed pending resolution of the new trial motion, which was denied by the trial judge on November 26, 2008. The defendant appealed from the denial of this motion and that appeal was consolidated with the appeal from his convictions. We granted the defendant's application for direct appellate review.On appeal, the defendant contends that he is entitled to a new trial because (1) the judge erred in admitting expert testimony related to "repressed memory" [FN1]; (2) his trial counsel was ineffective for failing to prevent the admission of such expert testimony and for failing to challenge it adequately at trial; (3) the prosecutor made improper arguments during her closing; and (4) the judge erred in his instruction to the jury regarding the statute of limitations on the indecent assault and battery indictments. We affirm.1. Trial. a. The Commonwealth's case. The Commonwealth's case included the testimony of the victim as to his memory of the abuse he suffered at the hands of the defendant; the testimony of witnesses who observed the victim during the period of time when he claims he recovered that memory; the testimony of an expert witness on dissociative amnesia and recovered memory; and the testimony of individuals who could corroborate that the victim both attended CCD classes during the time period he alleges he was abused, and occasionally left those classes for behavioral reasons. The Commonwealth also presented evidence regarding the defendant's role and presence at the church where the abuse occurred, as well as his whereabouts outside of Massachusetts after he left that church in 1990. [FN2]Setting aside the victim's testimony regarding the alleged sexual abuse, and the testimony of the Commonwealth's expert, the jury could have found the following facts. The defendant was a priest at St. Jean's Church in Newton during the years when the victim was enrolled in CCD classes there. He would often check on the children while they were in their CCD classes on Sundays. Children ranging from the ages of six to fourteen, including the victim, attended these classes.The victim was born on September 9, 1977, and grew up in Newton with two siblings. His parents separated when he was four years of age and, after a short stay with his mother, he lived primarily with his father in his paternal grandmother's house. The victim attended CCD classes with the same group ofchildren at St. Jean's Church from first grade (in 1983) until he reached eighth grade. During the years the victim attended CCD classes, some of the children became quite boisterous and periodically were required to leave the classroom. The victim and two of his friends in particular were disciplined often, both in the lower grades and when they were in fourth or fifth grade. On occasion, the defendant admonished those who were required to leave the classroom for misbehavior, and the victim was observed leaving the classroom with the defendant on several occasions.Several years after graduating from high school, the victim joined the Air Force. After being trained as an Air Force police officer, he was stationed at Peterson Air Force Base in Colorado Springs, Colorado. He returned home to Massachusetts for a visit in spring of 2001 and began a romantic relationship with Tammy. [FN3] Their relationship continued when the victim returned to Colorado, with Tammy visiting the victim and the two often speaking on the telephone.Tammy telephoned the victim on January 31, 2002, and mentioned an article published in a Boston newspaper concerning the defendant and allegations of child sexual abuse. The victim expressed surprise at the contents of the article, commenting to Tammy, "That's weird, everybody liked him." After thisconversation, the victim began remembering being taken out of CCD class by the defendant, but he did not remember anything else. He also began reading newspaper articles on the Internet about the allegations and looking at photographs of the defendant.On February 11, 2002, Tammy again telephoned the victim and told him that one of his childhood friends and former CCD classmates had made an allegation of abuse against the defendant. The victim had a strong emotional and physical reaction to this news. Shortly after this conversation, the victim contacted his flight chief and said that he was not coming to work.Later on that same day, the victim spoke with the childhood friend who had made the allegation of abuse. Early the next morning, the victim contacted a personal injury attorney, with whom he later entered into a fee agreement. The victim also went to see Captain John F. Drozd, a psychologist on the Air Force base to talk with him about his mental state. [FN4] He stayed at Drozd's office for ten to twelve hours and felt awful, confused and sick. Drozd recommended that the victim keep a journal, which he did, backdating his entries to the first conversation with Tammy on January 31. [FN5]The victim returned to Massachusetts on February 15, 2002. [FN6] He briefly returned to Colorado, [FN7] where he ultimately received an honorable discharge from the military in April, 2002. He then returned to live with Tammy in Massachusetts. After joining a civil suit brought against the Archdiocese of Boston (based on the abuse he alleged against the defendant) he received a settlement in the amount of $500,000.With respect to the sexual abuse, the victim testified at the defendant's trial to the following based on the memories that came back to him after learning of the allegations made by others. The defendant began sexually abusing him when he was approximately six years of age and first began attending CCD classes. The defendant would take the victim out of his CCD class, bring him to the bathroom in the basement, unzip the victim's pants watch him urinate, and then touch the victim's penis with his hand and mouth.The defendant also sexually assaulted the victim in the pews of the church after the victim put pamphlets in the pews for the upcoming Mass. He would do so by sitting next to the victim, putting his right arm around the victim, touching the victim's penis through his clothes, and grabbing the victim's hand and putting it on his own penis over his clothing. The defendant would also bring the victim into the confessional room which was located "off the side of the pews," where the defendant would undress them both and place his finger in the victim's anus.Finally, the victim testified that the defendant would bring him to the rectory, get him soda and a snack from the kitchen, and then play the card game, "War." When the victim would lose a hand, the defendant would instruct him to remove a piece of his clothing. When the victim would go on a "winning streak," the defendant would remove his clothing.The abuse of the victim continued until the defendant left the Newton church in 1990 when the victim was approximately thirteen years of age. The defendant told the victim that no one would ever believe him if he disclosed the abuse.The Commonwealth called Dr. James A. Chu as an expert in the field of dissociative amnesia. He was not called to give a diagnosis of the victim, but rather to assist the jury in determining the credibility of the victim's testimony that he had recovered memories nearly twenty years after the abuse, and their consequent reliability. His qualifications as an expert were not contested by the defendant at trial. [FN8]Dr. Chu testified that dissociative amnesia is a diagnosis included and defined in the Diagnostic and Statistical Manual (DSM). That manual is published bythe American Psychiatric Association, and is a classification manual widely used by mental health professionals in making diagnoses of mental health problems. The DSM lists criteria for a clinician to consider when making a particular diagnosis. Dr. Chu was a member of the task force in the 1990's charged with reviewing dissociative disorder diagnoses for the purpose of preparing the most recent version of the DSM, DSM-IV, which was published in 1994. [FN9] He explained that in the DSM-IV, dissociative amnesia is a "descriptive term [for] somebody who cannot remember certain important information about themselves, either about what happened to them, sometimes personal information ... not ... due to ... head trauma or intoxication." It means, "basically, that there is a dissociative barrier that prevents somebody from remembering something in their ordinary state of consciousness."In describing how dissociative amnesia works, Dr. Chu testified that it is possible for a person to forget something and remember it later. Dr. Chu observed the phenomenon in his own clinical practice with adults who had been traumatized as children and explained that while it was not common in that population, it was "not at all rare." He analogized dissociative amnesia to a type of forgetting, which "leads to people having really pervasive amnesia for not only [traumatic] events themselves, but [also] sometimes for neutral events or even good events." He explained that persons who have experienced repeated traumatization suffer from dissociative amnesia more often than those who experience a single traumatic event.He went on to testify that when a person remembers "so-called forgotten memories," it is usually the result of a "trigger of some kind" which reminds that person of the traumatic experience. [FN10] While there was no typical pattern for the subsequent reaction of a traumatized person once there has been a trigger, the person may experience memory flashes or "body sensations." More specifically, a person might experience physical sensations that mirror the sensations he or she incurred from the trauma itself (for example, genital pain where a person had suffered sexual abuse); or have a subsequent reaction to a trigger, become overwhelmed by the sudden onset of traumatic memories and experience "people panic," that is, agitation, crying, and increased adrenaline. He further explained that, although it is "highly variable" among individuals, the return of such memories may lead to disruption or dysfunction in a person's life.Dr. Chu also testified about the quality of the memory that might be recovered with the caveat that "all ... memories are subject to various kinds of distortion." In general, however, "the central themes of memories are really relatively well-preserved," with distortions as to peripheral details andperhaps the sequence of the memory. He also explained that a person may not remember everything about a particular event all at once, that instead, the memory might progressively return. Dr. Chu identified the ways in which a clinician would go about testing the validity of a memory recovered many years later, including determining whether a person's life changed abruptly at a certain time, whether the person has had the ability to begin and maintain interpersonal relationships, and whether the narrative of the person's life is believable and reasonable.Dr. Chu acknowledged that it was possible for a new memory to be created in some people that has no basis in reality. He gave common examples of this phenomenon on a minor scale, but explained that there was "probably only a very small minority of people who are vulnerable to that kind of suggestion."Dr. Chu concluded by estimating that dissociative amnesia occurs in approximately twenty per cent of the seriously traumatized population.b. The defense case. The defense at trial was threefold: first, that the abuse did not happen; second, that the victim had significant financial and personal reasons to fabricate the abuse (including getting discharged from the Air Force and participating in the civil suit against the Boston Archdiocese); and third, that the theory of repressed memory is inherently unreliable given the problem with corroboration and the possibility of false memories. The first two prongs of the defense were presented through the cross-examination of the Commonwealth's witnesses. The third was developed initially through the cross-examination of Dr. Chu, during which he acknowledged that there are professionals in the psychiatric community who do not believe there is sufficient evidence to verify the existence of dissociative amnesia, and that clinical research on the subject relies to a significant extent on the self-reporting of the patient--a methological limitation. This prong of the defense was enhanced by the testimony of Dr. Elizabeth Loftus, an expert witness, and the only witness called by the defense.Dr. Loftus is a professor at the University of California at Irvine in the Department of Psychology and Social Behavior and the Department of Criminology, Law, and Society. She is also a member and former president of the American Psychological Society, which has several thousand members focusing on the science and teaching sides of psychology. Her qualifications as an expert were not contested by the Commonwealth at trial.Dr. Loftus testified that she has conducted research on memory and memory distortion, including experiments in the 1970's and 1980's where her research group evaluated the reliability of eyewitness testimony to a simulated accident or crime scene by subjecting the eyewitnesses to misinformation, such as leading questions or media accounts of the incident, to determine the impact, if any, on their recall of the event. She further elaborated that her research in the 1990's expanded the theories of misinformation to see whether people could be implanted with entirely false memories, for example, by making a person think that he or she had been lost in a shopping mall as a child. She explained that one quarter of the persons involved in this experiment believed in the false memory of being lost.Dr. Loftus described memory as involving the construction or reconstruction of experiences where a person may blend later occurring details into the memory of an event. She explained that many things could affect the accuracy of a memory, including factors related to the perception of an event as it occurs, such as lighting and distance and the exposure to postevent information such as leading questions or media coverage, which can distort or supplement a memory. Dr. Loftus also explained that the passage of time made memories weaker and thus more vulnerable to postevent contamination. She explained that a false memory is a false belief accompanied by sensory detail.In addition, Dr. Loftus testified that it was "virtually impossible without independent corroboration" to determine the difference between an accurate memory and a false one. She stated that the impact of trauma on a memory is that while the core of the memory might be recalled, the peripheral details may be distorted. [FN11] In contrast to Dr. Chu, Dr. Loftus testified that repetitive traumatic experience would make it more likely that someone would remember a particular event.She elaborated on the controversy surrounding "repressed memory" and explained that in her view of the literature there is no "credible scientific evidence for the idea that years of brutalization can be massively repressed." She noted that it was possible to retrieve unpleasant memories through ordinary remembering and forgetting, but there was a lack of current scientific support for the theory that some "special mechanism" would "banish [traumatic experience] into the unconscious." She also explained that there was "inherent limitation" in the method of studies used to test for repressed memory, namely, that the retrospective memory technique relies on self-reporting by patients.2. Discussion. a. Admission of expert testimony. The role of expert testimony is to assist jurors in interpreting evidence that lies outside their common experience. The proponent of such testimony bears the burden of establishing that it "will assist the trier of fact to understand the evidence or todetermine a fact in issue," Mass. G. Evid. § 702 (2008-2009), and that the methodology or theory underlying the expert testimony is sufficiently reliable to be presented for the jury's consideration. [FN12] Id.Trial judges serve an important gatekeeping function with respect to expert testimony. Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (Lanigan ). As a gatekeeper, the judge must make a preliminary assessment whether the theory or methodology underlying the proposed testimony is sufficiently reliable to reach the trier of fact. [FN13] For these purposes, expert testimony is sufficiently reliable if the underlying theory or methodology is either (1) generally accepted in the relevant scientific community, see Frye v. United States, 293 F. 1013 (D.C.Cir.1923); or (2) satisfies the alternative requirements adopted inLanigan, supra at 25-26. The judge may hold a pretrial hearing (Lanigan hearing), as he did here, to assist in making this preliminary assessment. A judge's decision to admit expert testimony is subject to review only for abuse of discretion. Canavan's Case, 432 Mass. 304, 312 (2000). Once admitted, the validity and credibility of the expert testimony is subject to challenge like any other testimony, including through the admission of opposing expert testimony, and it is for the jury to determine what aid it might provide to their deliberations.In this case, the victim was expected to testify that he had been abused many years ago, but had only recently remembered that abuse. To assist the jury in understanding how memories of abuse might be forgotten and later remembered, the Commonwealth proposed to offer expert witness testimony to explain the theory, condition, and symptoms of dissociative amnesia and recovered memory. In response, the defendant moved to preclude such testimony because the theory underlying it could not meet the test of reliability required for admission.
[FN14](i) The Lanigan hearing. In considering the defendant's motion, the judge was initially of the view that a Lanigan hearing might not be required because this court, in Commowneath v. Frangipane, 433 Mass. 527 (2001), had both permitted expert testimony "concerning dissociation and recovered memory; what these conditions or symptoms are; and the fact that victims of trauma may experience them," id. at 535, and suggested that no Lanigan hearing was necessary as to expert testimony which concerned "memory problems associated with dissociative memory loss, and related mental disorders ... such as those referred to in the most recent edition of the [DSM], or those disorders where qualified expert testimony has been accepted as reliable in the past in Massachusetts appellate cases." Id. at 538.Despite his misgivings about whether it was required, the judge proceeded to conduct a Lanigan hearing that extended over five days. [FN15] During that hearing, two experts retained by the Commonwealth, Dr. Daniel Brown and Dr. Chu, were called to testify. In addition to this testimony, the judge considered, without objection from the Commonwealth, an affidavit prepared by Dr. Loftus and submitted by the defendant.Dr. Brown was called by the Commonwealth to explain the theory, conditions, and symptoms of dissociative amnesia and recovered memory and their general acceptance in the scientific community. Dr. Chu, who had been retained by the Commonwealth, was called to testify about the "fit" of the proposed opinion testimony regarding dissociative amnesia and recovered memory, to the facts of this case. The defendant does not challenge Dr. Chu's testimony on this subject, or on the ruling of the judge that the "fit" was sufficient in this case. We focus then on Dr. Brown's testimony.Dr. Brown is a licensed psychologist, an assistant professor of clinical psychology at Harvard Medical School, [FN16] and an adjunct professor at the Simmons School of Social Work. He specializes in treating patients who have been the victims of trauma, e.g., physical abuse, sexual abuse, child neglect, accident, torture, and natural disasters. He has previously given expert testimony in judicial proceedings regarding dissociative amnesia in five States and has also testified about memory and trauma at the international war crimes tribunal. He is the author of twelve books, including a text entitled, "Memory, Trauma Treatment and the Law," which presents a comprehensive review of 2,500 clinical and laboratory studies on human memory.Dr. Brown testified that based on his clinical experience, his review of thousands of studies regarding various aspects of memory, and his analysis of eighty-five studies focused on amnesia in childhood sexual abuse cases, many of which were subject to peer review, it was his opinion that dissociative amnesia exists for a clinically significant minority of traumatized individuals, including children subjected to sexual abuse. He also testified about the evolution of the use of dissociative amnesia as a diagnosis in the DSM, which has been revised several times. He opined that this diagnosis is generally accepted in the field and cited six surveys of psychology professionals, including psychiatrists, psychologists, social workers and clinicians working with war veterans to that effect. According to those surveys (taken collectively), eighty-nine per cent of those surveyed accepted the validity or possible validity of dissociative amnesia.Dr. Brown acknowledged that there is controversy surrounding the existence of dissociative amnesia and the difficulty in determining its existence in a particular individual. [FN17] He also highlighted some of the problems with determining the existence of dissociative amnesia, and agreed that a person with a suggestible personality might be susceptible to false memories suggested by a trusted source, and that an extremely suggestive process of interviewing a subject could also create false memories.Defense counsel cross-examined Dr. Brown for two days about the problems affiliated with determining the existence of repressed memory; the difficulties of corroborating the details of recovered memories; the difficulty in making a precise diagnosis in accordance with the DSM-IV; the uncertainty as to the cause or neurological or biological mechanisms that lead to dissociative amnesia; and the likelihood that a particularly suggestable person would develop false memories or malinger. In that examination, defense counsel brought to the judge's attention the contentions of the critics of repressed memory theory based on the lack of a scientific method to test for it in individuals; the absence of a controlled methodology; and the methodological limitations of clinical observation and experience that depend so greatly on patient self-reporting.(ii) The judge's decision. The judge denied the defendant's motion to exclude expert testimony on dissociative amnesia and recovered memory, concluding that the diagnosis and theories behind it were generally accepted in the relevant scientific community. In doing so, the judge recognized the significance of its listing as a diagnosis in DSM-IV, and credited the testimony of Dr. Brown that "clinically significant minorities of [victims of child sexual abuse] experience amnesia," testimony that was buttressed by the studies cited to and relied on by Dr. Brown which "reflect[ed] a broad-based acceptance of dissociative amnesia and recovery." Contrary to the defendant's arguments that controversy regarding the validity of a theory necessarily precluded a determination that the theory is generally accepted, the judge recognized the controversy, was fully aware of its contours, and rejected it as being determinative in light of the other evidence of acceptance. Lanigan, supra at 27 ("Unanimity of opinion among the relevant scientists is not essential even under the general acceptance test"). That other evidence, the judge pointed out, included statements of both the American Medical Association and the American Psychiatry Association, that "memories of traumatic events can be forgotten but that pseudomemory formation is also possible," in addition to the 1996 final report of the American Psychological Association working group on the investigation of memories of childhood abuse, which included points of agreement among the group members (including Dr. Loftus) that (1) it is possible for memories of abuse that have been forgotten for a long time to beremembered, and (2) it is also possible to construct convincing pseudo memories for events that never occurred. [FN18]The defendant argued below, and argues on appeal, that because there is a lack of peer-reviewed literature regarding repressed memory, the judge improperly concluded that the theory is generally accepted. We defer to the findings of the judge with regard to the testimony of Dr. Brown that was based, in part, on his review of eighty-five studies focused on amnesia in childhood sexual abuse cases, which were conducted in a variety of contexts, including surveys and clinical evaluations, as constituting sufficient and reliable peer review for the purposes of general acceptance. See Canavan's Case,432 Mass. 304, 314 n. 6 (2000) ("A relevant scientific community must be defined broadly enough to include a sufficiently broad sample of scientists so that the possibility of disagreement exists").The defendant's other arguments are equally unpersuasive. They essentially echo the contention made by Dr. Loftus and other critics of repressed memory theory that the theory is invalid because there does not yet exist a scientific method using experimental design to test for its existence in certain individuals nor are there known error rates or standardization. [FN19] The judge, while well apprised of the contention that studies of dissociativeamnesia are unreliable because of methodological flaws, explicitly found that "the methodological criticisms ... by Dr. Loftus [in her affidavit were] rebutted [by Dr. Brown in his testimony]."In sum, the judge's finding that the lack of scientific testing did not make unreliable the theory that an individual may experience dissociative amnesia was supported in the record, not only by expert testimony but by a wide collection of clinical observations and a survey of academic literature. See Canavan's Case, supra at 313 ("Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan analysis than other types of scientific methodology"). There was no abuse of discretion in the admission of expert testimony on the subject of dissociative amnesia.b. Ineffective assistance of counsel. The defendant moved for a new trial pursuant to Mass. R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001), on the grounds that he was denied the effective assistance of counsel both at the Lanigan hearing and at trial. His claims relate to defense counsel's alleged failure to challenge adequately the admissibility of the expert testimony at the Lanigan hearing, and his failure to defend effectively against it at trial. Essentially, the defendant alleges that had counsel done better work in either proceeding, the outcome would have been different. In support of his motion for a new trial, the defendant submitted three affidavits from experts, [FN20] and more than fifty scholarly articles, surveys, and studies, some of which were peer reviewed, [FN21] questioning the existence of repressed memory.A trial judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R.Crim. P. 30(b). The decision to grant a motion for a new trial is within the sound discretion of the motion judge who is entitled to "special deference" if he was also the trial judge. Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996).In evaluating claims of ineffective assistance, the court engages in "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an other available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) ("there ought to be some showing that better work might have accomplished something material for the defense"). See also Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 719-720 n. 6 (1995).If a defendant challenges the "tactical or strategic decisions," of trial counsel, he must establish them as "manifestly unreasonable." Commownealth v. Montanez, 410 Mass. 290, 295 (1991), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978). We are cautious on review "to avoid characterizing as unreasonable a defense that was merely unsuccessful." Commonwealth v. White, 409 Mass. 266, 272 (1991).With respect to the Lanigan hearing, the defendant's claim that counsel was ineffective in his challenge to the admissibility of expert testimony is largely belied by the transcript of the hearing. Defense counsel cross-examined Dr. Brown for nearly two full days and in doing so, thoroughly and precisely illuminated for the judge the issues and the controversies surrounding the scientific validity and acceptance of the theory of dissociative amnesia and the reliability of recovered memory. His attack on the proposed evidence was both sophisticated and knowledgeable, and provided the judge with the information necessary to a full understanding of the nuances of the debate about the subject. Defense counsel also methodically challenged Dr. Brown by highlighting for the judge any possible bias related to Brown's testimony in prior litigation and his association with less credible authors and scholars.In addition, and in connection with the motion for a new trial, the judge carefully reviewed all of the affidavits and the recent scientific articles, surveys, and studies submitted by the defendant. Those materials suggest that an increasing number of mental health professionals have concluded not only that no empirical evidence supports the theory of dissociative amnesia, but also that false memories can occur as a result of a number of factors. After this review, the judge reached several conclusions. First, that there was no dispute at the Lanigan hearing (or at trial) that in some individuals false memories can be implanted, but the existence of such false memories "does not negate the case for the existence of repressed memories." Second, that the lack of unanimity in the scientific community regarding the theory of dissociative amnesia does not rule out its admissibility (citing Lanigan, supra at 26-27). Third, that there is ample evidence of the acceptance of the diagnosis in its inclusion in the DSM-III-R and the DSM-IV, and in its acceptance by the American Psychiatric Association and the American Medical Association, as well as by a number of appellate and trial courts.Finally, the judge concluded that even had defense counsel produced (at the Lanigan hearing) all of the evidence submitted with the motion for a newtrial, his decision to admit the evidence on the basis of its general acceptance by the relevant scientific community would not have changed. Consequently, the "better work" that the defendant now claims his counsel should have done would not have accomplished anything material, and the defendant was not deprived of a substantial defense. After our own review of the record before the judge, we agree that the defendant has not satisfied his burden of demonstrating that his counsel provided ineffective assistance at the Lanigan hearing.We reach the same conclusion with respect to defense counsel's performance at trial. The defendant complains about his counsel's decision to call Dr. Loftus as the sole defense witness to testify about the unreliability of expert testimony on the subject of disassociative amnesia. This, however, was only one prong of the defense case which, importantly, focused both on the victim's possible fabrication of the abuse for the purpose of personal benefit, and the possibility that false memories of abuse had resulted from the process of memory recovery.Defense counsel elicited from Dr. Loftus not only testimony that dissociative amnesia was not a theory accepted by a large segment of the scientific community, and had never been scientifically proved, but also (based on her extensive experience and studies in the field of memory) that there were a number of suggestive influences that substantially increased the likelihood that a particular memory is false--some of which were present in the facts of this case. [FN22] That counsel might have offered even more evidence on these subjects does not amount to ineffectiveness. Although the defendant argues that Dr. Loftus's lack of clinical experience disadvantaged her during cross-examination, her background as a research scientist buttressed the defense theory that clinical observations provided insufficient foundation for the reliability of repressed memory, and that the implantation of false memories was a scientifically documented phenomena.More generally, defense counsel conducted a vigorous defense on all fronts, which included a thorough cross-examination of the victim and Dr. Chu, further exposing for the jury the potential problems with the reliability of evidence based on memories recovered after dissociative amnesia. [FN23] He highlighted for the jury the academic debate involving the existence and manifestation of dissociative amnesia, underscoring the fact that there is no demonstrable evidence to corroborate that the phenomenon exists. He examined Dr. Chu about the possibility that a person susceptible to suggestion could be implanted with a false or pseudo memory, and Dr. Chu acknowledged there were those in the field who believe that the more an individual has the capacity to dissociate memories, the more he is likely to develop pseudo memories. Defense counsel further undercut the relevance of studies related to dissociative amnesia to this case by getting Dr. Chu to admit that such studies provided no illumination as to the question whether any particular individual might be affected by dissociative amnesia. Dr. Chu also acknowledged that the self-reporting aspects of the clinical setting provide limitations in answering the question of whether there is demonstrable evidence that dissociative amnesia exists.Finally, defense counsel utilized the DSM-IV in questioning Dr. Chu, focusing the testimony on the DSM-IV's cautionary language regarding the use of DSM-IV in forensic settings where the patient has been referred by an attorney, and in making a diagnosis of dissociative amnesia where there is "currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence."In sum, this is not a case where "the record reveal[ed] that, notwithstanding an over-all high quality of work at trial, defense counsel's conduct or failure to act in a particular instance was so serious a lapse as to enhance significantly the chance of a defendant's conviction." Commonwealth v. DiGeronimo, 38 Mass.App.Ct. 714, 719-720 n. 6 (1995). Counsel pursued a dynamic, multi-faceted trial strategy that did not rely solely on challenging the admission of the expert testimony, but also on exploring the factual deficiencies in the victim's version [FN24] of events and by impeaching his credibility and his motivations. [FN25] The trial judge's denial of the defendant's motion for a new trial on the ground of ineffectiveness was not an abuse of discretion.We cannot say that counsel's performance at trial with regard to the testimony about repressed memory was lacking, see Commonwealth v. Saferian, 366 Mass. 89, 96-97 (1974); or that counsel's strategic decision to rely largely on cross-examination of witnesses was manifestly unreasonable. SeeCommonwealth v. Montanez, 410 Mass. 290, 295 (1991). Finally, we are not persuaded that counsel failed to pursue an otherwise available, substantial ground of defense that might have accomplished something material for the defense. See, e.g., Commonwealth v. Satterfield, 373 Mass. 109, 115 & n. 10 (1977). The defendant's principal argument is not that his trial counsel failed to pursue a particular defense, but that he failed to do so as effectively as he could have. However, we evaluate counsel's performance not to determine whether in hindsight he might have done things differently and perhaps more effectively, but to determine whether he provided representation commensurate with that of an "ordinary fallible lawyer." Commonwealth v. Saferian, supraat 96. He did so in this case. [FN26]c. Closing argument and comments by the prosecutor; memory analogy. The defendant argues that he suffered severe prejudice when, in attempting to counteract a possible rejection by the jury of the theory of repressed memory, the prosecutor equated that theory with ordinary forgetting and remembering in her closing argument; and, in doing so, misrepresented and mischaracterized the testimony of both Dr. Chu and Dr. Loftus. The defendant further argues that if defense counsel knew that the prosecutor would analogize the victim's repressed memory to ordinary forgetting and remembering during her closing, he would have called an expert to rebut this comparison. [FN27]The Commonwealth responds that the theory of the case was not exclusively limited to the validity of the theory of dissociative amnesia because the victim was never actually diagnosed with that disorder. Instead, the jury were entitled to reject the testimony regarding dissociative amnesia, the purpose of which related to the victim's credibility regarding the delay in reporting the sexual abuse, and still find that the victim had remembered the sexual abuse in reliable detail. The Commonwealth further argues that, at a minimum, the state of the evidence changed with Dr. Loftus's testimony that, notwithstanding her view that the underlying theory of dissociative amnesia had not been scientifically validated, it was nonetheless plausible that a person could forget a traumatic event and then remember it through the processes involved with ordinary memory. [FN28]The defendant did not object to the prosecutor's closing on this ground at trial. Therefore we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).Prosecutors are required to limit their arguments to facts in evidence and reasonable inferences that may be drawn from those facts. Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren, 437 Mass. 723, 730 (2002). A defendant's challenge to a specific part of a closing argument is analyzed in "the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009).Here, the prosecutor's comments about the testimony of Drs. Chu [FN29] and Loftus [FN30] with regard to "remembering" and "forgetting," were not in error. There was testimony about forgetting and remembering traumatic events aside from a diagnosis of dissociative amnesia, a fact recognized andarticulated by the judge prior to closing argument. [FN31] The prosecutor's argument highlighted that testimony and there was no error.d. The "voluntary" appearance and testimony of the victim at trial. The defendant argues that given the importance of the victim's credibility to the prosecution of this case, the prosecutor improperly buttressed his credibility throughout the trial by suggesting to the jury that he appeared "voluntarily" and not by subpoena or as a result of a contractual agreement related to the settlement of the civil suit.This issue arose early in the trial when defense counsel objected to the prosecutor's opening statement that, "[y]ou will learn ... that [the victim] filed a civil lawsuit against the [Boston] Archdiocese, [which] paid him $500,000 last May with no requirement that he testify in this criminal trial." The prosecutor countered that the Commonwealth should be entitled to respond because the defense was going to argue that the victim was biased and motivated by the civil settlement. The judge agreed to take the objection into consideration, but declined to give an instruction addressing the civil case immediately after the opening statements, stating that he would be willing to give an instruction at the time the parties introduced evidence of the civil settlement.The issue arose again before the direct examination of the victim. Defense counsel objected that it would be improper for the prosecution to suggest that victim's appearance in the case was somehow voluntary, and argued that it would be unethical "for the Commonwealth to try to suggest to the jury that this witness has anything to do with the processing of this case notwithstanding whatever policies they may have about forcing people to do or not do anything." The prosecutor again countered that the Commonwealth had a right to rebut the defense's suggestion that the victim was testifying because of the civil settlement and that it was proper to elicit testimony that he was not under subpoena and was under no obligation to appear to testify. The judge agreed to give an instruction that the Commonwealth had exclusive discretion in deciding which witnesses to call in attempting to prove its case against the defendant beyond a reasonable doubt. Defense counsel agreed to wait and see how the victim's testimony developed before requesting such an instruction. The victim testified on direct examination that payment of the civil settlement did not have any conditions attached to it and that he did not appear at trial because of a subpoena. The defense did not object to this testimony, did not move to strike it from the record, and did not request the instruction that the judge had proposed.In his cross-examination of the victim, defense counsel proceeded to question him extensively about the fact that he had spoken with a lawyer about potentially joining a class action suit against the Boston Archdiocese on February 11, the same day on which that the victim alleged he recovered his memories of abuse.Later, at the charge conference, defense counsel again sought to preclude the Commonwealth from arguing that the victim's appearance was voluntary and not compelled by subpoena or any agreement related to the civil trial. The prosecutor countered that defense counsel's cross-examination of the victim suggested that he was lying about having been abused and that the civil lawsuit was the motivation for his lies. The judge ruled that the Commonwealth could comment in its argument about the victim's voluntarily appearing (as was established by the evidence), but would not be permitted to appeal to sympathy or "any improper use of that evidence." [FN32] The defendant's objection was overruled.In her closing, the prosecutor stated: "[The victim] is a twenty-seven year old man. He's recently married. He has a job that he loves.... He has half a million dollars in his pocket. So why, ladies and gentlemen, did he come in here and tell you what happened to him? Why? What does your common sense tell you? "You saw him on that stand for almost 14 hours day after day, hour after hour, he willed himself through that testimony. You saw it. What does your common sense tell you? "He came in here and he told you what happened because that man, that defendant, that priest, raped him and molested him when he was a little boy over and over again. The defendant would have you believe it is all a lie. It's for the money; that people don't forget about things that happen to them and then later remember them.... "Was it all a lie? Was it made up? Did [the victim] come in here and just lie about it? Was it for the money? He has the money. He got the money over nine months ago. No strings attached. What did he get from coming in here? The opportunity to be on the stand? He sustained long, painful questioning, and what did he get from it? It's not about the money. Put that aside. Is it all a lie? ... "And [an attorney] filed a civil lawsuit on behalf of [the victim], and [the victim] got a half a million dollars. True. But so what? It's all done, signed, sealed, delivered to the bank. And it's done. No more words need to be said. That's over. And it has been over for over eight months. That's what you know. That's what you know about what happened."Prior to addressing the jury, the judge suggested a limiting instruction to the parties to address the victim's participation in the civil suit. [FN33] Defense counsel asked that the judge refrain from instructing the jury on that issue. Therefore, no limiting instruction on the civil suit was given.The defendant relies on Commonwealth v. Beaudry, 445 Mass. 577 (2005), for the proposition that the Commonwealth's argument was improper. In that case, the prosecutor argued that the child complainant was credible simply because she testified at trial and that she did not have any motive to lie. Id. at 586. Defense counsel objected to the argument and the judge gave a limiting instruction to the jury, stating, "[T]he fact that a complaining witness has come into court and testified before you does not entitle that witness to any greater credibility.... [T]he mere fact that somebody has come into court to testify does not mean that their testimony is entitled to be believed by you because of the mere fact that they showed up in court and testified." Id. at 586-587.Here, the substance of the prosecutor's closing argument properly touched on the victim's motivation in appearing to testify because it was a primary issue in the case. Unlike in the Beaudry case, the defense strategy was to assail the credibility of the victim by suggesting that he had a motive to fabricate the allegations of abuse, both because of the civil suit and because of a latent desire to get out of the Air Force. Therefore, the prosecutor was warranted in "mak[ing] a fair response to an attack on the credibility of a government witness." Commonwealth v. Senior, 454 Mass. 12, 17 (2009), citingCommonwealth v. Chavis, 415 Mass. 703, 713 (1993). Commonwealth v. Smith, 450 Mass. 395, 408, cert. denied, 129 S.Ct. 202 (2008) (noting that prosecutor's comment regarding government witnesses motives to lie "was a legitimate attempt to defend the credibility of these two witnesses"). There was no error.e. Statute of limitations. The two indictments charging indecent assault and battery, in violation of G.L. c. 265, § 13B, were returned on June 20, 2002. The offenses they allege last occurred on October 5, 1986. The relevant statute of limitations provides that an indictment for such an offense must be "found and filed within six years after such crime has been committed; provided, however, that any period during which the defendant is not usually and publicly a resident within the commonwealth shall be excluded in determining the time limited." G.L. c. 277, § 63, as amended through St.1996, c. 26. It further provides that for the crimes charged here, "the period of limitation for prosecution shall not commence until the victim has reached the age of sixteen or the violation is reported to a law enforcement agency, whichever occurs earlier." Id., as appearing in St.1987, c. 489.It was stipulated at trial that the victim reached the age of sixteen years of age on September 9, 1993. Consequently, the prosecution was required to commence no later than September 9, 1999, unless the defendant was not "usually and publicly a resident within the commonwealth" for some period of time before September 9, 1999. The parties also stipulated that the indictment was returned 1,015 days beyond the six-year limitation date.The statute of limitations defense was initially raised by the defendant in a motion to dismiss. At a scheduled hearing on pretrial motions, the prosecutor, defense counsel, and the judge agreed that, while properly advanced in the motion to dismiss, the resolution whether the indictments were timely brought raised a question for "a finder of fact in the context of trial."At trial, the prosecutor presented evidence from which the jury could have found that the defendant resided outside of Massachusetts for almost the entire period from 1990 (when he left St. Jean's Church) until May, 2002, just before he was indicted. The witnesses from whom the Commonwealth elicited this evidence were cross-examined by defense counsel regarding the basis for their testimony, establishing that they were relying largely on records and not their own personal knowledge. In her closing, the prosecutor argued that the Commonwealth had proved that the defendant was not usually and publicly a resident in the Commonwealth for a sufficient period of time to satisfy its burden of demonstrating that the indictments were timely brought under the statute. The prosecutor also requested a specific jury instruction on the statute of limitations, which the judge gave in its entirety, and to which the defendant did not object.The judge's instruction essentially told the jury that the statute of limitations for the indecent assault and battery offense "would have expired" on September 9, 1999, "unless the Commonwealth has proved beyond a reasonable doubt that the defendant was not usually and publicly a resident of the Commonwealth for at least 1,015 days between October 5, 1986, the last date of the offenses, and June 20, 2002, the date the indictments were returned in this case."In his motion for a new trial, the defendant contended that this instruction was error as it allowed the jury to consider the period before the six-year statute began to run (October 5, 1986, through September 9, 1993) in determining whether the Commonwealth met its burden of proving that he was not usually and publicly a resident of Massachusetts for those 1,015 days. In denying the motion for a new trial, the judge declined to decide whether the instruction was an incorrect statement of the law, and instead concluded that because the defendant had not presented any evidence that he was in the Commonwealth between September 9, 1993, and June 20, 2002, he was not, in any event, entitled to an instruction on the statute of limitations. [FN34] The judge reasoned that insofar as the defense of the statute of limitations is an affirmative defense, see Commonwealth v. Steinberg, 404 Mass. 602, 606 (1989), the defendant had the burden of producing evidence to support the defense at trial before the Commonwealth had any burden of disproving it. Therefore, in the absence of his production of any such evidence, the defendant was not entitled to an instruction. Alternatively, the judge concluded that any "presumed" error in his instruction did not create a substantial risk of a miscarriage of justice because the result of the trial would not have been different had the error not been made.We first conclude that the instruction was error. Whether the defendant resided in or outside of Massachusetts before the statute of limitations began to run on September 9, 1993, is not relevant to whether, once statutorily commenced, the six-year period was thereafter tolled for any period of time by the defendant's absence. [FN35] The instruction should have focused the jury's attention only on the defendant's usual and public residence during the period after September 9, 1993.We next conclude that the statute of limitations defense was properly raised, preserved, and sufficiently presented by the defendant in this case. We have repeatedly referred to the statute of limitations defense as an affirmative defense, Commonwealth v. Steinberg, supra at 606, citing Couture v.Commonwealth, 338 Mass. 31, 33 (1958), and have explained with respect generally to affirmative defenses that where asserted, "the defendant takes on a burden of production because the Commonwealth has no burden of disproving an affirmative defense 'unless and until there is evidence supporting such defense,' " Commonwealth v. Cabral, 443 Mass. 171, 179 (2005), quoting Model Penal Code § 1.12(1), (2) (1985). "If the defense is 'affirmative,' once a defendant raises the defense to a charge and the defense is supported by sufficient evidence, the defendant is entitled to have a jury instruction on the defense, and the Commonwealth has the burden of disproving the defense."
[FN36] Id. We have never had occasion specifically to address what evidence the defendant must adduce in order to be entitled to an instruction on a statute of limitations defense. [FN37]We need not decide what might be necessary in every case where a challenge to the timeliness of an indictment is brought, but in this case, where the Commonwealth was on full notice that the defense was being raised, evidence that the victim's sixteenth birthday was more than six years before the indictments were returned was sufficient evidence of untimeliness to require the Commonwealth to prove that the limitations period was properly tolled under the provisions of G.L. c. 277, § 63. The defendant was not otherwise required to offer evidence that he was "usually and publicly a resident within the commonwealth," in order to raise and preserve the defense. Consequently, the defendant was entitled to a proper instruction on the subject.Finally, we agree with the judge that based on the evidence at trial, the erroneous instruction (which was neither objected to nor pertained to an element of the offense) did not give rise to a substantial risk of a miscarriage of justice. The Commonwealth's evidence that the defendant left the Commonwealth in 1990 and, but for a forty-three day period in 1993, was not usually or publicly a resident of Massachusetts until he returned in May, 2002, was very strong. [FN38] It was so strong that even though defense counsel had cross-examined the Commonwealth's witnesses, he made no reference to the issue in closing argument. A review of the evidence suggests that this failure was not a shortcoming of counsel, but based on a realistic assessment of the state of the evidence before the jury. Had the jury been properly instructed, we have little doubt that the result would have been the same.Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).Judgments affirmed.Order denying motion for a new trial affirmed.
FN1. The terms "repressed memory," "recovered memory," and "dissociative amnesia" were used interchangeably throughout the pretrial and trial proceedings and generally refer to the phenomenon of completely forgetting and later recovering a memory.
FN2. Evidence regarding where the defendant resided after 1990 and up until his indictment in 2002 is relevant to the statute of limitations defense and jury instructions, and is discussed in more detail infra.
FN3. A pseudonym.
FN4. Captain Drozd talked to the victim and administered a test to him. He also changed the victim's military status so that he was temporarily disqualified from performing security duties and from carrying a firearm.
FN5. Drozd described the journal to the victim as being "an emotional barf bag" and directed the victim to record everything that came into his mind.
FN6. Drozd had filled out a request for the victim to take temporary leave. Tammy testified that the victim was very agitated while he was home and would soak the sheets with sweat and curl up into a ball.
FN7. Because of the change in his status and his disqualification from security work when the victim returned to Colorado, he was employed in the visitors' center for civilian guests to the military base. He tried to return to work, but had to leave after a few hours because, he "couldn't be around people." The victim continued to see Drozd and was taking the medications Celexa, Zoloft, and Trazodone. He also developed "a stress rash" on his body for one or two weeks. The victim never returned to work as an Air Force police officer.
FN8. Dr. Chu is a licensed psychiatrist and the chief of clinical services at McLean Hospital. His speciality is the diagnosis and treatment of adults who have been seriously traumatized as children, and he has treated patients suffering from such trauma for nearly thirty years. He is certified by the American Board of Psychiatry and Neurology and Adult Psychiatry, and is a distinguished fellow within the American Psychiatric Association.
FN9. Dr. Chu testified that a particular diagnosis is included in the DSM only after a "fairly rigorous process by which interested groups of people" may convene a task force or engage in field trials to test a new diagnosis of a specific syndrome. The diagnoses in the manual are subject to revision and evolve over time. The dissociative amnesia diagnosis first appeared as such in the third edition of the DSM, DSM-III.
FN10. Dr. Chu gave examples of various triggers that he has observed, including that childbirth may be a trigger for a woman who was sexually abused as a child because the genital pain, fear, and helplessness of childbirth are similar to sensations that the woman may have experienced as a sexually abused child. Another example that he gave was a mother who experiences a trigger when her own child reaches the age at which she experienced abuse.
FN11. On cross-examination, Dr. Loftus acknowledged that it is more difficult to distort the central details of a memory.
FN12. The proponent of the evidence also has the burden of establishing that the witness he intends to call is qualified as an expert in the relevant area, a matter not at issue in this case. Mass. G. Evidence § 702 and note at 207- 208 (2008-2009), and cases cited.
FN13. The judge must also determine whether the reasoning or methodology can be applied to the facts in issue--that is, whether there is a proper "fit" between the two.
FN14. The defendant also moved to suppress the trial testimony of the victim based on the ground that recovered memory is inherently unreliable.
FN15. The judge correctly surmised that hearings held pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (Lanigan ), may not always be required where qualified expert testimony of the same type and offered for the same purpose has been accepted as reliable in the past in Massachusetts appellate cases, see Commonwealth v. Frangipane, 433 Mass.
527, 538 (2001). However, we have not "grandfathered" any particular theories or methods for all time, especially in areas where knowledge is evolving, and new understandings may be expected as more studies and tests are conducted. See Lanigan, supra at 26-27. In spite of what we said in Commonwealth v. Frangipane, supra, the evolving nature of scientific and clinical studies of the brain and memory and the controversy surrounding those studies made it prudent for the judge to proceed with a Lanigan hearing in this case.
FN16. For fourteen years, Dr. Brown was responsible for the annual course on the assessment and treatment of psychological trauma at Harvard Medical School.
FN17. Dr. Brown also testified that much of the current research and debate is centered on determining what neurological or psychological processes or mechanisms cause dissociative amnesia. The Commonwealth did not propose to offer expert testimony on the neurological or psychological processes or mechanisms that might cause dissociative amnesia.
FN18. Critics of repressed memory theory argue that it is flawed because of the risk that so-called false memories can be created where therapeutic or forensic intervention is suggestive. The judge was well aware of this risk and its impact on the validity of the theory and addressed this point in his
memorandum of decision, stating, "[T]he Court rejects any suggestion that the relevant scientific community generally accepts the notion that the fact that false memories may be created in some individuals invalidates the conclusion that dissociation and recovered memory occur in others. In any event, whether one or the other is at work [in this case] is for the jury to decide, with such aid as admissible expert opinion from both sides may provide."
FN19. Dr. Loftus acknowledged that there are severe ethical concerns in designing an experimental study to test the possibility of false memory by implanting memories of abuse in human subjects.
FN20. The experts included Harrison G. Pope, Jr., a practicing board certified psychiatrist and professor of psychiatry at Harvard Medical School. Dr. Pope stated that one of his primary teaching areas involved helping faculty and students to design scientifically valid research studies and to evaluate the methodology of other studies. He attached thirty examples of scientific publications questioning the validity of the repressed memory hypothesis to his affidavit. See note 28, infra. The defendant also submitted an affidavit from Dr. Loftus in which she stated that she provided very minimal assistance in the pretrial stage and that her testimony at trial was limited by her experience to the scientific study of memory, rather than its clinical counterpart. The
third expert was R. Christopher Barden, who has both a doctorate in clinical child psychology and a law degree. He identifies himself in his affidavit as a "national expert in psychology and law." The substance of his affidavit criticized the performance of the defendant's trial counsel and attempted to discredit Dr. Brown.
FN21. Taken collectively, the articles further illustrated the controversy over repressed memory, that the theory was questionable because it could not be tested with scientific methods; that there was the possibility of false memories; that clinical techniques could lead to the formation of false memories; and that there was uncertainty about the neurological mechanism which caused repression.
FN22. Dr. Loftus explained she had designed experimental situations to test for the presence of false memory by using sources of suggestion such as leading questions, allowing a subject to overhear someone else's recollection of an event, and media coverage of an event. Here, there was evidence that the victim learned of the allegations of abuse from media reports and from speaking to a childhood friend who also claimed to have been abused.
FN23. For example, during cross-examination, Dr. Chu admitted that
determining whether abuse occurred to particular individuals was at best, "reasonable speculations." He also admitted, consistent with the defense theory that the abuse did not happen, that determining the validity or accuracy of a memory is perhaps a secondary concern in the clinical setting, where the well-being of the patient takes priority over investigating the truth of a memory; and that the victim here had significant incentive to fabricate. Defense counsel also questioned Dr. Chu extensively about the possibility that the victim was malingering or otherwise exaggerating or fabricating the occurrence of abuse.
FN24. Defense counsel cross-examined nearly all of the Commonwealth's "fact" witnesses about the layout of the church, the bustling Sunday atmosphere at St. Jean's and the number of persons who resided in the rectory during the relevant time period.
FN25. Both the financial settlement from the lawsuit and the testimony from the expert witnesses that a person might malinger or fabricate the appearance of dissociative amnesia to avoid military service bore directly on the victim's credibility.
FN26. We also decline the defendant's invitation to grant a new trial on the
ground of "fundamental unfairness" in light of what appellate counsel declares was the admission of "demonstrably false" information about the acceptance of "repressed memory" in the scientific community. This claim is based on the affidavits and relevant published material submitted in support of the motion for a new trial. Having reviewed that material, we are not persuaded that the judge erred when he concluded that he would have permitted the Commonwealth's expert to testify in any event on the basis of the full record before him-- including the testimony at the Lanigan hearing. Nor are we persuaded that the record in this case requires that we second guess the judge or reach a different conclusion.
The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction.
FN27. The defendant also argues that Dr. Chu improperly used the term "forgetting" instead of "repression" in his testimony and otherwise "with obfuscation" used the terms "forgetting" and "remembering" at trial.
Specifically, Dr. Chu testified as to the following:
"There is ordinary forgetting. Sometimes people forget pretty awful things just through normal forgetting. There seems to be another kind of forgetting
that happens when somebody tries so hard not to think about something for so long that eventually they can't even remember it if they try to remember it. And then there seems to be this other kind of, I would call more of a dissociative mechanism where, especially with chronic traumatization ... that really leads to people having really pervasive amnesia...."
FN28. On cross-examination, Dr. Loftus testified that she wrote in a 1996 article that it was "possible for people to forget about traumatic experiences and later remember them." She elaborated that she would refer to that as "ordinary forgetting and remembering, possibly triggered by a retrieval cue."
FN29. With regard to Dr. Chu, the prosecutor stated: "He came here and told you, he told you about things that make sense: that sometimes people forget about things that happen to them and then they remember them later on."
FN30. With regard to Dr. Loftus, the prosecutor stated:
"Even Dr. Loftus, although she started out on her direct saying that 'it is a very vitriolic debate; this cannot happen; there cannot be such a thing as massive repression.' Within two minutes, when I was asking her, she agreed with me, 'oh yeah, people can forget traumatic experiences that happened to them, and they can later remember them.' And what did she say? 'And if
something happens to you over and over again, you remember it even better.' "
The prosecutor later stated:
"But, ladies and gentlemen, think about it for a minute. Hasn't it all happened to one of us: the walking down the street and you bump into someone, or you are at a high school reunion, just like Dr. Loftus said, and you see someone who you haven't seen in a long time and you start talking. And all of a sudden you remember the time that the two of you were out together and you ran out of gas and you got stranded by the side of the road, and then you got into trouble because you missed your curfew. Now, you hadn't thought about that 10, 12 years, but now you remember. Does it make it any less real that you hadn't thought about it? Does it mean that it never happened? No. Use your common sense."
FN31. Defense counsel requested a jury instruction that the Commonwealth had to prove the existence of repressed memory in order for the jury to find the defendant guilty because if the phenomenon exists, the victim's testimony was truthful, but if not, then the victim must have been fabricating the abuse. In declining to include the requested instruction, the judge noted that in addition to the mutually inconsistent theories related to repressed memory suggested by the defendant, there existed a third basis for the jury's decision, namely, "[M]emories of childhood sexual abuse may be forgotten and
remembered without being repressed. So that seems to me an alternate theory that the Commonwealth can argue from the evidence." The defendant did not object to the judge's ruling.
FN32. The prosecutor never used the term "voluntary" or "voluntarily" in her opening statement, in her cross-examination of the victim, or in her closing. Nor did she mention in her closing that the defendant had not been subpoenaed.
FN33. The instruction was: "I instruct you that neither the civil case nor the settlement of that case has any bearing on the prosecution of this criminal matter."
FN34. The judge apparently did not remember a stipulation admitted in evidence, that the defendant was in Massachusetts for forty-three days between October 16 and December 30, 1993.
FN35. Although it is not explicitly referred to in G.L. c. 277, § 63, as a "tolling" provision, we have consistently referred to it as such. See, e.g.,Couture v. Commonwealth, 338 Mass. 31, 32 n. 1 (1958) (noting that it was not necessary for Commonwealth to plead "the exception tolling the statute").
FN36. While we have referred to a statute of limitations defense as an "affirmative defense," it differs from what we ordinarily understand to be a defining characteristic of such defenses, that is, that they involve, "a matter of ... justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence" (emphasis added). Commonwealth v. Cabral, 443 Mass. 171, 181 (2005), quoting Model Penal Code § 1.12(3)(c). The defendant here is not seeking to excuse or justify his actions by claiming some type of lawful authority. Cf., e.g., id. at 172 (defendant claimed he was agent of a surety and therefore had lawful authority to detain person who defaulted on bail); Commonwealth v. Vives, 447 Mass. 537 (2006) (defendant's claim of right to property in armed robbery case). Rather, it is the Commonwealth that contends that it is justified in bringing the indictments beyond the six-year statute of limitations because the defendant was absent from the Commonwealth.
FN37. The parties to not contest, that once properly raised, the Commonwealth has the burden of proving beyond a reasonable doubt that the indictments have been timely brought.
FN38. The Commonwealth introduced testimony from the keeper of records for the Boston Archdiocese, who testified that there was a change of address form
dated February 14, 1990, for the defendant, listing a new address in Palm Springs, California. He also testified that there was another change of address form in the file dated March 6, 1995, with a new address in New York City. Another clergy member who worked in the Archdiocese's administrative offices testified that he had written a memorandum in January, 1990, referencing the defendant's move to California, and that the office also had several different addresses, all in California, for the defendant during the time from 1990 to late 1994. A third member of the clergy testified that he corresponded with the defendant during late 1995 and early 1996 at a New York City address. A fourth member of the clergy testified to corresponding with the defendant at a New York City address throughout 1997 and then writing a memorandum referencing the defendant's arrival in San Diego, California. He also testified that he wrote letters to the defendant in San Diego on July 13, 1998, and March 3, 1999.
In addition, the Commonwealth introduced copies of the defendant's New York resident tax returns from 1995 and 1998, and his resident income tax returns from San Diego, California, for 1997. The Commonwealth also introduced a stipulation based on California Department of Motor Vehicle records that the defendant listed San Diego as his address as of January 24, 2002. The parties further stipulated that the defendant returned to Massachusetts from California on May 6, 2002, and, on arrival, commented about the changes in the city since
he had last been there.

