Commonwealth v. Walter E. Tuvell.

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

23-P-1402

COMMONWEALTH

vs.

WALTER E. TUVELL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of two counts of criminal contempt, in violation

of Mass. R. Crim. P. 44, 378 Mass. 920 (1979), and one count of

unlawful wiretapping, in violation of G. L. c. 272,

§ 99 (C) (1). The defendant raises several issues on appeal.

We have considered each one carefully and conclude that none of

them are meritorious. Accordingly, we affirm the convictions.

Background. As a threshold matter, we note that the

defendant has failed to provide transcripts of the trial, as

required by Mass. R. A. P. 8 (b), as appearing in 481 Mass. 1611

(2019), and Mass. R. A. P. 18 (a) (1) (D), as appearing in, 491

Mass. 1603 (2023). See Commonwealth v. Montanez, 388 Mass. 603,
604 (1983) ("It is the defendant's burden, as appellant, to

bring us a satisfactory transcript"). This failure has hampered

our review and prevents us from accurately summarizing the facts

that the jury could have found. Based on the parties'

representations in their briefs and the record available to us,

albeit incomplete, we understand the charges to have stemmed

from the following events.

On February 9, 2022, a judge of the Superior Court issued a

harassment prevention order against the defendant. Among other

conditions, the order prohibited the defendant from publishing

personal information about a certain minor on his Internet

website. In addition, the judge impounded the case. At some

point thereafter, it came to the judge's attention that the

defendant "intentionally posted impounded records from [the]

case online for public consumption in violation of [the] court's

express orders." Consequently, on March 31, 2022, the judge

issued an order requiring the defendant to immediately remove

all impounded material by the following day. According to the

allegations set forth in the criminal complaint charging the

defendant with contempt, which was issued on September 29, 2022,

the defendant disobeyed this order by failing to remove the

impounded material from his website.

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Thereafter, on December 21, 2022, the defendant appeared in

a division of the District Court Department in connection with

the contempt charges. He became disruptive, and the judge

ordered the court officers to detain him. They brought the

defendant to the lock-up area of the courthouse where his

personal belongings, including his cell phone, were taken from

him. The phone was placed in a clear evidence bag. Soon

afterward, one of the court officers noticed that the phone was

recording audio. It was later determined that the defendant had

been recording the court proceedings and subsequent events for

over two and one-half hours. The defendant subsequently was

charged with unlawful wiretapping.

The witnesses in both cases were court employees. Thus, to

avoid a conflict of interest, or the appearance of a conflict,

both criminal complaints were transferred to a different

division of the District Court Department. The charges were

tried together with no objection.

Discussion. The defendant first argues that the District

Court did not have jurisdiction over the contempt charges

because they stemmed from violations of orders issued in the

Superior Court. He raised this issue prior to trial in a motion

to dismiss, which was denied. Jurisdictional questions are

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questions of law, which we review de novo. Jinks v. Credico

(USA) LLC, 488 Mass. 691, 696 (2021).

It is true that Mass. R. Crim. P. 44 (a) states that

nonsummary criminal contempt cases shall proceed "in the court

in which the contempt is alleged to have been committed."

However, the rule also provides that such cases "shall be

prosecuted by means of complaint, unless the prosecutor elects

to proceed by indictment." Id. Thus, the Commonwealth has the

option to prosecute a violation of the rule via a complaint in

the District Court, as it did here, or by indictment in the

Superior Court. See Reporters' Notes to Rule 44, Mass. Ann.

Laws Court Rules, Rules of Criminal Procedure, at 235 (Thomson

Reuters 2024) ("Initiation of prosecution by complaint is an

historically recognized manner of bringing charges for indirect

contempt in the Commonwealth"). See also Commonwealth v.

Brogan, 415 Mass. 169, 173 (1993), where the court observed

"[t]here is no statute prescribing any particular venue for the

trial of an indictment [or complaint] alleging contempt of a

court order." Our interpretation of the rule leads us to the

same conclusion reached by the judge, namely that the District

Court had jurisdiction, and, therefore, the judge properly

denied the defendant's motion to dismiss the contempt charges.

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Next, the defendant argues that no court could exercise

jurisdiction over the wiretap charge because the supporting

evidence stemmed from a court proceeding involving the contempt

charges. As best we understand this argument, the defendant

claims that if the District Court did not have jurisdiction over

the contempt charges in the first instance, then the District

Court could not exercise jurisdiction over charges based on

contempt-related conduct (the recording of court proceedings).

Given our conclusion that the District Court had jurisdiction

over the contempt charges, this argument is unavailing.

The defendant also contends that his motion to dismiss the

contempt charges on the ground that the collateral bar doctrine

protected him from criminal liability should have been allowed.

As the judge correctly concluded in his well-reasoned memorandum

and order denying the defendant's motion, the collateral bar

doctrine does not apply in the circumstances presented here.

The doctrine provides that one cannot violate a court order and

then challenge its validity as a defense in a subsequent

criminal prosecution. The defendant was required to obey the

order, even if erroneous, until it was "reversed by orderly

review." Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 264

(2007). In addition, contrary to the defendant's assertion, his

conduct did not fall into any recognized exception to the

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doctrine. He argues that the order was "transparently invalid

or had only a frivolous pretense to validity," and, therefore,

he was not required to comply with its terms. Commonwealth v.

