Opinion
20-P-316
01-26-2021
COMMONWEALTH v. MARLEY WHONDA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, after a jury trial, of kidnapping, G. L. c. 265, § 26; human trafficking, G. L. c. 265, § 50; and assault and battery, G. L. c. 265, § 13A (a). He argues that (1) there was insufficient evidence to support the kidnapping conviction, (2) the indictments should have been dismissed because the Commonwealth failed to put certain purportedly exculpatory evidence before the grand jury, (3) it was an abuse of discretion to deny his motion for a mistrial, (4) certain portions of his recorded statement to police should have been excluded, and (5) his right to cross examination was erroneously curtailed when he was not permitted to ask the victim about her mother's employment by the State police. We affirm.
The defendant was acquitted of rape, G. L. c. 265, § 22 (b); indecent assault and battery, G. L. c. 265, § 13H; and strangulation, G. L. c. 265, § 15D (b).
Taking the evidence, together with the reasonable inferences to be drawn from it, in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671 (1979), the basic facts of the case are as follows. The victim, who struggled with substance abuse, checked herself out of a residential drug treatment program located in Worcester, an area with which she was unfamiliar and where she knew no one. After staying in a hotel, and later at a shelter, the victim began living in a park. She was dependent upon others whom she happened to meet on the street to share their drugs with her. One day, while the victim was walking along a street in Worcester, the defendant pulled up in a car (together with two other men) and asked if she wanted to "party." The victim agreed to go with the defendant because she understood they would use drugs together. They then drove to one of the men's residence, where the defendant gave the victim cocaine, forced her against a wall, and stated that she now "belonged" to him. The defendant then compelled the victim to submit to oral and anal penetration by his penis. The defendant continued to force the victim to perform sex acts throughout the night while both smoked crack cocaine. The defendant told the other people in the house to tell the victim that he "do[es]n't play games, and that what [he] say[s] is real." The victim did not try to escape because the defendant threatened to kill her, and she saw him carrying a knife.
The following morning, the victim asked the defendant to call her a taxicab. Instead, he compelled her to go with him to another man's apartment, where the defendant told the victim to smoke all of that man's cocaine, "do a date" with that man, and then to give the defendant the money she earned from the "date." The "date" did not occur, but the defendant and the victim essentially moved into the man's apartment, with the defendant supplying that man with cocaine as a form of rent. The victim, who had no cell phone, felt she would be killed if she attempted to leave the apartment.
During the following few weeks, the defendant forced the victim to prostitute herself in the Main South section of Worcester each night. The defendant gave specific instructions about how much to charge each customer, and instructed her to give him the money she earned. He warned her that she would be watched while she was out on the streets. The victim complied with the defendant's demands out of fear for her safety. The defendant threatened to kill the victim if she told anyone that he was forcing her to engage in sex for hire. He also told her that if she ever left him, he would send people to find her and bring her back to him. The victim had observed the defendant's temper snap on a moment's notice.
The victim complied with the defendant's instructions, and prostituted herself every night during this period. She turned her earnings over to the defendant, who would force her to have oral and anal sex with him when she returned to the apartment.
The victim was not allowed to hold onto any money; the defendant thus controlled her access to both drugs and food. The victim was not allowed to eat or to use the bathroom unless she obtained permission from the defendant. When the victim was left in the apartment during the day, she was instructed to barricade herself in her room and not to allow anyone to enter the apartment. The victim was forced to sleep on the floor when the defendant had another woman sleeping in his bed. After the victim attempted to escape, the defendant grabbed her, threw her against a wall, told her that she could not leave, threw her on the bed, punched her in the ribs, and slapped her face.
Nonetheless, fearing that she would never see her children or go home, the victim also made another attempt to escape. On this occasion, while the defendant was distracted, the victim managed to secrete his friend's cell phone before she headed out to "work." Once outside the apartment, she contacted her family and 911.
We recite additional facts below as they are pertinent to particular issues.