1980's mall rapist seeks parole

2010-01-10T17:48:00.000-08:00

Salem News
1980s 'mall rapist' seeks parole
Convict chalks up attacks to low self-esteem, cheating lovers
January 6, 2009
By Julie Manganis staff writer

A brutal repeat rapist whose crimes terrorized the North Shore and other Route 128 communities in the early 1980s is asking the state Parole Board to let him out of prison after 25 years.
But it's not clear the board is ready for that, comparing Phillip Pizzo, 60, dubbed "the mall rapist" by media at the time, to serial killer Ted Bundy.
And two prosecutors whose offices put Pizzo in prison in 1984 were among those testifying yesterday afternoon at Pizzo's parole hearing in Natick.
Pizzo "may be the worst rapist in the history of Massachusetts," Assistant District Attorney Kenneth Bresler, appearing on behalf of Essex County District Attorney Jonathan Blodgett, told the board.
Bresler said he believes Pizzo, who is from Westford, should never be released from prison, pointing to Pizzo's "delusional thinking," such as his plan to get a job selling cars if he is released.
"His chances of being hired seem doubtful," Bresler argued, not only because he'd be a registered sex offender but because the very crimes he pleaded guilty to involved approaching young women walking alone to their cars in mall parking lots.
Two of those attacks started at what was then the North Shore Shopping Center in Peabody.
In one, the victim was returning to her car from Christmas shopping one evening in December 1983. Pizzo, wearing a ski mask and holding a knife, ordered her to give him her money and not scream. But when she tried to comply, he then simply shoved her into the passenger seat of her own car, punched her and threatened to break her nose if she didn't stop screaming.
He then drove her car to his car, covered her face with a hat to keep her from seeing where they were and forced her into his car.
It was the beginning of a nightmarish ordeal for the woman, who was a college student at the time. He drove her to his home, her hands tied behind her back, forced her to drink vodka, nailed black plastic trash bags to the walls to prevent her from describing the location and then forcibly raped her repeatedly, warning her, "If you fight me, I'm going to have to kill you."
Afterward, he drove her back to the mall, with another warning.
Another incident exactly a month later, involved a young woman leaving her job at the Jordan Marsh bakery. As she started her car, Pizzo opened the door and got in, forcing her to give him her money and then shoving her into the passenger seat and taking the wheel.
The woman begged him to just take her money and jewelry and just let her go. Instead, once again, he took his victim to his home and forced her to drink vodka from a glass he held because she was tied up. He then proceeded to rape her at knifepoint.
After the attack, he then drove her back to the mall, dropped her off and threatened to kill her if she looked back at his car when he left. He also suggested, "Maybe we can meet again."
Until police pieced together a few clues from victims and eventually caught Pizzo, similar scenarios would play out all over greater Boston and the North and South shores. Pizzo would ultimately plead guilty to six rapes and one attempted rape, as well as multiple kidnapping and robbery charges. He received a life sentence. Pizzo has admitted to at least three other attacks for which he was not charged; prosecutors cite the shifting number as more evidence he's not fit to be released.
One of the attacks happened at a mall in Natick just a few hundred yards from where Pizzo sat yesterday, trying to convince the board he was a changed man after years of therapy that got to the root of his behavior: low self-esteem brought on by an authoritarian father and overprotective mother.
"Though he cannot undo the harm he has done, he has tried to change himself," his lawyer, Sondra Schmidt, said.
Schmidt noted that Pizzo has completed all of the available treatment programs at the Massachusetts Treatment Center in Bridgewater, where he's spent at least a decade. Last November, a jury on the South Shore found that Pizzo is no longer a sexually dangerous person, paving the way for his parole petition.
Pizzo, asked his greatest fear if he is released, cited "publicity" and not reoffending. "I believe there is a 98 percent chance I will not reoffend," Pizzo told the board.
Schmidt also said her client is at a low risk to reoffend, citing his age, as well as recent cancer treatments that have left him impotent.
Pizzo himself suggested that the attacks were triggered by a series of disappointments in his life, including the end of a relationship, one of two in which he claimed the women cheated on him.
"She began to cheat on me," Pizzo said, "and she left. Two weeks after that, I committed my first rape."
He described in graphic detail how he tried and failed to meet other women, leaving nightclubs angry and heading to the Combat Zone to watch hard-core pornography. The attacks often included acts he'd seen in those movies, he said yesterday.
Parole Board Chairman Mark Conrad raised the question of whether 25 years in prison is enough punishment for an offender who not only shattered the lives of his victims, but terrorized tens of thousands more.
Pizzo acknowledged he couldn't put a number on his sentence. And Conrad, in an opinion later shared by another board member, Thomas Merigan, compared Pizzo to Bundy, not for the nature of his crimes, but for his ability to appear outwardly to lead a normal life, hold down a job as an engineer and own a home while carefully plotting his crimes.
"You're a bright man," Conrad told Pizzo. "This is the scary part of it, the planning. You don't really fit on the map. You're kind of a Ted Bundy type. You're one of the scary guys."
Board member Cesar Archilla asked about Pizzo's claim that he wasn't violent with the woman, pointing to the punching and use of a knife.
Pizzo appeared to suggest that those incidents were the victims' own fault. One put up a struggle in the car, Pizzo said. The other grabbed the steering wheel and, when he pushed her back with the knife in his hand, "She got cut in the lip."
Archilla and several other members, including Pamela Lombardini, remarked on Pizzo's lack of emotion yesterday.
"I feel like you've been sitting here telling us a story," Lombardini said.
The board is expected to decide within six to eight weeks.

Man to be arraigned in alleged Littleton kidnap attempt

2010-01-10T06:38:00.000-08:00

LOWELL SUN

Man to be arraigned in alleged Littleton kidnap attempt
By Lisa Redmond, lredmond@lowellsun.com
Updated: 01/10/2010

WOBURN -- A 32-year-old Virginia man will be back in court tomorrow to face charges that he attempted to kidnap a 12-year-old Littleton girl he met online.
Authorities said Daniel O'Brien, of Richmond, intended to abduct and have sex with the girl. He was indicted last month on charges of attempting to commit a crime (kidnapping), enticement of a child and reckless endangerment of a child. He will be arraigned on those charges in Middlesex Superior Court.
Police and FBI agents arrested O'Brien as he stepped off an MBTA commuter train in Littleton at 2:30 p.m. on Nov. 20. He had a return ticket for himself and the Littleton girl he had been communicating with through e-mail and MySpace for months.
After his arrest, police said, O'Brien admitted that he knew the girl's age and that he intended to sexually assault her and place nude photos of her on the Internet.
O'Brien pleaded innocent in Ayer District Court, where he was being held on $50,000 cash bail, which was posted recently. As a condition of his release, O'Brien is to have no contact with the victim.
The girl's stepfather contacted Littleton police after becoming concerned about Internet communications between his stepdaughter and a Virginia man. The stepfather told police the girl was acting odd that morning before school and her backpack was filled with extra clothes and money.
After dropping her off at school, the stepfather and the girl's mother went through their computer and
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found e-mail messages between their daughter and O'Brien, who claimed he was 25. They learned that O'Brien would travel by bus from Virginia to Boston and then would take a train from Boston to Littleton, where he would meet her and take her back to Virginia.
Littleton police contacted the Middlesex District Attorney's Office, which helped in identifying the user of the e-mail account, as well as getting O'Brien's description and the time he would be arriving in Boston. Littleton police and two FBI agents were at the Littleton station for his arrival.
"This was a predatory situation in which the defendant is alleged to have contacted the young victim over the Internet and offered to help her run away from home," said Middlesex District Attorney Gerard Leone.
It is a common scenario.
In 2008, a Florida sex offender was sentenced in New Hampshire to 10 years in prison for driving out of state with a 15-year-old girl from Windham, N.H., whom he met through an online computer game.
In March 2007, Daniel Moses Lenz, 27, of Jacksonville, Fla., arranged to have a friend, Jason Dowling, 23, transport the girl from New Hampshire to Florida to meet Lenz, a convicted felon.
Police learned the girl, who was being home-schooled, had cut off all connections with friends in the area. Her only contacts were a group of online gamers. The girl's mother told police that her daughter mentioned meeting a man named Daniel while online and that he was a 26-year-old living in Florida.
The girl was found with Lenz in South Carolina, a day after she left her parents a note saying she was moving to the Boston area.
Among the convictions on Lenz's lengthy criminal record -- a 1999 conviction for sexual battery against a minor.

Suspect in sexual assault on child held on $1M bail

2010-01-05T05:03:00.000-08:00

Milford Daily News
Suspect in sexual assault on child held on $1M bail
By Melanie Graham
Mon Jan 04, 2010

HOPEDALE - A Level 3 sex offender from Douglas was arrested Tuesday night on a warrant listing three counts of aggravated felonious assault, police said.
John Moosey, 22, of 14 Depot St., Apt. 2, Douglas, was arrested at 8:20 p.m. after police pulled over his car on Mendon Street.
He is being held on $1 million cash bail.
The juvenile unit of the Manchester, N.H., Police Department's investigative division issued the warrant, police said. The charges stem from an incident seven years ago involving the alleged sexual assault of a child under the age of 13.
Hopedale Police said the arresting officer received notice of the warrant at 7:45 p.m. Tuesday evening. A short time later the officer recognized Moosey driving.
According to the Massachusetts Sex Offender Registry, Moosey was convicted in 2007 with indecent assault and battery on a child under 14 years of age.
The registry also shows Moosey works in Hopedale.
Moosey is scheduled to be in Milford District Court today morning.
Following his Massachusetts court appearance, Manchester Police said Moosey will likely be taken to New Hampshire to answer the charges there. If found guilty, he could face a 10- to 20-year sentence.
Melanie Graham can be reached at 508-634-7582 or mgraham@cnc.com.

http://www.wickedlocal.com/hopedale/news/x1767497374/Suspect-in-sexual-assault-on-child-held-on-1M-bail

Jonathan Green of Pennsylvania pleads guilty to sex crimes involving 12-year-old South Hadley boy

2009-12-31T04:58:00.000-08:00

Masslive.com
Jonathan Green of Pennsylvania pleads guilty to sex crimes involving 12-year-old South Hadley boy
By Patrick Johnson, Republican staff
December 29, 2009
SPRINGFIELD – A 27-year-old man from Reading, Penn. faces at least 15 years in prison after pleading guilty Tuesday in U.S. District Court of attempting to seduce a 12-year-old South Hadley boy that he met over the Internet. Jonathan D. Green agreed to plead guilty to two charges, sexual exploitation of a child and travel with intent to engage in illicit sexual conduct, which each stem from the same incident over the summer of 2007.Prosecutors charged that Green sent a 12-year-old boy a video of himself engaged in sexually explicit conduct. He persuaded the boy to make a tape performing the same actions from Green’s tape and to send it back to Green. Shortly after receiving the tape, Green traveled to South Hadley on Aug. 22, 2007 with the intent of having sex with the boy. They met at the boy’s South Hadley home and spent several hours outside together without his parent’s knowledge. A suspicious neighbor called police before Green could engage in sex with the boy, officials said. Judge Michael A. Ponsor has scheduled a sentencing hearing for March 25. He faces a sentence of 15 to 60 years in prison and a fine of up to $500,000. The case was investigated by South Hadley police, and FBI, and was prosecuted by assistant U.S. Attorney Alex J. Grant of the U.S. Attorney’s Office in Springfield.
http://www.masslive.com/news/index.ssf/2009/12/jonathan_green_of_pennsylvania.html
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Reading man pleads guilty in federal child sex case
Reading Eagle
12/31/2009

A 27-year-old Reading man already serving a state prison sentence for sexually assaulting a 9-year-old city boy has pleaded guilty to federal charges that he went to Massachusetts while free on bail in the Reading case to have sex with another boy.Jonathan D. Green of the 400 block of Rehr Street pleaded guilty Tuesday in U.S. District Court in Springfield, Mass., to charges of sexual exploitation of children and traveling with the intent to engage in explicit sexual conduct.

U.S. District Judge Michael A. Ponsor deferred sentencing pending a hearing in the spring.Prosecutors said Green met the 13-year-old South Hadley boy on the Internet in June 2007 and persuaded him to send a sexually explicit photo of himself.Prosecutors gave the following account: While Green was awaiting further Berks County Court action in August 2007, he went to South Hadley and waited outside the boy's house for two hours. He did not meet the boy.It was unclear how authorities learned about his communication with the boy.Authorities seized his computers.A Massachusetts federal grand jury indicted Green in March 2008.In August 2008, Berks Judge Paul M. Yatron sentenced Green to five to 10 years in state prison after Green pleaded guilty to involuntary deviate sexual intercourse with a child and endangering the welfare of a child.In that case, the boy's mother contacted police after learning Green sexually assaulted the boy in Green's truck and at the Pagoda between May 1 and July 12, 2006.

http://readingeagle.com/article.aspx?id=182276

Scully plea avoids sex offender label

2009-12-30T15:37:00.000-08:00

Beverly Citizen
December 30, 2009

http://www.wickedlocal.com/beverly/homepage/x664198573/Year-in-Review-The-Top-12-stories-of-2009
Scully plea avoids sex-offender label
The former director of the Beverly Public Library pleaded guilty in January to two counts of possessing child pornography, averting a requirement that he be required to register as a sex offender.
In exchange for the plea agreement Tom Scully was put on probation for a year and has been monitored by GPS.
Scully also agreed to not have unsupervised contact with children under 16, not possess pornography and consented to random searches of his computer.
The plea agreement also calls for Scully to continue to undergo counseling.
A charge of indecent assault and battery on a person over 14 had previously been dismissed.
Scully, 60, was arrested by Beverly police in April 2005 after the foster father of a boy whom Scully met in the library came to police reporting an “unusual relationship.” The foster father said the boy had been looking at a “questionable Web site” at the library when Scully noticed him and Scully offered the boy a “safe place” to view the Web sites in his Walnut Avenue home. Scully gave the boy several homosexual pornographic DVDs and let him use it in a spare bedroom, but he wasn’t in the room with the boy, according to the plea agreement.
Scully, who had been the library director for 19 years and was also the city’s director of community services, was arrested shortly after the accusations.

Sex offender held on bail

2009-12-30T13:37:00.000-08:00

http://www.milforddailynews.com/news/x1437798453/Sex-offender-held-on-bail

Sex offender held on bail
By Melanie Graham/Daily News staff
Milford Daily News
Posted Dec 30, 2009

HOPEDALE —
A Douglas man and Level 3 registered sex offender was arrested Tuesday night on a warrant listing three counts of aggravated felonious assault. John Moosey, 22, of 14 Depot St., Apt. 2, was arrested at 8:20 p.m. as a result of a motor vehicle stop on Mendon Street. He is being held on $1 million cash bail.The juvenile unit of the Manchester, N.H., Police Department’s investigative division issued the warrant, police said. The charges stem from an alleged incident 7 years ago involving the sexual assault of a child under the age of 13. Hopedale police said the arresting officer received notice of the extraditable warrant at 7:45 p.m. Tuesday evening and shortly after, recognized Moosey driving.According to the Massachusetts Sex Offender Registry, Moosey was charged in 2007 with indecent assault and battery on a child under 14 years of age.The registry also shows Moosey works in Hopedale.Moosey is scheduled to be in Milford District Court tomorrow morning.
Following his Massachusetts court appearance, Manchester police said Moosey will likely be extradited back to New Hampshire and, if found guilty, could face a 10 to 20-year sentence.

http://sorb.chs.state.ma.us/ResultDetail.asp?btn170963=Detail
Link to Mr. Moosey's SORB flyer

2009-12-29T07:56:00.000-08:00

http://weblinks.westlaw.com/result/default.aspx?cfid=1&db=MA-ORSLIP&findtype=Y&fn=_top&lquery=to(allsct+allsctrs+allsctoj+allapp+allapprs+%26+criminal)&rlt=CLID_FQRLT53560254092912&rp=/Search/default.wl&rs=ICLP2.0&serialnum=2020880646&sp=MassOF-1001&sv=Split&vr=1.0

December 29, 2009
SJC Slip Opinion
COMMONWEALTH vs. Jonathan RODRIGUEZ.
No. 07-P-1847.
May 14, 2009. - December 29, 2009.Rape. Evidence, Admissions and confessions, Corroborative evidence. Constitutional Law, Admissions and confessions. Practice, Criminal, Instructions to jury.Consent. Intoxication.INDICTMENTS found and returned in the Superior Court Department on February 7, 2004.After transmittal of the youthful offender documents to the Middlesex County Division of the Juvenile Court Department, the cases were tried before Jay D. Blitzman, J., and a motion for a new trial, filed on May 12, 2008, was heard by him.Jennifer H. O'Brien for the defendant.Susanne R. Bines, Assistant District Attorney, for the Commonwealth.Present: Berry, Mills, & Wolohojian, JJ.MILLS, J.The defendant was convicted as a youthful offender of rape of a child by force (penis in genital opening), G.L. c. 265, § 22A, and rape of a child (penis in mouth), G.L. c. 265, § 23. The charges arose out of an evening of drinking alcohol, culminating in sexual activity among five boys and two girls. The defendant appeals from his convictions and from the denial of his motion for a new trial, arguing that the evidence was insufficient as to both charges andthat the jury instructions on intoxication and capacity to consent were flawed. We affirm.Background. We recite the facts in a light most favorable to the Commonwealth under the familiar standard of Commonwealth v. Latimore, 378 Mass. 671, 676- 677 (1979). On the evening of July 15, 2002, the victim, her friend Mary (a pseudonym), and five boys including the defendant and Mike (also a pseudonym) went to a local elementary school playground to "hang out" and drink alcohol. Earlier that day, the girls, both thirteen years old, had met up with the defendant (then age fourteen) and the other boys at a nearby park, and then went to Mike's house to watch television and listen to music. The boys invited the girls to hang out and drink alcohol that evening, and the girls agreed.The girls left Mike's house at 6:00 P.M. for about one hour in order to "check in" with their parents. Knowing their parents would not allow them to go out with the boys, they lied and said they were going to the movies and spending the night at Mary's house. When they returned to Mike's house, one of the boys had a backpack with liquor in it, and the group walked from Mike's house to the elementary school. The girls were "apprehensive about everything happening" so they made a plan to watch out for each other. When they arrived at the school, Mike made mixed drinks for everyone in red plastic cups.After consuming one mixed drink and several "shots," and playing several "chugging" games, the victim felt dizzy and nauseous and was having difficulty walking. She leaned against a cement wall, talked to Mike while he touched her face, and then spoke with the defendant while he rubbed her back and touched her face. She lost consciousness at some point after this.When the victim regained consciousness, there was "a penis in [her] face." She then lost consciousness again, and when she regained it the second time, she believed "that someone was performing oral sex on [her]," that is, she had the "[f]eeling of his [ [FN1]]mouth in [her] private area ... [her] vagina." The victim lost consciousness a third time and when she woke up there was a person on top of her. She recognized the voice of this person as belonging to Mike, and she felt pain in her "private area" while he was lying on top of her.The next thing the victim recalled is leaving the elementary school. She was having difficulty walking so two of the boys helped her up a hill. The boys walked with the girls until they were near Mary's house, and then the girls helped each other to the door of the house. Inside, Mary went straight upstairs while the victim had a short conversation with Mary's mother before going upstairs. A few minutes later, Mary's sister, followed by her mother andher brother-in-law, came into Mary's room to ask what had happened. Toward the end of a conversation with Mary's mother, the victim said, "I think we were raped."The victim's parents and the police were called, and both girls were transported to the hospital. Hospital staff obtained vaginal swabs and urine and blood samples from the victim; testing revealed sperm cells from Mike on the exterior portion of her vagina. No deoxyribonucleic acid (DNA) of the defendant was found on the victim.A detective was dispatched to investigate a "possible sexual assault." When he tried to talk to the victim she was "incoherent" and "disheveled." The same detective later interviewed the defendant, and the audio tape recording of this interview was admitted and played for the jury at trial. [FN2] On the recording, the defendant admitted that he knew the victim was drunk, that he placed his penis "on" the victim's mouth, and that he placed his penis inside the victim's vagina. He made statements to the effect that the victim consented to these actions. According to the defendant, he did not use a condom or ejaculate, and he did not put his mouth or tongue on the victim's vagina. He also stated that after he had sexual intercourse with the victim, Mike had sexual intercourse with her.A grand jury indicted the defendant as a youthful offender on three counts of rape of a child with force. At the jury trial, at which the defendant did not testify, the defense strategy was essentially to challenge, through cross-examination of the Commonwealth's witnesses and argument, the elements of penetration and force, there being no serious contention that the defendant was not present or did not engage in sexual acts with the victim. [FN3] The jury convicted him on the first indictment, rape of a child by force, "to wit: [the defendant's] penis in [the] child's genital opening." On the second indictment for rape of a child by force ("to wit: [the defendant's] penis in [the] child's mouth"), the jury found him guilty of the lesser included offense of rape of a child. The jury found the defendant not guilty on the third indictment, on which he was tried as a joint venturer in the victim's forcible rape by Mike.Discussion. 1. Sufficiency of evidence of oral rape. We reject the defendant's argument that the evidence was insufficient on the element of penetration as to the crime of rape of a child (by penis in mouth). "The crime of 'unnatural sexual intercourse' with a child includes oral sex." Commonwealth v. Fowler, 431 Mass. 30, 33 (2000), citing Commonwealth v. Gallant, 373 Mass. 577, 583 n. 5, 584 (1977). While "there [must] be some degree of penetration,"Commonwealth v. King, 445 Mass. 217, 224 (2005), cert. denied, 546 U.S. 1216 (2006), it may be inferred from circumstantial evidence. Commonwealth v. Fowler, supra. Penetration may be inferred where the defendant forces the victim to "lick" his penis, and the court has cited approvingly to other jurisdictions in which penetration was inferred from the victim kissing the defendant's penis. See Commonwealth v. King, supra at 223 n. 6, citing, e.g.,Hennington v. State, 702 So.2d 403, 408 (Miss.1997) ("[P]roof of skin to skin contact between a person's mouth, lips, or tongue and the genitalia of a person's body, whether by kissing, licking, or sucking, is sufficient proof of 'sexual penetration' "). See also Commonwealth v. Mosby, 11 Mass.App.Ct. 1, 17 (1980) (sufficient evidence of penetration where adult victim testified that defendant "put his mouth to--to my vagina" and that he "put his mouth down below").Here, the victim testified, "I remember coming back into consciousness and there's a penis in my face." The defendant also admitted, in the tape-recorded interview played for the jury, that he placed his penis "on [the victim's] mouth." The defendant added that at that point, he was lying down on his back and the victim was in front of him, between his legs. The jury were permitted to infer penetration from all the evidence. See Commonwealth v. King, supra.There was no error in denying the motion for a required finding of not guilty.2. Sufficiency of corroborative evidence of vaginal rape. The defendant also argues that the judge should have granted his motion for a required finding of not guilty on count one (rape of a child by force by penis in genital opening), contending that there was no evidence to sustain a conviction other than the defendant's uncorroborated confession. We disagree. There was sufficient evidence from which to infer that illegal sexual conduct took place between the defendant and the victim which corroborates the defendant's confession.When a motion for a required finding of not guilty is based on a claim of an insufficiently corroborated confession, a less demanding standard may apply than that of Commonwealth v. Latimore, 378 Mass. at 676-677. See Commonwealth v. Villalta-Duarte, 55 Mass.App.Ct. 821, 825 (2002). The main purpose of the rule requiring corroboration of extrajudicial confessions is to "guard against conviction for imaginary crimes." Commonwealth v. Forde, 392 Mass. 453, 458 (1984). Thus, when it comes to evaluating the sufficiency of corroborating evidence, the standard we apply requires "merely that 'there be some evidence, besides the confession, that the criminal act was committed by someone, that is that the crime was real and not imaginary.' " Commonwealth v. Villalta-Duarte, supra, quoting from Commonwealth v. Landenburg, 41 Mass.App.Ct. 23, 25 (1996).Unlike Latimore, this standard does not require corroboration of each element of a crime, but does at a minimum require evidence that the crime was committed by someone. Commonwealth v. Villalta-Duarte, supra. "The corroboration required ... may be quite minimal." Id. at 825-826, quoting fromCommonwealth v. Sineiro, 432 Mass. 735, 745 n. 11 (2000). The corroborative proof need not show that it was the defendant who actually committed the crime. Commonwealth v. Forde, supra.For example, in Villalta-Duarte, the defendant confessed to sexually abusing the victim, a pre-verbal toddler, on two occasions while she was under the care of the defendant's wife, a day-care provider. 55 Mass.App.Ct. at 823-824. "[T]he evidence showed that, at the same time that the defendant was present at his apartment during the day, the preverbal victim began to cry hysterically when brought to the apartment, developed an intractable diaper rash, and had scratches on her face." Id. at 826. When the victim was taken to a different day-care provider, these symptoms were initially repeated, but disappeared after a few weeks. Ibid. The court considered the special evidentiary problems involved in child sex abuse cases and the history and development of the corroboration rule in Massachusetts, concluding that the evidence was "sufficient to support an inference that something traumatic occurred in the apartment where the defendant lived," and therefore met the corroboration standard. Ibid. In the case at bar, we first observe that we deal with evidentiary problems of a related type, stemming from the victim's intoxication and her difficulty in recalling specifically what happened. However, unlike in Villalta-Duarte, where we considered whether the actions of the pre-verbal toddler supported an inference that the crimes occurred, here we have actual testimony from the victim that supports an inference that the crime occurred.The defendant's taped confession and the victim's trial testimony gave similar accounts of the incidents of sexual conduct. Both described a series of three incidents. The order in which the events were recounted was the same in both the victim's testimony and the defendant's taped interview. The descriptions of the three incidents were also substantially similar. Specifically, both described the first incident as involving the defendant's penis and the victim's mouth. The victim testified that she "remember[ed] coming back into consciousness and there's a penis in my face." The defendant admitted, in his tape-recorded interview, that he "placed [his] penis on [the victim's] mouth." Consequently, the jury found the defendant committed oral rape, and we have upheld that conviction. The third incident, according to both the victim and the defendant, was sexual intercourse between the victim and a third party, Mike.As to the second incident, both the victim and the defendant described it as involving vaginal penetration. The defendant admitted putting his penis inside the victim's vagina. The victim testified that "[t]he next thing I remember is just I'm waking up and my believing that someone was performing oral sex on me." Asked to clarify, she stated she had had the "[f]eeling of his mouth in my private area ... [m]y vagina." The difference between the defendant's and victim's descriptions of the second incident is, for corroboration purposes in this case, inconsequential. [FN4] Corroboration of a confession requires onlysome evidence that the crime was committed by someone and was not imaginary. See Commonwealth v. Forde, 392 Mass. at 458; Commonwealth v. Villalta-Duarte, 55 Mass.App.Ct. at 826. Here the statements of the victim taken together support an inference that there was a second incident and it involved vaginal penetration. Compare ibid. (sufficiently corroborative evidence "support[ed] an inference that something traumatic occurred in the [defendant's] apartment"). Contrast Commonwealth v. Costello, 411 Mass. 371, 375 (1991) (alleged victim testified that sexual acts did not occur, and his prior inconsistent statements were not admitted for their substance; thus, absent other evidence, defendant's two uncorroborated confessions could not bebasis for conviction).We conclude that the totality of the evidence aside from the defendant's confession, in light of the history and purpose of the corroboration rule in Massachusetts, was sufficient to support an inference that illegal sexual conduct did take place between the defendant and the victim and that the crime confessed to was not imaginary.3. Jury instructions. It is true that the judge, in part, utilized some language recently disapproved in Commonwealth v. Blache, 450 Mass. 583, 592 (2008) (phrase "wholly insensible" used to describe level of intoxication required for incapacity "sounds archaic and confusing"), and Commonwealth v. Urban, 450 Mass. 608, 613 (2008) ("by listing intoxication and drunkenness alongside sleep, stupefaction, unconsciousness, and helplessness as potential bases for a finding of incapacity, the judge created the risk that jurors would equate these conditions, at least as they bear on the question of consent"), quoting from Commonwealth v. Urban, 67 Mass.App.Ct. 301, 306 (2006). However, after considering the judge's lengthy instructions in their entirety, seeCommonwealth v. Glacken, 451 Mass. 163, 168-169 (2008), we conclude that he conveyed effectively the jury's task of determining whether "because of the consumption of ... alcohol[,] ... the complainant was so impaired as to be incapable of consenting to intercourse." Commonwealth v. Blache, supra at 591-592. The judge made clear that "the jury must find not just that [the complainant] was intoxicated, but that her degree of intoxication was such that it rendered her incapable of consenting to intercourse," Commonwealth v. Urban, 450 Mass. at 613; and he communicated to the jury "that intoxication must be extreme before it can render a complainant incapable of consenting," Commonwealth v. Blache, supra at 592 n. 14.Finally, there is no merit to the defendant's claim that the judge's correction of a slip of the tongue improperly prohibited the jury from weighing the defendant's level of intoxication in their deliberations. The judge specifically tied his correction to the instruction during which he misspoke, which concerned only the victim's level of intoxication.Judgments affirmed.Order denying motion for new trial affirmed.
FN1. The victim did not testify as to whom the word "his" referred.
FN2. No issue is raised in this appeal as to the admissibility of the
defendant's recorded statements or as to the jury instructions regarding their use.
FN3. The defendant called one witness, his mother, who testified that the police utilized promises of nonprosecution, and threats to bring charges, in order to induce the defendant's tape-recorded statements.
FN4. The defendant has not argued that this difference should lead us to reverse due to prejudicial variance between the indictment and the proof at trial. See, e.g., Commonwealth v. Geane, 51 Mass.App.Ct. 149, 151-152 (2001). The defendant was convicted by the petit jury of the crime specified by the grand jury, and the issue here is simply whether the evidence of that crime before the former was legally sufficient in light of the corroboration requirement.END OF DOCUMENT

Body of missing Maryland girl is found near Delaware - The Boston Globe

2009-12-26T06:27:00.001-08:00

Body of missing Maryland girl is found near Delaware - The Boston Globe

Posted using ShareThis

Sex Offender kidnapping girl Salisbury, Md.