Marrero, 85 Mass. App. Ct. 911, 912 n.4 (2014), quoting

Fitchburg v. 707 Main Corp., 369 Mass. 748, 754 (1976). The

judge properly rejected this argument as do we. There is

nothing in the record to suggest that the orders at issue were

frivolous or invalid. In short, the collateral bar doctrine

does not shield the defendant from criminal liability, and the

motion to dismiss was properly denied.

The defendant claims that, despite the impoundment order,

he had a First Amendment right to post information about the

proceedings. Specifically, the defendant asserts that his

conduct was protected by the fair report privilege.1 He filed a

motion to dismiss the contempt charges on this ground, which was

denied.2 We discern no error.

Although "most judicial records . . . are presumptively

public documents," that presumption "is not absolute, and may be

1 "The fair report privilege establishes a safe harbor for
those who report on statements and actions so long as the
statements or actions are official and so long as the report
about them is fair and accurate." Howell v. Enterprise Publ.
Co., 455 Mass. 641, 651 (2010).

2 Subsequent impoundment orders were issued during the
proceedings. Based on our understanding of the defendant's
arguments, he does not challenge these orders on appeal.

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restricted on a showing of 'good cause'" (citation omitted).

New England Internet Café, LLC v. Clerk of Superior Court for

Criminal Business in Suffolk County, 462 Mass. 76, 83 (2012).

To determine whether good cause is shown, a judge must balance

the rights of the parties based on the particular facts of the

case and consider, among other things, the type of information

and the privacy interests involved. Id. Here, the defendant

posted the name of a minor, information relating to the minor's

physical and mental health, and sensitive court records to his

public website. Information concerning a minor is specifically

shielded from the public under G. L. c. 258E, § 10. These

circumstances more than amply demonstrate good cause for issuing

the impoundment order, and, therefore, the motion to dismiss on

this ground was properly denied.

The defendant next contends that the judge erred in denying

his motion to suppress evidence from his cell phone on which the

wiretap charge was based. He argues, as he did in his motion,

that his cell phone was unlawfully seized and searched.

The judge and the parties relied on the facts as described

in the police report submitted in support of the complaint

application. In denying the motion to suppress, the judge

reasoned that the defendant had provided no factual basis to

support his claim that his cell phone had been searched. The

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judge further observed that the Commonwealth only intended to

introduce "plain view observations" that the cell phone was

recording, and, therefore, the exclusionary rule did not bar the

admission of this evidence at trial. On review, we accept the

judge's findings of fact absent clear error and conduct an

independent review of his conclusions of law. Commonwealth v.

Tremblay, 480 Mass. 645, 652 (2018).

We agree with the judge that the conduct at issue did not

amount to a search. See Commonwealth v. Alvarez, 480 Mass.

1017, 1018 (2018) (no search in constitutional sense when

officer looked at cell phone and observed text message).

Furthermore, even if we were to conclude that a search occurred,

which we do not, we agree with the Commonwealth that it was

justified under the plain view exception to the warrant

requirement. The cell phone was lawfully in the possession of

the court officers, and they could see the phone's screen

through the clear evidence bag. The incriminating nature of the

information displayed on the screen was immediately apparent,

and the discovery that the phone was recording was inadvertent.

These facts are sufficient to meet the requirements of the plain

view exception. See Commonwealth v. Balicki, 436 Mass. 1, 8

(2002).

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The defendant's remaining arguments require little

discussion. He contends that because the harassment prevention

order ultimately was terminated, and the contempt and wiretap

charges stemmed from proceedings connected to that order, all

the charges should be dismissed under the fruit of the poisonous

tree doctrine. This argument has no basis in fact, law, or

logic. First, the fruit of the poisonous tree doctrine, which

bars the admission of physical or testimonial evidence at trial

where such evidence is derived from an unconstitutional search

or seizure, is not applicable here. See Commonwealth v.

Damiano, 444 Mass. 444, 453-454 (2005). Second, and more

importantly, it matters not that the harassment protection order

was terminated; the defendant was required to comply with it and

all subsequent court orders while they were in effect.

Lastly, the defendant claims that the judge erred by not

giving the jury a requested mistake-of-law instruction. The

issue was first raised in a pretrial motion in limine in which

the defendant sought permission to pursue a mistake-of-law

defense. According to the defendant, he was entitled to the

defense because the impoundment order, which he allegedly

disobeyed, was not valid. The Commonwealth opposed the motion,

and the judge agreed with the Commonwealth that the defense was

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not available in the circumstances presented. There was no

error.

As previously stated, the defendant was required to respect

the impoundment order unless and until reversed. The defendant

never claimed that he was unaware of the order, or that he did

not understand its terms. Instead, he argued that he could

ignore the order because it was not valid. In short, because

there was no mistake of law, the defendant was neither permitted

to pursue such a defense nor entitled to the jury instruction he

requested.

Judgments affirmed.

By the Court (Vuono, Neyman &
D'Angelo, JJ.3),

Clerk

Entered: December 27, 2024.

3 The panelists are listed in order of seniority.

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