Commonwealth v. McGhee

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SJC-11821
COMMONWEALTH vs. TYSHAUN McGHEE
(and seven companion cases1).
Suffolk. April 6, 2015. - August 13, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Exploitation of People. Trafficking. Deriving Support from
Prostitution. Statute, Validity, Construction. Due
Process of Law, Vagueness of statute. Constitutional Law,
Vagueness of statute, Freedom of association. Grand Jury.
Witness, Cross-examination, Impeachment, Bias. Evidence,
Cross-examination, Testimony before grand jury, Impeachment
of credibility, Bias, Prior misconduct, Sexual conduct.
Rape-Shield Statute. Practice, Criminal, Grand jury
proceedings, Transcript of testimony before grand jury,
Assistance of counsel, Confrontation of witnesses,
Sentence. Words, "Commercial sexual activity."
Indictments found and returned in the Superior Court
Department on December 19, 2012.
The cases were tried before Diane M. Kottmyer, J.
The Supreme Judicial Court granted an application for
direct appellate review.
1
Four against Tyshaun McGhee and three against Sidney
McGee. Because the last names of the defendants are so similar,
we refer to each one individually by his first name.
2
Sharon Dehmand for Tyshaun McGhee.
David M. Jellinek for Sidney McGee.
Matthew T. Sears, Assistant District Attorney, for the
Commonwealth.
The following submitted briefs for amici curiae:
Amy Farrell, pro se.
Maura Healey, Attorney General, & Susanne G. Reardon,
Assistant Attorney General, for the Attorney General.
Julie Dahlstrom, Felicia H. Ellsworth, Tasha Bahal, &
Michelle L. Sandals for Ascentria Care Alliance & others.
SPINA, J. In this case, we are asked to consider, for the
first time, the constitutionality of the Massachusetts sex
trafficking statute. On November 21, 2011, the Legislature
approved "An Act relative to the commercial exploitation of
people," which criminalized sexual servitude, forced labor, and
organ trafficking as of its effective date of February 19, 2012.
St. 2011, c. 178, §§ 1-31. The portions of the enactment at
issue here, pertaining to the trafficking of persons for sexual
servitude, were codified at G. L. c. 265, §§ 49, 50. See St.
2011, c. 178, § 23.
General Laws c. 265, § 50 (a), states, in relevant part:
"Whoever knowingly: (i) subjects, or attempts to
subject, or recruits, entices, harbors, transports,
provides or obtains by any means . . . another person to
engage in commercial sexual activity . . . or causes a
person to engage in commercial sexual activity . . . or
(ii) benefits, financially or by receiving anything of
value, as a result of a violation of clause (i), shall be
guilty of the crime of trafficking of persons for sexual
servitude and shall be punished by imprisonment in the
state prison for not less than [five] years but not more
than [twenty] years and by a fine of not more than
$25,000."
3
The phrase "[c]ommercial sexual activity" is defined as "any
sexual act on account of which anything of value is given,
promised to or received by any person." G. L. c. 265, § 49.
On December 19, 2012, a Suffolk County grand jury indicted
each defendant, Tyshaun McGhee and Sidney McGee, on nine counts
of aggravated rape, G. L. c. 265, § 22 (a), three counts of
trafficking persons for sexual servitude, G. L. c. 265, § 50,
and two counts of deriving support from the earnings of a
prostitute, G. L. c. 272, § 7. The charges arose from
allegations by three women (C.C., S.E., and B.G.2) that the
defendants approached them, took their photographs to post as
advertisements on a Web site called Backpage.com, drove them to
various locations to have sex with men who responded to the
advertisements, and then retained some or all of the money that
the women received as payment from these men. The defendants
filed a joint pretrial motion to dismiss the sex trafficking
charges on the grounds that G. L. c. 265, § 50, is
unconstitutionally vague and overbroad, both on its face and as
applied to them. A judge of the Superior Court denied the
motion. Following a jury trial, Tyshaun was convicted on all
2
The full names of C.C., S.E., and B.G. have been omitted
in accordance with G. L. c. 265, § 24C (requiring
confidentiality of name of victim in arrest, investigation, or
complaint for rape under G. L. c. 265, § 22, or for trafficking
of persons under G. L. c. 265, § 50).
4
three indictments charging him with trafficking persons for
sexual servitude (C.C., S.E., and B.G.),3 and both indictments
charging him with deriving support from the earnings of a
prostitute (C.C. and S.E.). He was found not guilty on the
indictments charging him with aggravated rape. Sidney was
convicted on all three indictments charging him with trafficking
persons for sexual servitude (C.C., S.E., and B.G.),4 and he was
found not guilty on the remaining indictments. Each defendant
filed a timely notice of appeal, and we granted their subsequent
applications for direct appellate review.
The defendants contend on appeal that (1) G. L. c. 265,
§ 50, is unconstitutionally vague as applied to them and,
therefore, violated their rights to due process under the Fifth
and Fourteenth Amendments to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights; (2) G. L.
c. 265, § 50, is unconstitutionally overbroad on its face in
violation of their right to freedom of association under the
First Amendment to the United States Constitution; (3) the
3
As to C.C. and S.E., Tyshaun's convictions of trafficking
persons for sexual servitude were based on the theories set
forth in G. L. c. 265, § 50 (a) (i) and (ii). As to B.G.,
Tyshaun's conviction was based only on the theory set forth in
G. L. c. 265, § 50 (a) (i).
4
Sidney's convictions of trafficking persons for sexual
servitude were all based on the theory set forth in G. L.
c. 265, § 50 (a) (i).
5
phrase "commercial sexual activity" is unconstitutionally
overbroad; (4) the judge erred in allowing the substantive
admission of grand jury testimony from one of the Commonwealth's
witnesses; and (5) the judge violated their right to
confrontation by hindering their cross-examination of C.C. with
respect to several pending criminal charges against her and her
purported history of prostitution. In addition, Tyshaun
contends that the sentences imposed for his convictions of
deriving support from the earnings of a prostitute were illegal.
For the reasons that follow, we conclude that G. L. c. 265,
§ 50, is constitutional, that the sentences challenged by
Tyshaun were illegal, and that the defendants' remaining claims
of error have no merit. Accordingly, the judgments are
affirmed. As to the indictments charging Tyshaun with deriving
support from the earnings of a prostitute, those cases are
remanded for resentencing in accordance with this opinion.5
1. Factual background. We summarize the facts the jury
could have found, reserving certain details for our discussion
of the issues raised. As mentioned, the charges against the
defendants arose from their interactions with three women in the
5
We acknowledge the amicus briefs submitted by Ascentria
Care Alliance, Coalition Against Trafficking in Women,
Children's Advocacy Center of Suffolk County, Demand Abolition,
Eva Center and My Life My Choice; and by the Attorney General.
