Posts tagged "1003214"

Commonwealth v. Robertson (Lawyers Weekly No. 10-032-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  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;     SJC‑11353   COMMONWEALTH  vs.  MICHAEL ROBERTSON.       Suffolk.     November 4, 2013.  ‑  March 5, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Electronic Surveillance.  Supreme Judicial Court, Superintendence of inferior courts.  Practice, Criminal, Dismissal, Interlocutory appeal.  Statute, Construction.  Privacy.  Words, “Partially nude.”       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 18, 2012.   The case was reported by Lenk, J.     Michelle Menken for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.       BOTSFORD, J.  At issue is whether G. L. c. 272, § 105 (b) (§ 105 [b]), which prohibits secretly photographing or videotaping a person “who is nude or partially nude” in certain circumstances, includes “upskirting.”[1]  The Commonwealth alleges in two criminal complaints that the defendant, Michael Robertson, while riding as a passenger on the Massachusetts Bay Transportation Authority (MBTA) trolley on two occasions, aimed his cellular telephone camera at the crotch area of a seated female passenger and attempted secretly to photograph or videotape a visual image of the area in violation of § 105 (b).  The defendant appeals from the denial of his motion to dismiss the two complaints.  He contends that § 105 (b) does not criminalize the conduct he is charged with having committed.  We agree and reverse the order of the Boston Municipal Court judge denying the defendant’s motion to dismiss.   1.  Facts and procedural history.  We summarize the facts as alleged by the Commonwealth.[2]  At approximately 8:30 A.M. on August 11, 2010, while the defendant was a passenger on an MBTA trolley in Boston, he turned on his cellular telephone camera and held it by his waist.  A woman wearing a skirt was seated across from him, and an image of the woman’s upper leg appeared on the screen of the defendant’s cellular telephone.  A passenger who observed the defendant’s actions reported the incident to the MBTA transit police (transit police) and stated that the woman being photographed appeared to be unaware that she was being photographed.  At approximately 5 P.M. that same day, a second MBTA passenger reported to the transit police that she saw the defendant attempting to photograph a woman’s crotch area.  With her own cellular telephone, she captured images of the defendant taking those […]


Posted by Massachusetts Legal Resources - March 7, 2014 at 9:58 am

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