2009-12-24T15:49:00.000-08:00

http://www.washingtonpost.com/wp-dyn/content/article/2009/12/24/AR2009122401284.html?hpid=topnews

Sex offender charged with kidnapping girl in Salisbury, Md.

Thomas James Leggs, left, has been charged with kidnapping and burglary in the disappearance of Sarah Haley Foxwell, 11.

By Maria GlodWashington Post Staff Writer Friday, December 25, 2009

A registered sex offender has been charged with kidnapping an 11-year-old Salisbury, Md., girl who went missing from her bedroom Tuesday night, authorities said. She had not been found as of Thursday evening.
Sarah Haley Foxwell went to her room about 9:30 wearing fuzzy red pajama bottoms with Christmas trees on them and a pink John Deere T-shirt, Wicomico County sheriff's officials said. She was gone in the morning when her brother went to check on her. Sarah and the brother and a sister live with an aunt, who has other children.
Thomas J. Leggs, 30, a registered sex offender, has been charged with kidnapping and burglary and was in custody, authorities said. Officials said that he is Sarah's aunt's ex-boyfriend and that their relationship ended about a month ago.
Wicomico Sheriff Michael A. Lewis, who was leading a massive search Thursday night, said he was hopeful that Sarah would be found alive.
"We have faith. We want to bring this little girl home to her family," Lewis said. "Please ask people to pray for Sarah and her family."
Lewis said interviews with the children in the house, as well as other evidence, convinced investigators that Leggs abducted Sarah. Lewis said that Leggs, who works as a laborer in a wood and counter business, was refusing to cooperate.
Leggs, who authorities said lives in Salisbury in an outbuilding on property his parents own, is registered as a sex offender in Maryland and Delaware.
According to Maryland's sex offender registry, Leggs has a conviction for a third-degree sex offense. Wicomico officials said the victim in that crime was a young girl.
According to a Delaware Web site, Leggs is a "high-risk" offender who was convicted in 2001 of raping a teenager.
Hundreds of searchers fanned out Thursday over several miles of fields and dense woods, looking for any sign of Sarah. Officials said the search area included ponds and frozen fields in addition to residential areas. Police from Maryland, Virginia, Pennsylvania and Massachusetts were assisting in the search.
Authorities were asking for information from anyone who might have seen Leggs's vehicle, a 2003 champagne-colored Dodge Ram pickup, between 11 p.m. Tuesday and 11 a.m. Wednesday. Officials ask that anyone with information about Sarah's disappearance call the Wicomico County Sheriff's Office at 410-548-4891.
Staff researcher Meg Smith contributed to this report

Littleton Police Announce Indictment

2009-12-23T20:06:00.000-08:00

Winchester Star
12-23-2009
LITTLETON -
http://www.wickedlocal.com/winchester/news/x1462336670/Littleton-Police-Announce-Indictment

Littleton Police Announce Indictment

The Littleton Police have been notified by the Office of Middlesex County District Attorney Gerry Leone that an Indictment was returned against Daniel O’Brien of Richmond Virginia.

The Indictment stemmed from O’Brien’s arrest, by the Littleton Police Department, on Nov. 20, when O’Brien traveled from his home in Virginia to Littleton with plans to meet a 12 year old Littleton Middle School Student and assist her in running away with him back to Virginia. Littleton Detectives testified before the Middlesex County Grand Jury concerning the facts of the case and presented evidence.

O’Brien’s plan was discovered when the girl’s mother and the mother’s boyfriend performed some preliminary investigation in response to irregular behavior the 12 year old was exhibiting.

Once the Littleton Police were given that information they were able to track the suspect through email accounts, MySpace, and law enforcement technology tools.
In addition Littleton Detectives Matt Pinard and Jeff Patterson were able to track O’Brien’s moves through bus tickets that he had purchased, one of which had the young girl’s first name on it along with O’Brien’s last name and had a destination of Virginia.

O’Brien was positively identified on a train that was travelling from Boston to Littleton by Littleton Police Lt. Matthew King, who had boarded the train prior to it reaching its Littleton Destination. Once in Littleton O’Brien was taken into custody by the Littleton Police Department with the assistance of FBI Agents from a local office.

The Indictment returned against Daniel O’Brien was for the charges of: Attempt to Commit A Crime – To Wit Kidnapping, Enticement of a Child, and Reckless Endangerment of a Child. O’Brien is currently being held on bail pending trial.

Coaches arraigned in rape of girl, 13

2009-12-23T03:42:00.000-08:00

Boston Herald
Coaches arraigned in rape of girl, 13
By Marie Szaniszlo and Renee Nadeau
Wednesday, December 23, 2009

Two former Medford soccer coaches pleaded not guilty yesterday to raping a 13-year-old girl on their team.
The assaults allegedly took place from the spring of 2003 to the summer of 2004, when Roger Lau and Thomas Heinz, both 26, coached a Medford soccer team for girls 14 and under. Heinz was a head coach at the time, and Lau was an assistant coach.
The alleged victim told police that she had a sexual relationship with Lau for more than a year, beginning when she was 13, and that Heinz assaulted her on two occasions.
“These are extremely troubling allegations against people who had positions of power and control and who violated the trust that was placed in them,” said Middlesex County District Attorney Gerard Leone.
Judge Maurice Flynn ordered the case file impounded, but prosecutors said Lau first had sex with the girl after bringing her to his home under the pretense of watching a movie.
In another instance, Lau was having sex with a woman at his house when Heinz molested the alleged victim as they sat on the edge of the bed, prosecutors said.
The alleged victim, now 20, first reported the assaults to police last month, Leone said.
“It’s very difficult to come forward when you’re 13 or 14,” Leone said. “It’s not unusual to see delayed disclosure in cases like this.”
Lau was arrested late Monday on four counts of forcible rape of a child. Heinz was arrested yesterday morning on one count of forcible rape of a child. Both men were arraigned yesterday in Somerville District Court.
Lau was ordered held on $8,000 cash bail, which his family was expected to post. Heinz was released on his own recognizance, leaving in a minivan driven by his father, Thomas Heinz Sr., who is listed as town coordinator on the Medford soccer league’s Web site.
As a condition of their release, the defendants are not allowed to have unsupervised contact with a child under 16.
Heinz’s attorney, Brad Bailey, said he and his client were planning a “vigorous defense” against the allegation. Lau’s attorney, Jason Thomas, could not be reached for comment.

http://www.bostonherald.com/news/regional/view.bg?articleid=1220664&srvc=news&position=3

Former Medford Soccer Coaches Arraigned on Child Rape.

2009-12-22T18:43:00.000-08:00

http://www.middlesexda.com/press-release-archive/former-medford-soccer-coaches-arraigned-on-child-rape-charges-involving-former-player/

For Immediate Release December 22, 2009 Contact: Jessica Venezia 781-897-8325

Former Medford Soccer Coaches Arraigned On Child Rape Charges Involving Former Player
WOBURN – Two former Medford soccer coaches have been arrested and arraigned on forcible child rape charges, Middlesex District Attorney Gerry Leone informed the public today.
Roger Lau, 26, of Medford, was arrested late last night on 4 counts of forcible child rape. He was arraigned this morning before Somerville District Court Judge Maurice Flynn and ordered held on $8,000 cash bail with conditions that he has no unsupervised contact with children under the age of 16 and no coaching, referring, employment or volunteering with children under the age of 16.
Thomas Heinz, 26, of Medford, was arrested this morning on one count of forcible child rape and arraigned this morning before Judge Flynn and ordered released on personal recognizance with conditions that he has no unsupervised contact with children under the age of 16 and no coaching, referring, employment or volunteering with children under the age of 16.
Lau and Heinz’s next court date is January 25 for a probable cause hearing.
At the time of the rapes, which occurred from the spring of 2003- the summer of 2004, the defendants coached the under 14 girls soccer league in Medford. Heinz was the head coach and Lau was the assistant coach.
The victim, aged 13-14 at the time, stated to authorities that she was involved in a sexual relationship with Lau for over a year.
The victim further stated that Heinz had also assaulted her on two separate occasions. Heinz was 20-21 at the time.
The investigation remains ongoing. Members of the public who believe that they may have information that could be helpful to the investigation can call Medford Police at 781-391-6778 or the Middlesex District Attorney’s Office Child Abuse Unit at 781-897-8400. The Medford Soccer Association has cooperated fully with the investigation.
These charges are allegations, and the defendants are presumed innocent until proven guilty.
The case is being investigated by Medford Police. The prosecutor assigned to this case is Assistant District Attorney Katelyn Draper of the Middlesex District Attorney’s Child Abuse Unit. The victim witness advocate is Susie Marshall. The Child Interview Specialist is Katie Nugent.
###

Police charge man with child porn

2009-12-19T19:04:00.000-08:00

Police charge man with child porn

Ayer resident was convicted in 1984 of indecency in Texas
By Lisa Redmond, lredmond@lowellsun.com
12/17/2009

AYER -- A 56-year-old Ayer man, who became the focus of an investigation after state police searching a child-pornography Web site found he was allegedly offering to share files, allegedly had hundreds of files of child pornography on his computers during a recent search of his home.
Dale E. Cole, who lives at 43 Pleasant St., was ordered held on $15,000 cash bail after pleading innocent in Ayer District Court yesterday to distributing material showing a child in a sexual act and two counts of possession of child pornography.

Prosecutor David Rubin sought $50,000 cash bail, claiming that Cole, who faces a 10-year sentence if convicted of distribution, became the focus of a state police investigation on Dec. 8.
But defense attorney Robin Gagne argued that Cole should be released on personal recognizance or low bail because he poses no flight risk.

Gagne said that since he was honorably discharged from the Air Force, where he was a medic, Cole has worked for the past 15 years as a pharmacy technician at the Veterans Administration Hospital and cares for his elderly mother and father, who live in a nursing home.
Although acknowledging that Cole has a 1984 conviction in Texas for indecency with a child, for which he was placed on probation for 10 years, he has had no legal problems since.
But Middlesex District Attorney Gerard Leone said, "The defendant's conduct is especially troubling considering his previous conviction where he indecently violated a child in Texas. Children are our most vulnerable victims, and we will continue to vigorously investigate and prosecute cases of child pornography and exploitation that oftentimes lead to physical abuse."
In addition to that case, Cole was prosecuted in 1992 for allegedly sexually assaulting a 10-year-old boy who played on the Pop Warner football team Cole coached in Townsend, according to published reports from the time.

At the time, then Assistant District Attorney Martha Coakley cited the 1984 Texas conviction and said Cole faced up to life in prison because the charges were a subsequent offense.
Cole, who also then lived at 43 Pleasant St., Ayer, was later acquitted of those charges in Middlesex Superior Court.

On Dec. 8, an officer searched an Internet file-sharing network for a digital video file that he knew depicted an identified child engaged in sexual activity. The network returned a list of other users offering to share that file, and the officer identified an Internet protocol address as coming from Massachusetts.

The officer then made a direct connection with that computer and looked at the list of other files that computer was offering to share. That list had more than 190 entries, as well as names of multiple files that appeared to be child pornography.

Based on information obtained, the Massachusetts State Police then traced the IP address in question back to Cole's address and subsequently applied for a search warrant for Cole's home.
Cole allegedly told police he had child pornography, admitted to using an Internet-based network to obtain and/or collect child pornography, and admitted to storing the child pornography before deleting it, allowing other Internet users to download their own copies of the contraband.

Police saw that Cole was storing at least 200 more child-pornographic files categorized in folders on a laptop and desktop computer. There were also reportedly multiple files of child pornography found in a computer in the defendant's bedroom.

Cole's next court date is Dec. 30.
http://www.lowellsun.com/ci_14016484?source=rss_viewed

SJC knocks out sex charge

2009-12-07T09:39:00.000-08:00

SJC knocks out sex charge

By Gary V. Murray TELEGRAM & GAZETTE STAFF
gmurray@telegram.com

WORCESTER — The state Supreme Judicial Court has reversed a Shrewsbury man’s 2007 conviction for attempted rape of a child in a case in which a jury found he agreed to pay an undercover police officer $200 to have sex with a 4-year-old girl. In a split decision yesterday, the state’s highest court affirmed Kerry V. Bell’s conviction for offering to engage in sex for a fee, but found there was insufficient evidence to support the attempted child rape conviction. According to testimony at Mr. Bell’s Worcester Superior Court trial, an undercover Worcester police officer posing as a prostitute met with him on March 25, 2004, in a convenience store parking lot and offered to let him have sex with a 4-year-old girl she told him was her foster child in exchange for money. Police Officer Patricia J. Cummings testified that Mr. Bell agreed to pay $200 to have sex with the child after being told the girl was on Elm Street, by Elm Park, and that he could follow her there in his vehicle. Mr. Bell was arrested by other officers as he began to drive out of the parking lot in the direction of the park. On June 19, 2007, Judge Bruce R. Henry sentenced Mr. Bell, now 63, to 4 to 5 years in state prison on the attempted child rape charge and to a concurrent sentence of one year in the House of Correction, the maximum sentence allowed under the law at the time, on the offering to engage in sex for a fee charge. The law was changed after his arrest to allow for a state prison sentence of up to 10 years for soliciting sex with a child under 14. Mr. Bell had prior convictions for similar crimes in other states. In an opinion written by Judge Francis X. Spina, the SJC found that although there was sufficient evidence offered at trial to show that Mr. Bell “intended and prepared for the rape of a child,” the evidence was not sufficient, as a matter of law, “to show that he undertook an overt act that put him so near — in time or ability — to the commission of the crime as to be guilty of attempt.” Distinguishing between actions “merely in preparation” to commit a crime and those that constitute an attempt to carry out a criminal act, the court noted that Mr. Bell was “more than a mile from a vague location” at the time of his arrest, had not paid Officer Cummings any money and “could have decided to return to work and not commit the crime” if he had not been taken into custody. “While the crime of rape of a child is a very grave crime, its commission was still far from certain,” in Mr. Bell’s case, the court said in its ruling. Judge Robert J. Cordy, in a dissenting opinion, said he would have favored affirming both of Mr. Bell’s convictions. He said the evidence in the case established that Mr. Bell “had moved beyond the mere preparation phase” of the crime of attempted child rape and “was on his way to a nearby location to commit the crime.” Judge Ralph D. Gants also dissented. Taking issue with Judge Henry’s instructions to the jury, but not with the sufficiency of the evidence, Judge Gants said he would reverse the attempted child rape conviction, but remand the case to Worcester Superior Court so the prosecution could decide whether it wanted to retry Mr. Bell on the indictment. Judge Roderick L. Ireland joined in both dissents. Mr. Bell still has possession of child pornography and failure to register as a sex offender changes pending in Worcester Superior Court and is being held on a total of $100,000 cash bail of those charges.

http://www.telegram.com/article/20091205/NEWS/912050363/1003/NEWS03

Sex offender arrested again

2009-12-06T05:05:00.000-08:00

Worcester Telegram & Gazette

Sunday, December 6, 2009

Sex offender arrested again

By Linda Bock and Winston W. Wiley TELEGRAM & GAZETTE STAFF

lbock@telegram.com wwiley@telegram.com

FITCHBURG — Police arrested a twice-convicted Level 3 sex offender who was wearing an electronic monitoring device early Friday evening after receiving a call from a passer-by who became suspicious of the man’s interactions with a 9-year-old girl who was walking home. David. J. Wright Sr., 54, with a last known address of 61 Falulah St., was charged with enticing a child younger than 16 and accosting a child younger than 16. His last known work address is 285 Central St., Fitchburg, according to state records. Lt. Kevin O’Brien said police got a call at 4:45 p.m. Friday from a woman who reported that a man had approached a young pedestrian on River Street and had apparently said something to upset her. The woman, whom police did not identify, saw the alleged interaction between the girl and the suspect and then saw the little girl run away, according to Lt. O’Brien. Lt. O’Brien said the woman went after the little girl to see if she was OK. “The man asked her (the 9-year-old girl) what her name was and where she was going,” said Lt. O’Brien. The woman called 911. “She was pretty sharp,” Lt. O’Brien said. It was dark out, and there were no streetlights on in the area, according to police. “Who would have known what would have happened.” Police Officers Ryan Keenan and James McCall went to the area, and Mr. Wright fled upon their arrival, police said. Lt. Kearns said the officers chased Mr. Wright, caught him on nearby Sheldon Street and arrested him. He was then taken to the police station. “Once he gets here,” Lt. O’Brien said. “His GPS goes off.” Police officials contacted the central administrative office for the Massachusetts Probation Service, and a warrant to hold Mr. Wright on violation of probation was issued. Mr. Wright had been ordered to wear an electronic monitoring device because of a previous offense in Leominster, according to Lt. Kevin O’Brien. Mr. Wright is scheduled to be arraigned tomorrow in Fitchburg District Court. Mr. Wright was convicted in 1991 on a charge of indecent assault and battery on a person 14 or older, according to the state’s sex offender registry Web site. He was again convicted in 1993 on another charge of indecent assault and battery on a person 14 and older. The state’s Sex Offender Registry Board has determined that Level 3 sex offenders have a high risk to re-offend.

http://www.telegram.com/article/20091206/NEWS/912060408/1101

SJC throws out attempted child rape conviction

2009-12-04T19:44:00.000-08:00

SJC throws out attempted child rape conviction

By State House News Service

Friday, December 4, 2009

In a split decision, the Supreme Judicial Court today threw out the conviction of a man found guilty of attempted child rape in 2004.

Although the man, Kerry Van Bell, had agreed to pay for sex with a four-year-old girl and made arrangements with an undercover Worcester police officer posing as the girl’s foster mother, his actions were not close enough to attempted rape to warrant conviction, argued Justice Francis Spina, writing for the 4-3 majority.

The court upheld Van Bell’s conviction for soliciting sex with a child. According to the court’s description of facts, Van Bell had been the subject of a Worcester Police sting. The undercover officer, Patricia Cummings, arranged to meet Van Bell in the parking lot of a Honey Farms convenience store in Worcester and arrange to receive $200 in exchange for sex with the child.
Once there, Van Bell expressed displeasure that the child was not in the car but agreed to follow Cummings to another location where she promised the child would be. Once Van Bell began to pull his car away, Cummings signaled to fellow police officers who cornered and arrested Van Bell. “Even though Cummings and the defendant came to an agreement, he had yet to see a child and did not know the exact location of the child,” Spina wrote, explaining the overturned conviction. “He had yet to follow Cummings to any type of house or park, and he had not yet paid for the child.

The preparation and negotiation, although sufficient to warrant a guilty verdict of solicitation, did not come near enough--in time or ability--to the substantive crime of attempted rape to sustain a guilty verdict.” Spina was joined in the majority by Chief Justice Margaret Marshall and Justices Margot Botsford and Judith Cowin. In a partial dissent, Justice Robert Cordy argues that Van Bell’s attempted rape conviction should have been upheld. “The evidence readily established that the defendant had the requisite intent to commit the crime of attempted rape,” he wrote in an argument supported by Justice Roderick Ireland. “It also established that at the time of his arrest, he had moved beyond the mere preparation phase of the crime (identifying a supplier and negotiating the price and the sex acts for which the child was sought) and was on his way to a nearby location to commit the crime.”

In a separate dissent, also supported by Justice Ireland, Justice Ralph Gants argued that the court erroneously replaced “attempt” statutes with “a more restrictive alternative: when a defendant is interrupted in the commission of a crime, unless he has directed another to commit the crime, he must be physically present at the place where he is able to carry out the crime in order to be found guilty of criminal attempt.”

Gants said he supports the court’s decision to overturn the attempted rape charge but only because he believes the jury was given improper instruction that “poses a substantial risk of a miscarriage of justice because the evidence of an attempt here, while it may be legally sufficient, is not overwhelming.” Gants concluded that the case should be remanded to Superior Court to give the commonwealth the chance to retry Van Bell on the indictment.

http://www.bostonherald.com/news/regional/view.bg?articleid=1216654

Mr. Bell is a level 3 sex offender
http://sorb.chs.state.ma.us/ResultDetail.asp?btn81501=Detail