We also acknowledge the amicus letter submitted Amy Farrell,
Ph.D.
6
fall of 2012.6 C.C., then approximately twenty-four years old,
had a history of drug and alcohol use, and she had spent time in
several treatment facilities. On September 7, 2012, as she left
Boston Medical Center after having been treated for two drug
overdoses within one twenty-four hour period, she encountered
the defendants, who were standing outside the hospital. The
defendants asked C.C. what she was doing, and she told them that
she was interested in "party[ing]." After offering to give her
a ride, the defendants walked C.C. to an apartment on Eustis
Street in Boston, where C.C. observed an older man standing
outside. Tyshaun gave the man some money, and then Tyshaun
proceeded inside with C.C. and Sidney. They went upstairs to a
bedroom where all three drank from a bottle of alcohol, C.C.
smoked some "crack" cocaine that had been given to her by
Tyshaun, and the defendants purportedly raped C.C. as she cried.7
Afterward, C.C. got dressed, all three individuals walked to an
apartment on Dudley Street where Tyshaun's mother lived, and
C.C. fell asleep on a couch. She did not attempt to run away
because she was afraid of what might happen to her.
6
One of the three women, B.G., was not a witness at the
defendants' trial. The other two women, C.C. and S.E., did
testify.
7
Given that the defendants were found not guilty of the
indictments charging aggravated rape, we need not discuss the
details of C.C.'s testimony pertaining to these charges.
7
The next morning, the defendants and C.C. walked to a fast
food restaurant where Tyshaun purchased some heroin from a
friend and gave it to C.C., who proceeded to inject it into her
foot. As they walked away from the restaurant, the defendants
started talking with C.C. about a business arrangement whereby
she could "make a lot of money," "have a nice car," and "have a
nice apartment." It was C.C.'s understanding that the
defendants were talking about prostitution. They continued this
conversation until they reached the Dudley Street apartment.
At the apartment, the defendants prepared to take
photographs of C.C., which they planned to post as
advertisements on the Web site Backpage.com. Tyshaun told C.C.
that there would be a "rate," which she understood as meaning
that she would be having sex with people in exchange for money.
Although "definitely hesitant," C.C. agreed to proceed because
she was "broke and homeless, and having a nice apartment and car
and money seemed like the best option." Tyshaun gave C.C.
lingerie to wear, and he took photographs of her with a digital
camera in the bathroom of the apartment. C.C. started feeling
"uncomfortable" and did not want to be in the situation in which
she found herself. Nonetheless, the defendants transferred the
photographs to Sidney's laptop computer and then posted them on
Backpage.com. Tyshaun included his cellular telephone number
8
with the photographs, and the name indicated on them was "Jamie
Lynn."
After about thirty minutes, Tyshaun's telephone started to
ring. He answered it and handed the telephone to C.C., having
told her what to say to the callers. C.C. would ask them "if
they were a cop of any sort," what they wanted, and whether they
could meet at a particular location that had been chosen by
Tyshaun and Sidney. Tyshaun established prices of one hundred
dollars for thirty minutes of sex, and $150 for one hour of sex.
When C.C. arranged to meet a man at the Eustis Street apartment
for thirty minutes of sex, the defendants walked with her to
that location, and Tyshaun again gave some money to the same
older man who had been standing outside that location the
previous day. C.C. was directed to a room, she had sex with the
man she had arranged to meet, she was paid one hundred dollars,
and she handed the money over to Tyshaun, keeping none of it for
herself.
Over the course of the next three to four days, C.C. had
sex with five or six other men in various locations. The
defendants always accompanied C.C. to the designated meeting
place and would wait for her until she had finished. She gave
all of the money that she was paid to Tyshaun, who arranged the
accommodations. At some point, Tyshaun stopped providing drugs
9
and alcohol to C.C., telling her that she was not making enough
money to support her habits.
On September 12, 2012, roughly five days after having met
the defendants, C.C. woke up alone in a hotel room. Although
neither defendant was there, Tyshaun's cellular telephone was in
the room. C.C. telephoned her father. He told her to leave the
hotel room, and she jogged to a nearby pharmacy, where she
telephoned her father again to pick her up. On the drive to her
parents' home, C.C. told her father in response to his
questioning that she had been raped. After she arrived home,
C.C.'s mother took her to Brockton Hospital where she was
interviewed by a sexual assault nurse examiner and diagnosed
with pneumonia and cellulitis. During her examination, C.C.
told the nurse that over the past several days she had engaged
in sex with multiple men. At some point shortly thereafter,
C.C. told Boston police officers that she had been sexually
assaulted, but she did not disclose her involvement in
prostitution. On October 2, 2012, C.C. was shown a photographic
array, and she identified the photograph of Sidney.
Approximately one month later, C.C. told the police about her
involvement with prostitution. On December 12, 2012, C.C. went
to Boston police headquarters to view a live lineup, and she
identified Tyshaun.
10
In the fall of 2012, S.E., then approximately twenty-six
years old, was homeless, and had a history of drug use. S.E.
met Sidney around September 18, when she was standing in line
outside a homeless shelter near the Boston Medical Center.
After asking S.E. several questions, Sidney told her that he
could help her, and that she could earn enough money working as
an "escort" to live a better life. S.E. accompanied Sidney to
meet Tyshaun, and then the three of them went to the apartment
on Dudley Street where Tyshaun's mother lived. Once there, the
defendants told S.E. that they were going to take photographs of
her and post them on the Web site Backpage.com. S.E. agreed,
but "wasn't comfortable" with the arrangement. Tyshaun took the
photographs using his cellular telephone, Sidney showed her how
to pose, and the defendants posted the photographs online.
Tyshaun included his cellular telephone number with the
photographs, and the name indicated on them was "Natalia."
After a short period of time, calls and text messages
started arriving on Tyshaun's telephone. S.E. realized that
Tyshaun was conversing about sex, not merely escorting, only
when she questioned him about the prices for her "services."
Tyshaun told the callers that it would be $150 for "full
service," which meant oral and vaginal sex, and fifty dollars
for just oral sex. Shortly thereafter, a man arrived at the
Dudley Street apartment, he and S.E. "engaged in sexual
11
behavior," the man paid her some cash, and she gave it to
Tyshaun so he could "put gas in the car," "rent a hotel room,"
and "keep posting the ad." S.E. subsequently met another
individual at a different location that was a few blocks away
from the Dudley Street apartment. She was unable to remember
what happened at this second location. S.E. returned to the
Dudley Street apartment with the defendants at around 3 A.M.,
she performed oral sex on each defendant at their behest because
she "didn't want to get hurt," she had sexual intercourse with
Tyshaun, and then the defendants fell asleep.
