COMMONWEALTH vs. TYSHAUN MCGHEE (and seven companion cases).
Supreme Judicial Court of Massachusetts
August 13, 2015
472 Mass. 405 (2015)
Suffolk. April 6, 2015. - August 13, 2015.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
This court concluded that the sex trafficking statute,
At a criminal trial, the judge did not err in admitting in evidence, over objection, a witness‘s grand jury testimony substantively, where the judge acted well
At the trial of indictments charging aggravated rape, trafficking persons for sexual servitude, and deriving support from the earnings of a prostitute, the judge did not abuse her discretion by precluding defense counsel from impeaching one of the victims on cross-examination with evidence that she had been charged with several drug-related offenses, where defense counsel did not indicate to the judge a desire to use the pending charge to show that she was biased in favor of the Commonwealth, and where, in any event, counsel pursued a line of questioning that served to alert the jury to the issue of possible bias [424-426]; likewise, the judge did not err in excluding evidence of the victim‘s purported history of prostitution, where evidence pertaining to her past sexual conduct with others was plainly barred by the rape shield statute, and where, given that coercion is not an element of trafficking persons for sexual servitude, it was irrelevant whether the victim was a willing participant in the defendants’ activities [426-427].
This court vacated the sentences imposed following the judgments of conviction on two indictments charging the defendant with deriving support from the earnings of a prostitute, where the sentences exceeded the maximum allowed under
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.
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
“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.”
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.”
On December 19, 2012, a Suffolk County grand jury indicted each defendant, Tyshaun McGhee1 and Sidney McGee, on nine counts of aggravated rape,
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)
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 fall of
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
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 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
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 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.
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 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 another photographic array. She identified Sidney, and he was arrested that same day.
2. Constitutionality of
The defendants first contend that
The principles governing a vagueness challenge to a statute are
“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 constitutionally definite by giving it a reasonable construction.” Sefranka, 382 Mass. at 111.
The fact that
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
The language of
Contrary to the defendants’ contentions,
The differences in the conduct prohibited by
The defendants next contend that
“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).
Finally, the defendants contend that the phrase “commercial sexual activity” as used in
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 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
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
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 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
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 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. 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
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 (2014), cert. denied, 134 S. Ct. 2312 (2014). “As one commentator has aptly stated: ‘[T]he tendency of 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 (2003), 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, 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
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 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 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,
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
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,
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).
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
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,
“An illegal sentence is one that is not permitted by law for the offense committed.” Commonwealth v. McGuinness, 421 Mass.
“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.”
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
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.
Notes
We point out that the omission of language from“(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).”