Commonwealth v. Rollins (Lawyers Weekly No. 10-181-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReporter@sjc.state.ma.us SJC-11583 COMMONWEALTH vs. JOHN K. ROLLINS. Hampden. September 4, 2014. – October 30, 2014. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Obscenity, Child pornography. Constitutional Law, Sentence, Double jeopardy, Freedom of speech and press. Due Process of Law, Sentence. Practice, Criminal, Sentence, Duplicative convictions, Double jeopardy, Argument by prosecutor. Evidence, Photograph, Relevancy and materiality, Opinion. Complaint received and sworn to in the Holyoke Division of the District Court Department on May 7, 2010. The case was tried before Laurie MacLeod, J. The Supreme Judicial Court granted an application for direct appellate review. Ines McGillion for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. Ryan M. Schiff, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief. CORDY, J. In this case, we are asked to identify the proper unit of prosecution for the possession of child pornography pursuant to G. L. c. 272, § 29C. The defendant, John K. Rollins, was charged with six counts of possessing child pornography with each count premised on one or two distinct photographs culled from a single cache on the defendant’s computer. A Hampden County jury returned guilty verdicts on each count and a District Court judge sentenced the defendant to consecutive and concurrent terms in a house of correction. We granted the defendant’s application for direct appellate review and conclude that where the offending photographs come from a single cache and the defendant is charged with possessing them at the same point in time, the statutory structure contemplates only a single unit of prosecution. Accordingly, the entry of six separate convictions and sentences constituted multiple punishments for the same offense in violation of the defendant’s constitutional and common-law rights to be free from double jeopardy. While double jeopardy principles bar multiple convictions and sentences, they do not bar the Commonwealth from prosecuting the possession of multiple photographs through separate counts, each premised on a single photograph, as a single photograph is sufficient to support a conviction. Accordingly, assuming the sufficiency of the evidence on any or all of the multiple counts, we would ordinarily vacate the convictions and remand this case to the trial judge for the entry of a judgment of conviction and resentencing on only one count. However, because […]