The next morning, after the defendants took S.E. to a
methadone clinic, they proceeded to check Tyshaun's telephone
for responses to the photographs they had posted on
Backpage.com. Over the next twenty-four hours, the defendants
drove S.E. to different locations where she engaged in various
sexual acts with several different men. The defendants always
remained nearby in their parked motor vehicle and, once S.E. had
finished, Tyshaun demanded all of the cash that she had
received.
On her third day with the defendants, Tyshaun again took
S.E. to a methadone clinic where she chatted with B.G., a woman
she had met during prior visits to the clinic. After their
conversation, B.G. went outside and spoke with the defendants,
whom she already had met. Eventually, all four of them returned
12
to the Dudley Street apartment, where B.G. used a computer to
repost photographs of herself that had been submitted to
Backpage.com on an earlier occasion. The defendants also took
new photographs of B.G. and posted them on the Web site. Later
that same day, the defendants drove S.E. and B.G. some distance
to a hotel where each woman had sex with two men for money. The
defendants waited outside in their car. S.E. and B.G. received
$250, which was split evenly, and S.E. gave her share to Tyshaun
when he asked for it. B.G. kept some, if not all, of the money
she had received. Eventually, the group drove back to Boston.
Tyshaun and B.G. had an argument about sex and money; Tyshaun
pulled the vehicle over to the side of the road, and the women
got out. B.G. removed some personal belongings from the trunk,
and the two women walked away. The defendants drove off.
S.E. and B.G. went to Boston Medical Center, and the police
were called to the scene. In the waiting room, the women met
with Officer Edward Fleming and told him that they had been
forced into prostitution. Boston police officers subsequently
interviewed S.E. and B.G. regarding the events that had
transpired with the defendants. On September 26, 2012, S.E.
went to a police station to view a photographic array. She
identified Tyshaun, and he was arrested the next day. On
September 28, 2012, S.E. returned to the police station to view
13
another photographic array. She identified Sidney, and he was
arrested that same day.
2. Constitutionality of G. L. c. 265, § 50. We begin with
a discussion of the defendants' facial and as-applied challenges
to the constitutionality of the sex trafficking statute, which
challenges present questions of law that we review de novo. See
Commonwealth v. Johnson, 470 Mass. 300, 307 (2014), citing
Commonwealth v. Martin, 467 Mass. 291, 301 (2014). In
accordance with canons of statutory construction, a statute is
presumed to be constitutional. See St. Germaine v. Pendergast,
416 Mass. 698, 703 (1993). "Doubts as to a statute's
constitutionality 'should be avoided if reasonable principles of
interpretation permit doing so.'" Commonwealth v. Disler, 451
Mass. 216, 228 (2008), quoting Staman v. Assessors of Chatham,
351 Mass. 479, 487 (1966).
The defendants first contend that G. L. c. 265, § 50 (a),
is unconstitutionally vague as applied to them and, therefore,
violated their rights to due process under the Fifth and
Fourteenth Amendments and art. 12. They point out that § 50 (a)
lacks the element of force or coercion as required by the
analogous Federal sex trafficking statute, 18 U.S.C. § 1591(a)
14
(2012).8 As such, the defendants argue that § 50 (a) fails to
give them fair warning of prohibited conduct, noting that by
merely assisting a consenting adult prostitute, they will be
deemed to have engaged in the trafficking of persons for sexual
servitude. Moreover, the defendants continue, without the
element of force or coercion, there is a real risk of arbitrary
enforcement of the statute, which also offends standards of due
process.9 We disagree with the defendants' arguments.
8
The Trafficking Victims Protection Act of 2000, Pub. L.
106-386, § 112, 114 Stat. 1464, 1487, codified at 18 U.S.C.
§ 1591 (2012), provides, in relevant part:
"(a) Whoever knowingly --
"(1) in or affecting interstate or foreign commerce . . .
recruits, entices, harbors, transports, provides, obtains,
or maintains by any means a person; or
"(2) benefits, financially or by receiving anything of
value, from participation in a venture which has engaged in
an act described in violation of paragraph (1), knowing, or
in reckless disregard of the fact, that means of force,
threats of force, fraud, coercion described in subsection
(e)(2), or any combination of such means will be used to
cause the person to engage in a commercial sex act, or that
the person has not attained the age of 18 years and will be
caused to engage in a commercial sex act, shall be punished
as provided in subsection (b)."
We point out that the omission of language from G. L. c. 265,
§ 50 (a), that is included in the previously enacted analogous
Federal statute "reflect[s] a conscious decision by the
Legislature to deviate from the standard embodied in the Federal
statute." Globe Newspaper Co. v. Boston Retirement Bd., 388
Mass. 427, 433 (1983).
9
By way of example, the defendants suggest that G. L.
c. 265, § 50 (a), as written, permits the Commonwealth to
15
The principles governing a vagueness challenge to a statute
are well established. "A basic tenet of due process requires
that a criminal statute be sufficiently clear to give notice of
the prohibited conduct." Commonwealth v. Reyes, 464 Mass. 245,
248 (2013). See Commonwealth v. Bohmer, 374 Mass. 368, 371
(1978). "A statute violates due process and is void for
vagueness when individuals of normal intelligence must guess at
the statute's meaning and may differ as to its application, thus
denying them fair notice of the proscribed conduct." Disler,
451 Mass. at 223. See Connally v. General Constr. Co., 269 U.S.
385, 391 (1926). "Penal statutes must 'define the criminal
offense with sufficient definitiveness that ordinary people can
understand what conduct is prohibited.'" Commonwealth v.
Zubiel, 456 Mass. 27, 30 (2010), quoting Commonwealth v.
Twitchell, 416 Mass. 114, 123 (1993). See Kolender v. Lawson,
461 U.S. 352, 357 (1983). A vague statute also offends due
process because of "its lack of reasonably clear guidelines for
law enforcement and its consequent encouragement of arbitrary
and erratic arrests and prosecutions." Commonwealth v.
Sefranka, 382 Mass. 108, 110 (1980). See Reyes, supra at 249.
See also Grayned v. Rockford, 408 U.S. 104, 108-109 (1972). Any
decline to prosecute a taxicab driver who transports a known
prostitute to an appointment to engage in commercial sexual
activity, but to prosecute the defendants who provide the same
service.
16
ambiguity in a criminal statute "must be strictly construed
against the government." Zubiel, supra at 33. See Commonwealth
v. Kenney, 449 Mass. 840, 850 (2007).
"Proscribed conduct, however, is not always capable of
precise legal definition." Reyes, 464 Mass. at 249. See
Jaquith v. Commonwealth, 331 Mass. 439, 442 (1954).
