Commonwealth v. Dabney

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SJC-12349
COMMONWEALTH vs. KENYA DABNEY.
Suffolk. November 6, 2017. - February 13, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Trafficking. Deriving Support from Prostitution. Rape.
Assault and Battery. Jury and Jurors. Practice, Criminal,
Jury and jurors, Voir dire, Instructions to jury.
Evidence, Impeachment of credibility. Witness,
Impeachment.
Indictments found and returned in the Superior Court
Department on February 4, 2015.
The cases were tried before Linda E. Giles, J.
The Supreme Judicial Court granted an application for
direct appellate review.
David Rangaviz, Committee for Public Counsel Services, for
the defendant.
Nicholas Brandt, Assistant District Attorney, for the
Commonwealth.
Emma Quinn-Judge & Zoraida Fernandez, for Massachusetts
Association of Criminal Defense Lawyers & others, amici curiae,
submitted a brief.
2
GAZIANO, J. The defendant was convicted by a Superior
Court jury of human trafficking, deriving support from
prostitution, rape, and two counts of assault and battery. On
appeal, he argues that, during voir dire, the judge improperly
prevented his attorney from asking members of the venire whether
they would expect an innocent defendant to testify. He also
contends that the evidence presented was insufficient to sustain
a conviction of human trafficking, and that the judge's
instruction to the jury regarding the human trafficking charge
was inadequate. The defendant claims further that the judge
erred in allowing the introduction of certain records and then
retroactively ordering them to be redacted, which prevented
defense counsel from using the records for impeachment purposes.
We conclude that the judge did not abuse her discretion in
limiting defense counsel's questioning during voir dire, the
evidence against the defendant was legally sufficient, the jury
instructions were proper, and there was no abuse of discretion
in the judge's evidentiary ruling. Accordingly, we affirm the
convictions.1
1
We acknowledge the amicus brief submitted by the
Massachusetts Association Of Criminal Defense Lawyers, National
Association of Criminal Defense Lawyers, Charles Hamilton
Houston Institute for Race and Justice, and Criminal Justice
Institute.
3
1. Background. a. Facts. We recite the facts the jury
could have found, reserving certain details for later
discussion.
i. Commonwealth's case. The victim and the defendant met
in approximately June, 2014, and started dating a few months
later. The two began living together in a house in Chelsea
belonging to "Uncle Otis," a friend of the defendant; they also
sometimes stayed in a house in Revere. Around the time the
victim and the defendant started dating, the defendant
encouraged the victim to begin prostituting herself. He told
her that it "would be good money because [she] was a beautiful
person." At some point before she met the defendant, the victim
had engaged in prostitution in Chelsea.2
Shortly after the defendant's suggestion, the victim began
prostituting herself on Pearl Street in Chelsea. In exchange
for a cash payment, she would perform sex acts in her clients'
vehicles. Together, the defendant and the victim determined the
prices she would charge for various acts. The defendant would
accompany the victim to Pearl Street and would wait on the
street or at a nearby bar for her to emerge from a client's
automobile. The victim gave all the money she earned from these
2
The record does not indicate any time frame for the
victim's prior prostitution.
4
encounters to the defendant. He used the money to buy drugs and
alcohol for them to share.
At some point after the victim had been engaging in
prostitution, the defendant told the victim about a Web site
called Backpage that they could use to advertise her services.
The two used the victim's personal electronic mail address and
telephone number to create a Backpage account. They then posted
advertisements, which included photographs of the victim's body,
(without showing her face), a written description of her body,
an "alias," and contact information. The defendant took the
photographs. The victim and the defendant together determined
the alias that the victim would use and wrote the description of
her body. The defendant used proceeds from the victim's
prostitution to buy a prepaid credit card that they used to pay
for the Backpage advertisements.
The defendant told the victim that she was to notify him
every time she received a telephone call from a client in
response to the Backpage advertisement. He also occasionally
listened to the calls. Often, these clients would meet the
victim at the house in Revere where she and the defendant
sometimes stayed. The defendant would wait in another room
while the victim was with a client "in case [she] needed to
scream for him." This arrangement continued for several months.
At the time, the victim also was working at a fast food
5
restaurant; the defendant was unemployed. In November or
December, 2014, after a gap in their relationship "for a day or
two," the defendant asked the victim to stop using the Backpage
site. She did so and also changed her telephone number.
At some point during the week of December 7, 2014, the
defendant punched the victim in the face because she had not
given him all of the money she had earned from prostitution.
The victim had a black eye, but did not seek medical treatment.
She did not call the police because the defendant "apologized
and said it wouldn't happen again."
Approximately one week later, on December 13, 2014, the
defendant hit the victim's head with his open hand. Later that
night, the victim, the defendant, the victim's mother, and Uncle
Otis were at the house in Revere; the defendant and the victim
used cocaine and heroin. Sometime after midnight, the victim
and the defendant went to a bar, where he told her that she was
"on [her] own." The victim understood this to mean that they
were no longer in a relationship, and left the bar.
The victim then went to Pearl Street to prostitute herself.
She saw two clients. Thereafter, she encountered the defendant
on the part of Pearl Street where he ordinarily had waited for
her when she met with clients. The defendant yelled at her and
demanded to know why it had taken her so long to return. She
responded, "why are you over here, you said I was on my own."
6
The defendant punched the victim in the face, threw her to
the ground, and kicked her, while continuing to yell. He
grabbed her and told her that they were going home. He insisted
that the victim was lying to him about the clients she had met
with that night and the amount of money she had received. He
continued to punch her, throw her against walls, choke her, and
beat her, as he dragged her toward a taxicab stand. The victim
continued to protest that she thought their relationship had
ended. The defendant responded, "you're going with me and
that's it."