1. Sufficiency of evidence of kidnapping. We review a denial of a motion for a required finding of not guilty "to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quotation and citation omitted). Commonwealth v. Tavares, 484 Mass. 650, 655 (2020). We "do not weigh the credibility of the witnesses," Commonwealth v. Johnson, 53 Mass. App. Ct. 732, 734 (2002), and may consider circumstantial evidence of guilt together with "reasonable and possible" inferences drawn from that evidence, Commonwealth v. Grandison, 433 Mass. 135, 141 (2001).
The crime of kidnapping requires the Commonwealth to "establish beyond a reasonable doubt that the person 'without lawful authority, forcibly or secretly confine[d] or imprison[ed] another person.'" Commonwealth v. Oberle, 476 Mass. 539, 548 (2017), quoting G. L. c. 265, § 26. "Confinement is broadly interpreted to mean any restraint of a person's movement" (quotation and citation omitted). Oberle, supra at 548. Confinement may be effectuated by actual force, but "if the victim is subdued by the display of potential force, [that] is [also] sufficient" (citation omitted). Commonwealth v. Fredette, 97 Mass. App. Ct. 206, 214 (2020).
The defendant argues that the Commonwealth's evidence of confinement was insufficient because it was undisputed that the victim left the apartment every day. It is true that the evidence showed that the victim left the apartment daily. However, this fact cannot be divorced from the remainder of the Commonwealth's evidence which showed, among other things, that the victim's movements were directed by the defendant, she was told that she was being watched when she left the apartment, she was kept without money or food, she had no cell phone she could use without the defendant's knowledge until she managed to secretly obtain one from his friend, the defendant constantly exerted dominion over the victim by forcing her to perform sex acts with him and others, the defendant beat the victim, the victim was barricaded into her room when alone, and the defendant threatened he would hunt her down and kill her if she left. The victim testified repeatedly that she was scared: scared to leave, scared not to engage in prostitution, scared to call friends or family, and scared to lie to the defendant. See Commonwealth v. Titus, 32 Mass. App. Ct. 216, 220 (1992) (jury could consider whether victim was "scared" of the defendant in assessing whether she was confined or imprisoned).
2. Motion to dismiss indictments. The Commonwealth need not put all exculpatory evidence before the grand jury, but it must "present exculpatory evidence that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury's decision" (quotation and citations omitted). Commonwealth v. Mathews, 450 Mass. 858, 877 (2008). When the Commonwealth is said to have withheld exculpatory evidence, the defendant has the burden of showing that the withheld information would "caus[e] the presentation [to the grand jury] to be . . . seriously tainted" (quotation and citation omitted), Commonwealth v. Wilcox, 437 Mass. 33, 37 (2002), and "would likely have affected the grand jury's decision to indict," Commonwealth v. Clemmey, 447 Mass. 121, 130 (2006). See Commonwealth v. Fernandes, 483 Mass. 1, 21-22 (2019).
The defendant moved to dismiss the indictments on the ground that the Commonwealth failed to place before the grand jury the testimony of Aurdra Blais from the dangerousness hearing. After reviewing a transcript of Blais's testimony, the judge denied the motion, concluding that although Blais's testimony in some particulars contradicted the victim's testimony (and in that sense was to some degree exculpatory), it did not "rise to the level of exonerating" the defendant.
Having listened to the recording of the dangerousness hearing ourselves, we see no error in denying the motion to dismiss. Although Blais's testimony at the dangerousness hearing that the victim was never in fear of the defendant, and that she never saw the defendant threaten the victim, were possibly in tension with the victim's testimony, the defendant has not shown that it would have affected the grand jury's decision to indict. Among other things, Blais, who had been in a relationship with the defendant, was not an unbiased witness, and the victim's testimony was corroborated in several independent ways.