"Accordingly, legislative language need not be afforded
'mathematical precision' in order to pass constitutional
muster." Reyes, supra, quoting Bohmer, 374 Mass. at 372. See
Grayned, 408 U.S. at 110. A statute is not vague "if it
requires a person to conform his conduct to an imprecise but
comprehensible normative standard." Commonwealth v. Orlando,
371 Mass. 732, 734 (1977). Its language will be
constitutionally adequate if it "conveys [a] sufficiently
definite warning as to the proscribed conduct when measured by
common understanding and practices." Commonwealth v. Adams, 389
Mass. 265, 270 (1983), quoting Commonwealth v. Jarrett, 359
Mass. 491, 496-497 (1971). "Uncertainty as to whether marginal
offenses are included within the coverage of a statute does not
render it unconstitutional if its scope is substantially clear."
Reyes, supra. See United States Civil Serv. Comm'n v. National
Ass'n of Letter Carriers, AFL-CIO, 413 U.S. 548, 579 (1973);
Jarrett, supra. Moreover, "even a vague statute may be made
17
constitutionally definite by giving it a reasonable
construction." Sefranka, 382 Mass. at 111.
Here, we conclude that because G. L. c. 265, § 50 (a), is
sufficiently clear and definite, it did not violate the
defendants' rights to due process under the Fifth and Fourteenth
Amendments and art. 12. The words of the statute have commonly
accepted and readily understood meanings in the English
language, and the phrase "commercial sexual activity" is amply
defined in G. L. c. 265, § 49.10 The statutory language provided
fair notice to the defendants that the very conduct in which
they engaged was the kind of conduct that the Legislature
intended to prohibit and punish.
The fact that G. L. c. 265, § 50 (a), does not include the
element of force or coercion does not render the statute
unconstitutionally vague or subject to arbitrary enforcement.
The clear and deliberate focus of the statute is the intent of
the perpetrator, not the means used by the perpetrator to
accomplish his or her intent. Section 50 (a) states that an
individual shall be guilty of the crime of trafficking of
persons for sexual servitude where such individual "knowingly
. . . subjects, or attempts to subject, or recruits, entices,
harbors, transports, provides or obtains by any means . . .
10
Our conclusion that the definition of "commercial sexual
activity" is not unconstitutionally overbroad will be discussed
in a subsequent portion of this opinion.
18
another person to engage in commercial sexual activity"
(emphasis added). As is its purview, the Legislature has
determined that whether a person being trafficked for sexual
servitude has been forced or coerced into engaging in such
activities is immaterial for purposes of ascertaining whether a
criminal act has been committed. The only relevant
consideration is whether the perpetrator has engaged in the
enumerated proscribed conduct with the requisite mens rea.
When used in a criminal statute, the word "knowingly"
typically "imports a perception of the facts requisite to make
up the crime." Commonwealth v. Altenhaus, 317 Mass. 270, 273
(1944), quoting Commonwealth v. Horsfall, 213 Mass. 232, 237
(1913). A requirement of scienter "has a tendency to narrow
(and thus to clarify) the scope of a criminal enactment."
Commonwealth v. Love, 26 Mass. App. Ct. 541, 546 n.11 (1988).
The Supreme Court has long recognized that the constitutionality
of a purportedly vague statute "is closely related to whether
that [statute] incorporates a requirement of mens rea."
Colautti v. Franklin, 439 U.S. 379, 395 (1979). See Hill v.
Colorado, 530 U.S. 703, 732 (2000) (rejecting vagueness
challenge premised on failure of statute to provide people of
ordinary intelligence with reasonable opportunity to understand
prohibited conduct where statute contained requirement of
scienter); Screws v. United States, 325 U.S. 91, 102 (1945)
19
(plurality opinion) ("where the punishment imposed is only for
an act knowingly done with the purpose of doing that which the
statute prohibits, the accused cannot be said to suffer from
lack of warning or knowledge that the act which he does is a
violation of law").
The language of G. L. c. 265, § 50 (a), requiring the
knowing commission of specified acts for the purpose of enabling
or causing another person to engage in commercial sexual
activity defines with sufficient clarity the prohibited conduct.
As a consequence, the statute provides comprehensible standards
for law enforcement that discourage arbitrary arrests and
prosecutions. What the defendants characterize as "merely
assisting" an adult consenting prostitute will still constitute
the crime of sex trafficking in those circumstances where all of
the statutory elements have been satisfied. The absence of any
element, notably mens rea, will negate criminality. In this
case, the defendants' actions fell squarely within the conduct
unambiguously proscribed by G. L. c. 265, § 50 (a).
Contrary to the defendants' contentions, G. L. c. 265, § 50
(a), does not simply criminalize and punish more harshly the
same conduct already prohibited by G. L. c. 272, § 7. The
substantive differences between the two statutes are evident and
meaningful. Therefore, the defendants' arguments that they
20
could not have known that their so-called "pimping" activities
would constitute sex trafficking are unavailing.
General Laws c. 272, § 7, provides, in relevant part, that
"[w]hoever, knowing a person to be a prostitute, shall live or
derive support or maintenance, in whole or in part, from the
earnings or proceeds of his prostitution . . . shall be punished
by imprisonment in the state prison for a period of five years
and by a fine of [$5,000]." We have explained that "[a]
conviction of deriving support from the earnings of a prostitute
requires the jury to find that a particular individual was a
prostitute, that the defendant knew that the individual was a
prostitute, and that the defendant shared in some way in the
earnings or proceeds of this person's prostitution."
Commonwealth v. Purdy, 459 Mass. 442, 454 n.10 (2011).
The differences in the conduct prohibited by G. L. c. 272,
§ 7, and by G. L. c. 265, § 50 (a), are primarily twofold.
First, the language of G. L. c. 272, § 7, plainly states that
the conduct prohibited by that statute is the sharing of
proceeds earned by a known prostitute. In contrast, under G. L.
c. 265, § 50 (a), an individual who knowingly enables or causes
another person to engage in commercial sexual activity need not
benefit, either financially or by receiving something of value,
from such conduct in order to be convicted of sex trafficking.
Indeed, as Sidney points out, he was found not guilty of
21
violating G. L. c. 272, § 7, presumably because the evidence was
insufficient to prove beyond a reasonable doubt that he shared
in the money earned by C.C., S.E., and B.G. However, his
commission of acts proscribed by G. L. c. 265, § 50 (a),
resulted in his convictions of sex trafficking. Second, the
knowledge element of G. L. c. 272, § 7, is retrospective. That
is to say, an individual shares earnings or proceeds knowing
that they came from an act of prostitution that already has
occurred. In contrast, the knowledge element of G. L. c. 265,
§ 50 (a), is prospective. An individual engages in statutorily
enumerated acts knowing that those acts will result in another
person's anticipated engagement in commercial sexual activity.
