Commonwealth v. Robert Hersey.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-893

COMMONWEALTH

vs.

ROBERT HERSEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of indecent

assault and battery on a person over fourteen, dissemination of

matter harmful to minors, photographing an unsuspecting nude

person, and photographing sexual or other intimate parts of a

child. On appeal, the defendant claims error by a judge other

than the trial judge (motion judge) in denying the defendant's

motion to suppress his recorded statement, and error by the

trial judge in denying the defendant's motion for relief from

prejudicial joinder. We affirm.

Suppression. We recite the facts as the motion judge found

them, supplemented by our independent review of the audio-visual

recording of the defendant's statement. Commonwealth v.
Daveiga, 489 Mass. 342, 346 (2022); Commonwealth v. Davis, 98

Mass. App. Ct. 604, 612 (2020).

A little before 3 A.M. on September 28, 2018 (the same year

as all subsequent dates), police responded to a 911 call of a

sexual assault on a victim by his boxing coach. A Springfield

police officer generated an incident report detailing

accusations by a seventeen year old, whom we shall call "Adam."

Adam said the assault happened the night before and named the

defendant, his coach, as the perpetrator. A little after

3 A.M., another youth, whom we shall call "Frank," arrived at

the police station and disclosed a past sexual assault.1 In an

incident report, Frank named the defendant as the assailant.

At 5:50 that evening, police were dispatched to Belmont

Avenue in response to two 911 calls. One call was from a

relative of Adam's who said that she and others were there with

the defendant and keeping him until police arrived. The other

call was from the defendant requesting that officers be sent to

his location because of disgruntled persons who had congregated

there. When the officers arrived, one went to speak with the

crowd while the other went to speak with the defendant.

1 The judge made no finding about Frank's age, but a
sergeant testified that Frank was seventeen.

2
When the officers asked the defendant "what was going on;

why he had called 911," he "began talking about the crowd and

how they had been harassing him and alleging that he had

sexually abused someone." After about ten minutes, the

defendant was handcuffed behind his back, placed in a cruiser,

and told he was being detained but was not under arrest. The

defendant then made unsolicited statements "that on the previous

evening he had been contacted by [Adam] and had given him a

ride. He denied having committed any sexual assault of [Adam]."

Reasoning that by this point the defendant was in custody and no

Miranda warnings had been given, the motion judge suppressed

those statements.2

While the defendant was detained in the cruiser, a sergeant

on scene communicated with a major crime sergeant at the

station, where Frank, who had returned to the station as events

on Belmont Avenue were unfolding, was being interviewed. When

the sergeants made the connection between the morning's incident

reports, the events on Belmont Avenue, and Frank's interview,

they consulted an assistant district attorney, and a

determination was made that there was probable cause for an

2 The motion judge declined to suppress the defendant's
statements to first responders reasoning that they were not the
product of a custodial interrogation. On appeal, the defendant
does not challenge that ruling.

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arrest. At 6:50 P.M., the defendant was arrested and

transported to the station. An officer advised the defendant of

his Miranda warnings during his booking procedure. Additionally,

an officer provided the defendant an opportunity to make a

telephone call. The defendant advised the police that he wanted

to call his mother but did not know the number and could not

look it up because his cell phone was seized as evidence. He

did not attempt to call an attorney. Eventually, he was asked

whether he wanted to talk and said he did. At 11:25 P.M., an

interview commenced. The interview was recorded, and we have

independently reviewed the recording.

A detective recited Miranda warnings to the defendant, who

said he understood. The defendant read the waiver of rights

form aloud, and confirmed his understanding as the major crime

sergeant entered the room. The defendant also signed the

Miranda form.

The defendant stated that he was forty years old, had a

college education, and was not under the influence of drugs or

medication. He spoke for close to two hours, during which time

he was relaxed and never appeared to be, or expressed being, in

physical or mental distress. During the interview, he stated

thrice that he understood his right to remain silent and wait

for a lawyer. The defendant "wanted to talk," however, because

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he was "an honest person" and because he "realized that this was

a nice little setup." Offering details about Frank after being

asked if he wanted to discuss anyone other than Adam, the

defendant explained that Frank was one of the defendant's

boxers, that previously (the defendant did not say when), the

defendant picked up Frank in his van and took Frank to a

"massage parlor," and that about two weeks ago, Frank's friend

Adam joined the gym. The defendant further explained that just

before 10 P.M. on September 27, the defendant offered to pick up

Adam and take him to a massage parlor. When they could not get

a massage, the defendant drove Adam to a park, where there was

physical contact between Adam and the defendant's erect penis.

The defendant dropped Adam off at home and started receiving

messages on his cell phone from Adam accusing the defendant of

forcing Adam to engage in sexual conduct. The defendant stated

that he found the accusations "disturbing," because in his view

he had not forced Adam to do anything, nor would he ever put his

boxers at risk. The defendant said he was there "to tell you

what really happened," which was nothing sexual with Frank and

something sexual with Adam that Adam had initiated. Gesturing

with his hand and turning his head, the defendant stated that if

by giving a statement "I incriminated my way -- and here's the

camera -- if I incriminate my in any way, okay, then so be it."

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On appeal, the defendant contends that his Miranda waiver

and recorded statement were tainted by the coercive

circumstances of his detainment on Belmont Avenue and "a sense

of futility that he ha[d] already incriminated himself" there.