3. Motion for mistrial. We review the denial of a motion for a mistrial for an abuse of discretion. Commonwealth v. Silva, 93 Mass. App. Ct. 609, 614 (2018). The question is whether the judge "made a clear error of judgment in weighing the [relevant] factors such that his decision falls outside the range of reasonable alternatives" (quotations and citations omitted). Id. "A trial judge is in the best position to determine whether a mistrial, an extreme measure available to a trial judge to address error, is necessary, or whether a less drastic measure, such as a curative instruction, is adequate." Commonwealth v. Amran, 471 Mass. 354, 360 (2015). Where a jury has heard inadmissible evidence, "the judge may rely on a curative instruction to correct any error and to remedy any prejudice" (citation omitted). Silva, supra at 614.
In this case, defense counsel elicited testimony on cross-examination of the detective that there had been a search warrant for the defendant's phone. The detective also testified that, although police could not extract information from the phone, they were able to determine that many messages had been deleted. All of this testimony came as a surprise to the defense because the Commonwealth had not disclosed that there had been a search warrant or what the attempt to search the phone had revealed.
The defendant characterizes the nondisclosure of the search warrant as a Brady violation. See Brady v. Maryland, 373 U.S. 83, 87 (1963). The Commonwealth points out that the defendant did not request information regarding search warrants and that it was not a mandatory disclosure under Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005). Moreover, the search warrant was neither inculpatory nor exculpatory.
The defendant moved for a mistrial, which the judge denied. Instead, the judge instructed the jury in unequivocal, comprehensive, and forceful language to disregard the testimony, to excise any notes of the testimony, and that there was "no evidence" about the contents of the phone or that any messages were deleted, and to set the testimony on that point completely out of their minds. Curative instructions of the clarity and force of the ones given by the judge in this case are sufficient to correct an evidentiary error because it is "presumed that in reaching the verdict, the jurors heeded the judge's instructions" (citation omitted). Commonwealth v. Gordon, 422 Mass. 816, 827 (1996). See Silva, 93 Mass. App. Ct. at 615-616 ("[T]he defendant has not pointed to a single Massachusetts case, and [the Appeals Court] found none . . . [that] concluded that a mistrial was required because the jury would not be able to disregard evidence that they were instructed to disregard in its entirety"). The judge did not abuse her discretion in denying the defendant's motion for mistrial and opting instead for a forceful curative instruction to disregard the testimony.
The judge's exemplary instruction was as follows.
"Ladies and gentlemen, you just heard testimony from the last witness, Detective Patient, regarding a cell phone, and a cell phone extraction, and some indication that there may have been messages deleted off of that cell phone. If you took notes in regard to that specific portion of Detective Patient's testimony, I would like you at this time to cross that out. Okay?
"And I am strongly and emphatically instructing you that any testimony that you heard from that witness regarding the cell phone, regarding the search warrant for the cell phone, regarding the possibility of deleted messages is not evidence before you in this case. You are to completely disregard any of that testimony that you may have heard.
"There is absolutely no evidence in this case regarding the contents of that cell phone. There is absolutely no evidence in this case that any messages were erased off of that cell phone. And you are to completely disregard and put out of your mind any of the testimony regarding that issue that you heard from Detective Patient."
4. Defendant's recorded statement to police. The defendant argues that his entire statement to police was an unequivocal denial of guilt and, therefore, should not have been admitted in evidence. Alternatively, the defendant argues that his statement that he was "not into that human trafficking stuff" should have been redacted because it was an unequivocal denial of guilt or because the jury would have impermissibly inferred that he had previously been convicted of human trafficking.
We have obtained and reviewed the exhibit consisting of the recording of the defendant's statement to police.
We review claims of evidentiary error for abuse of discretion to determine whether the judge "made a clear error of judgment in weighing the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). Because the objection was preserved below, if the defendant's statement should not have been admitted, we "apply the prejudicial error standard long applied both to accusations and denials." Commonwealth v. Womack, 457 Mass. 268, 274 (2010). Any error is "nonprejudicial only if we are sure that the error did not influence the jury, or had but very slight effect" (quotation and citations omitted). Commonwealth v. Alvarez, 480 Mass. 299, 305 (2018).