Although it may appear to the defendants that G. L. c. 272, § 7,
and G. L. c. 265, § 50 (a), criminalize essentially the same
misconduct, they plainly do not. Therefore, the defendants had
fair warning that their so-called "pimping" activities could
subject them to prosecution for deriving support from the
earnings of a prostitute, G. L. c. 272, § 7, as well as for
trafficking of persons for sexual servitude, G. L. c. 265, § 50
(a).
The defendants next contend that G. L. c. 265, § 50 (a), is
unconstitutionally overbroad on its face because it
significantly infringes on the right to freedom of association
as guaranteed by the First Amendment. In their view, because
22
§ 50 (a) lacks the element of force or coercion, it renders
unlawful virtually any interaction between family members,
friends, or organizations and a known prostitute.11 We disagree.
"A clear and precise enactment may . . . be 'overbroad' if
in its reach it prohibits constitutionally protected conduct."
Planned Parenthood League of Mass., Inc. v. Operation Rescue,
406 Mass. 701, 715 (1990), quoting Grayned, 408 U.S. at 114.
See Commonwealth v. Casey, 42 Mass. App. Ct. 512, 516 (1997).
Freedom of association encompasses "[a] right 'to enter into and
maintain certain intimate human relationships,' and a right 'to
associate for the purpose of engaging in those activities
protected by the First Amendment -- speech, assembly, petition
for the redress of grievances, and the exercise of religion.'"
Concord Rod & Gun Club, Inc. v. Massachusetts Comm'n Against
Discrimination, 402 Mass. 716, 721 (1988), quoting Roberts v.
United States Jaycees, 468 U.S. 609, 617-618 (1984). See
Disler, 451 Mass. at 230. "[W]here conduct and not merely
speech is involved . . . the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413
11
By way of example, the defendants suggest that a mother
who feeds, shelters, or transports her daughter, a known adult
prostitute, will run afoul of G. L. c. 265, § 50 (a).
Similarly, they continue, a homeless shelter could be deemed to
be harboring known prostitutes, thereby engaging in sex
trafficking.
23
U.S. 601, 615 (1973). See Mendoza v. Licensing Bd. of Fall
River, 444 Mass. 188, 200 (2005). Given that facial challenges
to the constitutionality of a law greatly increase the number of
persons who have standing to bring a claim, the Supreme Court
has cautioned that the overbreadth doctrine is to be employed
"sparingly and only as a last resort." Broadrick, supra at 613.
See Commonwealth v. Provost, 418 Mass. 416, 422-423 (1994);
Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 580 (2006).
General Laws c. 265, § 50 (a), does not prohibit all
interactions or associations between a prostitute and family
members, friends, or social service organizations. Rather, it
forbids such individuals or entities from knowingly undertaking
specified activities that will enable or cause another person to
engage in commercial sexual activity. Conduct of this nature is
afforded no constitutional protection. See generally Arcara v.
Cloud Books & News Store, Inc., 478 U.S. 697, 698-699, 705, 707
(1986) (prostitution and lewdness on premises of "adult"
bookstore not protected under First Amendment); Commonwealth v.
Walter, 388 Mass. 460, 464 (1983) (constitutional right to
privacy not extended to one engaged in prostitution); State v.
Theriault, 157 N.H. 215, 219 (2008), quoting Webb v. State, 575
N.E.2d 1066, 1070 (Ind. Ct. App. 1991) ("Certainly prostitution
is not a constitutionally protected activity"). Accordingly,
the defendants' claims that the statute is overbroad must fail.
24
Finally, the defendants contend that the phrase "commercial
sexual activity" as used in G. L. c. 265, § 50 (a), and as
defined by G. L. c. 265, § 49, and by the judge in her jury
instructions, is overbroad. In their view, this phrase can
encompass many noncriminal sexually oriented activities where
money exchanges hands, including "telephone sex" services, nude
dancing, online "chat" session, and adult pay-per-view
television shows. That being the case, the defendants continue,
the overly broad definition of "commercial sexual activity"
should render G. L. c. 265, § 50 (a), unconstitutional. We
disagree.
General Laws c. 265, § 49, defines "[c]ommercial sexual
activity" as "any sexual act on account of which anything of
value is given, promised to or received by any person."12 The
12
This definition is nearly identical to the definition of
"commercial sex act" used in the analogous Federal sex
trafficking statute. See 18 U.S.C. § 1591(e)(3) ("The term
'commercial sex act' means any sex act, on account of which
anything of value is given to or received by any person"). See
note 8, supra. The defendants have not cited, and we have not
found, any case in which a court has concluded that the Federal
sex trafficking statute is unconstitutionally overbroad. The
defendants' reliance on Backpage.com, LLC v. Cooper, 939 F.
Supp. 2d 805, 832 (M.D. Tenn. 2013), is unpersuasive. In that
case, the United States District Court for the Middle District
of Tennessee considered whether to enjoin a State statute that
criminalized the sale of certain sexually oriented
advertisements. See id. at 813. In granting the injunction,
the court concluded, among other things, that the definition of
"commercial sex act" was likely overbroad because it would
include substantial activity unrelated to sex trafficking and
25
phrase "sexual act" is not further defined in the statute.
Under well-established principles of statutory construction, "a
statute must be interpreted according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers may be
effectuated." Commonwealth v. Figueroa, 464 Mass. 365, 368
(2013), quoting Harvard Crimson, Inc. v. President & Fellows of
Harvard College, 445 Mass. 745, 749 (2006). The purpose and
intent of the Legislature in enacting G. L. c. 265, § 50 (a),
was to prohibit the trafficking of persons for sexual servitude,
not to prohibit all range of sexually oriented activities and
expressions. Mindful of this distinction, we construe the term
"commercial sexual activity" as referring to any sexual act for
value that involves physical contact. See G. L. c. 265, § 49.
See also Suliveres v. Commonwealth, 449 Mass. 112, 118 (2007)
("sex act" includes sexual intercourse); Commonwealth v. Walter,
388 Mass. 460, 463-464 (1983) ("sexual activity" encompasses
coitus, oral-genital contact, and digital manipulation of
another person's genitals for fee). See generally United States
would chill the free speech rights of publishers. See id. at
832. Such concerns are not at issue here.
26
v. Taylor, 640 F.3d 255, 258 (7th Cir. 2011) ("sexual act"
involves physical contact). This interpretation is consistent
with the plain language of G. L. c. 265, § 50 (a), gives force
to the Legislature's intent to protect victims of sex
trafficking, and avoids any potential constitutional problems.