SJC Decision
NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
COMMONWEALTH vs. Kerry Van BELL.
SJC-10351
September 8, 2009. - December 4, 2009.Rape. Attempt. Prostitution. Statute, Construction. Practice, Criminal, Question by jury, Assistance of counsel.INDICTMENTS found and returned in the Superior Court Department on June 11, 2007.The cases were tried before Bruce R. Henry, J.The Supreme Judicial Court granted an application for direct appellate review.Brandon L. Campbell for the defendant.Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.William W. Adams, for Committee for Public Counsel Services, amicus curiae, submitted a brief.Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.SPINA, J.The defendant was convicted by a jury of offering to engage in sexual conduct for a fee (solicitation), G.L. c. 272, § 53A, and attempted rape of a child, G.L. c. 274, § 6. [FN1], [FN2] The defendant appealed from his convictions, and we granted his application for direct appellate review. The defendant now contends that (1) his conviction of attempted rape of a child should be reversed because the Commonwealth presented insufficient evidence to prove that he committed an overt act establishing criminal liability for attempt; (2) his conviction of solicitation should be reversed because the statute does not criminalize third-party solicitations and is void for vagueness; (3) his conviction of solicitation was duplicative of his conviction of attempted rape of a child; (4) the judge erred in instructing the jury that a nod may constitute an affirmative response; and (5) his trial counsel was constitutionally ineffective. For the reasons that follow, we reverse the defendant's conviction of attempted rape of a child and affirm his conviction of solicitation. [FN3]1. Background. We recite the facts that the jury could have found, reserving the development of other facts to the discussion of specific issues.On March 25, 2004, the vice squad of the Worcester police department conducted an investigation and "sting operation" focused on the defendant. Officer Patricia Cummings posed undercover as a prostitute offering her foster child
[FN4] for sexual services to the defendant.Cummings was instructed to telephone a specific telephone number, ask for "Ron," and indicate that she was the foster mother to a young child whom she would be willing to offer for sexual services in exchange for money. At approximately 10:49 A.M., Cummings telephoned the cellular telephone number, and the defendant answered the telephone, identifying himself as "Kerry." She asked for "Ron," and less than ten seconds later, "Ron" came to the telephone. Cummings believed "Ron" to be the same person who answered the telephone and identified himself as "Kerry." The defendant admitted at trial that he pretended to be named "Ron" during this telephone call.When the defendant came to the telephone, Cummings told him that her girl friend had given her the telephone number, and he said, "Yeah, she's cool." Cummings asked if she could meet him in person, and they agreed to meet later that morning at 11:15 A.M. at a Honey Farms convenience store in Worcester. When the defendant stated, "We don't have to do this if the kid's not going to be with you," Cummings told him to postpone the meeting to 11:30 A.M., so that she could arrive with the child.She then drove to the convenience store and waited for the defendant. Eventually, the defendant approached her car and said, "I found you." When she got out of her vehicle, he told her that she did not fulfil the agreement because she did not bring a child with her to the meeting. He told her that she was "making it too hard for him," and she said that she had never done this before.Cummings and the defendant then walked to his vehicle, where she asked him for fifty dollars "for good faith." The defendant refused to pay fifty dollars because she "did not have the kid." When they got into the defendant's vehicle, he stated, "I have a lot at stake, because I'm a professional." Cummings responded that she also did not want to get into trouble.The defendant then began to ask for details about Cummings's foster child, including details about her age, demeanor, and sexual history. Cummings answered his questions and told him that she did not want the child to be injured, and asked him what he wanted to do. The defendant said he wanted "intercourse," and said that he had done this before.After these negotiations, the defendant asked where the child was located, and Cummings said she was on Elm Street by Elm Park. She told the defendant that she would drive there and he could follow. The defendant agreed, and then they negotiated a fee for the child. Cummings told the defendant she would not take less than $200. In response to this, the defendant nodded his head up and down.At that point, Cummings stepped out of the defendant's vehicle and walked toward her own vehicle. She gave a prearranged signal to other officers who were nearby, and they converged on the defendant's vehicle as he began to pull out of his parking spot and turn toward the exit of the parking lot, in the direction of Elm Park.The officers asked the defendant to get out of his vehicle, and then arrested him. At the Worcester police department, the officers found $211 in cash on his person. After receiving Miranda warnings and waiving his rights, the defendant discussed his attraction to younger girls with Sergeant Michael Cappabianca, and told him that he "was asking for a young girl and [Officer Cummings] said she had a five year old." [FN5]2. Sufficiency of the evidence of attempted rape of a child. The defendant argues that his conviction of attempt should be reversed because the Commonwealth failed to present sufficient evidence of an "overt act." The defendant did not move for a required finding of not guilty, so we consider whether failure to file such a motion created a substantial risk of a miscarriage of justice. See Commonwealth v. Grandison, 433 Mass. 135, 140 n. 8 (2001), quoting Commonwealth v. McGovern, 397 Mass. 863, 867 (1986) ( "We consider the legal sufficiency of the evidence even if a defendant fails to move for a required finding of not guilty because 'findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of miscarriage of justice' "); Commonwealth v. Keita, 429 Mass. 843, 844 (1999). Because the defendant's first claim of error involves the sufficiency of the evidence against him, we look at the evidence in the light most favorable to the Commonwealth, along with inferences that could reasonably be drawn. [FN6] Commonwealth v. Sandler, 368 Mass. 729, 740 (1975).The crime of attempt is statutorily defined in G.L. c. 274, § 6. See note 1, supra. The elements required for a finding of attempt are (1) specific intent, (2) an overt act, and (3) nonachievement of the substantive crime. See Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990). This court has interpreted this statute consistently since the court's opinion authored by Chief Justice Holmes in Commonwealth v. Kennedy, 170 Mass. 18 (1897), and Commonwealth v. Peaslee, 177 Mass. 267 (1901) (Peaslee ), requiring a showing that the defendant, after preparing to commit the crime, has undertaken overt acts toward fulfilling the crime that "come near enough to the accomplishment of the substantive offence to be punishable." Peaslee, supra at 271. [FN7]In Peaslee, the court described two classes of cases of attempt. As to the first class, the court noted: "The most common types of an attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption ... or an act which is intended to bring about the substantive crime and would bring it about but for a mistake of judgment in a matter of nice estimate or experiment.... In either case the would-be criminal has done his last act." Id. at 271.The court went on to address the other class, the problem area of cases that fell short of the "last act" category or cases that were still in the "preparations" stage. With respect to those cases, the court stated: "[N]ew considerations come in when further acts ... are necessary before the substantive crime can come to pass. In this class of cases there is still a chance that the would-be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other meaning.... That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a [crime] although there is still a locus penitentiae [ [FN8]] in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite. Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897)." (Emphasis added and citation omitted.) Peaslee, supra at 271-272.The case now before us falls into that second class of cases and requires us to determine if the evidence of preparations taken by the defendant proceeded sufficiently close to the substantive crime to amount to an attempt. Factors to take into account in determining how proximate the overt act must be to the commission of the substantive offense are the gravity of the crime, the uncertainty of the result, and the seriousness of any threatened danger. Commonwealth v. Kennedy, supra at 22. [FN9]We note that many States [FN10] have adopted the Model Penal Code's formulation for attempt--a less stringent formulation focusing on the actions taken by the defendant toward attaining the substantive offense rather than what the defendant had left to do before reaching the substantive crime.
[FN11] This formulation makes convictions easier to reach. [FN12] Of course, "the creation of crimes is not for this court to determine, but for the Legislature. Our function is merely that of discovering the meaning of the words that the Legislature has used, bearing in mind that under the American system of law a citizen is not to be punished criminally unless his deed falls plainly within the words of the statutory prohibition, construed naturally." Commonwealth v. Corbett, 307 Mass. 7, 8 (1940). Any reformulation of the statutory crime of attempt is a matter for the Legislature. [FN13] See art. 30 of the Massachusetts Declaration of Rights. [FN14] In Massachusetts, a defendant must have the present opportunity to commit the substantive crime. Accordingly, we look to the actions left to be taken, or the "distance or gap between the defendant's actions and the (unachieved) goal of the consummated crime--the distance must be relatively short, the gap narrow, if the defendant is to be held guilty of a criminal attempt." Commonwealth v. Hamel, 52
Mass.App.Ct. 250, 258 (2001).As previously stated, we must determine whether, under the facts of this case, the defendant's actions were merely in preparation to commit the crime or if his actions constitute the crime of attempt. Here, the defendant met Cummings in a parking lot to arrange to have sex with a young child. He expressed his displeasure that the child was not in the car with Cummings. Cummings and the defendant then negotiated for sex with the child, coming to an agreement that she would provide her four year old foster daughter to him for sexual intercourse in exchange for $200. After reaching an agreement, she told the defendant to follow her to "Elm Street, by Elm Park," where the child was waiting. He began to drive his vehicle out of the parking spot, turning in the direction of the exit nearest Elm Park, which was approximately one mile away.However, even though Cummings and the defendant came to an agreement, he had yet to see a child and did not know the exact location of the child. He had yet to follow Cummings to any type of house or park, and he had not yet paid for the child. The preparation and negotiation, although sufficient to warrant a guilty verdict of solicitation, did not come near enough--in time or ability--to the substantive crime of attempted rape to sustain a guilty verdict. The defendant must have had "a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out." Peaslee, supra at 273-274.In Commonwealth v. Ortiz, 408 Mass. 463, 464-465, 472 (1990), this court's most recent decision regarding the overt act requirement, we determined that where the defendant got into an automobile with a fully loaded firearm and drove to the neighborhood where a foe lived, circling the block six times in search of the person, and then drove home, there was evidence that the defendant "intended and prepared for an assault and battery by means of a dangerous weapon," but there was not enough evidence to show an overt act that would render the defendant guilty of attempt. Similarly, in Commonwealth v. Hamel, supra at 256-260, the Appeals Court found that where the defendant solicited two "hitmen" to commit four murders, made partial payment, described the intended victims, and drew sketches of the home of three of the victims, these preparations did not constitute an overt act within the meaning of the statute that came close enough to the commission of the murders. In each case, the court required that the defendant be very near to the actual commission of the substantive crime in order to be found guilty of attempt. Although the evidence in the instant case is sufficient to show that the defendant intended and prepared for the rape of a child, it is not sufficient to show that he undertook an overt act that put him so near--in time or ability--to the completion of the crime as to be guilty of attempt.The Commonwealth argues that in addition to the preparations, the defendant's actions in agreeing to follow Cummings and driving his vehicle out of the parking space and into the parking lot facing the exit nearest to Elm Park are sufficient overt acts for the jury to find him guilty of attempted rape. We disagree. Under the statutory interpretation as set forth in Peaslee, Commonwealth v. Kennedy, supra, and Commonwealth v. Ortiz, supra, the defendant was not proximate enough to committing rape of a child to find him guilty of attempt. While the crime of rape of a child is a very grave crime, its commission was still far from certain. The defendant was more than a mile from a vague location--"Elm Street, by Elm Park" and he had not paid any money to Cummings. As in Commonwealth v. Ortiz, supra, the defendant did not know where exactly the child was located, as no evidence was presented that he knew where "Elm Street, by Elm Park" was located. In following Cummings, he could have decided to return to work and not commit the crime. In addition, there is no evidence that he had formulated a plan as to exactly where, or when, he would commit the crime. [FN15]We conclude that the evidence presented by the Commonwealth of an overt act establishing attempt was not sufficient to survive a motion for a required finding of not guilty, had one been filed. [FN16] Because the defendant's conviction of attempted rape rests on insufficient evidence, we are confronted by circumstances that represent per se a substantial risk of a miscarriage of justice. [FN17] See Commonwealth v. Grandison, 433 Mass. 135, 140 n. 8 (2001). Accordingly, the defendant's conviction of attempted rape of a child must be reversed.3. Statutory prohibition on agreeing to pay for sexual intercourse with a child. In 2004, G.L. c. 272, § 53A, inserted by St.1983, c. 66, § 2, defined the crime of offering or agreeing to engage in sexual conduct for a fee as follows: "Any person who engages, agrees to engage, or offers to engage in sexual conduct with another person in return for a fee, or any person who pays, agrees to pay or offers to pay another person to engage in sexual conduct, or to agree to engage in sexual conduct with another natural person may be punished...."The defendant argues that the statute "only criminalized solicitations for sex between a customer and a prostitute in exchange for a fee" and that the defendant's conduct, in agreeing to pay for sexual conduct with a third person, is not penalized under the statute. We disagree. While the solicitation statute was rewritten in 2006 to provide an additional penalty for one who makes an agreement specifically to pay for sexual intercourse with a child, the original statute also covers the defendant's behavior, albeit with a lesser penalty.The statute under which the defendant was prosecuted contains no language limiting its application, as suggested by the defendant, to a prostitute and a customer. Stated otherwise, the statute contains no express or implied limitation that the individuals who make the agreement engage in sexual conduct with each other. Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 124 (2006), quoting International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983) ("primary source of insight into the intent of the Legislature is the language of the statute," and "[s]tatutory language should be given effect consistent with its plain meaning"). The second clause of the statute states that where person A pays, agrees to pay, or offers to pay person B for an agreement whereby person A can engage in sexual conduct with person C, person A may be punished. The defendant agreed to pay money to Cummings, in exchange for an agreement allowing the defendant to engage in sexual conduct with Cummings's foster child. This is sufficient under the statute.If the statute were limited as the defendant suggests, one who pays a "pimp" for sexual conduct with another could not be convicted under the statute. There is no indication that the Legislature intended such a limitation. "If the language of the statute is 'fairly susceptible [to] a construction that would lead to a logical and sensible result,' we will construe [it] so 'as to make [it an] effectual piece of legislation in harmony with common sense and sound reason.' " Commonwealth v. Dale D., 431 Mass. 757, 760 (2000), quoting Commonwealth v. Williams, 427 Mass. 59, 62 (1998). [FN18] Here, the defendant made an agreement to pay Cummings so that he could engage in sexual conduct with a child. We conclude that this conduct is covered under the language of G.L. c. 272, § 53A.The defendant also argues that the solicitation statute is constitutionally void for vagueness. However, he failed to preserve the issue in a motion for a required finding of not guilty. Accordingly, we analyze whether any error creates a substantial risk of a miscarriage of justice. Commonwealth v. Oakes, 407 Mass. 92, 94-95 (1990). "A penal statute must 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.' " Commonwealth v. Williams, 395 Mass. 302, 304 (1985), quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983).Here, the statute sufficiently informed the defendant that agreeing to pay money in order to have sexual intercourse with a young child was prohibited. The statute defines the criminal offense, and it is "improbable that any competent adult, informed by common sense, life experience, and contemporary values, would reach any different conclusion, or would be surprised to learn that the defendant's words and deeds amounted to an offer to pay for a type of sexual conduct which § 53A proscribes." Commonwealth v. Lavigne, 42 Mass.App.Ct. 313, 318 (1997) (finding that defendant should have known solicitation statute included sexually intimate contact). We conclude that G.L. c. 272, § 53A, is not unconstitutionally vague. There is no error.4. Duplicative convictions. The defendant next argues that his convictions of solicitation and attempt were duplicative and violated his double jeopardy rights under the Fifth Amendment to the United States Constitution. Because we reverse the defendant's conviction of attempted rape, only the conviction of solicitation remains. Accordingly, this argument is moot.5. Response to jury question. During deliberations, the jury asked the judge, "Is a nod sufficient in the eyes of the Court to indicate an affirmative response?" The judge conferred with counsel, and suggested that he would instruct the jury that "whether there was a nod and, if so, whether it indicated an affirmative response, are factual issues, not issues of law, which are for you the jury to decide, based on all of the evidence and on the law as I've already given it to you." Defense counsel objected, requesting that the judge also reinstruct the jury that "whether there was an agreement or offer is also a factual matter." The instruction suggested by defense counsel was given by the judge at the close of trial, and the defense counsel did not object to the instruction. The judge responded that he would not reinstruct the jury as requested by defense counsel, but would answer only the question asked by the jury.The defendant asserts that the judge's supplemental instruction, without repeating the earlier, original instruction, may have misled the jury as to the evidence necessary to establish the presence of an agreement. We disagree."The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Robinson, 449 Mass. 1, 7-8 (2007), quoting Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). If appropriate, the judge need only consider the question asked by the jury, and is not required to instruct on any other matters in response to the question. Commonwealth v. Amazeen, 375 Mass. 73, 82 (1978).Here, the jury had already been instructed that whether there was an offer or agreement was a factual matter for them to decide. Their question asked only whether a nod may be sufficient to indicate an affirmative response. The judge noted that repeating the instruction on offer or agreement would go beyond the scope of the question; accordingly, he answered only the question asked by the jury. In Commonwealth v. Amazeen, supra at 82, this court held that the judge correctly responded to a question asked by the jury, and it was not error to decline to repeat portions of the main charge that were beyond the scope of the jury's question. Because the supplemental instruction appropriately responded to the jury's question, there was no abuse of discretion.6. Ineffective assistance of counsel. The defendant next argues that trial counsel was constitutionally ineffective for (1) failing to object to the prosecutor's line of questioning and argument regarding the defendant's credibility; (2) failing to move for a required finding of not guilty on the attempted rape indictment [FN19]; and (3) failing to move for a required finding of not guilty on the solicitation indictment.In assessing a claim for ineffective assistance of counsel, the court will look to "whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A strategic decision by counsel will be deemed constitutionally ineffective only if it was manifestly unreasonable at the time it was made. Commonwealth v. Adams, 374 Mass. 722, 728-730 (1978).The defendant's first claim of error involves questioning and argument relating to the defendant's credibility. During the defendant's direct testimony, he testified that he did not agree with portions of Cappabianca's report and testimony regarding their conversation after the defendant's arrest. During cross-examination, the prosecutor asked the defendant about other portions of Cappabianca's report and testimony with which he disagreed. The defendant argues that the prosecutor's technique of confronting the defendant with specific postarrest statements that he failed to mention on direct examination was an inappropriate challenge to his credibility, and defense counsel should have objected and attempted to redirect. We disagree.First, the defendant did not raise these claims of ineffective assistance of counsel in a motion for a new trial, which is the preferred method, as the trial record alone cannot explain the strategy of trial counsel. Commonwealth v. Zinser, 446 Mass. 807, 810 (2006); Commonwealth v. Peloquin, 437 Mass. 204, 210 n. 5 (2002). Second, "[w]hen a defendant testifies on his own behalf, he exposes himself to cross-examination as would any witness." Commonwealth v. Sleeper, 435 Mass. 581, 595 (2002), citing Jenkins v. Anderson, 447 U.S. 231, 236 (1980). The cross-examination followed a similar course as his direct examination and was designed to undermine the defendant's credibility. The defendant cannot select the subjects on which he will be cross-examined. Here, the cross-examination was fair and the prosecutor's argument was fairly grounded in the evidence.The defendant also argues that defense counsel conceded that he made a mistake on direct examination, by saying, "[N]ow, shame on me, I didn't ask my client line by line, 'Well, sir, I'm going to read you this statement and you tell me what you disagree with,' shame on me, okay, that I didn't say, 'Do you agree with this, do you agree with this,' wasn't he on the stand long enough, did we need any more questions, I didn't think you did, but, you know, shame on me, if it's my fault, it's my fault, okay." While the defendant argues that this "admission of error" rules out any tactical motive for the attorney's conduct, based on the trial record, we perceive counsel's remark as a backhanded comment that the prosecutor's cross-examination was an exercise in nitpicking. Defense counsel may have had a tactical reason for making such a statement during his closing argument. However, regardless of defense counsel's strategy, the decisions made by counsel--not to object to the prosecutor's cross-examination or closing argument--do not appear unreasonable at the time they were made. "A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made." Commonwealth v. Ogden O., 448 Mass. 798, 806 (2007), quoting Commonwealth v. Adams, supra at 728. Because it was appropriate for the prosecutor to challenge the defendant's credibility, defense counsel may have made a tactical determination that his objections would be overruled; as such, his decision not to object or seek a curative instruction was not manifestly unreasonable. See Commonwealth v. Vieux, 41 Mass.App.Ct. 526, 527 (1996), cert. denied, 520 U.S. 1245 (1997) ("failing to pursue a futile tactic does not amount to constitutional ineffectiveness"). See also Commonwealth v. West, 312 Mass. 438, 440 (1942).The defendant's remaining claim of ineffective assistance is the defense counsel's failure to move for a required finding of not guilty on the solicitation indictment. Because we have determined that the defendant's conduct was included under the statute, defense counsel's decision not to move for a required finding of not guilty does not constitute ineffective assistance of counsel.7. Conclusion. For the foregoing reasons, the defendant's conviction of attempted rape of a child is reversed and his conviction of offering or agreeing to engage in sexual conduct for a fee is affirmed.So ordered.CORDY, J. (dissenting in part, with whom Ireland, J., joins).I concur in the court's conclusion that the defendant's conviction of agreeing to pay another person to engage in sexual conduct in violation of G.L. c. 272, § 53A, should be affirmed. I do not agree, however, that the evidence was insufficient to support the defendant's conviction of attempted rape of a child.The evidence readily established that the defendant had the requisite intent to commit the crime of attempted rape. It also established that at the time of his arrest, he had moved beyond the mere preparation phase of the crime (identifying a supplier and negotiating the price and the sex acts for which the child was sought) and was on his way to a nearby location to commit the crime. These are sufficient acts toward the commission of the crime to satisfy the requirements of our attempt statute, G.L. c. 274, § 6, and come near enough to the accomplishment of the substantive offense to be punishable. In my view, Commonwealth v. Peaslee, 177 Mass. 267 (1901), is not to the contrary. Had the defendant in Peaslee been arrested on his way to set the fire (for which he had made preparations) rather than after he had abandoned the plan (and his criminal intent), I have little doubt that his conviction of attempted arson would have been affirmed.I would affirm the defendant's conviction of attempted rape of a child.GANTS, J. (dissenting in part, with whom Ireland, J., joins).While I agree with the court that the defendant's conviction of agreeing to pay another person to engage in sexual conduct, in violation of G.L. c. 272, § 53A, should be affirmed, I do not agree with the court's interpretation of the criminal attempt statute, G.L. c. 274, § 6, or with the court's conclusion, based on that interpretation, that the evidence in this case, as a matter of law, was insufficient to support the defendant's conviction of attempted rape of a child. Therefore, I respectfully dissent.The court's opinion correctly recognizes that, in interpreting the language of criminal statutes, "[o]ur function is merely that of discovering the meaning of the words that the Legislature has used, bearing in mind that under the American system of law a citizen is not to be punished criminally unless his deed falls plainly within the words of the statutory prohibition, construed naturally." Ante at, quoting Commonwealth v. Corbett, 307 Mass. 7, 8 (1940). The Massachusetts criminal attempt statute was enacted in 1836, and the terms we interpret and apply today have not materially changed since that time. [FN1] The statute reads: "Whoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration, shall, except as otherwise provided, be punished...." G.L. c. 274, § 6. The court's opinion correctly recognizes, based on the language of the statute, that the elements of an attempt are (1) the specific intent to commit a crime; (2) an overt act toward the commission of the crime; and (3) a failure to perpetrate the crime. Ante at. It is equally plain from the language of the statute that the Legislature recognized that attempted crimes fall into two categories. The first category of attempt occurs when a wrongdoer commits the last act necessary to complete the intended crime but, for some reason, such as bad aim or bad luck, fails to perpetrate the crime. Determining criminal liability for this sort of failed attempt is uncomplicated and noncontroversial.The second category of attempt occurs when a wrongdoer fails to accomplish the underlying crime because he is intercepted or otherwise prevented from perpetrating the crime by the intervention of police or some other third party before he is able to commit the last act necessary to complete his intended crime. The law governing criminal liability for this second category is confused, complicated, and controversial. The instant case falls into this difficult category of intercepted attempts. Under the standard advanced by the court today, a defendant may be convicted of this second category of criminal attempt only if he is intercepted at a time and place where he is able to carry out the completed crime. Ante at. The practical application of this rule, as revealed in the court's decision in the present case, can only mean that a defendant must be physically present at the scene of his intended crime before criminal liability for an attempt will attach, regardless of any other considerations relating to his conduct and intention. The larger consequence of this standard and the court's application of it in the present case is to conflate the two distinct categories of attempt and to make it extraordinarily difficult (and, for police and any intended victim, dangerous) to obtain convictions of criminal attempts of the second category. The rule is supported neither by the terms of the governing statute nor by our case law.We recognized in 1990 that "[t]here is little Massachusetts case law construing and applying [G.L. c. 274, § 6]." Commonwealth v. Ortiz, 408 Mass. 463, 470 (1990). That statement remains true today, because in the interval between Ortiz and the court's decision today, we have not decided a case that required us to construe and apply the statute. What little case law we have has focused less on the language of G.L. c. 274, § 6, and more on the analysis of the law of attempt articulated by Chief Justice Holmes in two decisions of this court, both of which are more than a century old: Commonwealth v. Kennedy, 170 Mass. 18 (1897) (Kennedy ), and Commonwealth v. Peaslee, 177 Mass. 267 (1901) (Peaslee ). [FN2]Kennedy involved a failed murder plot that fell clearly within the first category of attempt. The evidence at trial was that deadly rat poison had been found on the intended victim's empty "mustache cup" on the same day that he and others took tea together, and those who drank tea were poisoned. Kennedy, supra at 20, 23. The court found this evidence, when combined, it appears, with proof that the defendant had applied the poison, sufficient to affirm his conviction of attempted murder. Id. at 22. In doing so, the court noted that the defendant had committed the last act necessary to accomplish his intended crime, stating that "[u]sually acts which are expected to bring about the end without further interference on the part of the criminal are near enough" to the intended criminal result to constitute an attempt to commit the crime, "unless the expectation is very absurd." Id. at 21.Addressing the Commonwealth's failure to allege that the dose applied was large enough to kill, the court concluded that "[a]ny unlawful application of poison is an evil which threatens death, according to common apprehension...." Id. at 22. The court added: "[T]he gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension, coupled with the great harm likely to result from poison even if not enough to kill, would warrant holding the liability for an attempt to begin at a point more remote from the possibility of accomplishing what is expected than might be the case with lighter crimes." Id. In essence, the court held that the act of poisoning another person is so fraught with danger that a defendant may be found guilty of attempted murder, provided he intended to kill, even if later investigation reveals he would have failed to accomplish the murder because of a miscalculation as to the quantity of poison necessary to achieve his end.Peaslee, by contrast, does not concern a defendant who had taken the last act in attempting his crime. In Peaslee, the defendant had arranged combustibles in a building that he planned to burn in such a way that all that remained to be done to set fire to the building was to move a candle from a nearby shelf to a piece of wood set in a pan of turpentine and light it. Id. at 271. The defendant and a young man drove to within one-quarter mile from the building, apparently with the intent of lighting the candle, but before reaching his destination, the defendant changed his mind about setting the fire and drove away. Id. at 270. Even though the defendant had abandoned the attempt before he committed the last acts needed to accomplish the arson (the placement and lighting of the candle) without any intervention by the police or any third party, the Commonwealth's indictment charged him with attempted arson, and a jury convicted him. On appeal, this court held the evidence to be insufficient as a matter of law to support the conviction, declaring: "A mere collection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote [to support a conviction of attempt]. If the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out." Id. at 273-274. The court's reversal in Peaslee turns on the defendant's ultimate lack of intent, not on his failure to arrive at or close enough to the scene of the planned crime. His change of course is determinative not because it removes him from the scene but because it demonstrates he no longer holds the specific intent to commit the crime that is required for conviction.
[FN3]All crimes of attempt--whether of the first category (failed attempts) or the second (interrupted attempts)--require the Commonwealth to prove the defendant's continuing and "present intent" at the moment where he takes his last relevant act. The only difference between the two categories is that, in a failed attempt, the defendant's state of mind is examined at the time he commits the last act necessary to accomplish the crime. In an interrupted attempt, the defendant's state of mind is examined at the moment of interruption. Where, as in Peaslee, a defendant has not been intercepted in his criminal effort, he can only be convicted under a "last act" theory of attempt. Therefore, to convict, the finder of fact must find that the defendant had a specific and present intent to commit the crime at the place where the last act was to occur (here, the building), not at some earlier time (here, for instance, when the defendant initially arranged the combustibles or when he began to travel toward the building). Failing this test, the evidence in Peaslee could not support a conviction.Although there had been no intervention by the police or a third party to interrupt the defendant in Peaslee, the court nonetheless chose to consider whether a defendant could be convicted where further acts were required to accomplish the crime--the second category of attempt under the statute. The court declared that, in some circumstances, such a defendant could be convicted, even though "[i]n this class of cases there is still a chance that the would-be criminal may change his mind" before his planned last act. Id. at 272. Essentially defining all conduct short of the last act as "preparation," the court stated: "[S]ome preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a locus penitentiae [the opportunity to withdraw] in the need of a further exertion of the will to complete the crime. As was observed in a recent case [Kennedy ], the degree of proximity held sufficient may vary with circumstances, including among other things the apprehension which the particular crime is calculated to excite." Id. [FN4]Informed in part by words used by Justice Holmes in dissent when he served on the United States Supreme Court, where he declared that there "must be dangerous proximity to success" to constitute a criminal attempt, Hyde v. United States, 225 U.S. 347, 388 (1912) (Holmes, J., dissenting), the approach described in dicta in Peaslee has come to be characterized as the "dangerous proximity test." [FN5] See Model Penal Code and Commentaries § 5.01 comment 5(b), at 322 (1985); S.H. Kadish & S.J. Schulhofer, Criminal Law and Its Processes 566-567 & notes (7th ed.2001); Stuart, The Actus Reus in Attempts, 1970 Crim. L.Rev. 505, 508. Peaslee 's dangerous proximity test essentially adds a fourth element to the statutory elements of an attempt, which applies only to the second category of cases: in order to convict a defendant who has been interrupted before completing his final act, the defendant must have come so near to the accomplishment of the crime that it is nearly certain that the crime would have been committed if the police or a third party had not intervened. In the language Justice Holmes employed in Hyde v. United States, supra at 387 (Holmes, J., dissenting), an attempt that has not reached the final act necessary to commit the underlying crime has reached the zone of dangerous proximity, and thus may support a conviction, when "the act and the natural conditions present or supposed to be present are not enough to do the harm without a further act, but where it is so near to the result that if coupled with an intent to produce that result, the danger is very great" (emphasis added). The proximity Peaslee conceives of is dangerous because it indicates a high probability, absent intervention, that a completed crime will follow. See Peaslee, supra at 272.Today, the court effectively rejects Peaslee 's fourth element and replaces it with a more restrictive alternative: when a defendant is interrupted in the commission of a crime, unless he has directed another to commit the crime, he must be physically present at the place where he is able to carry out the crime in order to be found guilty of criminal attempt. In short, the court changes Peaslee 's fourth element from dangerous proximity to physical proximity, requiring the defendant's physical presence at the scene of the intended crime. The court then applies its new fourth element to conclude that the evidence in the instant case is insufficient as a matter of law to support the defendant's conviction of attempted rape because the defendant was apprehended in the parking lot when he was following the undercover agent to the place where he was to rape the child and had yet to reach the place where he had been told his anticipated child victim was located. [FN6]The court errs in four ways in requiring the element of physical proximity. First, the court fashions the element of physical proximity from the language in Peaslee that requires, "[i]f the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out." Peaslee, supra at 273-274. In the context of Peaslee, this language simply means that, when criminal liability is evaluated under rules that govern the first category of attempt cases, the specific intent of the defendant must be evaluated at the time and place he commits the last act necessary to perpetrate the attempted offense, not at an earlier time when he is preparing to commit the offense. Regardless of how extensive the defendant's preparation, if he changes his mind before committing the last act, as the defendant did in Peaslee, he cannot be guilty of attempt. The language was not intended to mean that, in the second category of attempt cases, an attempted crime thwarted by the police may constitute an attempted crime only if it is thwarted at the time and place the offense was to be committed. [FN7]Second, the requirement of an element of physical proximity ignores other language in Peasle e that was intended to address the second category of attempt cases, and that, in some circumstances, would allow a finding of dangerous proximity without physical proximity. "[S]ome preparations may amount to an attempt," id. at 272, but nowhere does Peaslee limit this allowance only to preparations that bring the defendant to the scene of his intended crime. "[T]he degree of proximity held sufficient" for a preparation to constitute a crime of attempt "may vary with circumstances." Peaslee, supra, citing Kennedy, supra at 22. Clearly, we must take this to mean that no absolute rule requires a defendant's physical presence at the scene of the intended crime in order to support criminal liability for attempt. [FN8] In the words of Kennedy, supra, "[e]very question of proximity must be determined by its own circumstances, and analogy is too imperfect to give much help." The court misinterprets Peaslee and Kennedy in declaring that there can be dangerous proximity only with physical proximity.Third, the consequence of imposing a fourth element for criminal attempt that requires physical proximity will be to prevent the Commonwealth from prosecuting a large set of attempted crimes as such. Where, as here, no actual victim existed, the defendant could never have reached a "time and place where he was able to carry [out the crime]." See Peaslee, supra at 273-274. Even if an actual, potential child victim did exist, the Commonwealth, for all practical purposes, would not be able to prosecute any defendant for attempted rape because the police would not (and should not) endanger the psychological health of the child by permitting the defendant to reach the place where the defendant could commit the sexual crime against the child. In other cases, such as when police are investigating attempted bombings or attempted shootings, it may be too dangerous for them to postpone arrest until the defendant reaches the time and place of his intended crime, lest something go wrong and they are unable to prevent the commission of the crime. The practical consequence of the court's decision today is that the Commonwealth will need to make a perilous choice between allowing a suspect to reach the time and place of the commission of his intended crime before intervening or intervening earlier and thereby forfeiting any possibility of ever convicting him of the crime of attempt. [FN9] On television and in the movies, the police always arrive in the nick of time; in real life, waiting so long does not always work out so well.Fourth, the question whether the defendant has come so near to the accomplishment of the crime that it is nearly certain that the crime would have been committed if the police or a third party had not intervened is a determination properly left to the jury. There is no need for the wooden formulation chosen today by the court that essentially declares as a matter of law that a defendant comes so near to the accomplishment of the crime that it is nearly certain that the crime would have been committed only when the defendant is physically present at the time and place where the offense is to be committed. In certain circumstances, such as where a defendant's intent is fixed and unwavering, a jury reasonably may conclude that it is nearly certain that the defendant would have completed the crime if the police had not intervened, even if the attempt is interrupted well before there is physical proximity. [FN10] The court's holding today erroneously declares that such a conclusion is never reasonable.If the court had correctly interpreted Peaslee to require a fourth element of dangerous proximity, rather than of physical proximity, I believe that the evidence admitted at trial would be sufficient to permit a reasonable jury to have found that the defendant came so near to the accomplishment of the crime that it was nearly certain that the rape would have been committed if the police had not intervened (and if a young girl had in fact been brought to him). Viewing the evidence in the light most favorable to the Commonwealth, the defendant told the undercover officer that he previously had intercourse with children aged three to five or six years, but that he preferred five year olds. He asked whether the child had been "stretched," reflecting his intent to penetrate her, and specifically said he wanted "intercourse." He agreed to a price of $200, and had $211 in cash on his person when arrested. He was in his vehicle beginning to follow the undercover agent to Elm Park, where the undercover agent said the child was located, when the police arrested him. The jury reasonably could conclude that he had come so near to accomplishing the crime of rape of a child that it was nearly certain that he would have carried through with it had he not been intercepted by police.The facts of this case are distinguishable from those in Commonwealth v. Ortiz, 408 Mass. 463 (1990), the most recent case in which this court considered whether the evidence was legally sufficient to support an attempt conviction. In the Ortiz case, the evidence at trial was that the defendant and his brother learned that a person with whom the family had been feuding had been at their father's apartment earlier that day carrying what appeared to be a handgun and looking for the defendant's brother. See id. at 464. Armed with a firearm and ammunition, the brothers traveled by automobile to the neighborhood where their unwanted visitor lived, drove around the block six times hoping to discover him, and, failing to see him, returned to the street near the father's apartment. See id. at 464-465. We found this evidence insufficient as a matter of law to support a conviction of attempted assault and battery by means of a dangerous weapon. Id. at 472. Because the defendant had not been intercepted or otherwise prevented from committing the assault and battery by the police or any third party before he returned to the area of his father's apartment, the court evaluated the conviction under standards applicable to the first rather than the second category of attempt offenses. The court's conclusion in the Ortiz decision that the evidence "did not warrant a finding of an overt act for which the defendant was responsible" was therefore dictated by the absence of a last necessary act-- shooting at the intended victim after successfully locating him. Id. at 472.The instant case, in contrast, falls into the second category of offenses, where no last necessary act is required, because the intervention of the police prevented the defendant from having the opportunity to commit the last necessary act. The proper focus here is whether the defendant had come so near to the completion of the offense that a rational trier of fact reasonably may conclude that it was nearly certain that the defendant would have committed the crime in the absence of police intervention.I would affirm the conviction of attempted rape of a child if the jury had been properly instructed as to the required element of dangerous proximity, but they were not. The lack of proper jury instructions poses a substantial risk of a miscarriage of justice because the evidence of an attempt here, while it may be legally sufficient, is not overwhelming. [FN11] The judge did not instruct the jury that the defendant must have come so near to the accomplishment of the crime that it was nearly certain that the crime would have been committed if the police or a third party had not intervened. Nor did the judge instruct the jury that the defendant must be close to the accomplishment of the crime. Instead, in discussing the second element that the Commonwealth must prove beyond a reasonable doubt under the statute, the judge instructed the jury: "The overt act must be a real step for carrying out the crime; preliminary preparations to commit a crime are not enough. The overt act has to be more of a step toward actually committing the crime after all the preparations have been made. It must be the sort of act that you must reasonably expect to trigger a natural chain of events that will result in the crime unless some outside factor intervenes." This instruction does not effectively communicate to the jury what they must find to satisfy the fourth element in a second category or "interrupted" attempt case, and consequently we cannot be assured that the jury would have found that the dangerous proximity element was satisfied by the proof in this case. [FN12]Therefore, I would reverse the defendant's conviction of attempted rape of a child and remand the case, whereupon the Commonwealth could decide whether it wishes to retry the defendant on this indictment. I would not, as the court does in its opinion, find for the defendant on this charge based on the legal insufficiency of the evidence.
FN1. General Laws c. 274, § 6, provides in relevant part: "Whoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration, shall, except as otherwise provided, be punished...."
FN2. In August, 2004, after he first was indicted, the defendant moved to dismiss the indictments. A judge in the Superior Court denied the motion to dismiss and reported questions of law to the Appeals Court, pursuant to Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004). The Appeals Court affirmed the denial of the defendant's motion to dismiss. Commonwealth v. Bell, 67 Mass.App.Ct. 266 (2006). This court denied the defendant's application for further appellate review. 451 Mass. 1101 (2008). The Commonwealth nevertheless requested that the indictments be dismissed and sought new indictments. Following his convictions in 2007, the defendant pleaded guilty to that portion of the attempted rape indictment that charged a further or subsequent offense.
FN3. We acknowledge the amicus brief filed by the Committee for Public Counsel Services.
FN4. There was never an actual child involved in this investigation.
FN5. The defendant testified that he thought Cummings was referring to a woman in her early twenties when she said she had "a young girl for sex." He testified that when he met Cummings and she mentioned a four year old girl, he responded that he was not going to do that, and was looking for someone in her twenties or thirties. He also denied the details of his conversation with Cappabianca at the police station, which was not recorded.
FN6. The defendant argues that the Commonwealth may rely only on the alleged overt acts set forth in the indictment. We disagree. The indictment follows the proper statutory form for attempt, alleging that the defendant "did meet with an individual, negotiate with and offered to pay that individual to be allowed to have sexual intercourse with a child under sixteen years of age, but did fail in the perpetration of said attempted offense or was intercepted and prevented in the execution of said attempted offense." See G.L. c. 277, § 79; Commonwealth v. Senior, 454 Mass. 12, 14 (2009). The defendant's reliance on Commonwealth v. Burns, 8 Mass.App.Ct. 194 (1979), is misplaced. The Burns case involved a challenge to the sufficiency of the complaint, not the evidence. Pursuant to G.L. c. 277, § 47A, all objections to an indictment
must be raised prior to trial, and failure to raise such an objection by motion shall waive such objection. The defendant did not bring a pretrial motion contesting the indictment. Accordingly, the issue is waived, and we will look at the sufficiency of all the evidence presented by the Commonwealth at trial.
FN7. Justice Gants incorrectly concludes that Commonwealth v. Peaslee, 177 Mass. 267 (1901), "turns on the defendant's ultimate lack of intent." Post at (Gants, J., dissenting in part). What was in dispute there, as here, were the defendant's actions at the time he had the requisite intent, and whether those actions constituted an overt act. This error enables Justice Gants to treat the fundamental reasoning of Peaslee as dicta, post at (Gants, J., dissenting in part), and disregard the law of the Commonwealth as it consistently has been applied for a century.
FN8. An opportunity for changing one's mind or undoing what has been done. See Black's Law Dictionary 959 (8th ed.2004).
FN9. Justice Gants states that the court requires the defendant to be physically present at the scene of the crime to be guilty of attempt, post at (Gants, J., dissenting in part). We have no such requirement. The language of Peaslee requires a defendant to have the requisite intent at "a time and
place where he was able to carry it out." Peaslee, supra at 273-274. We take into account the seriousness of any threatened danger in determining how close a defendant must be to the commission of the crime to be guilty of attempt. This proximity is determined on a case-by-case basis. Here, where the police were orchestrating the scene, the defendant would need to be very close to the location of the hypothetical child to be guilty of attempt.
FN10. 2 W.R. LaFave, Substantive Criminal Law § 11.4(e), at 226 n. 67 (2d ed.2003).
FN11. The Model Penal Code looks to a "substantial step in a course of conduct planned to culminate in [the] commission of the crime," which step was "strongly corroborative of the actor's criminal purpose." Model Penal Code and Commentaries § 5.01(1)(c) & (2), at 296 (1985) (criminal attempt).
FN12. The Legislature relaxed the strictures of the Peaslee case with respect to attempts to burn certain buildings, structures, or property when it enacted G.L. c. 266, § 5A, inserted by St.1932, c. 192, § 5. See Commonwealth v. Ali, 7 Mass.App.Ct. 120 (1979).
FN13. Contrary to the view taken by Justice Gants, we have not created a
fourth element; rather, we have applied factors enunciated in Peaslee to determine whether the defendant undertook an overt act while having the requisite intent sufficient to warrant a conviction of the crime of attempt. It is Justice Gants who would add a fourth element, the "dangerous proximity test," that is based on works of commentators. Post at (Gants, J., dissenting in part). The formulation derives from the dissenting opinion of Justice Holmes in Hyde v. United States, 225 U.S. 347, 388 (1912), which involved a Federal conspiracy statute. Justice Holmes used the phrase "dangerously close" to differentiate the type of act needed to prove attempt from the more remote act, even unrelated to the substantive crime, needed to prove conspiracy. We have never used either phrase when analyzing an attempt crime, and we do not find those phrases helpful.
FN14. Although the Legislature considered a statutory change in 1972 that would have brought Massachusetts law closer to the Model Penal Code, see Proposed Criminal Code of Massachusetts c. 263, § 45(b) (1972) (criminal attempt), the Legislature did not enact such a statute for general attempt. General Laws c. 274, § 6, remains the general attempt statute, as interpreted for over a century. See note 1, supra.
FN15. Contrary to Justice Gants's statement, post at (Gants, J., dissenting
in part), nothing in this opinion suggests that the defendant must be physically present at the scene of his intended crime before criminal liability for an attempt will attach.
FN16. The parties have not addressed the third element of attempt--the failure to complete the substantive offense. Under our jurisprudence, the defendant may be interrupted or withdraw from an attempted crime at a very late point. See Peaslee, supra at 271 (defendant drove within one-quarter mile of location of proposed crime, changed his mind, and drove away). However, the proximity to the substantive crime from which a defendant may withdraw varies from case to case, based on "the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension." Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897).
FN17. The defendant also asserts that his counsel was constitutionally ineffective for failing to file a motion for a required finding of not guilty on the count of attempted rape. Because we reverse the defendant's conviction of attempted rape of a child based on the sufficiency of the evidence, we need not address this particular ineffective assistance of counsel claim.
FN18. The defendant did not object to the portion of the judge's
instructions regarding the nature of this offense that the "essence of this crime as alleged is the offer or agreements to pay for sexual conduct with another person ... and does not require that [the other] person actually exist."
FN19. As discussed, see note 17, supra, we need not consider this argument, as the defendant's conviction of attempted rape of a child has been reversed.
FN1. R.S. (1836), c. 133, § 12. Amendments to the statute have introduced minor changes to update its terminology and adjust the penalties applicable to attempts involving differing classes of underlying offenses. For modifications of the first type, see G.S. (1860), c. 168, § 8; R.L. (1902), c. 215, § 6; for modifications of the second type, see St.1911, c. 130; St.1924, c. 164.
FN2. In these two decisions, Chief Justice Holmes essentially superimposed a common-law overlay on the criminal attempt statute consistent with principles he had described in his treatise. See O.W. Holmes, Jr., The Common Law 65-70 (1881). As I discuss below, this common-law overlay added an element of dangerous proximity that is not discernible from the language of the statute. Today, except where necessary to construe a statute as constitutional, we would not add elements derived from the common law to statutory criminal offenses. I
do not, however, challenge the common-law requirements imposed by Commonwealth v. Kennedy, 170 Mass. 18 (1897) (Kennedy ), and Commonwealth v. Peaslee, 177 Mass. 267 (1901) (Peaslee ), because I recognize that, by repeatedly, albeit modestly, amending the statute after 1901 without undoing any of the common-law overlay added by these cases, the Legislature has implicitly approved or, at least, acquiesced in this judicial interpretation of G.L. c. 274, § 6. See Commonwealth v. Rivera, 445 Mass. 119, 128 (2005); 2B N.J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction §§ 49:5, 49:7, 49:9 (2008).
FN3. The court contends that concluding that Peaslee turns on the defendant's ultimate lack of intent is incorrect, and declares that the holding in Peaslee rested on the conclusion that, when the defendant had the requisite intent, his actions had not constituted an overt act. Ante at n. 7. Under this interpretation of Peaslee, the defendant would have been guilty of attempted arson if he had entered the building to set the fire with the requisite intent but changed his mind before doing so. I do not agree that a defendant can be found guilty of attempting a crime if, in the absence of any intervention, before having actually committed the crime, he changes his mind and walks away, even if he had reached a time and place where he was able to carry out the crime before abandoning his purpose.
FN4. The court then cited at least two cases in which the defendant was intercepted or otherwise prevented from perpetrating the crime by the police or a third party, thereby demonstrating that it intended this formulation to apply to the second category of attempts. See Peaslee, supra at 272, citing Commonwealth v. McLaughlin, 105 Mass. 460, 461-462 (1870) (defendant prevented prisoner prevented from poisoning horse by intervention of watchman), and Regina v. Taylor, 1 Fost. & F. 511 (1859) (defendant desisted from setting fire to stack of corn on discovering he was observed).
FN5. In Hyde v. United States, 225 U.S. 347, 387-388 (1912) (Holmes, J., dissenting), Justice Holmes discussed criminal attempt in distinguishing conspiracy, the crime at issue in that case, from attempt. That our own opinions have not embraced this nomenclature, as the majority points out, is not material. Ante at n. 13. The terminology does nothing more than conveniently describe the analysis introduced by Kennedy and Peaslee. I note that a reliance on this well-recognized shorthand is not, in any event, entirely absent from our case law. See Commonwealth v. Hebert, 373 Mass. 535, 543 (1977) (Quirico, J., concurring); Commonwealth v. Hamel, 52 Mass.App.Ct. 250, 259 (2001).
FN6. The court contends that I err in stating that the decision in this case requires a defendant to be physically present at the scene of the crime to be guilty of attempt. The court, however, agrees that a defendant cannot be found guilty of attempt unless he intends to commit the crime at "a time and place where he was able to carry it out." Ante at n. 9, quoting Peaslee, supra at 273-274. I fail to see how a defendant can be at a time and place where he is able to carry out a crime without being physically present at the scene of the crime.
The court also contends that its approach does not add a fourth element to the statute, but simply defines an overt act, which is the second element of the statute. The phrase "overt act" is not used in the attempt statute; the phrase used is "any act toward its commission," G.L. c. 274, § 6, which parallels language the law generally employs to define an overt act. See 18 U.S.C. § 371 (2006) (requiring for purposes of Federal conspiracy statute "any act to effect the object of the conspiracy"); United States v. Bayer, 331 U.S. 532, 542 (1947) (under Federal law, crime of conspiracy is punishable "if any overt act is taken in pursuit of it"). We employ similar language to clarify that, contrary to Federal law, Massachusetts does not require an overt act to convict for conspiracy. See Commonwealth v. Judd, 2 Mass. 329, 337 (1807) ("any act done in pursuance of [the object of the conspiracy] is no constituent part of the offence, but merely an aggravation of it"). The court,
however, does not rely on that customary definition of overt act in the context of criminal attempts, but instead defines an overt act as an act towards the commission of a crime that is near, in time or ability, to the completion of the intended crime, taking into account the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension. Ante at & n. 13. In the end, whether this approach adds a fourth element or simply more narrowly defines the second element of an overt act is a question of semantics; the fact remains that, to win a conviction of criminal attempt, the court has required the Commonwealth to prove more than is required by the language of the attempt statute.
FN7. The court in Peaslee, supra at 274, allows that the indictment would likely have been proved had the evidence shown the defendant had arrived at the scene but "been frightened by the police as he was about to light the candle." But this does not mean the defendant could have been convicted only under these facts.
FN8. Even if physical proximity were required, Kennedy and Peaslee clearly would provide that the distance sufficient for physical proximity may vary with the facts of the underlying case and the nature of the substantive offense. See Peaslee, supra at 272; Kennedy, supra at 22. See also
O.W. Holmes, Jr., The Common Law 68 (1881). Nothing in the case law would require that a defendant may be held criminally liable only if he is interrupted at the precise scene of his intended crime.
FN9. The court explains that where, as here, the police are orchestrating the operation, a defendant must be "very close to the location" of his hypothetical victim to be guilty of attempt. Ante at n. 9. This would apparently mean that criminal liability for an attempt should attach at a later stage where police have sustained the fiction of a potential victim than where a real victim is at risk, despite the fact that the defendant's conduct and intent is identical in the two cases. Whether the targeted victim actually exists or not, the defendant's conduct, intent, and culpability are the same. See Commonwealth v. Bell, 67 Mass.App.Ct. 266, 271 (2006); Commonwealth v. Hamel, 52 Mass.App.Ct. 250, 260 (2001). A defendant should not be exonerated simply because of "facts unknown to him which made it impossible for him to succeed." 2 W.R. LaFave, Substantive Criminal Law § 11.5(a), at 234 (2d ed.2003).
FN10. Likewise, "the point of intervention might be put further back" and still support conviction where a defendant has engaged in conduct that can have no innocent motive. See O.W. Holmes, Jr., The Common Law, supra at 69.
FN11. This standard is appropriate where, as here, defense counsel failed to object to the judge's final instructions even though those instructions omitted the required fourth element of dangerous proximity. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
FN12. We recognize that the judge's instruction regarding attempt followed in substantial part Instruction 5.02 and its supplemental instruction in the Model Jury Instructions for Use in the District Court (1995).
END OF DOCUMENT

