Opinion
20-P-1058
01-18-2022
COMMONWEALTH v. Kenya DABNEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Kenya Dabney, was found guilty of trafficking of a person for sexual servitude, G. L. c. 265, § 50 (a ) ; deriving support from prostitution, G. L. c. 272, § 7 ; rape, G. L. c. 265, § 22 (b ) ; and assault and battery, G. L. c. 265, § 13A (a ). He appeals from an order denying his motion for a new trial. The defendant contends he is entitled to a new trial because (1) the trial judge erroneously excluded invoices for Backpage advertisements postdating the defendant's arrest and (2) the jury selection process was flawed and resulted in seating jurors who were biased against the defendant.
Discussion. We review the denial of a motion for a new trial for "a significant error of law or other abuse of discretion." Commonwealth v. Millien, 474 Mass. 417, 429 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
A full recitation of the facts underlying the defendant's convictions, as well as a statement of charges of which the defendant was acquitted, is set forth in Commonwealth v. Dabney, 478 Mass. 839, cert. denied, 139 S.Ct. 127 (2018).
1. Impeachment evidence. At trial, the Commonwealth introduced four invoices for Backpage advertisements that the victim and defendant had posted offering to prostitute her in evidence. The defendant sought to admit Backpage advertisement invoices dated after the defendant's arrest. The trial judge admitted all of the Backpage advertisement invoices "subject to redaction" and allowed defense counsel to ask the victim on cross-examination whether she had renewed the Backpage advertisement after the defendant had been arrested. The trial judge allowed this line of questioning but warned defense counsel that he would have to accept the victim's answer because the defendant had not subpoenaed a witness from Backpage to rebut or explain Backpage's invoices, including whether the victim herself reposted and paid for any advertisement to the website after the defendant's arrest and detention. The victim denied posting any Backpage advertisements after the defendant's arrest. Accordingly, the invoices dated after the defendant's arrest were redacted and not in evidence.
The defendant argues that he is entitled to a new trial because the judge should not have precluded him from introducing twenty postarrest invoices and erred by admitting four prearrest invoices, which taken together bolstered what he argues was the victim's false testimony. The defendant contends that his argument here is distinguishable from the argument he presented to the Supreme Judicial Court in his direct appeal. We disagree. "[U]nder the doctrine of direct estoppel, a defendant is barred from seeking review of claims ‘actually litigated’ and decided against him." Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 699 (2015), quoting Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). The Supreme Judicial Court specifically addressed the judge's decision to exclude the later invoices and held that the trial judge did not abuse her discretion, explaining "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." Commonwealth v. Dabney, 478 Mass. 839, 859, cert. denied, 139 S.Ct. 127 (2018). Consequently, the doctrine of estoppel prevents the defendant from making that same argument here.
2. Jury selection. "[A] determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous." Commonwealth v. McCoy, 456 Mass. 838, 842 (2010), quoting Commonwealth v. Lopes, 440 Mass. 731, 736 (2004). Generally, there is an abuse of discretion in seating a juror whose prejudice is manifest, see Commonwealth v. Clark, 446 Mass. 620, 630 (2006), or "who will not state unequivocally that he or she will be impartial." Commonwealth v. Colton, 477 Mass. 1, 17 (2017). In Commonwealth v. Aduayi, 488 Mass. 658, 669 (2021), the Supreme Judicial Court held that a single response expressing some equivocation on impartiality does not restrict the judge's discretion where the juror had twice unequivocally told the judge and attorneys the juror could be impartial.
The defendant challenges five members of the jury, though defense counsel had stated the "defense [was] content" with each juror. We address each juror in turn.
The defendant waived his right to be present at sidebar when jurors were questioned individually. His assertions are based on reading the transcripts after he was convicted.
Juror 130. The defendant contends that juror 130 was biased because a friend of the juror was sexually abused by her uncle. The trial judge asked the juror follow up questions and learned that the sexual abuse was over twenty years ago. The juror responded that he did not think the friend's experience would impact his ability to be fair and impartial. We discern no abuse of discretion in seating this juror.
Juror 147. The defendant contends that juror 147 was biased because she had "pregnant brain" and because her friend was raped five years prior to the trial. As to the "pregnant brain" comment, the context shows that the juror was using humor because she could not remember the name of her spouse's law firm. Nothing in the voir dire indicated the juror did not have the faculties to serve. The juror stated that the friend's rape was five years prior, and she did not believe her friend's rape would impact her ability to be fair and impartial. We discern no abuse of discretion in seating this juror.
Juror 149. The defendant contends that juror 149 was biased because when she was a counselor for a high school program she had a student that was raped three years earlier; juror 149 stated that there was "probably not" anything about that experience that would impact her ability to be fair and impartial. Both the judge and the defense asked follow-up questions. The juror agreed that her student was raped by a stranger and that that would not necessarily affect how she would feel about a partner rape. We discern no abuse of discretion in seating this juror. See Commonwealth v. Amazeen, 375 Mass. 73, 83 (1978) (no abuse of discretion when judge who observed juror determines that juror is indifferent after considering grounds for potential impartiality).
Juror 156. The defendant contends that juror 156 was biased because he worked for two years at a district attorney's office in another state. As an initial matter, the juror worked there for a summer in law school before embarking on a career in civil litigation and teaching. The trial judge asked the juror whether there was anything about the juror's experience that would "give [him] pause about sitting on this jury," to which the juror responded, "No." We discern no abuse of discretion in seating this juror.
Juror 159. The defendant contends that because juror 159's granddaughter was "touched indecently" by her stepfather, the juror was biased against the defendant. The trial judge followed up and learned that the incident was more than fifteen years earlier and the stepfather had not been criminally prosecuted. The juror also stated that the granddaughter's experience would not impact the juror's ability to be fair and impartial to this defendant. We discern no abuse of discretion in seating this juror.
Order denying motion for new trial affirmed.