As so construed, we believe the statute "avoids any overbreadth
problems, and 'whatever overbreadth may exist should be cured
through case-by-case analysis of the fact situations to which
its sanctions, assertedly, may not be applied.'" Provost, 418
Mass. at 423, quoting Broadrick, 413 U.S. at 615-616. See
Disler, 451 Mass. at 229.
3. Substantive admission of grand jury testimony. We
begin with some pertinent background. At trial, S.E. testified
that, prior to meeting the defendants, she made the acquaintance
of a man named Ray and his cousin, Ethel Watler.13 On the day
they met, S.E. accompanied Ray to his apartment, where they
"hung out." Later in the evening, S.E. and Watler went to
another man's house where each woman had sex with the man for
money. When the women returned to Ray's apartment, Watler and
Ray took the money that S.E. had earned, allowing her to keep
only twenty dollars for medication. The next morning, S.E. went
13
S.E. referred to Ethel Watler by her nickname, "Ellie."
27
to a methadone clinic, she did not return to Ray's apartment,
and she never saw Watler and Ray again.
Watler testified at trial pursuant to a grant of immunity.
See G. L. c. 233, § 20E. She described her work as a dancer and
an escort. Watler said that she met Tyshaun probably one month
after her encounter with S.E., and stated that she would see
Tyshaun two or three times a week. She acknowledged that they
had engaged in a sexual relationship. Watler testified about
the evening she had spent in the company of S.E., and she said
that she had told Tyshaun about that evening and had shown him
photographs of S.E. When the prosecutor asked Watler whether
Tyshaun had taken photographs of Watler to be posted on
Backpage.com, Watler stated that she did not remember because
she had been doing drugs at the time. Watler responded in a
similar fashion when the prosecutor asked her about any
conversations she may have had with Tyshaun regarding S.E. and
the other women.
The prosecutor attempted, unsuccessfully, to refresh
Watler's recollection by having her read to herself portions of
her grand jury testimony. Consequently, the prosecutor asked
the judge to allow the Commonwealth to use Watler's grand jury
testimony substantively. The judge instructed the prosecutor to
lay more of a foundation regarding Watler's inability to
remember facts to which she had testified before the grand jury,
28
namely the defendants' activities and admissions. After Watler
continued to profess her inability to remember such facts, the
prosecutor again asked for the admission of Watler's grand jury
testimony. The judge allowed portions of such testimony to be
admitted substantively over the defendants' objections after
finding that Watler was feigning a lack of memory, and that her
grand jury testimony did not appear to have been coerced.14 As
to the latter finding, the judge stated that Watler frequently
volunteered additional information in response to the questions
she was asked. The judge also pointed out that because Watler
was present in court, defense counsel would have the opportunity
to cross-examine her.
The prosecutor proceeded to question Watler, who then read
portions of her grand jury testimony in evidence.15 Watler
stated that Tyshaun told her that S.E. "was making money," and
that he and Sidney had engaged in a "threesome" with S.E. at the
14
The judge required the prosecutor to designate
specifically the portions of Watler's grand jury testimony that
the Commonwealth sought to have admitted in evidence. The
prosecutor did so at the bench, in the presence of defense
counsel, while the jury was in recess.
15
Watler's grand jury testimony was introduced as follows:
The prosecutor asked Watler a question, she awaited a response,
and, based on the nature of the response, she directed Watler's
attention to specific pages and lines of the transcript of her
grand jury testimony. The prosecutor then read the question
from the transcript, and she had Watler read her answer to that
question.
29
house on Dudley Street. Watler identified the Eustis Street
apartment as a place where Tyshaun told her he had rented rooms,
and where he said Watler could bring "customers." Watler
testified that Tyshaun had taken photographs of her in the
bathroom of the Dudley Street apartment, and that he had paid
for her online advertisements with a credit card. Watler
further testified that Tyshaun had told her that "he had two
white girls [who] had left him" and that he wished he had S.E.
because "she made a lot of money." On cross-examination, Watler
stated that prior to giving her grand jury testimony, she had
asked to consult with an attorney but was told by someone in the
district attorney's office that she did not need an attorney
because she "wasn't in any trouble." She agreed with defense
counsel that her grand jury testimony was what she thought the
Commonwealth wanted to hear because "they had a whole bunch of
stuff on [her]." Watler testified that S.E. had been a
prostitute before the two women had met, and that S.E. wanted to
make money in exchange for sex and had been "a willing
participant." She also testified that her conversations about
S.E. had been with Tyshaun, not Sidney.
On appeal, the defendants contend that the substantive
admission of Watler's grand jury testimony was improper. They
argue that they could not cross-examine Watler effectively at
trial because of her lack of memory, and the evidence failed to
30
support the judge's finding that Watler was feigning memory
loss. The defendants further assert that Watler's grand jury
testimony was not free from coercion. They point out that she
was aware of potential criminal charges against her if she did
not cooperate with the Commonwealth, and was not granted
immunity until she testified at trial. Finally, the defendants
argue that the substantive admission of Watler's grand jury
testimony was gravely prejudicial, as evidenced by the jury's
request for a transcript of this testimony during their
deliberations.16 We are not persuaded by the defendants'
arguments and conclude that the judge did not err.
Generally speaking, Massachusetts has adhered to the
traditional rule that prior inconsistent statements of a witness
may be introduced at trial only for the purpose of impeachment.
See Commonwealth v. Bookman, 386 Mass. 657, 665 (1982). See
also Mass. G. Evid. § 801(d)(1)(A) (2015). However, in
Commonwealth v. Daye, 393 Mass. 55, 71-75 (1984), as modified by
Commonwealth v. Cong Duc Le, 444 Mass. 431, 432 n.3 (2005), this
court deviated from the traditional rule, holding that prior
inconsistent statements by a witness before a grand jury can be
admitted as substantive evidence if certain conditions are met.
See Commonwealth v. Stewart, 454 Mass. 527, 533 (2009); Mass.
16
The jury's request was denied by the judge.
31
G. Evid., supra. First, there has to be an opportunity for
effective cross-examination of the witness at trial. See Daye,
supra at 73. "When the witness at trial has no recollection of
the events to which the statement relates, this requirement of
an opportunity for meaningful cross-examination is not met."
Id. Second, the statement has to be "that of the witness,
rather than the interrogator." Id. at 74. That is to say, it
must be clear that "the statement was not coerced and was more
than a mere confirmation or denial of an allegation by the
interrogator." Id. at 75. In addition, "apart from these
requirements for admissibility of the prior grand jury testimony
as substantive evidence, when that testimony concerns an
essential element of the crime, the Commonwealth must offer at
least some corroborative evidence if there is to be sufficient
evidence to warrant a conviction." Commonwealth v. Clements,
436 Mass. 190, 192-193 (2002). See Daye, supra at 74-75. This
corroboration requirement concerns the sufficiency of the
evidence, not its admissibility. See Clements, supra.