Commonwealth v. Thomas, 469 Mass. 531, 551 (2014); quoting

Commonwealth v. Prater, 420 Mass. 569, 581 (1995). He claims

that the coercion was aggravated by his inability to make a

phone call and the failure of police to tell him of his right to

a prompt arraignment. The motion judge found no intentional

deprivation of the defendant's right to make a phone call and no

violation of his rights regarding prompt arraignment. Passing

over the merits of those findings, the defendant challenges the

motion judge's ultimate ones, that the waiver of rights and

recorded statement were knowingly made and "clearly voluntary."

We see no flaw in the motion judge's analysis. If the time

in the holding cell was enough for the defendant to realize he

was the victim of a "setup" by two teenagers, it was enough to

remove any coercive taint from the events on Belmont Avenue.

Our review of the video footage allows us to conclude that the

defendant did not feel he had previously made incriminating

statements that would make further efforts to withhold

information futile. Commonwealth v. Rosa-Roman, 485 Mass. 617,

631 (2020). Both times the defendant acknowledged giving Adam a

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ride on September 27 and denied sexually assaulting Adam, but

"the similarity ends there." Commonwealth v. Watkins, 375 Mass.

472, 482 (1978), S.C., 486 Mass. 801 (2021). Five hours after

he was detained, and four hours after he was arrested, booked,

and placed in a holding cell, the defendant described to

detectives (who were not present at Belmont Avenue where the

initial statements were made) to doing much more with Adam than

giving him a ride. In addition, he added information about

Frank, not because "the cat was already out of the bag," but

because he was "eager to assert his innocence." Rosa-Roman,

supra at 632. See Commonwealth v. Harris, 75 Mass. App. Ct.

696, 700 (2009) (passage of two hours and involvement of

different police personnel broke sequence of events).

The defendant was "of sufficient age, educational

background, and intelligence to comprehend the meaning of his

actions" in waiving his Miranda rights and giving a statement,

Commonwealth v. Mandile, 397 Mass. 410, 413-414 (1986), S.C.,

403 Mass. 93 (1988), and in fact he did comprehend, as evidenced

by his repeated assertions to that effect, his refusal to answer

questions he thought did not "pertain" to what he was there to

discuss, and his failure to challenge as involuntary a consent

to search his cell phone or his provision of a deoxyribonucleic

acid (DNA) sample during the interview, also following

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recitations of rights by the detectives and signings of waivers.

See Commonwealth v. Delossantos, 492 Mass. 242, 247 (2023)

(Commonwealth must demonstrate not only what warnings were

provided to defendant but also that he understood them). The

defendant never expressed regret for having spoken with the

detectives or appeared to struggle with his decisions,

Commonwealth v. Richards, 485 Mass. 896, 909 (2020), and there

is no claim that his waiver or incriminating statements were

tied to false representations, promises, assurances, or other

"problematic tactics" by the detectives. Commonwealth v. Baye,

462 Mass. 246, 257 (2012). In sum, the totality of the

circumstances supports the motion judge's findings of

voluntariness beyond a reasonable doubt. Commonwealth v.

Tremblay, 480 Mass. 645, 656 & n.8 (2018); Mandile, supra at

413.

Joinder. The defendant was indicted for what he called

"sexual abuse" crimes committed against Adam, Frank, and another

youth between June 1 and September 28; and "sexual image" crimes

committed between April 1 and September 28 based on images

recovered from the defendant's cell phone. Describing those

images as having been secretly taken by the defendant of boxers

in his gym and arguing that all charges arose from the

defendant's scheme to create "opportunities for his own sexual

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gratification through and with the students he coached," the

Commonwealth sought joinder under Mass. R. Crim. P. 9, 378 Mass.

859 (1979). The defendant responded with a motion for relief

from prejudicial joinder and to sever the sexual image charges,

arguing -- as he does on appeal -- that they were not

sufficiently related to the sexual abuse charges to overcome the

compelling prejudice from a joint trial. See Commonwealth v.

Pillai, 445 Mass. 175, 180 (2005). After a pretrial hearing,

the Commonwealth's motion was marginally endorsed "allowed" and

the defendant's endorsed "denied."

We conclude the trial judge did not clearly abuse her

discretion. Pillai, 445 Mass. at 180. From what appears to

have been before her when she was making the decision,3 the

victims of all charged crimes were the same gender, near the

same age, and had similar relationships to the defendant.

Commonwealth v. Foreman, 101 Mass. App. Ct. 398, 407 (2022). In

each case, the defendant was alleged to have used his position

of trust to gain access to and commit sexual crimes against the

victims. Commonwealth v. Mamay, 407 Mass. 412, 416 (1990).

Evidence of the other charged conduct would have been admissible

at separate trials because the offenses were close enough in

3 We note that the defendant's brief recites facts from
trial, not before the judge at the time of her decision on the
joinder motion.

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time to be probative and it "shows a common scheme and a pattern

of operation that tends to prove all the indictments,"

Commonwealth v. Feijoo, 419 Mass. 486, 494-495 (1995); as such,

"we cannot say that any prejudice from the joinder was so great

that the defendant was prevented from obtaining a fair trial."

Commonwealth v. Wilkerson, 486 Mass. 159, 176 (2020).

For all these reasons, the judgments are affirmed.

So ordered.

By the Court (Green, C.J.,
Walsh & Smyth, JJ.4),

Clerk

Entered: August 19, 2024.

4 The panelists are listed in order of seniority.

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