Court deems man charged in bloody MGH attack 'dangerous'

2009-12-04T19:40:00.000-08:00

Boston Herald

Court deems man charged in bloody MGH attack ‘dangerous’

By Laura Crimaldi
Friday, December 4, 2009

A repeat sex offender accused of trying to rape a woman in a Massachusetts General Hospital bathroom put a makeshift “Out of Order” sign on the restroom door as a devious ruse for the twisted ambush, officers said in court today.
Suffolk Superior Court Judge Frank Gaziano ordered David Flavell, 40, to be held as a dangerous person until his March 4 trial following the gripping testimony. Flavell is already being held without bail at the Nashua Street Jail after being found competent last month to stand trial.
During a dangerousness hearing, Boston police Detective Sean Joyce testified a witness told him the 27-year-old MGH employee was covered in so much blood after the Oct. 22 attack that she could not discern the woman’s ethnicity.

“She couldn’t tell what nationality she was because she was covered in blood,” Joyce said.
Joyce said the witness, who he identified only as “Jean,” walked into the public restroom after she heard a “blood-curdling scream.”
When she opened the door, she saw the alleged victim leaning against a wall as Flavell stood off to the side leaning over the woman, Joyce said.
The alleged victim sustained a black eye, scratches on her back and shoulder and bruises on her chest and face, Joyce said. He added the chest bruising was a result of Flavell allegedly trying to pin her down with his knee.
Flavell is also accused of slamming the woman’s head against the floor and ripping her pants open. He is facing attempted rape and other charges.
When “Jean” opened the door, the victim said, “He’s trying to hurt me. He’s trying to hurt me,” according to Joyce. He added there were blood droplets and smears on the bathroom walls, stalls and hand dryer as well as human hair and scuff marks on the floor.
Flavell, who is homeless, then allegedly made eye contact with “Jean,” got his backpack and then walked out of the restroom.
“He was very calm, very stoic, walking away as if nothing ever happened,” Joyce said.
Joyce testified a second witness who saw Flavell in the restroom doorway watched him calmly walk away from the bathroom. He was later identified by a crowd of people gathered outside the restroom and detained by MGH officer Antoine Davis.
The makeshift “Out of Order” sign was scrawled on the back of a document about a homeless shelter, Joyce said.
Flavell’s attorney, Neil Madden, said his client is not “aggressive,” did not resist arrest or try to flee the scene.
“He didn’t attempt to blend into the crowd or disappear into the crowd,” Madden said. “I would suggest there’s no premeditated intent there. ... This is a man with some history of psychological problems and sometimes they catch up with him.”
Flavell, dressed in a white T-shirt over a white long-sleeved shirt and orange pants, sat handcuffed with a stamped envelope in his hand. He did not speak in court.

Last year, Flavell made headlines when - armed with duct tape - he followed a female customer of Borders books in Braintree into a store bathroom and tried to crawl under a stall. He later admitted there were sufficient facts for a jury to find him guilty of the crime and received a six-month sentence.
The Borders incident happened two years after Superior Court Judge Richard T. Moses, in 2006, deemed Flavell was not sexually dangerous enough to warrant a civil commitment, despite a record of arrests on sex charges from New Hampshire to Fairhaven that included a conviction with a suspended sentence for masturbating on children’s clothing in a Kmart, and serving 2 1/2 years for assault with intent to rape and assault with a dangerous weapon.
Moses cited the opinions of five medical experts who agreed Flavell was not a threat. Flavell also served a nine-month sentence for exposing himself at Gap stores in Taunton and Canton and a Brooks Pharmacy in Fairhaven.
http://news.bostonherald.com/news/regional/view.bg?&articleid=1216664&format=&page=1&listingType=Loc#articleFull

Level 3 offender arrested after incident at Price Chopper

2009-12-04T19:33:00.000-08:00

Level 3 offender arrested after incident at Price Chopper
By Jeff Malachowski/Staff Writer
Thu Dec 03, 2009
SHREWSBURY -

A 56-year-old Level 3 sex offender was arrested Sunday night after allegedly exposing himself to an employee at Price Chopper Supermarket.

John Coppinger allegedly walked into the Price Chopper Supermarket on Maple Avenue a little before 9 p.m. Sunday “with his genitals exposed through the zipper region of his jeans to a female employee of the store,” according to a police report written by Officer Christopher Boudreau.

Boudreau described the female employee as “shocked” and “alarmed” at Coppinger’s behavior and the employee told her manager, who then called police, according to court records.
Coppinger, who is homeless, told another store employee he needed safety pins because the zipper of his pants was broken, according to court records.

“I did determine Mr. Coppinger’s zipper was functional and an inventory search of his motor vehicle yielded several unopened packages of safety pins, as well as the fact he was not wearing any underwear,” Boudreau wrote in a police report.

Coppinger is registered in the state as a Level 3 sex offender, among the level considered the most dangerous and most likely to re-offend. He has been convicted of several sex crimes, the most recent in 2005 when he was convicted of open and gross lewdness and lascivious behavior. Coppinger was convicted on the same charges of one count of open and gross lewdness and lascivious behavior in 2002 and six counts in 1998, according to the Massachusetts sex offender registry.

He was also convicted of attempting indecent assault and battery on a child younger than 14 years old and open and gross lewdness and lascivious behavior in 1995, according to the Massachusetts sex offender registry.