In Commonwealth v. Sineiro, 432 Mass. 735, 745 & n.12
(2000), we extended the holding of Daye to include grand jury
testimony of a witness who a trial judge determines is
"falsifying a lack of memory." See Commonwealth v. Maldonado,
466 Mass. 742, 755-756, cert. denied, 134 S. Ct. 2312 (2014).
"As one commentator has aptly stated: '[T]he tendency of
32
unwilling or untruthful witnesses to seek refuge in a claim of
forgetfulness is well recognized. Hence the judge may be
warranted in concluding under the circumstances the claimed lack
of memory of the event is untrue and in effect an implied denial
of the prior statement, thus qualifying it as inconsistent.'"
Sineiro, supra at 742, quoting 2 McCormick, Evidence § 251, at
117 (5th ed. 1999). "Before a witness's grand jury testimony
may be admitted under the Daye-Sineiro rule, the judge must make
a preliminary finding that the witness's claimed lack of memory
has been fabricated. If that finding is made and is supported
by the evidence, it is conclusive." Commonwealth v. Evans, 439
Mass. 184, 190, cert. denied, 540 U.S. 923 (2003). See Sineiro,
supra at 742-743 & n.6. Once the judge makes a finding of
feigned memory, the witness's prior grand jury testimony may be
admitted in evidence for substantive consideration provided that
the testimony was not coerced and the witness is present at
trial for cross-examination. See id. at 745 & n.12.
Here, the judge acted well within her discretion in finding
that Watler was feigning memory loss with respect to the
defendants' activities and admissions concerning S.E. The judge
was able to observe Watler's demeanor on the witness stand and
to assess her ability to remember many of her interactions and
conversations with Tyshaun, but not those that had a bearing on
the specific facts of this case. As the judge properly found,
33
Watler was available for cross-examination at trial, and defense
counsel took advantage of that opportunity by eliciting
testimony that provided context to Watler's grand jury testimony
and enabled the jury to evaluate its accuracy. We discern no
error in the judge's determination that Watler's testimony
before the grand jury was not coerced. Moreover, defense
counsel raised and explored the possibility of coercion during
cross-examination. The judge properly allowed the substantive
admission of limited portions of Watler's grand jury testimony.
4. Cross-examination regarding pending criminal charges.
The defendants contend that the judge violated their right to
confrontation by hindering cross-examination of C.C. regarding
criminal charges pending against her. They assert that because
a defendant is entitled to reasonable cross-examination of a
prosecution witness for the purpose of showing bias, the judge
abused her discretion by precluding defense counsel from
impeaching C.C. with evidence that she had been charged with
several drug-related offenses. In the defendants' view, where
C.C. testified that she had been told that the district attorney
was not interested in prosecuting her, the defendants should
have been allowed to explore the possibility that she might have
been biased in favor of the Commonwealth. Alternatively, the
defendants argue that their trial counsel rendered ineffective
assistance by failing to seek the introduction of the pending
34
charges against C.C., which could have demonstrated her bias and
negated her credibility.
Following an incident that occurred approximately three
months after C.C. testified before the grand jury in the present
case, C.C. was charged in the Taunton Division of the District
Court Department with possession of a Class A controlled
substance, operating a motor vehicle while under the influence
of drugs, and being present where heroin was kept. The
Commonwealth filed a motion in limine to preclude any reference
to these charges at trial. After a hearing, the motion was
allowed. At trial, before the commencement of empanelment,
counsel for Tyshaun informed the judge that he did not intend to
introduce any evidence of such charges, stating, "I don't really
see how a pending charge is going to come in." Similarly,
although not entirely clear from the trial transcript, it
appears that counsel for Sidney did not object to the exclusion
of testimony concerning the pending criminal charges against
C.C. To the extent that he did argue for the admissibility of
such evidence, the basis for his argument was that evidence of
C.C.'s drug use was relevant to her ability to remember what had
happened to her, which pertained to her credibility. Neither
defense attorney mentioned the issue of bias. In response to a
question from the judge, the prosecutor represented that the
35
Commonwealth had not made or offered any promises, rewards, or
inducements relating to the pending criminal charges.
As a general matter, "[a]rrest or indictment alone is
insufficient for general impeachment purposes." Commonwealth v.
Haywood, 377 Mass. 755, 759 (1979). See G. L. c. 233, § 21.
See also Commonwealth v. Bregoli, 431 Mass. 265, 275 (2000)
(witness cannot be impeached by use of specific act of
misconduct not resulting in conviction). However, "it is well
established that a criminal defendant is 'entitled, as of right,
to reasonable cross-examination of a witness for the purpose of
showing bias, particularly where that witness may have a
motivation to seek favor with the government.'" Haywood, supra
at 760, quoting Commonwealth v. Dougan, 377 Mass. 303, 310
(1979). See Commonwealth v. Henson, 394 Mass. 584, 586-587
(1985). "A defendant has the right to bring to the jury's
attention any 'circumstance which may materially affect' the
testimony of an adverse witness which might lead the jury to
find that the witness is under an 'influence to prevaricate.'"
Haywood, supra, quoting Commonwealth v. Marcellino, 271 Mass.
325, 327 (1930). It follows that a defendant may question a
witness about pending criminal charges in order to show that the
witness has a motive to cooperate with the Commonwealth. See
Commonwealth v. Meas, 467 Mass. 434, 449-450, cert. denied, 135
S. Ct. 150 (2014), quoting Commonwealth v. Carmona, 428 Mass.
36
268, 270 (1998). See also Henson, supra. However, we have
recognized that evidence of an adverse witness's prior arrest is
not admissible "in all circumstances." Haywood, supra at 761.
See Commonwealth v. Santos, 376 Mass. 920, 924-926 (1978);
Commonwealth v. Allen, 29 Mass. App. Ct. 373, 378 (1990). See
also Dougan, supra (judge has broad discretion in circumscribing
proper scope of cross-examination). "[A] defendant is required
to furnish some persuasive explanation why the arrest might
indicate bias or a motive to lie." Allen, supra. See
Commonwealth v. Two Juveniles, 397 Mass. 261, 267 (1986). The
explanation is necessary in order for the judge to "make an
appraisal of the materiality of the testimony sought in light of
[the defendant's] right 'to show specific bias or motive to
prevaricate on the part of the government witness.'" Haywood,
supra, quoting Santos, supra at 924. See Allen, supra.