As the victim and the defendant were entering a taxicab,
two police officers arrived in response to a 911 call that a
neighbor had placed; the neighbor had been awakened when he
heard a woman screaming and reported that two women were
fighting.3 As the officers approached, the defendant held a
switchblade to the victim's side and told her that if she said
anything to the police officers about the incident, he would
kill her. The officers interviewed the victim and the defendant
separately, but the victim was afraid and did not tell them what
had happened. The victim said that she had been fighting with
another woman and that she did not want to press charges. The
3
The caller did not see the faces of the people involved in
the fight. A bystander also reported that she heard a woman
screaming, but did not see the people involved.
7
officer interviewing the victim noticed that she had a bruise
under her eye that appeared to be "several days old and yellow,"
but did not observe any fresh injuries. The officers did not
see anyone else nearby. They left, and the victim and the
defendant took a taxicab back to Uncle Otis's house. The
victim's mother was staying at the house that night and inquired
about the victim's injuries. Because the defendant was in the
room when she did so, the victim lied and said that she had been
"jumped" by two women.
After the victim's mother had gone to bed, the defendant
pushed the victim into the bathroom and pulled off her pants and
underwear, while the victim repeatedly protested. The defendant
forced his hands into her vagina. He said that he was going to
kill her with his switchblade, and "tried" to stab her side and
her leg until the knife broke. He then ordered the victim to
sit on the living room couch and continued to hit her. When the
victim asked to share some of the cigarette the defendant was
smoking, he put the cigarette out on her face, again accused her
of lying, and repeated that he was going to kill her.
The victim managed to run into the bedroom where her mother
was sleeping, and woke her mother up. The victim was "crying
very hard." Her mother then confronted the defendant. He
responded that he no longer wanted to be in a relationship with
the victim, and asked if she was going to call the police. The
8
victim and her mother did not call the police, because they did
not want Uncle Otis to "get in trouble and lose his house." The
victim slept that night in the same room with her mother.
When the victim woke up the next morning, the defendant and
his belongings were gone. Her mother arranged for a relative to
take the victim to the hospital.4 While the victim was at the
hospital, an officer of the Chelsea police department
interviewed her. He noticed that the victim had a swollen eye,
scratches and marks on her neck, puncture wounds on her leg, an
abrasion near her hip, and a burn mark on her face. The officer
subsequently arrested the defendant.5
ii. Defendant's case. The defendant called a nurse who
served as a medical consultant to explain the contents of the
victim's hospital records. The nurse had not treated the victim
and had not met with her prior to testifying. The nurse
explained that, based on the victim's computerized tomography
(CT) scan, the doctors had concluded that the victim was
suffering from swelling on the frontal bone of her skull, but
4
The victim received treatment for her injuries but
declined a sexual assault examination, saying that she was in
too much pain.
5
The defendant tried to telephone the victim several times
after the assault, but she did not answer. While the defendant
was in pretrial detention, however, the victim sent him a letter
saying, "what was done was not my doing." The letter also asked
the defendant to telephone her and said that she had never loved
anyone as much as she loved him.
9
had no brain injury. The victim also had a deformity or chip
fracture of her jaw bone, without swelling or bruising in that
area. The victim had swelling, bruising, and internal bleeding
on her forehead, near her eyes, and on her nose and chin, and
complained of lower back pain. The records indicated that the
victim told the treating physicians that she had not lost
consciousness during the incident, and contained no indication
of any stab wounds or treatment for stab wounds. The hospital
records stated that the victim had a burn on her cheek, but
there was no indication that she was treated for a cigarette
burn. The nurse opined that the mark on the victim's cheek
"could" be a cigarette burn, but that it did not look like the
cigarette burns she had seen in her own experience; based on the
photographs taken by the investigating officer, the mark was
superficial, had an irregular shape, and looked several days
old. At the hospital, the victim had complained of blurred
vision, but her vision test revealed entirely normal results
with textbook acuity.
b. Procedural history. A grand jury returned indictments
against the defendant for eleven charges. He was indicted on
charges of human trafficking, in violation of G. L. c. 265,
§ 50 (a), and deriving support from prostitution, in violation
of G. L. c. 272, § 7, for the period from September 1 to
December 14, 2014. He also was indicted on two counts of
10
assault and battery, in violation of G. L. c. 265, § 13A. For
the incident on the evening of December 13 and the early morning
hours of December 14, 2014, the defendant was indicted on
charges of rape, G. L. c. 265, § 22; assault and battery by
means of a dangerous weapon (a lit cigarette and a knife), G. L.
c. 265, § 15A; assault by means of a dangerous weapon (a knife),
G. L. c. 265, § 15B (b); strangulation, G. L. c. 265, § 15D (a);
assault and battery, G. L. c. 265, § 13A; and intimidation of a
witness, G. L. c. 268, § 13B.
The defendant moved unsuccessfully to have the human
trafficking charge dismissed, arguing that the Commonwealth did
not present sufficient evidence to the grand jury, and that the
human trafficking statute was unconstitutionally vague as
applied to him.
Ultimately, the jury found the defendant guilty of human
trafficking, deriving support from prostitution, rape, and two
counts of assault and battery, one for the punching incident
between December 1 and 10, 2014, and one for the events on the
evening of December 13 and the early morning hours of December
14, 2014. He was acquitted of the other charges. The defendant
timely appealed, and we allowed his petition for direct
appellate review.