Coppinger was charged Sunday with open and gross lewdness and disturbing the peace. He was arraigned in Westborough District Court on Monday and was ordered held on $5,000 cash bail. Coppinger is due back in court on Dec. 29 for a pre-trial hearing.

http://www.wickedlocal.com/shrewsbury/news/police_and_fire/x441567478/Level-3-offender-arrested-after-incident-at-Price-Chopper

http://sorb.chs.state.ma.us/ResultDetail.asp?btn6847=Detail

Accused rapist with Braintree record indicted

2009-11-28T16:06:00.000-08:00

http://www.wickedlocal.com/braintree/news/x2072224411/Accused-rapist-with-Braintree-record-indicted

Accused rapist with Braintree record indicted

By Robert Aicardi
GateHouse News Service
Posted Nov 28, 2009
Braintree —

A convicted sex offender who served time in jail for following a woman into a bathroom at the Borders bookstore in Braintree last year has been indicted for allegedly trying to rape a woman inside a bathroom at Massachusetts General Hospital in October.
David C. Flavell, 40, a former Brockton resident now listed as homeless in Boston, is being held without bail until a Dec. 4 dangerousness hearing.
This hearing could result in Flavell being held for 90 days without bail, said Jake Wark, spokesman for the Suffolk County District Attorney’s office.
In addition to charges of assault with intent to rape, a Suffolk County grand jury indicted Flavell on Nov. 23 on two counts of assault and battery with a dangerous weapon and one count of assault and battery.
Prosecutors allege that on Oct. 22, Flavell dragged a 27-year-old woman into a hospital bathroom, choked her, and put his knee on her chest before he tore at the front of her pants, ripping off both buttons and pulling down the zipper.
Flavell was arraigned on Nov. 24.
Flavell, who recently underwent a 20-day psychiatric evaluation at Bridgewater State Hospital, is competent to face the charges against him, a Boston Municipal Court judge ruled on Nov. 16.
According to the Massachusetts Sex Offender Registry, Flavell is classified as a Level 3 sex offender, the category for those considered most likely to re-offend.
Flavell’s criminal record includes convictions on a charge of assault with intent to rape and three counts of open and gross lewdness between 1998 and 2001.
Bristol County prosecutors tried to have Flavell held as a sexually dangerous person in 2005, but he was released from a Bridgewater prison treatment center for sex offenders in February, 2006 after Superior Court Judge Richard Moses determined that he was not sexually dangerous.
On Jan. 29, 2008, Braintree police arrested Flavell, who allegedly peered under a ladies’ room stall at the Borders bookstore on Grossman Drive, startling a 36-year-old Holbrook woman.
“We consider his actions extremely serious and Flavell to be a very dangerous individual,” Deputy Police Chief Russell Jenkins said at the time.
Borders employees told Officer Michael Want that the woman, who left the store and later returned to speak with Want, was in a stall in the ladies’ room around 8 p.m. when a man stuck his head into her stall from underneath the separating wall, said nothing, and fled the area.
A witness who saw the man in the area of the ladies’ room described him as wearing dark clothing, possibly a running suit, and carrying a black bag.
An employee described it as a black Adidas bag with white stripes and went on to say that the man spent two hours on the pay phone near the café, located close to the restrooms.
Surveillance video showed the man to be light skinned with a short Afro and possible facial hair. He was of medium build and was wearing a black puffy coat, a dark colored Adidas sweatshirt, and tan or light brown pants
After officers viewed surveillance video provided by the bookstore, Detective Brendan McLaughlin believed that the suspect bore a resemblance to an individual he had investigated for making obscene phone calls to a Connecticut Child Protective Services hotline in 2006.
In that incident, Flavell allegedly made numerous phone calls to the hotline from pay phones in Boston and Braintree, including payphones outside the post office on Pearl Street and the Sports Authority, which is located across from Borders.
While working a traffic detail at the intersection of Union Street and Grossman Drive, McLaughlin observed Flavell entering the Sports Authority/Borders bookstore area on several occasions.
In the Borders investigation, both witnesses were shown an array containing several photographs, including Flavell’s, and narrowed their selection down to two photos of Flavell and another person.
According to Jenkins, the victim viewed the same photo array on Feb. 19, 2008 and positively identified Flavell as the person who stuck his head into her stall.
On that same day, a Brockton woman called McLaughlin, informed him that she viewed the photograph posted on Mass Most Wanted, and identified the individual as Flavell.
An arrest warrant was issued that afternoon, charging Flavell with annoying or accosting a person of the opposite sex as well as disorderly conduct, both misdemeanors.
McLaughlin and Detective Mark Sherrick, assisted by Brockton police, arrested Flavell that night at a donut shop in Brockton.
At the time of his arrest, police said, Flavell was carrying the same backpack that he reportedly had on the night of the Borders incident, and inside it were three pairs of work gloves, a black ski mask, and a roll of duct tape.
Flavell was held at the Braintree police station pending his Feb. 20, 2008 arraignment in Quincy District Court, where he pleaded innocent and was ordered held on $10,000 cash bail.
Flavell admitted on April 22, 2008 in Quincy District Court that there were sufficient facts to find him guilty.
Judge Mary Dacey White sentenced Flavell to six months in jail with credit for 63 days served because he had been unable to come up with bail.
Earlier this year, Norfolk County District Attorney William Keating tried to get Flavell declared a sexually dangerous person, but Judge Janet Sanders denied the request, ruling that Flavell didn’t meet the standard.
Material from GateHouse News Service and the Associated Press was used in this story.

Store Worker Accused of Raping Child

2009-11-25T14:17:00.001-08:00

Store Worker Accused Of Raping Child
Sales Associate Charged With Assault In Dressing Room
November 25, 2009

BOSTON -- Dudley police said a sales associate at the J.C. Penney department store in town was taken into custody Tuesday and charged with raping a child in a dressing room.

Francisco Wellington Barros-Gomes, 26 Officers said they got a report of an assault at the store on Route 131 in Sturbridge just before 6 p.m. They determined that a child under 14 was sexually assaulted in a changing area of the store.
A sales associate identified as Francisco Wellington Barros-Gomes, 26, of Charlton, was taken into custody and charged with indecent assault and battery on a child under 14 and rape of a child with force.
He was held overnight and was arraigned in Dudley District Court Wednesday where the Brazilian national was held on $25,000 bail and ordered to surrender his passport and wear a GPS if he makes bail.
Court officials said Barros-Gomes has been married to an American for two years and has been in the U.S. for 10 months.
In court, prosecutors said Barros-Gomes worked in the children's department and offered to bring the boy clothes to try on, then assaulted the victim in the dressing room.
Police said Barros-Gomes confessed to fondling the boy, but did not respond when interrogated about the alleged rape. They said he has no previous criminal record.
The next court appearance was scheduled for Dec. 17.
Copyright 2009 by TheBostonChannel.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

CORI "reform" letter to Governor Deval Patrick

2009-11-23T16:09:00.000-08:00

Dear Governor Patrick, 11/21/2009

I’ve heard both you and some members of the Senate claim that sex offenders are not included in the CORI 'reform' bill passed on Wednesday, but they were! What you are not telling the public is that we have a loophole in our law that allows judges in Massachusetts discretion over whether or not an offender has to register, AND the new crimes created under Jessica's law are not listed as crimes offenders must register for. The Senate could have taken up an amendment that would have listed the crimes and closed the Jessica's Law loophole, but they decided that this was "not related" to the crime bill before them. The way it stands now , this technicality will allow a person convicted of aggravated rape of a child with force (new offense under Jessica’s Law) to request that his records be sealed 10 years after he has served his sentence, and the public will not have access to that information. When you were running for Governor and the first two years you were in office you stated that you would not include sex offenders in with CORI reform and you must stand true to your word. Any person convicted of a sex crime under MGL Chapter 6 section 178C should not be allowed to keep their convictions secret regardless of whether or not they have been ordered to register with SORB.

I’m asking that you amend the current CORI reform legislation, support the Jessica’s Law amendment and close the pending loophole that allows people convicted of sex offenses to have their records erased after only ten years. We must take ALL sex crime convictions seriously, not only those that have not received a judge’s blessing. If the two requests above are not possible, I’m asking that you to stop misleading the public by stating that sex offenders will not be included in CORI reform because that statement is untrue.

Laurie Myers
Community VOICES

The loophole exists in MGL chapter 6 section 178E subsection (f) and allows judges discretion over registration with SORB.

(f) In the case of a sex offender who has been convicted of a sex offense or adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense, on or after December 12, 1999, and who has not been sentenced to immediate confinement, the court shall, within 14 days of sentencing, determine whether the circumstances of the offense in conjunction with the offender’s criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public. If the court so determines, the court shall relieve such sex offender of the obligation to register under sections 178C to 178P, inclusive. The court may not make such a determination or finding if the sex offender has been determined to be a sexually violent predator; has been convicted of two or more sex offenses defined as sex offenses pursuant to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 42 U.S.C. section 14071, committed on different occasions; has been convicted of a sex offense involving a child or a sexually violent offense; or if the sex offender is otherwise subject to minimum or lifetime registration requirements as determined by the board pursuant to section 178D

“Jessica’s Law” amendment (#12) http://www.mass.gov/legis/senate/s2210_amendments.htm

S2210 CORI bill passed by the Senate http://www.mass.gov/legis/bills/senate/186/st02pdf/st02210.pdf

893 6. Sex offenses, as defined in section 178C of chapter 6, shall not be eligible for sealing for 10
894 years following their disposition, including termination of supervision, probation or any period
895 of incarceration, or for so long as the offender is under a duty to register in the commonwealth or
896 in any other state where the offender resides or would be under such a duty if residing in the
897 commonwealth, whichever is longer.

Homeless advocates tell state: Keep high level sex offenders out of shelters

2009-11-20T06:34:00.000-08:00

Homeless advocates tell state: Keep high level sex offenders out of shelters
Thu Nov 19, 2009

John Yazwinski meets with police in Quincy and Brockton every month to see how many high-level sex offenders are listing homeless shelters in those cities — Father Bill’s Place in Quincy and MainSpring in Brockton — as their address.
The list is seldom more than a handful of names — and even then, most of the offenders aren’t actually signing in for an overnight bed.
“They’re using us as a way not to be found,” said Yazwinski, who is executive director and the person in charge of both shelters on a day-to-day basis.
That is why he and scores of other providers for the homeless are backing a new proposal to ban Level 3 sex offenders — the most dangerous and most likely to repeat their crimes — from the shelters.
While they say offenders have a right to housing like everyone else, they also say shelters are not the proper place for them, especially at a time when sharp state budget cuts are straining overall programs for the homeless.
“We don’t have the capability,” Yazwinski said Wednesday. “We don’t get paid for case management (for sex offenders). The only thing the state pays us to do is shelter people 12 hours a day.”
Tom Washington, community relations director at the MainSpring shelter in Brockton, declined comment Wednesday, deferring to Yazwinski.
Gov. Deval Patrick’s administration has cut $2.7 million from funding that pays much of the cost for beds for individual adults at Father Bill’s, MainSpring and other shelters.
Homeless advocates say that 7 percent cut is effectively 15 percent, since the state fiscal year is almost half over, so the impact is much worse.
The Massachusetts Housing and Shelter Alliance, which includes some 90 shelters and service providers, is supporting a bill by state Sen. Walter Timilty, D-Walpole.
Joe Finn, the alliance’s director, said the bill will help close a loophole in the state’s Sex Offender Registry, by forcing offenders to be truthful about their residence.
“The state has no idea where these guys are,” said Finn, who is also a Quincy city councilor. “That defeats the purpose of the registry.”
At the same time, Yazwinski said, sexual offenders are returning to their communities from prison with no resources and support.
“We’re not the place for these people to end up,” he said.
Timilty’s proposal comes at a time when a growing number of towns and cities are restricting sex offenders from living near schools, parks, playgrounds, day care centers, libraries and senior centers.
Weymouth, Rockland and Pembroke have passed such bans. Quincy and Plymouth are considering them.
Civil liberties advocates say such restrictions in effect pile extra punishment on offenders, while a shelter exclusion would further remove them from contact.
“Nobody thinks these guys should be on the street,” countered Finn. “But they shouldn’t be in shelters to begin with.”
Yazwinski agreed with Finn that the state needs to take greater responsibility to find places for offenders to stay.
But even so, Yazwinski said the number of Level 3 offenders who even list Father Bill’s or MainSpring as their address is a small fraction of all the offenders who live south of Boston.
Enterprise staff writer Elaine Allegrini contributed to this report.

http://www.wickedlocal.com/brockton/news/x1659502653/Homeless-advocates-tell-state-Keep-high-level-sex-offenders-out-of-shelters

Westford police urge parents to get sex-offender info

2009-11-19T09:00:00.000-08:00

http://www.lowellsun.com/todaysheadlines/ci_13814151

Westford police urge parents to get sex-offender info

By Prudence Brighton, Sun Correspondent

11/18/2009

WESTFORD -- Right now, if you want to learn about Level 2 sex offenders living or working in your town, you have to go to the police station and fill out a request for information.

That's a step Police Chief Thomas McEnaney hopes parents will take.

"We will give you that information," McEnaney said. "You're entitled to it."

But pending legislation would make that information as easy to get as it is for Level 3 sex offenders, state Rep. Jim Arciero, D-Westford, told residents at the J.V. Fletcher Library last night.

Arciero and McEnaney were among a group of panelists who participated in a forum "Community Conversation: Keeping Our Children Safe from Sex Offenders."

Level 2 offenders are those who are considered to have a moderate likelihood of committing another sex crime, whereas Level 3 offenders are considered most likely to repeat. Level 3 sex offender information is available on the Internet.

"There's such a small, thin line between Level 2 and 3 sex offenders, it's critical to have that information," Arciero said.

Arciero is cosponsoring House Bill 1350 which would make Level 2 sex offender information available online. He urged audience members to send letters and e-mails supporting the bill to their own legislators.

McEnaney described a situation that occurred when he was putting his twin sons on the school bus. When the bus door opened, he discovered the driver -- a substitute for the day -- was a Level 2 sex offender. "There I was, staring right at him," McEnaney said.

The CORI process failed in that case.

"But the bus company is doing a much better job now," McEnaney observed.

Police Safety Officer Mike Croteau described the process involved in classifying sex offenders and who is referred to the Sex Offender Registration Board. But getting certain sex offenders to report their whereabouts is voluntary.

Classifying sex offenders does not give police the ability to control where they live and work, who they interact with or their daily activities, said Croteau.

"Know your neighbors. Find out if there are any Level 2 or 3 sex offenders among them," said Debbie Savoia, vice president of the advocacy group Community Voices. The North Andover resident became involved in the issue in 1992 when she received an anonymous letter about a sex offender moving into her neighborhood.

Sharing "advice from a child molester," Laurie Myers, president of Community Voices and a Chelmsford resident, described characteristics that parents should know.

A child molester is someone who pays a lot of attention to a child. This person has an appearance of someone that parents and child can trust, Myers said. The abuser will know your child's likes and dislikes often better than the parents. The person will buy gifts or treats for the child. The molester will try to isolate the child from his or her parents.

And, she cautioned, it is easier for a parent to isolate a child from family members than for anyone else.

"Talk to your children about sexual abuse," Myers said. "Talk openly about sexual development, behavior and abuse."

"It's a tough subject," said Savoia. Parents give their children a lot of safety information "but we don't tell them how to protect themselves from sex offenders."

Parents should "routinely quiz their children about what happens when they are away," Savoia recommended.

Parents might ask "Did anything fun happen?" That question might elicit a response if an abuser has made a child think they're playing a game.

Check references for baby-sitters and do not let children walk or bicycle alone, Savoia advised.

Myers and Savoia are frequently lobbying for reforms in sex-offender laws.

Last night's forum was organized by Westford residents Pam LaBarre and Wendy Brown, who hope that it will spur discussion and action in other communities.

"It's not just a Westford problem," they said.

Malden Man Found Guilty, Sentenced Under Jessica’s Law For Raping, Assaulting Nine Year Old Girl

2009-11-12T05:11:00.000-08:00

Malden Man Found Guilty, Sentenced Under Jessica’s Law For Raping, Assaulting Nine Year Old Girl

November 10th, 2009 - Press Release Archive, Press Release, Front Page News

For Immediate Release November 9, 2009
Contact: Jessica Venezia 781-897-8325

Malden Man Found Guilty, Sentenced Under Jessica’s Law For Raping, Assaulting Nine Year Old Girl
First Conviction In Middlesex County Under Jessica’s Law

WOBURN –A Malden man has been found guilty and convicted of raping and indecently assaulting a nine-year-old girl, Middlesex District Attorney Gerry Leone’s office informed the public today. This is the first defendant convicted in Middlesex County under the new Jessica’s Law.

Robert Giglio, 47, was found guilty by a Middlesex Superior Court jury of aggravated child rape and indecent assault and battery, subsequent offense on October 26. Giglio is the first defendant in Middlesex County to be convicted under Jessica’s Law, which was enacted just two weeks prior to when the sexual assaults took place. Jessica’s Law created the aggravated child rape statute, which is punishable by a mandatory minimum sentence of 10 years in State Prison. It also changed triggering offenses and increased penalties for subsequent offense of indecent assault and battery to a mandatory minimum of 15 years in State Prison.

Middlesex Superior Court Judge Henry sentenced Giglio to 15- 20 years in State Prison for the indecent assault and battery, subsequent offense, and 10-15 years for the aggravated rape, to run concurrently.

“This defendant has now been found guilty and sentenced to State Prison for his disturbing crimes against this young child,” District Attorney Leone said. “We thank the victim for coming forward and bravely telling the jury what happened to her. Thanks to Jessica’s Law, we were provided with an additional sentencing tool to punish this defendant appropriately for his reprehensible actions against a vulnerable child. We will continue to work with the legislature to pass future reforms to assure accountability and truth in sentencing for other dangerous repeat sex offenders, especially when children are victimized.”

On November 7, 2008, the victim, 9, and her younger sister were visiting the defendant’s family at his home. During the night, the victim was awakened by the defendant touching her. The defendant touched the victim multiple times and only stopped after his youngest child, a baby, began crying in the next room. The victim was able to report to her mother what the defendant did to her during the night.

In 1988, the defendant was convicted of two counts of indecent assault and battery on a child under 14 years old, making him eligible for conviction under Jessica’s Law.

Giglio was indicted by a Middlesex Superior Court Grand Jury on February 26, 2009 and arraigned on March 6, at which time he was released on personal recognizance with a no contact order.

The case was prosecuted by Assistant District Attorney Michael Chinman. The victim witness advocate was Nicole St. Pierre and the child interview specialist was Margaret Leavitt.

###

http://www.middlesexda.com/press-release-archive/malden-man-found-guilty-sentenced-under-jessica’s-law-for-raping-assaulting-nine-year-old-girl/

Possible abduction attempts probed in Milton, Nashua and Manchester NH

2009-11-09T09:27:00.000-08:00

The Union Leader
Possible abduction attempts probed in Milton, Nashua and Manchester
11-9-2009

By BY PAT GROSSMITH AND CLYNTON NAMUO

http://www.theunionleader.com/article.aspx?headline=Girl,+15,+reports+abduction+attempt+in+Nashua&articleId=21a9770e-4a95-4f8d-99f0-36f10167b0d6

Two abduction tries of teenage girls and a third possible attempted kidnapping of an 8-year-old school boy this morning are under investigation by police in three different communities.
Milton police said a man offered a ride to an 8-year-old boy waiting this morning for the school bus on Governors Road in Milton. The school principal said the man offered the boy a ride and when he declined, drove off but then returned and offered him a ride for a second time.
The incident comes after a Nashua teenager reported a man tried to force her into his car Saturday night on Stark Street. Nine days earlier, on Oct. 29 in Manchester, a teenage girl reported a man tried to abduct her while she was walking to Memorial High School. And, on Nov. 3, a Bedford teen told police a man followed her as she left Bedford High School.

Milton Elementary School Principal Stephanie Hillis said this morning the 8-year-old was waiting outside his house just south of Route 75 on Governors Road when a man in a red car traveling north on the road stopped in front of him.

"The little boy said, 'He stopped and asked me if I wanted a ride,'" Hillis said.
The boy declined and the man drove up Governors Road, turned around at Route 75 and then drove back down and asked the boy a second time if he wanted a ride, Hillsaid.

The boy again said no and the man drove south, heading toward Rochester, Hillis said.
The boy's mother saw the man try to pick up her son, called the boy inside and then contacted authorities, according to Hillis.
Hillis said the boy described the man as being white, possibly in his 20s, with a goatee and wearing a dark-colored sweatshirt without a hood. She said the car was a red sedan.

"We really don't have a good description of the guy," she said. "The student was very sure it was a red four door."Milton police issued a press release about the incident that described the car as a four-door, 90s boxy-style, red vehicle. The driver was described as a thin man in his 20s with short dark hair and a goatee.
Parents were notified about the abduction attempt this morning via an automated phone system, HIllis said. She said administrators at Nute High School and Nute Middle School were told as well.

Hillis said school children will be talked to today about how to deal with strangers.
In the Nashua incident, a 15-year-old girl was walking about 8:30 p.m. Saturday along Stark Street, near Wellington Street, when a man jumped out of a parked car, grabbed her from behind and tried to force her into the "boxy" type vehicle, possibly a dark-colored SUV. The car had leather interior.

The incident happened in a residential area in the north end of the city, not in the immediate vicinity of any school, according to Lt. Jeffrey Bukunt of the Youth Services Division. He said the girl's only description of the man was that he wore fleece gloves.
"There's very little to go on," he said. Investigators issued a New England-wide teletype to law enforcement regarding the incident but Bukunt said they received no calls back. "Again, there is very little to go on," he said.

The incident remains under investigation but police have not linked it to any of the other cases.
In the Manchester incident, the 17-year-old Manchester Memorial High School student had left school on the morning of Oct. 29 to get something out of her car, which she parked on Gray Street off school grounds. As she was walking back to school, on South Porter Street, a man in a red pickup truck pulled up along side her.

She ignored him and the man got out of the truck and grabbed her by the arms. Police said the girl broke free and ran into some nearby woods, hiding there until she was certain the man was gone.

Police are trying to find the assailant who is described as a thin white man in his 50s, about 5-foot-10, with short brown hair with some gray and a full beard. He was wearing a blue T-shirt and jeans.

Bedford police also continue to investigate a Nov. 3 incident in which a man, described as bearded and in his 50s, followed a 16-year-old girl as she left the school's auditorium about 6:30 p.m. that evening. Police said the man never spoke or touched the teen but followed her as she walked to and got into her car.

The teen told police the man got into a mid-size, dark-colored SUV or van and then followed her as she drove out of the school's parking lot. He turned the vehicle around, she said, when she reached a heavily populated business parking lot.

The student described the man as being about 5-foot-10, weighing 160 to 180 pounds, with a medium build. He was wearing blue jeans and a gray sweatshirt.

Anyone with any information about any of the incidents is asked to call police: Youth Services Division of the Nashua Police Department at 594-3500; Manchester police at 668-8711 or Manchester Crimeline at 624-4040, and Bedford police at 472-5113 or Bedford Crime Line at 472-8999.

Abduction attempt fails in Nashua;girl, 15, escapes

2009-11-09T09:23:00.000-08:00

Abduction attempt fails in Nashua; girl, 15, escapes
The Lowell Sun
11/09/2009

NASHUA -- Police are seeking information on a man who grabbed a 15-year-old girl from behind and tried to pull her into his vehicle in Nashua on Saturday night.
Police said they were notified that about 8:30 p.m., a 15-year-old girl was walking west on Stark Street, near Wellington Street, when she walked past a parked vehicle.
A man who was alone in the vehicle grabbed the girl from behind and tried to force her into the back.

The girl got away.

The vehicle is described
as small and "boxy," possibly an SUV with leather interior. There was no description, but the girl said the man was wearing fleece gloves.
Anyone with information is asked to call police at (603) 594-3500.

Two guilty of trafficking young girls for sex

2009-11-07T07:18:00.000-08:00

http://www.bostonherald.com/news/regional/view.bg?articleid=1210222

Boston Herald

Two guilty of trafficking young girls for sex

By O’Ryan JohnsonSaturday, November 7, 2009

Two men accused of running a brutal teen sex racket - where the pimps marked one girl in their stable with a facial scar, and traded other girls like baseball cards - were convicted yesterday of human trafficking in federal court in Boston, officials said.

Darryl Tavares, 26, of Revere and Eddie Jones, 26, of Dorchester, after a 10-day trial, were each convicted of conspiracy to traffic women in interstate commerce for the purpose of prostitution, and transporting minors in interstate commerce for the purpose of prostitution. They each face up to 20 years in prison, according to the U.S. Attorney’s Office in Boston.

The case broke in 2005 when one of the girls, who was 16 at the time she was being pimped, told investigators that Tavares and Jones ran girls between states as part of their business, prosecutors said. The Boston office of the FBI as well as the Boston Police Department investigated the case and eventually arrested six people, including Tavares and Jones. Four pleaded guilty.

http://www.bostonherald.com/news/regional/view.bg?articleid=1210222

David Flavell rap sheet

2009-10-23T05:32:00.000-07:00

Boston Herald
Thursday, October 22, 2009

March 14, 1996: David Flavell is spotted by a security guard urinating in a mop bucket at a Salem, N.H., Kmart, then masturbating on children’s clothing. Suspended sentence.

April 10, 1996: At a Salem, N.H., Bradlees department store, Flavell is caught on camera masturbating into a shirt on display. Suspended sentence.

June 24, 1996: Flavell masturbates in front of a New Hampshire supermarket.
July 9, 1996: Flavell masturbates in front of another store in New Hampshire. Served two months for both offenses.

Dec. 13, 1996: Methuen police arrest Flavell in the afternoon for masturbating in the ladies clothing section of a Rich’s department store, 5 yards from where a woman was shopping.
Dec. 13, 1996: Hours later, back on the street, Flavell beats up and attempts to rape a woman he chats up at a Methuen American Legion Post.

Nov. 6, 1997: He is arraigned in Lawrence on accusations of assault with intent to rape, assault and battery with a dangerous weapon, and two other charges. The following April, he pleads guilty and is sentenced to 2 1/2 years in the house of correction. He is released Jan. 18, 2000.

Dec. 8, 2000: Flavell is bagged again for masturbating at a Gap in Taunton.

April 13, 2001: Flavell exposes himself outside a Brooks Pharmacy in Fairhaven.

Sept. 4, 2001: Flavell flashes a woman and her four children in the parking lot of a Canton Gap. In November, he gets a nine-month sentence for Taunton, Fairhaven and Canton offenses.

October-November 2002: Flavell is hospitalized for psychiatric evaluation after he admits to calling unidentified ‘hotlines‘ from Franklin and Taunton, threatening to harm children.

March 19, 2003: Police in Salem, N.H., charge Flavell with disorderly conduct and making false public alarms after he tells them he followed a mother and her child into a store.
April 28, 2003: For violating probation on Salem offense, Flavell is committed to the Bristol House of Correction for 2 years.

Sept. 15, 2004: Bristol District Attorney Paul Walsh Jr. petitions to have Flavell civilly committed as a sexually dangerous person. Flavell is held over pending a ruling.

Feb. 14, 2006: Judge Richard T. Moses denies the petition after five medical experts testify Flavell is not sexually dangerous. Two other experts, however, disagree. Prosecutors ask Moses to reconsider his decision, but he refuses.

December 2006: Braintree police charge Flavell with making obscene phone calls to the Connecticut Child Protection Services hotline, but the case is later dismissed.

Aug. 31, 2007: Flavell is arraigned in Boston Municipal Court for allegedly making ‘lewd and disturbing’ calls to the National Center for Missing and Exploited Children from pay phones at Massachusetts General Hospital and the Esplanade. The charges were dimissed in January when a critical witness backed out, but the case has been reopened and Flavell is scheduled to be arraigned in BMC again Wednesday.

Jan. 29, 2008: Carrying a backpack police suspect contained a ski mask, gloves and duct tape, Flavell allegedly follows a woman into the ladies room at the Braintree Borders after blocking the door with a bookcase and tries to crawl under her stall. He flees when she screams.

Feb. 20, 2008: Captured with the backpack Feb. 19 in a Brockton doughnut shop, Flavell, who claims to be homeless, pleads not guilty in Quincy District Court to accosting a person of the opposite sex and disorderly conduct. He remains held on $10,000 cash bail.

