Opinion
18-P-1657
03-27-2020
COMMONWEALTH v. Shakwaan I. SIMPKINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Shakwaan I. Simpkins, was convicted of trafficking of persons for sexual servitude in violation of G. L. c. 265, § 50 (a ). He argues on appeal that the trial judge abused his discretion to prematurely conclude the jury empanelment process. He also challenges (1) the introduction of prior bad acts evidence, (2) the judge's limiting of the scope of cross-examination of two police officers, and (3) the denial of his motion in limine to exclude "all evidence obtained as a result of egregious government conduct." We affirm.
Background. A juror could have found the following facts. In November 2015, the Burlington Police Department (BPD) began an undercover operation that targeted individuals purchasing sexual services. Toward that end an advertisement was posted on backpage.com on behalf of a female BPD officer posing as a prostitute. As part of the ruse that officer was stationed in a hotel room and was given a telephone with the corresponding number that was posted in the advertisement. If anyone contacted her, she would invite them to meet at the hotel room. An "arrest team" was stationed in another room that was located across the hallway. The team's role was to provide the undercover officer safety by monitoring, with equipment transmitting live audio and video surveillance, activity taking place in the undercover officer's room.
The website backpage.com had become the largest marketplace for buying and selling sexual services until it was seized by Federal law enforcement agencies in April 2018.
At some point thereafter, the defendant sent the undercover officer a text and initiated a conversation with her. He told her that he could "better [her] situation [and provide] housing, transportation and have the best clients that pay top dollar." He also raised the possibility that she could do "out-calls." As a result, the two arranged to meet at the hotel. At roughly 8:30 P.M. on November 20, 2015, the defendant arrived at the hotel parking lot. Expecting his arrival, a different officer watched a silver car pull into the lot with three people in it. That officer observed the car park and a male exit the driver's side and enter the hotel.
An "out-call" is when a prostitute visits the home of the client.
Shortly thereafter the defendant entered the undercover officer's hotel room, where they continued to discuss the details of the prospective arrangement, including rates, use of condoms, and transportation. During their conversation the defendant told the undercover officer that there was a woman in his car that he presently employed as a prostitute in exchange for crack cocaine. The defendant also adjusted the officer's clothing to enable him to size up her body. He was arrested soon thereafter and conceded to the officers that he "was just trying to make a few extra bucks." After the arrest, three police officers went to the hotel parking lot and approached the defendant's car with the two women in it. One of the women was indeed working as a prostitute for the defendant.
The defendant was charged with trafficking of persons for sexual servitude in violation of G. L. c. 265, § 50 (a ). At trial, the judge began the jury empanelment process by noting that he planned to empanel fourteen jurors, the traditional twelve jurors with two alternates, and allotted six peremptory challenges to each side. Once the thirteenth juror had been selected, the judge decided to move ahead with just thirteen jurors, as opposed to his planned fourteen, due to time constraints. At that point, both the Commonwealth and the defendant had used five of their six peremptory challenges. The defendant noted his objection for the record. The defendant was found guilty and now timely appeals.
Before trial, the judge allowed a motion in limine by the Commonwealth to introduce prior bad acts of the defendant. The defendant had two motions denied: the first was a motion to suppress concerning the recordings of his conversation with the undercover officer, and the second was a motion in limine to exclude all evidence obtained and resulting from "egregious government conduct," including the defendant's cell phone and the conversations between the police and the two females found in the car. The latter motion was denied on the grounds of inevitable discovery.
Jury selection began at 10:10 a.m. on March 21, 2018, and the thirteenth juror was selected close to 5 p.m. From the trial transcript, the judge was aware that the court clerk had a daycare obligation at 5 p.m. that day. The judge decided to proceed with a single alternate juror rather than bring the jury pool back for another day to select the last alternate juror.
Discussion. 1. Jury empanelment. The defendant's first claim regarding jury empanelment is governed by statutory language: "[a]ny irregularity in ... [e]mpaneling ... jurors ... shall not be sufficient to cause a mistrial or to set aside a verdict unless objection to such irregularity or defect has been made as soon as possible after its discovery or after it should have been discovered and unless the objecting party has been specially injured or prejudiced thereby." G. L. c. 234A, § 74. See Commonwealth v. Crayton, 93 Mass. App. Ct. 251, 255 n.11 (2018).
Here, while the defendant timely raised an objection, he is unable to demonstrate any specific prejudice or injury as required under § 74. The defendant argues that the change "impaired" the defendant's use of his peremptory challenges and diminished the value of his challenges. The argument, however, is undercut by the fact that thirteen jurors had already been empaneled and the defendant had exercised five of his six challenges. Coupled with that, the alternate juror was never called upon to serve as a deliberating juror. To be clear, the defendant received and exercised more than the four peremptory challenges he is statutorily afforded. See Mass. R. Crim. P. 20(c)(1), 378 Mass. 889 (1979). Additionally, the defendant makes no claim that he would have exercised his peremptory challenges any differently had he been informed from the outset that only thirteen jurors would be empaneled. Compare Commonwealth v. Beldotti, 409 Mass. 553, 561 (1991). Even if we assumed arguendo that the defendant has shown an "irregularity" in the jury selection process, he has shown no prejudice and so would not be entitled to any relief.