2. Discussion. The defendant argues that the judge erred
in prohibiting defense counsel from asking most of the members
11
of the venire whether they would expect an innocent defendant to
testify, because the question was proper and useful in revealing
juror bias. The defendant also maintains that the evidence was
not sufficient to support his conviction of human trafficking
because there was no indication that he forced or coerced the
victim into prostitution, and that the judge's instruction on
that offense was insufficient to convey to the jury the
statute's proper meaning. In addition, the defendant argues
that the judge erred in denying his motion to use Backpage
records to impeach the victim, and in ordering that the records
be redacted in such a way that they could not be used for
impeachment purposes, even though the Commonwealth earlier had
introduced unredacted copies of the records.
a. Questioning of the venire on the defendant's right not
to testify. i. Empanelment. At trial, the defendant moved for
attorney-conducted voir dire. The judge permitted the attorneys
the "opportunity to ask reasonable follow-up questions" based on
anything "see[n], hear[d], or read about the juror." The judge
began jury selection by asking the entire venire several
questions, including three that are statutorily required:
(1) "Do any of you not understand that in a criminal case,
the defendant is presumed innocent until proven guilty?";
(2) "Do any of you not understand that in a criminal case,
the prosecution has the burden of proving the defendant is
guilty beyond a reasonable doubt?"; and
12
(3) "Do any of you not understand that in a criminal case,
the defendant does not have to present any evidence in his
or her own behalf?"
See G. L. c. 234A, § 67A. Thereafter, at sidebar, the judge
questioned each potential juror individually. One of the
questions she posed was, "The defendant in a criminal trial has
the absolute right not to testify. If this defendant chooses
not to testify, would you hold that against him in any way?"
After the judge finished her questioning, she allowed the
attorneys to pose follow-up questions.
In response to the judge's question on a defendant's right
not to testify, the first member of the venire said he would not
hold it against the defendant if the defendant chose not to
testify. Defense counsel then asked, "The judge asked you about
the possibility of the defendant not testifying. If someone was
innocent, would you expect that they would testify or would not
testify?" The juror responded, "No, either way." When that
juror stepped away, the judge commented that defense counsel had
asked redundant questions, and told him "not [to] ask the same
question that [she] ask[ed]." The first juror was empanelled.
In response to the same question from the judge, the second
potential juror also indicated that he would not hold it against
the defendant if the defendant chose not to testify. Defense
counsel then asked, "The judge mentioned that the defendant has
the right not to testify. Would you expect that if someone was
13
innocent, that they would testify or not necessarily?" The
juror responded "Well, he don't have the right to, so he don't
have to testify." When that juror stepped away, the judge noted
that defense counsel's question was redundant. Counsel
responded that a colleague had told him that the phrasing he had
employed was a useful addition because a potential juror might
not fully comprehend the judge's more abstract question. The
judge said that she would "engage in an experiment" and also
would permit defense counsel to ask whether the juror would
expect an innocent defendant to testify, in order to determine
if jurors gave different responses to the two questions. The
second juror was empanelled.
The next three potential jurors were excused for cause
before defense counsel had an opportunity to pose his version of
the question on a defendant's right not to testify. In response
to the judge's question, the sixth juror stated that he would
not hold it against the defendant if the defendant chose not to
testify. Defense counsel then asked, "Would you expect that a
defendant who is innocent would testify, whether he has to or
not?" and the juror responded, "No, not necessarily." The juror
was empanelled.
The seventh potential juror also responded to the judge's
question by saying that she would not hold it against the
14
defendant if he did not testify. During defense counsel's
subsequent questioning, the following exchange took place:
Defense counsel: "Regardless of whether the defendant
has a right to testify or not, would you expect that
an innocent defendant would testify?"
The juror: "I would think, but I don't -- I'd be open
to hearing or not hearing. I don't know if that makes
sense."
The judge: "I'm not sure I understand."
The juror: "You're asking if he is claiming he's
innocent --"
The judge: "You have to keep your voice up a little
bit."
The juror: "Oh, I'm sorry. If you're claiming that
he is innocent and he did testify, do I have -- I'm
sorry."
The judge: "Put the question to her again, I think
she's confused by the question."
Defense counsel: "If he was innocent, would you
expect that he probably would testify?"
The juror: "Yes."
Defense counsel: "How come?"
The juror: "Just to defend himself and he would have
probable cause."
The judge asked the potential juror to step away, and then noted
that she had realized why she initially did not like counsel's
question. She commented that it was a "commitment question," in
that it asked jurors to commit to a particular position by
planting in a juror's mind the idea that the defendant was
15
actually innocent and therefore should testify. She explained
that, although a defendant is presumed innocent, "[t]he issue is
whether [the Commonwealth] can prove [its] case beyond a
reasonable doubt. Innocence is not an issue in this case."6 The
judge did not permit defense counsel thereafter to ask his form
of the question, but did offer to excuse the juror for cause.
Counsel agreed that the juror should be excused, and asked the
judge to note his objection.
ii. Attorney conducted voir dire. "[P]art of the
guarantee of a defendant's right to an impartial jury is an
adequate voir dire to identify unqualified jurors." Morgan v.
Illinois, 504 U.S. 719, 729 (1992). See G. L. c. 234A, § 67A
(voir dire is designed "to learn whether the juror is related to
either party or has any interest in the case, or has expressed
or formed an opinion, or is sensible of any bias or prejudice").