Oct. 22, 2009: Boston police charge Flavell with assault with intent to rape a woman in a Massachusetts General Hospital restroom.

http://www.bostonherald.com/news/regional/view.bg?&articleid=1206769&format=&page=2&listingType=Loc#articleFull

Level 3 Perv nabbed in hospital assault

2009-10-23T05:24:00.000-07:00

Level 3 perv nabbed in hospital assault

By O’Ryan JohnsonFriday, October 23, 2009

A notorious Level 3 sex offender with more than a dozen sex crime charges on his record was arrested after he tried to rape a woman at Massachusetts General Hospital yesterday, badly injuring her in the process, police said.
David Flavell, 40, who is homeless, is expected to be arraigned today in Boston Municipal Court for assault with intent to rape.
Police and sources said Flavell apparently followed a woman into a bathroom at the hospital and assaulted her. Police said the woman was injured but did not specify the nature of the injuries.
The scenario was chillingly familiar.
Flavell was charged with accosting a woman after cops said he followed her into a bookstore restroom in Braintree in 2008 and blocked the door with a bookcase, but fled when the woman screamed for help. Police said he had a backpack with a ski mask and duct tape. The disposition of that case was not available last night.
In 2006, Bristol County prosecutors tried to have Flavell declared a sexually dangerous person. But Judge Richard T. Moses disagreed and allowed him to go free.
Not long after, Flavell was charged by Boston cops with making lewd calls to the National Center for Missing and Exploited Children in which he allegedly claimed to have repeatedly molested a little girl in 2007. The case was dismissed when a key witness backed out.
With more than 12 years of police reports to go by, psychiatrists have described Flavell as an exhibitionist. He has been arrested several times for exposing himself and masturbating in public. In Salem, N.H., he was bagged in a Kmart, where he was accused of pleasuring himself with children’s clothes in 1996. He got a suspended sentence.

http://www.bostonherald.com/news/regional/view/20091022level_3_perv_nabbed_in_mgh_assault/srvc=home&position=4

Billerica Level 3 sex offender competent for trial

2009-10-22T06:28:00.000-07:00

Billerica Level 3 sex offender competent for trial

By Lisa Redmond, lredmond@lowellsun.com
10/22/2009

LOWELL -- Convicted Level 3 sex offender Ernest Frobese, who has been diagnosed with a delusional disorder, has been deemed by doctors at Bridgewater State Hospital as competent to stand trial on a charge that he refused to register as a sex offender.
Frobese, 69, of 54 Connolly Road, Billerica, has been held on $5,000 cash bail since his arrest in November 2007, when he refused to register as a sex offender as required by state law. It was that same refusal that led to his arrest on the same charge in June 2005.
In Lowell Superior Court this week, Judge Jane Haggerty ordered Frobese returned to Bridgewater State Hospital, where he can continue to receive treatment for his disorder pending a Nov. 19 court date to review his committment and his Jan. 13, 2010, trial.
A diagnosis from the court clinician indicates Frobese suffers from a persecutorial delusional disorder in which he sees conspiracies and corruption at every turn and believes the state has no domain over him.
During his Superior Court arraignment in January 2008, Frobese told the judge, "My constitutional rights are being violated constantly. I'm challenging the restraints of my life, liberty and my property."
Frobese made headlines in the fall of 2007, when he was seen giving out candy to youngsters on Halloween. According to Massachusetts law, it is not illegal for sex offenders to hand out candy at Halloween, but Billerica police say it lacks common sense for a convicted sex
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offender to do so.
The state Sex Offender Registry Board has classified Frobese as a Level 3 sex offender, the highest likelihood to reoffend. Frobese served 2 1/2 years in prison for a 1995 conviction of indecent assault and battery on a child.
He is required by law to register with the Police Department each year on his birthday in October. Billerica police had given him a deadline, but Frobese responded in writing saying he refused to register.

Level III Sex Offender Found Guilty On Child Enticement Charge In Connection With Alleged Solicitation Of 14-Year-Old Boy

2009-10-09T14:25:00.000-07:00

Level III Sex Offender Found Guilty On Child Enticement Charge In Connection With Alleged Solicitation Of 14-Year-Old Boy

Connecticut Level III Sex Offender Found Guilty On Child Enticement Charge In Connection With Alleged Solicitation Of 14-Year-Old Boy
October 8th, 2009 - Press Release Archive, Press Release, Front Page News
For Immediate Release October 8, 2009
Contact: Corey Welford/Jessica Venezia 781-897-8325
Connecticut Level III Sex Offender Found Guilty On Child Enticement Charge In Connection With Alleged Solicitation Of 14-Year-Old Boy
WOBURN – A Connecticut man, who is also a registered Level III sex offender in that state, has been found guilty for the solicitation of a 14-year-old boy in Holliston, Middlesex District Attorney Gerry Leone informed the public today
Charles DiNardo, age 55, of West Haven, Connecticut, was found guilty by a Middlesex Superior Court jury on the charge of enticement of a child under the age of 16. DiNardo was sentenced to 4.5-5 years in State Prison by Middlesex Superior Court Judge Sandra Hamlin.
“The defendant, who has been classified as a sex offender at the most serious level in Connecticut, brazenly approached a young boy asking to have sex with him,” District Attorney Leone said. “We commend the jury for their just verdict and praise the victim for notifying a trusted adult immediately after the defendant solicited him, allowing his father to notify authorities who acted quickly in identifying the defendant as the culprit. This is another example of why we need laws that will allow for stringently conditioned monitoring of repeat predatory sex offenders when they are allowed back into our communities where they attempt to prey on our most vulnerable.”
According to authorities, the victim and his family were attending a gathering for scale model train enthusiasts at Arthur Street in Holliston on August 26, 2007. During that visit, he was allegedly approached by the defendant who asked him if he could speak with him alone. At that point, the defendant allegedly solicited sex from the boy in exchange for money. The boy walked away and notified his father.
After an investigation by Holliston Police, including interviews with multiple witnesses, DiNardo was identified as the alleged suspect in connection with the incident. Authorities in Connecticut were notified and an arrest warrant for the defendant was obtained out of Framingham District Court.
The defendant was arrested by West Haven Police in Connecticut on September 4. The defendant agreed to waive rendition and he was transported to Framingham District Court and arraigned on his charges on September 10. At his District Court arraignment, DiNardo, while waiving his appearance rights, pleaded not guilty. Judge Douglas Stoddart ordered DiNardo held pending a 58A dangerousness hearing on September 12 in Framingham District Court. At his dangerousness hearing, DiNardo was ordered held without bail.
DiNardo was found guilty after a week-long trial.
The prosecutor assigned to the case is Assistant District Attorney Deborah Bercovitch of the Middlesex District Attorney’s Child Abuse Unit. The victim witness advocate is Kara Grant. The paralegal is Erika Willey.
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http://www.middlesexda.com/press-release-archive/connecticut-level-iii-sex-offender-found-guilty-on-child-enticement-charge-in-connection-with-alleged-solicitation-of-14-year-old-boy/

Former Winchester middle school teacher’s aide pleads guilty to child rape, child enticement, and child porn charges; gets five years

2009-10-05T17:47:00.000-07:00

Former Winchester middle school teacher’s aide pleads guilty to child rape, child enticement, and child porn charges; gets five years

By Brad Petrishen/Staff Writer

Mon Oct 05, 2009

WINCHESTER, MA -

Christopher French, the former McCall Middle School teacher's aide indicted last year and charged with, among other crimes, child rape, pleaded guilty to all charges today in Woburn Superior Court and was sentenced to five years in jail.

Judge Bruce Henry sentenced French to two consecutive two-and-a-half-year sentences at the Billerica House of Corrections, as well as five years of probation, during which time he will be banned from contact with children under the age of 16 and from using the Internet, among other restrictions.

French, 29, will be eligible for parole two years into his sentence, according to Assistant District Attorney Michael Chinman, the commonwealth's prosecutor on the case.

Chinman argued for but did not receive a request for eight years of probation.

"We all understand the defendant will not end up doing five years [in jail]," Chinman told the judge.

Although Chinman said he thought there was a "better than good" chance that he would not receive parole after two years, he added that he believes French may receive parole after about three-and-a-half years, which "is right at the bottom range of the sentencing guidelines."

French was indicted by a Middlesex Superior Court Grand Jury on Oct. 30, 2008, on charges of child rape, child enticement (two counts), posing a child in a state of nudity (four counts), disseminating visual material of a child in a state of nudity (four counts), possession of child pornography (four counts) and dissemination of matter harmful to minors (three counts).

The charges applied to French's relationship with six young girls, Chinman said, although there were more victims who were not identified.

Chinman said it was unusual a prosecutor’s office to accept a sentence of this length at a house of corrections, but that it decided to do so in part so that the six victims in the case would not have to relive their ordeals in court.

He said the main witness told the prosecution that although she would testify in court against French, she would prefer not to.

"The benefit to this is that the six victims do not have to testify," said Chinman.

Though the state was satisfied with French's prison term, the prosecution’s inability to get eight years probation disappointed Chinman.

"This is a person who should not teach, who should not coach a child, who should not have contact with children," he said, "And these things should be ‘should nots' for a long time."

The Crimes

Chinman described in detail the crimes to which French pleaded guilty, the most serious of which was child rape.

According to Chinman, during the 2005 to 2006 school year (when he was 25), French initially contacted the victim, who was 14 years old at the time, through MySpace and later began speaking to her via instant messenger.

"At first, the conversations were about normal school activities," said Chinman.

However, French eventually turned the conversations sexual, Chinman said.

Another victim was an eighth grader at McCall Middle School in 2008 when French began speaking to her over MySpace and under the instant messenger alias "Frenchy1024."

Chinman said French began to ramp up sexual talk by asking the girl about the boys in her grade and by telling her that they were no match for older men.

Chinman said French told the girl he was "a lot younger" than she had heard, and rationalized that she would be dating older men when she started high school the following year anyway.

"This summer, we'll have to drink and I'll show you how it's done," Chinman said French wrote to the girl on June 5, 2008.

According to Chinman, French told the girl if she was lucky she would get to go in "Frenchy's hot tub," where "naughty things" happened, but cautioned, "Don't tell anyone, I'll kill you."

Chinman said the threat was considered a joke by the girl at the time, as it was accompanied by online slang that infers that one is not being serious.

On June 12, Chinman said French sent the girl a lewd questionnaire.

Chinman said French and the girl lived close to each other, and that they agreed to go for a walk in the woods which fell through.

On June 19, days after she graduated from middle school, Chinman said French sent her a message asking her if she was "still a wimp," and she agreed to meet him again.

That time, however, heavy rains prevented the two from meeting, and a few weeks later, the girl told police what had happened, leading to a warrant to search French's computer.

The evidence

Upon a search of French's computer, Chinman said the defense found a number of photos of nude girls, as well as nude photos of himself he had sent to a number of underage girls.

"There are additional girls identified on the defendant's computer … that were never identified," said Chinman. "This was a relentless pursuit of sexual contact … with young teens," he added, some of which were not residents of Middlesex County.

"He followed almost a script with the girls," said Chinman, during which French would contact the girls over MySpace and then proceed to instant messenger.

Conversations would start out innocuous but then gradually turn sexual, at which point French would send girls pictures of himself in various stages of nudity and ask for nude photos in return.

If girls complied with his requests — some of which, Chinman said, included getting naked and holding a sign that said “Frenchy's Porno Store” — French would then attempt to meet with the girls for sexual contact.

French was charged with two counts of child enticement against two girls, Chinman said, and would have been charged with a third count against another victim if the child enticement statute had existed at the time that offense occurred.

According to Chinman, the evidence for the commonwealth against French was vast and, in addition to saved photos of nude teenagers and child pornography, included sexual conversations with girls that French saved and catalogued on his computer.

The defense

French's defense attorney Philip Tracey Jr., while arguing for five years of probation instead of eight, said French has apologized completely and is ready to be rehabilitated.

"He knows what he did was wrong, and he accepts the punishment he feels he deserves," said Tracy, who went on to read a letter of apology from French.

"I made some very poor decisions and errors in judgment … and I am sorry for the anguish [the victims] have gone through," Tracy read. "I never thought of the harm I might cause. I want to apologize to the victims’ families for everything you have endured … [ant to] the faculty at the McCall School for all the negative attention I've brought to the school."

French's father, Evander French Jr., is principal of McCall Middle School. French also apologized to members of his family and his friends for the more than 70 letters in defense of his character that Tracy said were submitted to the court.

"If given a second chance, I know I'll try to make a difference in this world," French wrote.

Tracy said he believes French has the chance to do so, and told the judge French is "a tale of two people" — a good person who devolved into someone else and is trying to make amends.

"I have a very difficult time reconciling the Christopher French I see in those letters … with the Christopher French who plead guilty," said Judge Bruce Henry. "[But] given what I've seen, a period of probation of five years is appropriate."

After the hearing, Tracy said he believed French received a fair sentence, and reiterated that he and French were glad they did not have to put the victims of the case through a trial.

"It was the right resolution for all the parties," he said. "He accepted responsibility like a man.
"He comes from a fine family, and they've suffered a lot. Hopefully this is something they can recover from."

Superintendent responds

Superintendent William McAlduff Jr. responded to French's guilty plea in a press release early this evening.

"Today we learned that Christopher French, a former McCall Middle School Teacher Assistant, plead guilty in Middlesex Superior Court on a number of charges related to child pornography, child enticement and child rape," McAlduff wrote.

"It will be important for the Winchester Public Schools to be able to provide support and assistance to any of the victims, especially those who may still be enrolled in our schools or to other students who either by association or, who otherwise feel impacted by these circumstances. The Incident Management Teams at Winchester High School and McCall Middle School have met to discuss these concerns and will plan accordingly."

The following is a press release from the office of Middlesex District Attorney Gerry Leone:

A former Winchester middle school teacher’s aide pleaded guilty today to child rape, child enticement, and child pornography charges in connection with crimes committed against six underage female victims, Middlesex District Attorney Gerry Leone informed the public today.

Christopher French, age 29, of Winchester pleaded guilty before Middlesex Superior Court Judge WHO on charges of child rape, child enticement (two counts), posing a child in a state of nudity (four counts), disseminating visual material of a child in a state of nudity (four counts), possession of child pornography (four counts), and dissemination of matter harmful to minors (three counts).

Judge Bruce Henry sentenced French to two consecutive sentences of 2.5 years each of confinement at the Billerica House of Correction. French also received 5 years probation from and after release, with conditions that include sex offender counseling, no contact with children under the age of 16, no internet use, must be on GPS monitoring, must register as a sex offender, and no teaching or coaching.

“Christopher French used his position of authority to inappropriately contact, entice and manipulate his young female victims,” District Attorney Leone said. “By pleading guilty, the defendant has admitted his responsibility for his disturbing actions and, in addition to the jail time he is required to serve, will now be a registered sex offender and can no longer prey on victims as a teacher or coach. We thank the victims for their cooperation during this investigation and for disclosing the actions of this defendant."

The defendant was a special education teacher’s aide at the McCall Middle School in Winchester. The defendant had teaching responsibilities and also coached soccer. Prior to his fulltime employment as a teacher’s aide, the defendant worked as a substitute teacher at the school beginning in the early 2000s.

On June 28, 2008, the Winchester Police executed a search warrant at the defendant’s residence in Winchester, seizing computer equipment from the residence and from the defendant’s room. The police investigation--including the forensic analysis of the defendant’s seized computer equipment--revealed that, throughout the years the defendant was employed at the McCall Middle School, the defendant communicated with many underage females, some of whom had been students at McCall Middle School, and some of whom he met online through social networking sites.

The defendant focused much of these communications with young females on sexual matters. The defendant disseminated naked pictures of himself to many of them, requested and received naked pictures of some of the young females in return, and enticed two of them to meet with him in person for sexual activity. It was determined that the defendant committed child rape against one victim. The pictures the defendant sent of himself, the pictures he requested and received from his targets, and many of the communications he had with his targets were stored in his computer, cataloged by the names of the targets.

In one instance, in 2005-06, a 14-year-old female victim was in ninth grade. The prior school year, she had attended McCall Middle School, and knew the defendant as a teacher’s aide at the school. The defendant, age 25 at the time, contacted the victim on her Myspace page and they began instant messaging. After a period of time, the defendant began inviting the victim to go into his hot tub. The victim declined to do this. Then, the defendant began to suggest that he could come to her house. One night, when the victim was fourteen, she agreed to have the defendant over to her house. It was in the basement of the house that the child rape occurred. The defendant warned the victim not to tell her friends or family. The defendant is charged with child rape and enticement in connection with this victim.

In another instance, beginning in April 2008, French, age 27 at the time and while serving as a teacher’s aide at McCall Middle School, initiated contact with a 13-year-old female who attended the school. The online conversations occurred on his Myspace page, and he used online names such as “Frenchy” or “Frenchy 1024.” In June, the conversations became more overtly sexual, with the defendant indicating that the victim could be invited to the defendant’s hot tub, emphasizing that “naughty things” happen in the hot tub. He also sent the victim a “questionnaire” asking her various sexually explicit questions. Then, the defendant arranged to meet the victim at various times in the woods near his house, with the victim understanding that the purpose of the meeting was “to fool around.” The meetings did not occur for various reasons, but the online conversations continued with the defendant again engaging in conversations of a sexual nature. The defendant is charged with child enticement in connection with this victim.

There were also numerous other incidents, with multiple victims aged 15 – 17 years old, in which the defendant engaged in sexual conversations through social networking sites such as Myspace and Facebook. With four victims, he sent the victims naked photos of himself and requested/received naked photos from them. In connection with these victims, the defendant is charged with counts of posing children in a state of nudity, disseminating visual material of a child in a state of nudity, possession of child pornography, and dissemination of matter harmful to minors.

On June 28, 2008 French was arrested on one charge of child enticement. On June 30, he was arraigned in Woburn District Court and Judge Geoffrey C. Packard ordered bail set at $5000 with conditions including no contact with victim and no contact with children under 16. French posted bail at that time. French was suspended without pay by the school at the time of his arrest.

French was indicted by a Middlesex Superior Court Grand Jury on Oct. 30.

On Nov. 5, French was arraigned in Middlesex Superior Court and ordered held on $25,000 bail with conditions by the Middlesex Superior Clerk Magistrate. The conditions include that French have no contact with the victims, no contact with children under 16 years old, no contact with the Commonwealth’s witnesses, stay away from schools and playgrounds, be placed on an electronic monitoring device, and adhere to a curfew from 7pm to 7am.

The prosecutor assigned to this case is Assistant District Attorney Michael Chinman of the Middlesex District Attorney’s Child Abuse Unit. The victim witness advocate is Joanne Szeto.

http://www.wickedlocal.com/winchester/news/x593070686/Winchester-Schools-Superintendent-releases-statement-regarding-former-teaching-aide-s-child-rape-guilty-plea

Plum Island rape arrest sends shock waves - NewburyportNews.com, Newburyport, MA

2009-10-03T18:46:00.001-07:00

Plum Island rape arrest sends shock waves - NewburyportNews.com, Newburyport, MA

Posted using ShareThis

2009-09-22T07:27:00.000-07:00

Worcester man held on child-rape charge

Byline: Gary V. Murray

September 5, 2009

WORCESTER - A Millbury Street man charged with sexually assaulting a 13-year-old girl was ordered held on $20,000 cash bail after pleading not guilty at his arraignment yesterday in Worcester Superior Court.

Angel L. Valentin, 36, of 605 Millbury St. was indicted Aug. 21 on charges of indecent assault and battery on a child, three counts of rape of a child with force, three counts of child rape and two counts of rape of a child aggravated by age difference.

Accompanied by his lawyer, Jacob P. Morris, Mr. Valentin entered not-guilty pleas to those charges yesterday morning. Judge James R. Lemire set bail of $20,000 cash or $200,000 with surety, as requested by Assistant District Attorney Joseph J. Reilly III, and continued the case to Oct. 13.

The aggravated rape charges were lodged against Mr. Valentin under a state law enacted last year that requires a mandatory minimum state prison sentence of 10 years for anyone convicted of raping a victim between the ages of 12 and 16 when there is more than a 10-year age difference between the defendant and victim.

The same mandatory minimum sentence applies if the victim is under 12 and the defendant is more than 5 years older, or if the defendant is a mandated reporter of suspected child abuse or neglect.

Medical personnel, teachers, clergy, social workers, mental health professionals, child care workers, guidance counselors, foster parents, police officers and others are mandated under state law to report cases of suspected child abuse or neglect to the state Department of Children and Families.

Child rape carries a maximum sentence of life imprisonment in Massachusetts.

The new law passed last year was a modified version of Florida's "Jessica's Law," written in response to the 2005 rape and murder of a 9-year-old girl by a repeat sexual offender.

The sexual assaults Mr. Valentin is charged with allegedly occurred on various dates from April 2007 to June 13 of this year. Police said the alleged victim was known to Mr. Valentin.

Mr. Valentin was arrested June 15 after the girl told a parent she was sexually assaulted by him two days earlier, and the parent took the 13-year-old to a local hospital, according to police.

Mr. Valentin was initially charged in Central District Court. The case was moved to Worcester Superior Court after he was indicted last month.

http://www.thefreelibrary.com/Worcester+man+held+on+child-rape+charge.-a0207342382

Man sentenced to 38 to 40 years in prison in child sex case

2009-09-22T07:08:00.000-07:00

Man sentenced to 38 to 40 years in prison in child sex caseWill serve 38 to 40 years, had sex with girls ages 9 and 10

By Jim Patten
jpatten@eagletribune.com

LAWRENCE — A man charged with videotaping himself having sex with two girls ages 8 and 9, pleaded guilty to 14 indictments yesterday and was sentenced to 38 to 40 years in prison, followed by lifetime community parole.

James Raboin, 44, formerly of 219 E. Haverhill St., had been held on $50,000 cash bail since turning himself in on May 1, 2006.

Raboin was charged with four counts of rape of a child.

Raboin's illegal activities were discovered after an April 24, 2006, burglary at his apartment. Nearly $3,500 worth of video production equipment and a small safe were taken in the break.

The safe contained 21 DVDs and videocassettes, at least one of which showed Raboin with the underage girls. One of the victims appeared in only one of the videos, while the second appeared in more than one video, police said.

There were three suspects in the burglary, all juveniles, and when the mother of one of them realized what was on the DVDs, she recruited someone unconnected to the break to turn them over to investigators, police said.

Court documents showed the rapes and indecent assault and battery on a child under 14 occurred on various dates between January 1998 and April 2005.

Lawrence Superior Court Judge David Lowy sentenced Raboin to concurrent sentences of 25 years each on two of the counts, and 10 years of probation on the remaining two counts.

On three counts of indecent assault and battery on a child under 14, Raboin was sentenced to eight to 10 years in prison, that sentence to run from and after the 25 year sentence.

On two counts of posing a child in a state of nudity he was sentenced to 10 years to 10 years and a day in prison, that sentence to run from and after the eight to 10-year sentence on the indecent assault and battery charge.

He was sentenced to 10 years to 10 years and a day on a charge of administering a drug to a minor, that sentence to run concurrent with the charges of posing a child in a state of nudity.

On the four remaining counts of posing a child in a state of nudity, he was placed on 10 years of probation from and after his committed sentences.

"When he gets out after 38-40 years, he'll be on 10 years' probation after that," said Stephen O'Connell, spokesman for the Essex district attorney's office.

Upon his release from prison, Raboin will be on lifetime community parole, requiring him to wear a GPS bracelet, stay away from all children under 16, stay away from the victims in the case, and to undergo sex offender counseling.

Assistant District Attorney Jessica Connors prosecuted the case and Michael Phelan was defense counsel, O'Connell said.

Lawrence Detective Lt. Mary Bartlett led the investigation.

http://www.eagletribune.com/punews/local_story_264233656.html

2009-09-17T03:44:00.000-07:00

Convicted Fall River sex offender charged with possessing child porn

Photos

Courtesy of the Fall River Police Department

Convicted Level 3 sex offender Shawn MacBarron has been arrested again on charges of possessing child pornography.

By Will Richmond

Herald News Staff Reporter

Posted Sep 16, 2009 @ 02:03 PM

FALL RIVER —

A convicted Level 3 Sex Offender has been arrested on charges of possessing child pornography.

Police spokesman Sgt. Thomas Mauretti said Shawn MacBarron, 29, of 207 Rodman St., Apt. 2, was arrested Friday and charged with possession of child pornography after Major Crimes Detective Steven Washington executed a search warrant at MacBarron’s home Friday.

Mauretti said during the search Washington seized a large number of CDs, DVDs and VHS tapes in the apartment and after viewing one DVD found the disc contained over 80 photographs of child pornography.

MacBarron, Mauretti said, was designated as a Level 3 Sex Offender after a conviction in 2002 for open and gross lewdness and lascivious behavior. In 2006, MacBarron was also convicted for enticing a child under the age of 16. The Sex Offender Registry defines a Level 3 Sex Offenders as individuals that have a high risk to reoffend and that the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active community notification, Mauretti said. He added the public can go to the Fall River Police Department’s Web site at www.frpd.org for information and links to Massachusetts Sex Offender information.

While MacBarron has been arrested, authorities are asking that if anyone has further information about MacBarron’s actions to contact Washington at 508-324-2796, ext. 264.
Detective Captain Daniel S. Racine said the arrest is the result of lengthy work conducted by Washington.

“Detective Washington and a confidential witness have worked tirelessly on this case for many months,” Racine said.

E-mail Will Richmond at wrichmond@heraldnews.com.

DA seeks reversal of judge's decision on Lowell rapist

2009-09-14T05:37:00.000-07:00

DA seeks reversal of judge's decision on Lowell rapist

By Lisa Redmond, lredmond@lowellsun.com

09/14/2009

LOWELL -- Concerned that a psychological report of Ralph W. Goodwin, a Level 3 sex offender, indicates that he is still "grappling'' with why he sexually abused a young boy, and noting that he doesn't have a plan to keep himself from reoffending, the Middlesex District Attorney's Office will ask a judge to reconsider her decision on allowing Goodwin to not wear a Global Positioning System device.

According to court documents, prosecutor Deborah Bercovich argues that as part of his 10-year conditions of probation, Goodwin must comply with the state Department of Mental Health directives to show he is actively working to decrease his own risk of offending.

"However," Bercovich writes, "documentation provided to the court from both the defendant and the Commonwealth paint a picture of an individual who, despite a finding that he is not a sexually dangerous person for commitment purposes, is grappling with issues relating to why he offended and does not have a relapse prevention plan.''

She argues that a GPS would provide a mechanism for the Probation Department to monitor Goodwin during the inevitable time periods when DMH and his probation officer are simply unable to supervise and monitor him.

Bercovich also asks that the judge consider "exclusion zones,'' including the victim's address and any schools, parks and playgrounds near Goodwin's home on Merrimack Street in Lowell.

And while the state's highest court ruled that the mandatory imposition of GPS monitoring bracelet on all sex offenders is punitive, Bercovich argues that the Supreme Judicial Court's decision allows judges, at their discretion, to impose the GPS on cases that warrant it.

"GPS monitoring of this defendant is a reasonable restriction and is intended to be preventative in nature,'' she wrote.

No date has been scheduled to hear the motion.

At a hearing last month, Lowell Superior Court Judge Kathe Tuttman refused to challenge an SJC ruling that only sex offenders whose crimes were committed after December 2006 will be required to wearing GPS devices while on probation. The 2006 date is significant because that's when a new statute went into effect requiring sex offenders to wear GPS devices so the Probation Department can monitor their whereabouts.

The SJC described the GPS devices as "punitive" and said they cannot be applied retroactively under the provisions of the U.S. and Massachusetts constitutions.

The Probation Department estimates the ruling will impact about 254 sex offenders statewide.

Goodwin, a Level 3 sex offender, was convicted in the 1990 kidnapping and rape of a 7-year-old Lowell boy. After Goodwin spent 19 years behind bars, a jury in June found he is no longer sexually dangerous. He is one of those impacted by the SJC's decision. Tutteman refused to impose a GPS device as a condition of Goodwin's 10-year probation.

http://www.lowellsun.com/ci_13332833