"An extrajudicial statement made by a party opponent is an exception to the rule against the introduction of hearsay, and is admissible unless subject to exclusion on other grounds. . . . [This is] often referred to as the rule on 'admissions' by a party opponent." Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). See Mass. G. Evid. § 801(d)(2)(A) (2019). "An admission in a criminal case is a statement by the accused, direct or implied, of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt" (citation omitted). Commonwealth v. Anderson, 448 Mass. 548, 562 (2007). However, "[e]xtrajudicial accusatory statements made in the presence of a defendant, which he . . . has unequivocally denied, are hearsay and inadmissible as evidence of guilt in the Commonwealth's case-in-chief" (citation omitted). Commonwealth v. Collazo, 481 Mass. 498, 500 (2019).
The defendant argues that the entirety of his statement to police amounted to an inadmissible denial of guilt because nothing he said tended to prove any of the crimes with which he was charged. However, the defendant has not pointed to any specific accusatory statements which he denied. See Collazo, 481 Mass. at 500-501 (statements admissible where they were not responses to accusation). And, as the Commonwealth argues, a "statement set[ting] out a version of events that attempt[s] to minimize [a defendant's] responsibility . . . [is] not an unequivocal denial of guilt responding to police accusations." Commonwealth v. McNulty, 458 Mass. 305, 329 n.23 (2010). This is what occurred here: the defendant gave police a version of events in which he met the victim, gave her a place to stay, had one sexual encounter with her, knew of her prostitution, and was worried he might be mistaken as her pimp. It was thus not an abuse of discretion for the judge to admit the defendant's version of events as the admission of a party opponent.
Nor was there any error in not redacting the defendant's statement that he was "not into that human trafficking stuff." Contrary to the defendant's argument, this statement was not an unequivocal denial of guilt made in response to an accusation. Instead, the defendant volunteered the statement as he laid out his own version of events and without the police referencing the term "trafficking." See Collazo, 481 Mass. at 500-501 (not response to accusation).
Later references by the police to the defendant's previous human trafficking conviction were redacted from the recording.
Separately, the defendant argues that the statement should have been redacted because the jury would have impermissibly inferred from it that he had a prior conviction for human trafficking. There was no evidence before the jury that the defendant had previously been convicted of human trafficking, and we see no reason why the jury would have inferred such a fact from the defendant's remark. Defense counsel was free to argue to the jury how the statement should be interpreted. See Commonwealth v. Lewis, 465 Mass. 119, 127 (2013) (defendant's statement properly admitted where it was not unequivocal denial of guilt and both parties could argue about proper interpretation).
5. Limitation on cross-examination. The defendant argues that the judge should not have sustained the Commonwealth's objection to his question to the victim seeking to elicit that her mother works for the State police. This was part of a line of questioning by the defendant seeking to impeach the victim by establishing that she failed to reach out to family and friends who could have helped her, thus undermining the victim's claim that she was being held against her will. The defendant was allowed to establish that the victim did not call her mother and other family members who could have helped her. However, the judge did not permit the defendant to introduce the additional point that the victim's mother worked for the State police. This evidence, the defendant argues, would have shown that the mother in particular would have been able to provide help to the victim, had the victim sought help. The defendant argues that the evidence went to the victim's credibility because she declined to indirectly contact the State police via her mother.
However, at sidebar, trial counsel did not raise the issue of credibility or impeachment, and argued generally: "The relevance of it is she had the opportunity to contact her mother, who works for the State Police, and instead she does not. She contacts her friends."
Even if the trial judge erred in sustaining the Commonwealth's relevancy objection, any error was not prejudicial because the defendant was able to fully explore on cross-examination the many ways and times the victim failed to reach out for help. Thus, the point was well-established otherwise during defense counsel's examination, and the excluded testimony would have had "but very slight effect" on the jury. Alvarez, 480 Mass. at 305.
Judgments affirmed.
By the Court (Wolohojian, Blake & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 26, 2021.