In this case, defense counsel made no mention to the trial
judge of wanting to use the pending criminal charges against
C.C. to show that, in their view, she was biased in favor of the
Commonwealth. There also was no evidence to suggest that after
C.C. was charged with the three drug-related offenses, she
changed her version of the events that had transpired with the
defendants. We conclude that the judge did not abuse her
discretion in precluding any reference to these charges at
trial. In addition, contrary to the defendants' assertions,
37
there was no ineffective assistance of counsel. During cross-
examination of C.C., although counsel for Tyshaun did not raise
the three drug-related offenses pending against her, he did
pursue a line of inquiry about whether the Commonwealth had
agreed not to prosecute C.C. for any crimes that she may have
committed while she was with the defendants in exchange for her
cooperation and testimony against them. C.C. acknowledged that
she had not been prosecuted for any such crimes, and that
someone from the district attorney's office had told her that
the Commonwealth had no interest in prosecuting her. This line
of questioning served to alert the jury to the issue of possible
bias, and the jury could consider the matter during their
deliberations.
5. Cross-examination regarding history of prostitution.
The defendants contend that the judge also violated their right
to confrontation by hindering cross-examination of C.C.
regarding her history of prostitution.17 In their view, the
judge erroneously relied on the rape shield statute, G. L.
c. 233, § 21B, to prevent such a line of inquiry. The
defendants argue that they were not attempting to elicit
evidence of C.C.'s promiscuity as part of a general credibility
17
As best we can discern from the record, Tyshaun never
sought to admit evidence of C.C.'s purported history of
prostitution. The matter was only raised by Sidney, who seemed
to indicate to the judge that it was relevant to show that C.C.
was willing to have sex in exchange for drugs.
38
attack. Rather, the defendants continue, they sought to show
the jury that, contrary to the Commonwealth's assertion that
they forced C.C. into prostitution, C.C. was a willing
participant who had a history of engaging in such activities.
We conclude that the judge did not err in excluding evidence of
C.C.'s purported history of prostitution.
A trial judge has broad discretion to determine the proper
scope of cross-examination. See Commonwealth v. Mountry, 463
Mass. 80, 86 (2012); Commonwealth v. Johnson, 431 Mass. 535, 538
(2000). "If a defendant believes that the judge improperly
restrained his cross-examination of a witness, the defendant
must demonstrate that the judge abused [her] discretion and that
he was prejudiced by such restraint." Commonwealth v. Sealy,
467 Mass. 617, 624 (2014), quoting Commonwealth v. Barnes, 399
Mass. 385, 393 (1987).
General Laws c. 233, § 21B, provides, in relevant part,
that "[e]vidence of the reputation of a victim's sexual conduct
shall not be admissible in an investigation or proceeding before
a grand jury or a court of the commonwealth for a violation of
[G. L. c. 265, § 50]." The primary purpose of the rape shield
statute is "to prevent a general credibility attack of a victim
with evidence of his or her promiscuity." Mountry, 463 Mass. at
86. Among the reasons for barring the admission of such
evidence is that it has little probative value on the issue of
39
consent because the "victim's consent to intercourse with one
man does not imply her consent in the case of another."
Commonwealth v. Harris, 443 Mass. 714, 722-773 (2005), quoting
Commonwealth v. McKay, 363 Mass. 220, 227 (1973).
Irrespective of how the defendants have couched their
arguments, they seem to be asserting that because C.C.
purportedly engaged in prostitution in the past, she effectively
consented to the defendants' malfeasance, and the jury should
have had the opportunity to consider this evidence. We
disagree. As the judge properly determined, the introduction of
evidence pertaining to C.C.'s past sexual conduct with others
was plainly barred by G. L. c. 233, § 21B. Moreover, as we have
discussed, coercion is not an element of the crime of sex
trafficking. See G. L. c. 265, § 50 (a). That being the case,
it was irrelevant whether C.C. was a willing participant in the
defendants' activities. The exclusion of evidence pertaining to
C.C.'s alleged history of prostitution had no bearing on whether
the defendants violated G. L. c. 265, § 50 (a), and such
exclusion did not prejudice the defendants' cases.
6. Illegal sentences. Tyshaun contends that his sentences
for two counts of deriving support from the earnings of a
prostitute were illegal. He points out that although the
applicable statute, G. L. c. 272, § 7, mandates a minimum
sentence of two years and a maximum sentence of five years, he
40
was sentenced to the State prison for a term of from five years
to five years and one day. Therefore, he continues, the judge
exceeded the maximum sentence allowed under G. L. c. 272, § 7.
We agree.18
"An illegal sentence is one that is not permitted by law
for the offense committed." Commonwealth v. McGuinness, 421
Mass. 472, 475 (1995). See Commonwealth v. Layne, 21 Mass. App.
Ct. 17, 19 (1985) ("An 'illegal sentence' is one that is in
excess of the punishment prescribed by the relevant statutory
provision or in some way contrary to the applicable statute").
General Laws c. 272, § 7, provides, in relevant part:
"Whoever, knowing a person to be a prostitute, shall
live or derive support or maintenance, in whole or in part,
from the earnings or proceeds of his prostitution . . .
shall be punished by imprisonment in the state prison for a
period of five years and by a fine of [$5,000].
"The sentence of imprisonment imposed under this
section shall not be reduced to less than two years, nor
suspended, nor shall any person convicted under this
section be eligible for probation, parole, or furlough or
receive any deduction from his sentence for good conduct or
otherwise until he shall have served two years of such
sentence."
18
An entry in the Superior Court's docket for Tyshaun's
case indicates that he filed a pro se motion to revise and
revoke, and that it was denied by the trial judge. This motion
was neither included in the record appendix in this appeal nor
mentioned by Tyshaun in his brief. In any event, an appeal may
properly challenge an illegal or unconstitutional sentence. See
Commonwealth v. Molino, 411 Mass. 149, 155 (1991); Commonwealth
v. Sanchez, 405 Mass. 369, 379 n.7 (1989).
41
We have construed this statute as imposing a maximum term of
five years and a minimum term of two years. See Commonwealth v.
Lightfoot, 391 Mass. 718, 721 (1984). The punishment imposed on
Tyshaun was in excess of the statute given that G. L. c. 272,
§ 7, does not permit a maximum sentence of five years and one
day. Accordingly, Tyshaun's sentences for his convictions of
deriving support from the earnings of a prostitute must be
revised to reflect maximum sentences of five years.
7. Conclusion. For the foregoing reasons, the judgments
of conviction on the indictments charging Tyshaun with
trafficking persons for sexual servitude and deriving support
from the earnings of a prostitute are affirmed. His sentences
following the judgments of conviction on the indictments
charging him with deriving support from the earnings of a
prostitute are vacated, and those cases are remanded to the
Superior Court for resentencing consistent with this opinion.
The judgments of conviction on the indictments charging Sidney
with trafficking persons for sexual servitude are affirmed.
So ordered.