2. Prior bad acts evidence. The defendant also challenges the admission of prior bad acts evidence elicited from the testimony of one of the women discovered in his car, who admitted that she worked as a prostitute for the defendant. In its summation the Commonwealth relied on this testimony to argue the defendant's intentions and motives. See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986) (prior bad act evidence may be introduced to show "a common scheme, pattern of operation, absence of accident or mistake, identity, intent, or motive"). The defendant asserts that the testimony was overly prejudicial. We disagree. Indeed, the evidence was highly probative toward those ends, and not unduly prejudicial. The defendant's argument that the evidence should have been excluded because it was not needed to prove the Commonwealth's case is inconsistent with Commonwealth v. Copney, 468 Mass. 405, 413 (2014). Additionally the jury twice received a limiting instruction as to the proper use of the contested evidence. "The decision to admit the evidence of prior bad acts is committed to the sound discretion of the judge, whose determination will be upheld absent palpable error." Commonwealth v. Montez, 450 Mass. 736, 744 (2008). We see no abuse of discretion here. See Commonwealth v. Azar, 32 Mass. App. Ct. 290, 300 (1992).
3. Cross-examination. Next, the defendant claims that he was prevented from pursuing a lawful line of questioning during his cross-examination of two police officers involved in the ruse, namely, asking one officer whether he knew the act of surreptitious electronic monitoring of a conversation was against the law, and asking the other about the affidavit filed in support of the warrant application to search cell phones found in the vehicle driven by the defendant. The line of questioning was properly denied in both instances. Regarding the electronic monitoring, lay testimony is not appropriate on questions of law, Mass. G. Evid. § 704 & note at 264 (2019). Regarding the cross-examination on the warrant affidavit, the defendant's counsel attempted to have the second officer testify as to the legal elements of human trafficking. Here again, lay testimony is not appropriate on questions of law. Because this testimony, if admitted, would have infringed upon the judge's responsibility to instruct the jury on matters of law, it was properly excluded. See Commonwealth v. Sneed, 376 Mass. 867, 870 (1978) ("Apart from his duty to instruct the jury on the applicable law, a judge may state the evidence and discuss possible inferences therefrom"). Again, "[q]uestions of relevancy and prejudicial effect are entrusted to the trial judge's discretion and will not be disturbed except for palpable error." Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 24 (1990).
In his brief, the defendant argues that the purpose of the questioning was not to elucidate the elements of human trafficking but to show that Detective Browne "did not properly investigate the indicia of human trafficking that she claimed in her affidavit to know about." Whatever the logic, the defendant's counsel told the judge that she intended to ask Detective Browne a question regarding the "factors in what human trafficking is," and later asked Detective Browne the following questions: "Now, in your affidavit when you talk about sex trafficking, you talk about control over people, correct?" and "[w]hat's sexual servitude?" Detective Browne's understanding of the elements of human trafficking is irrelevant to the defendant's guilt or innocence, and even if it were relevant, such testimony would arguably risk confusing the jury regarding the legal elements of the charged offense. See Mass. G. Evid. § 403 (2019).
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4. Inevitable discovery. Finally, the defendant challenges the denial of his motion in limine to exclude evidence "obtained as a result of egregious government conduct," including evidence discovered in the defendant's car and statements made to police by the two occupants of the car. That motion was denied on the grounds that the evidence fell under the doctrine of inevitable discovery. Because the defendant's motion in limine was predicated on constitutional grounds, we treat it as a motion to suppress. See Commonwealth v. Whelton, 428 Mass. 24, 26 (1998). For the review of rulings on motions to suppress, we accept the findings of fact, unless clearly erroneous, and independently review conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646 (2004). Under the inevitable discovery doctrine, evidence may be admissible as "long as the Commonwealth can demonstrate that discovery of the evidence by lawful means was certain as a practical matter, the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression" (quotations omitted). Commonwealth v. Campbell, 475 Mass. 611, 622 (2016).
Here the Commonwealth met that standard. That the police would investigate the defendant's vehicle is assured: they watched the defendant arrive in the vehicle and exit toward the hotel, and in his discussion with the undercover officer in the hotel room, the defendant informed her that his car was downstairs, occupied by an individual working for him as a prostitute who he paid with drugs. There exists no evidence, nor does the defendant claim, that the police, by acts of bad faith, accelerated the discovery of the evidence. See Commonwealth v. McAfee, 63 Mass. App. Ct. 467, 481 (2005). The argument is without merit.
Judgment affirmed.