The scope of voir dire, however, "is in the sound discretion of
the trial judge and will be upheld absent a clear showing of
abuse of discretion." Commonwealth v. Gray, 465 Mass. 330, 338,
6
See Anderson v. State, 161 Ga. App. 816, 816 (1982) (trial
judge did not err in declining to permit defense attorney to ask
whether jurors "would still expect the defendant to take the
stand and testify as to his innocence" even if they knew that
defendant did not have burden of proving his innocence, because
question "sought to have the jurors prejudge how they might view
the defendant's failure to testify").
16
cert. denied, 134 S. Ct. 628 (2013), quoting Commonwealth v.
Perez, 460 Mass. 683, 689 (2011).
Prior to 2014, judges had discretion not to permit
attorneys to engage in direct questioning of potential jurors.
See Commonwealth v. Gee, 6 Cush. 174, 178 (1850) ("The counsel
of a party has no right personally to interrogate the jurors,
with a view of showing their bias or prejudice by facts drawn
out by a cross-examination, or something very like it"). In
2014, however, the Legislature amended G. L. c. 234, § 28, such
that, upon request, attorneys and self-represented parties in
the Superior Court now have the right to question potential
jurors during voir dire. See St. 2014, c. 254, § 2.7 Although
"the empanelment process takes somewhat longer when attorneys
participate in voir dire, the consensus is that [attorney
participation in voir dire] has improved the process of jury
selection. As a result, judges and attorneys should have
greater confidence that the jurors who are ultimately empaneled
are more likely to be impartial."8 Supreme Judicial Court
7
In 2016, this section was recodified as G. L. c. 234A,
§ 67D. St. 2016, c. 36, § 4.
8
Our committee on juror voir dire, which was convened soon
after the statute was enacted, observed that forty-four per cent
of Superior Court judges had been permitting some form of
attorney-conducted voir dire prior to the enactment, and "while
[G. L. c.] 254 would push attorney involvement further, it could
be implemented without radical changes to the judges' current
17
Committee on Juror Voir Dire, Final Report to the Justices, at 5
(July 12, 2016) (SJC Committee Report). Nonetheless, while
trial judges must permit attorney-conducted voir dire upon
request, the scope of such questioning remains in the discretion
of the judge. See, e.g., G. L. c. 234A, § 67D (2) ("The court
may impose reasonable limitations upon the questions and the
time allowed during such examination, including, but not limited
to, requiring pre-approval of the questions").
To implement the statutory requirement, the Superior Court
adopted Standing Order 1-15 (effective Feb. 2, 2015), which
"fully preserves the discretionary authority of the trial judge
with respect to the examination and selection of jurors in each
case . . . while permitting attorneys and self-represented
parties a fair opportunity to participate in voir dire so as to
identify inappropriate bias." The standing order requires
judges, in deciding which questions to allow, to give "due
regard" to the goals of selecting fair and impartial jurors,
conducting jury selection with "reasonable expedition," and
"respecting the dignity and privacy of each potential juror."
Id. See SJC Committee Report, supra at 11.
approaches to jury selection in civil and criminal cases."
Supreme Judicial Court Committee on Juror Voir Dire, Final
Report to the Justices, at 3 (July 12, 2016) (SJC Committee
Report).
18
Superior Court Rule 6, which was put in place after
Standing Order 1-15, provides guidance to judges when making
determinations regarding attorney-conducted voir dire. A trial
judge may "impose reasonable restrictions on the subject matter,
time, or method of attorney or party voir dire." Rule 6(3)(f)
of the Rules of the Superior Court. Pursuant to rule 6(3)(e),
attorneys may not ask questions that (1) are "framed in terms of
how the juror would decide this case (prejudgment), including
hypotheticals that are close/specific to the facts of this
case"; (2) "seek to commit juror(s) to a result, including,
without limitation, questions about what evidence would cause
the juror(s) to find for the attorney's client or the party";
(3) have "no substantial purpose other than to argue an
attorney's or party's case or indoctrinate"; (4) concern the
outcome of "prior cases where the person has served as a juror,
including the prior vote(s) of the juror or the verdict of the
entire jury"; or (5) "specifically reference what is written on
a particular juror's confidential juror questionnaire" while in
the presence of other jurors.
By contrast, trial judges "should generally approve a
reasonable number of questions" concerning (1) "the prospective
juror's background and experience pertinent to the issues
expected to arise in the case"; (2) "preconceptions or biases
relating to the identity of the parties or the nature of the
19
claims or issues expected to arise in the case";9 (3) the juror's
"willingness and ability to accept and apply pertinent legal
principles as instructed"; and (4) "information on subjects that
controlling authority has identified as preferred subjects of
inquiry, even if not absolutely required." Rule 6(3)(c) of the
Rules of the Superior Court. Further, if a party or attorney
wishes to inquire about potential jurors' political views,
voting patterns, party preferences, or religious beliefs or
affiliations, the litigant first must explain to the judge's
satisfaction "how the inquiry is relevant to the issues, may
affect the juror's impartiality, or may assist in the proper
exercise of peremptory challenges." Rule 6(3)(d) of the Rules
of the Superior Court.
There is no dispute in this case that defense counsel
sought to ask his particular form of the question on the
defendant's right not to testify in an effort to reveal juror
bias, an entirely appropriate line of inquiry. That the
question was well intentioned and directed to proper subject
matter, however, does not necessarily mean that the judge's
9
Superior Court Rule 6 explicitly encourages judges to
consider whether proposed questions or methods may assist in
identifying explicit or implicit bias. Rule 6(3)(g) of the
Rules of the Superior Court. This court also has endorsed "Best
Practices for Jury Selection" proposed by the Committee on Juror
Voir Dire, that encourage the same considerations. See Best
Practices For Jury Selection (July 20, 2016); SJC Committee
Report, supra at 11.
20
decision not to permit it was error. In addition to discretion
to exclude inappropriate topics, judges have broad discretion
with regard to the specific question or language used to probe
appropriate subject matter. See Addendum A(1) to the Rules of
the Superior Court ("The trial judge may, in the exercise of
discretion, require attorneys and self-represented parties to
submit the specific language of the proposed questions for pre-
approval").10 This discretion encompasses a judge's ability to
10
There is broad consensus among courts in other
jurisdictions that judges have discretion over the wording, and
not merely the subject matter, of voir dire questions. See,
e.g., Kasi v. Angelone, 300 F.3d 487, 509 (4th Cir.), cert.
denied, 537 U.S. 1025 (2002) ("trial court has broad discretion
in conducting the voir dire of the jury, and particularly in
phrasing the questions to be asked" [quotations omitted and
citation]); State v. Colon, 272 Conn. 106, 171-173 (2004), cert.
denied, 546 U.S. 848 (2005) (trial court did not abuse its
discretion in sustaining State attorney's objections to phrasing
of defense counsel's statement during voir dire that "the
presumption of innocence says you have to presume [the
defendant] innocent, perfectly clean slate as he sits here" and
"the jurors have to presume an accused person completely
innocent of any wrongdoing," as judge provided defense counsel
sufficient other questions to probe jurors' views regarding
presumption of innocence [emphasis in original]); Dingle v.
State, 361 Md. 1, 13 (2000) ("the trial court has broad
discretion in the conduct of voir dire, most especially with
regard to the scope and the form of the questions propounded");
State v. Parks, 324 N.C. 420, 423 (1989) ("while counsel may
diligently inquire into a juror's fitness to serve, the extent
and manner of that inquiry rests within the trial court's
discretion"); Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 755
(Tex. 2006) ("Determining whether jurors' answers assume or
ignore the evidence disclosed to them turns on the courtroom
context, and perhaps the looks on their faces. So, too, does
the import of counsel's questions, and whether as phrased they
seek external information or a preview of a potential verdict.
21
prevent posing questions that are likely to confuse, misinform,
or mislead the jury because of their format or wording.
We conclude that the judge did not abuse her discretion in
precluding defense counsel from asking the particular question
he sought to use. See L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). That some potential jurors may expect a defendant
to testify if he or she were innocent does not, without more,
mean that they cannot or will not put aside that expectation and
honor the defendant's rights after being properly instructed.
Although the defendant correctly notes that counsel is not
limited to questions that probe a juror's willingness to follow
directions, and may inquire into a jurors' beliefs on relevant
issues, a potential juror's expectation that a defendant will
testify if innocent is often based on a lack of knowledge of the
criminal justice system rather than on steadfast beliefs. See
Hopson v. Commonwealth, 52 Va. App. 144, 153 (2008) ("To be
sure, it is not surprising that jurors would want or expect a
defendant to testify; any conscientious juror naturally would
want all the help he or she could get in deciding a case. It
should not be grounds for a per se exclusion, therefore, when
prospective jurors on voir dire indicate their wants or
expectations in this respect" [quotations and citation
The trial judge is in a better position to evaluate the
reasonableness of both aspects -- the question and the answer").
22
omitted]). Because the wording of defense counsel's question
could be seen by some potential jurors as asking the juror to
disregard the defendant's constitutional right not to testify,
the question did not properly elicit information that could
demonstrate the juror's ability to be fair and impartial.
The possibly confusing nature of counsel's question is
evident from the replies of the seventh juror, which prompted
the judge to preclude the question for the remainder of the voir
dire. In response to the question, "Regardless of whether the
defendant has a right to testify or not, would you expect that
an innocent defendant would testify?" the juror provided a
series of confused answers: "I would think, but I don't -- I'd
be open to hearing or not hearing. I don't know if that makes
sense"; "You're asking if he is claiming he's innocent --"; and
"If you're claiming that he is innocent and he did testify, do I
have -- I’m sorry." When the judge told counsel to pose the
question again, he omitted the defendant's right not to testify
altogether and simply asked, "If [the defendant] was innocent,
would you expect that he probably would testify?" to which the
juror's response remained unclear: "Just to defend himself and
he would have probable cause."
Although the judge's decision to engage in an "experiment"
may have been unconventional, her decision to revisit her prior
ruling was not. See, e.g., Commonwealth v. Gonzalez, 22 Mass.
23App. Ct. 274, 277 n.5 (1986) ("even if nothing unexpected
happens at trial, the [trial] judge is free, in the exercise of
sound judicial discretion, to alter a previous in limine
ruling"). The record demonstrates that the judge was
uncomfortable with defense counsel's question from the start,
and precluded the question after the seventh juror's response
showed that it might cause confusion. The record does not
support the defendant's suggestion that the judge decided to
preclude the question because the experiment proved fruitful in
revealing bias. On this record, we conclude that the judge did
not abuse her discretion in declining to allow defense counsel
to continue posing this specific question, and instead choosing
to probe potential juror bias on the question of the defendant's
right not to testify with her own form of that question.
b. Sufficiency of the evidence. The defendant argues that
the Commonwealth did not present sufficient evidence to prove
beyond a reasonable doubt that he was guilty of violating G. L.
c. 265, § 50 (a), the so-called "human trafficking" or "sex
trafficking" statute. The defendant maintains that his actions
could not constitute human trafficking because they did not
involve force or coercion, and the victim willingly engaged in
prostitution.
General Laws c. 265, § 50 (a), provides, in relevant part:
24
"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 . . . shall be guilty of the crime of
trafficking of persons for sexual servitude . . . ."11
The statute was enacted in 2011, when the Legislature recognized
that the Commonwealth could not simply rely on Federal
prosecutions to combat human trafficking, and needed to empower
local authorities to assist. See State House News Service
(House Sess.), Nov. 15, 2011 (human trafficking statute was
enacted "to make sure local law enforcement can devote their
offices and resource[s] and not wait for [F]ederal
intervention"). See also 2011 House Doc No. 3483, Senate Floor
Debate, Nov. 14, 2011; House Approves Bill on Human Trafficking,
Boston Globe, June 2, 2011 ("the human trafficking problem in
Massachusetts is more likely to involve smaller bands of
domestic groups rather than larger international slave
trading. . . . The [F]ederal government has laws against human
trafficking, but often lacks resources to go after smaller
offenders. Prosecutors say the [S]tate law would make it easier
to build cases that would fill in those enforcement gaps"). At
11
The human trafficking statute also applies to anyone who
"(ii) benefits, financially or by receiving anything of value,
as a result of a violation of clause (i)." G. L. c. 265,
§ 50 (a). The jury were not instructed on this subclause,
however, as the judge determined that it was inapplicable here.
25
that time, only three other States had not enacted some form of
a human trafficking offense. See State House News Service
(Senate Sess.), Nov. 15, 2011; 2011 House Doc. No. 3808, Senate
Floor Debate, Nov. 14, 2011. While the statute clearly was
enacted to fill a "gap," the Legislature also intended to
"change the focus of police and prosecutors from targeting
prostitutes to going after the men who pay for sex with them and
the pimps who profit from the transactions." See Gov. Patrick
Signs Bill Against Human Trafficking, Associated Press, Nov. 21,
2011. See also 2011 House Doc. No. 3808, Senate Floor Debate,
supra; State House News Service (Senate Sess.), supra; New Law
Aims to Shut Down Sex Trade Traffickers, Telegram & Gazette,
Nov. 22, 2011.
Consistent with such Legislative intent, in Commonwealth v.
McGhee, 472 Mass. 405 (2015), this court rejected the limited
reading of the human trafficking statute that the defendant puts
forth. In that case, the court observed that "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." Id. at 415. The defendants
in McGhee had argued that, without an element of force or
coercion, the statute was unconstitutionally vague because it
could apply even to the act of "merely assisting a consenting
26
adult prostitute." Id. at 413. The court explained that use of
the word "knowingly" in the statutory language showed that the
statute's "clear and deliberate focus . . . is the intent of the
perpetrator, not the means used by the perpetrator to accomplish
his or her intent." Id. at 415. Therefore, "'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" (emphasis in original).12
Id. at 416.
Thus, here, the Commonwealth could meet its burden of
proving that the defendant engaged in human trafficking by
showing that he knowingly "subject[ed], or attempt[ed] to
subject, or recruit[ed], entice[d], . . . transport[ed or]
provide[d] . . . another person to engage in commercial sexual
activity." See G. L. c. 265, § 50 (a); McGhee, 472 Mass. at
416. Viewed in its entirety, and in the light most favorable to
the Commonwealth, the Commonwealth's case presented sufficient
evidence that the defendant's conduct violated the human
trafficking statute. The jury could have found that the
defendant "enticed" and "recruited" the victim to engage in
12
The defendant argues that if the human trafficking
statute applies to those who assist willing prostitutes, it is
unconstitutionally vague and overbroad. We have previously
considered and rejected this argument. See Commonwealth v.
McGhee, 472 Mass. 405, 412-420 (2015).
27
prostitution because he told her that she was beautiful and
would make "good money" from prostitution, controlled the terms
of her client visits, encouraged her to advertise on Backpage,
and helped her pay for and set up the Backpage account.
The defendant contends that the statement in McGhee that
the human trafficking statute does not require force or coercion
was dicta, as it was undisputed that the victims in that case
were coerced, and, in any event, according to the defendant,
McGhee was wrongly decided. He challenges the analysis in
McGhee that, by contrast to the earlier-enacted Federal statute
prohibiting human trafficking, 18 U.S.C. § 1591, the
Massachusetts statute omits the element of force or coercion,
which McGhee explained "reflect[s] a conscious decision by the
Legislature to deviate from the standard embodied in the Federal
statute" (citation omitted). McGhee, 472 Mass. at n.8. The
defendant maintains that this omission was because, under the
Federal statute, coercion is a "defined and narrow term of art"
that encompasses only threats of serious harm or abuse of the
legal process. See 18 U.S.C. § 1591(e)(2). He suggests that
the Massachusetts statute is more akin to another Federal
statute, 18 U.S.C. § 2422, which punishes anyone who "knowingly
persuades, induces, entices, or coerces any individual to engage
in prostitution," and that the omission of force or coercion
from the language of the Massachusetts statute does not mean
28
that the Legislature intended to dispense with the element of
coercion altogether.
The defendant's interpretation of the statute is
unconvincing. Not only did the Legislature choose not to
include the term "coercion" in the Massachusetts human
trafficking statute, it also chose to omit the term "force," a
term that does not have a specialized meaning under the Federal
statute. See 18 U.S.C. § 1591. This suggests that the wording
of the statute was not merely to avoid being constrained by the
Federal definition of "coercion." Additionally, if the primary
concern of the Legislature were to avoid the narrow definition
of "coercion" in the Federal statute, the Legislature could have
enacted its own definition. It did not do so.
The defendant also posits that because the Legislature has
not repealed the statutes that criminalize deriving support from
prostitution (G. L. c. 272, § 7) and aiding and abetting
prostitution (G. L. c. 272, § 53, and G. L. c. 274, § 2), the
Legislature must have intended the human trafficking statute to
target a more traditional, narrow set of crimes involving force
or coercion, rather than simple encouragement. The reading of
the human trafficking statute in McGhee, however, did not make
these other statutes superfluous. As the court explained, the
statute criminalizing deriving support from prostitution
"plainly states that the conduct prohibited by that statute is
29
the sharing of proceeds earned by a known prostitute. In
contrast, under [the human trafficking statute], 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." McGhee,
472 Mass. at 416-417. Additionally, the knowledge element of
the deriving support statute is retrospective, because the crime
occurs when proceeds of a past act of prostitution are shared,
while the knowledge required by the human trafficking statute is
prospective, as it relates to an individual's "anticipated
engagement in commercial sexual activity." Id. at 417.
Moreover, the plain and ordinary meaning of the actus reus
in the human trafficking statute does not, as the defendant
contends, necessarily "connote[] some level of inducement,
manipulation, or coercion." For example, the dictionary
definition of "entice" is to "incite," "instigate," "draw on by
arousing hope or desire," "allure," "attract," "draw into evil
ways," "lead astray," or "tempt." Webster's Third New
International Dictionary 757 (1993). See Commonwealth v. Samuel
S., 476 Mass. 497, 501 (2017) (we look to dictionary definitions
as guide to plain or ordinary meaning of term). None of these
meanings implies force or coercion. One may entice, for
example, simply by making an attractive offer. Similarly, to
"recruit" means to "hire or otherwise obtain to perform
30
services," to "secure the services of" another, to "muster,"
"raise," or "enlist." Webster's Third New International
Dictionary 1899 (1993). Such recruitment does not require force
or coercion.
In the same vein, nothing in the language of the human
trafficking statute suggests that it excludes conduct aimed at
victims who have engaged in prostitution in the past. An
individual who previously has worked as a prostitute nonetheless
might decide to engage in a particular act of prostitution. As
the Commonwealth points out, the reading that the defendant
would impose would lead to an absurd result, as the statute
would then punish only "the first person who victimizes a person
via sexual servitude." The fact that, in this case, the victim
had been engaged in prostitution during some unspecified period
before she met the defendant does not insulate him. Evidence
introduced at trial showed that the victim returned to
prostitution following the defendant's specific encouragement.
Thus, the evidence was sufficient to support his conviction on
the charge of human trafficking.
c. Jury instruction on human trafficking. The defendant
contends that the judge's instruction on human trafficking was
inadequate. On this charge, the judge instructed:
"In order to prove the defendant guilty of this
offense, the Commonwealth must prove the following two
elements beyond a reasonable doubt: first, that the
31
defendant subjected or attempted to subject, or
recruited or enticed, harbored, transported, provided
or obtained by any means, or attempted to recruit,
entice, harbor, transport, provide or obtain by any
means, [the victim], or caused [the victim] to engage
in commercial sexual activity; and second, that the
defendant did so knowingly."
We discern no error in the judge's instruction. The
defendant takes issue with the judge's rejection of his proposal
to include language stating that the defendant must have
"enabled or caused" the victim's prostitution. This argument
relies on language in McGhee intended to clarify that the human
trafficking statute "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." McGhee, 472 Mass. at 418. This
reference to "enabling" or "causing" prostitution was a short-
hand means of describing the various ways in which a person may
violate the human trafficking statute, as set forth in full in
the judge's instruction.
The defendant argues also that the judge erred in declining
to give a proposed instruction that "[i]t is not enough to show
that [the victim] worked as a prostitute and the defendant
helped her do so; the Commonwealth must prove that he knowingly
did at least one of the specific things listed above to make her
32
engage in commercial sexual activity." The proposed instruction
is duplicative of the judge's instruction, and merely requires
the jury to consider all of the elements of the human
trafficking statute. That the judge declined to emphasize the
elements of the human trafficking statute in the manner that the
defendant preferred does not constitute error. See Commonwealth
v. Kelly, 470 Mass. 682, 688 (2015) ("Trial judges have
considerable discretion in framing jury instructions, both in
determining the precise phraseology used and the appropriate
degree of elaboration" [quotations and citation omitted]).
d. Impeachment evidence. The defendant argues that it was
reversible error for the judge to bar him from using Backpage
records to impeach the victim's testimony. Prior to trial, the
parties had stipulated to the authenticity of a number of
Backpage records;13 these records included four Backpage
advertisements depicting the victim, as well as invoices
associated with those advertisements. Four of the invoices, one
for each of the four advertisements, were dated for periods
prior to the defendant's arrest. Twenty other invoices,
13
The stipulation provided: "The parties stipulate that
the Backpage records of [the victim] are true, authentic, and
complete. The parties waive objections to admittance of these
records on authenticity grounds and state that they need not be
obtained via a trial subpoena for admission at trial. The
parties do not waive objections to admissibility on any other
grounds."
33
associated with one of these advertisements, were dated after
the defendant had been arrested and was being held in pretrial
detention.
The Commonwealth moved in limine to exclude evidence of
Backpage invoices after the date of the defendant's arrest,
arguing that those invoices had no bearing on the human
trafficking charge and that evidence of any of the victim's
subsequent sexual conduct would violate the rape shield statute.
The judge denied the Commonwealth's motion, reasoning that such
evidence would be relevant to the issue whether the victim was
"enticed" into prostitution. The judge also ruled that defense
counsel would be allowed to ask the victim whether she had
reposted an advertisement on Backpage after the defendant's
arrest.
On direct examination of the victim, the Commonwealth was
allowed to admit the package of documents containing all of the
Backpage advertisements and invoices, "[s]ubject to redaction."
During cross-examination, the victim denied that she had
reposted any advertisements on Backpage after the defendant was
arrested. Defense counsel believed that she was perjuring
herself and sought to impeach her denial with the Backpage
invoices from the period after the defendant's arrest. He
argued that the invoices showed that someone must have paid to
have the advertisement reposted, and that the invoices had not
34
been generated automatically, because they were dated
sporadically and depicted an "auto repost" box which was not
checked. He also maintained that the person who had reposted
the advertisement likely was the victim, because the
advertisement associated with the postarrest invoices displayed
a telephone number that the victim had obtained only after the
defendant had asked her to stop using Backpage, shortly before
his arrest. Additionally, the invoices dated after the
defendant's arrest had a different electronic mail address from
that on the invoices dated before his arrest, and the new
electronic mail address contained the victim's married name.
The judge denied defense counsel's request, noting that
counsel could not impeach the victim with someone else's
statement, and would need to call a Backpage employee to explain
the contents of the invoices. She commented that the Backpage
invoices were "speculative at best" on the question whether, as
the defendant argued, the victim had reposted the advertisement.
The judge observed that the victim was not required to "figure
them out herself," and noted that the defendant should have
called a Backpage employee to explain the contents of the
invoices in order to contradict the victim's testimony; simply
"dangling a series of invoices in front of [the jury]" was
35
unfair.14 While defense counsel was permitted to ask about the
victim's reposting of the advertisement, the judge explained, he
would be "stuck with her answer." The judge then sua sponte
told the parties retroactively to redact the previously admitted
Backpage records in conformity with her ruling.
A witness generally may be impeached by contradiction with
(1) the witness's own prior, inconsistent statement; (2)
internal inconsistency in the witness's testimony; or (3) other
conflicting evidence. M.S. Brodin & M. Avery, Handbook of
Massachusetts Evidence § 6.13 (2017). See Mass. G. Evid.
§§ 606, 613(a) (2017). Because the invoices did not constitute
statements by the victim, they could not be treated as her prior
14
The judge determined further that admission of the
Backpage invoices from the time after the defendant's arrest
would violate G. L. c. 233, § 21B, the rape shield statue. With
a few exceptions, that statute generally restricts the
admissibility of evidence of "the reputation of a victim's
sexual conduct" and "specific instances of a victim's sexual
conduct." We have recognized, however, that a "defendant may
introduce evidence of the complaining witness's sexual conduct
where that conduct is relevant to the complainant's bias or
motive to fabricate." Commonwealth v. Harris, 443 Mass. 714,
721 (2005). See Commonwealth v. Polk, 462 Mass. 23, 37–38
(2012) ("where the rape shield statute is in conflict with a
defendant's constitutional right to present evidence that might
lead the jury to find that a Commonwealth witness is lying or
otherwise unreliable, the statutory prohibition must give way to
the constitutional right"). When offered for impeachment, the
introduction of such evidence is within the discretion of the
trial judge, bearing in mind "the important policies underlying
the [r]ape-[s]hield statute" (citation omitted). Harris, supra.
Given our conclusion, we do not address whether the rape shield
law would have precluded introduction of the invoices.
36
inconsistent statements for impeachment purposes. See
Commonwealth v. Evans, 438 Mass. 142, 157 (2002), cert. denied,
538 U.S. 966 (2003) (memorandum could not be used to impeach
witness with prior inconsistent statement because "the
statement, as written, was not attributable to the [witness]
with sufficient precision to be used for the intended purpose").
Additionally, while the invoices could constitute independent
contradictory evidence, a judge "has discretion to exclude
relevant evidence on the ground that its probative value is
outweighed by the risk of confusion or unfair prejudice."
Commonwealth v. Rosario, 444 Mass. 550, 557 (2005). Although
the parties did stipulate to the authenticity of the records,
the judge did not preclude their use for impeachment purposes on
authenticity grounds. Rather, she concluded that the invoices
would be too confusing for the jury to make sense of without the
testimony of a Backpage employee who could explain how Backpage
issued its invoices, and other of its record-keeping practices,
such that the meaning of the unchecked box on the invoices, and
whether it necessarily meant a manual intervention by the person
who posted the advertisement, was clear.
The defendant points out, accurately, that a witness who
perjures himself or herself opens the door to rebuttal of the
false statements. See Commonwealth v. Roderick, 429 Mass. 271,
275 (1999). Nevertheless, impeachment is not a "blank check,"
37
and is limited by other rules of evidence. See Commonwealth v.
Durand, 475 Mass. 657, 662, (2016), cert. denied, 138 S. Ct. 259(2017) ("trial judges retain wide latitude to impose reasonable
limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues or
interrogation that is repetitive or only marginally relevant"
[citation and alterations omitted]). The trial judge was best
situated to assess the extent to which the invoices might have
been confusing to the jury. See L.L., 470 Mass. at 185 n.27.
We conclude that her ruling was not an abuse of discretion.
Judgments affirmed.