Opinion
No. 14–P–968.
09-30-2016
COMMONWEALTH v. Jonathan E. BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of deriving support from prostitution, pursuant to G.L. c. 272, § 7. On appeal, he raises several issues, including insufficiency of the evidence and prosecutorial error. We conclude that the evidence was sufficient to support the conviction, but that errors in the prosecutor's closing argument require reversal.
Background. Viewing the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the jury could have found the following facts. On June 21, 2012, Federal, State, and local law enforcement officers were engaged in a sting operation called “Operation Cross Country.” The objective of the operation, which was conducted periodically in various locations, was to apprehend prostitutes and people deriving support from prostitution. At this particular time, the operation was being conducted at the Holiday Inn Express, in Saugus.
The sting worked as follows. An undercover officer would respond to advertisements posted on the Internet and arrange for a female prostitute to meet him at his hotel room. When she arrived, they would agree to the service she would provide, and the officer would pay her with recorded money. The officer then would receive a prearranged telephone call, which he would use as an excuse to ask the prostitute to leave before any sexual activity took place. A surveillance team would monitor what occurred in the hotel room and outside the building, and a “takedown” team would be deployed to make arrests.
On the day in question, at least six women were brought to the hotel in this manner. The specific incident leading to the defendant's arrest involved a woman named Amanda Beers. As observed by the surveillance team, Beers was driven to the back parking lot of the hotel by the defendant, who waited for her while she went inside. The undercover officer agreed to pay Beers $250 for sex, and gave her recorded money. Then, after receiving the pretextual telephone call, he asked her to leave. When Beers returned to the car, she and the defendant drove away. Soon thereafter, members of the “takedown” team stopped the car. The defendant denied knowing anything about money that was given to Beers; however, he was found to have the $250 in recorded bills in one of his sneakers.
Discussion. 1. Sufficiency of the evidence. A conviction for deriving support from the earnings of a prostitute “requires the jury to find that a particular individual was a prostitute, that the defendant knew the individual was a prostitute, and that the defendant shared in some way in the earnings or proceeds of this person's prostitution.” Commonwealth v. Purdy, 459 Mass. 442, 454 n. 10 (2011), citing G.L. c. 272, § 7. See Commonwealth v. McGhee, 472 Mass. 405, 416 (2015) (restating the elements set forth in Purdy ).
Citing Commonwealth v. Thetonia, 27 Mass.App.Ct. 783 (1989), the defendant claims that his conviction cannot stand because it was not shown that he knew that the money he received was the proceeds of prostitution, or that he engaged in “pimping” by procuring customers for Beers. In Thetonia, we explained that the statute could not be construed to punish any and all financial benefits received from a known prostitute, and that the statute was intended to punish conduct associated with pimping activities. Id. at 786. Thus, the actions of a friend, who merely provided the prostitute with transportation to appointments with clients in exchange for gasoline money or drugs, were not prohibited by the statute. Id. at 785–786. The present case is quite different, however, and is akin to Commonwealth v. Matos, 78 Mass.App.Ct. 578, 589–590 (2011), where we affirmed the defendant's conviction under G.L. c. 272, § 7. In Matos, the defendant drove a prostitute to an appointment with an undercover officer, and the prostitute immediately gave the defendant all of the money obtained from the encounter with the officer. Id. at 582. On the analogous facts of the present case, the defendant's conduct fell within the statute, and the jury reasonably could infer that each element had been proved.
2. Prosecutor's closing. The defendant argues that statements made by the prosecutor during closing were error requiring reversal. We agree that the prosecutor exceeded the bounds of proper argument, at least in the following respects. The prosecutor argued, “[The defendant is] a man who transports prostitutes from Point A to Point B, knowing they're prostitutes ....“ This statement, which implied that the defendant regularly acted in this manner and had multiple prostitutes working for him, was not based upon facts established at trial. See Commonwealth v. Kozec, 399 Mass. 514, 522 (1987). The only evidence pertaining to the defendant was the single incident involving Beers.
The prosecutor also argued that the defendant was a “criminal,” he was “guilty as charged,” he believed he was “entitled” to money from prostitutes, and he was the “type of man that lines his own pockets, because of the work of prostitutes.” Again, these statements conveyed—without evidentiary support—that the defendant habitually committed the crime of which he was charged. These remarks also were erroneous because they constituted impermissible statements of personal belief as to the defendant's bad character and guilt. See Commonwealth v. Torres, 437 Mass. 460, 465 (2002).
Defense counsel timely objected to some but not all of the challenged comments. Nevertheless, regardless of the applicable standard of review, we conclude that reversal is required. The prosecutor greatly exaggerated the Commonwealth's case by suggesting, without evidentiary support, that the defendant made his living as a pimp, and that the incident at issue was but a sample of his unlawful behavior. This exaggeration was all the more prejudicial in view of the Commonwealth's heavy reliance on testimony about Operation Cross Country, in which Federal, State, and local officers had joined forces to apprehend individuals who derived their support from prostitutes. Comparatively speaking, the evidence relating to the defendant, himself, was meager.
Furthermore, the judge gave no curative instructions. See Kozec, 399 Mass. at 518. The judge did instruct, in the context of discussing what constituted evidence, that “[t]he attorneys' final arguments [are] not evidence of anything.” However, there was no focused response to the prosecutor's embellishment on the evidence and expressions of belief in the defendant's guilt.
In short, because we are left with serious doubt as to whether the errors contributed to the verdict, the judgment must be reversed.
3. Other issues. Deciding as we do, we need not consider the defendant's ineffective assistance of counsel claim. Nor do we consider whether the trial judge abused his discretion by not giving a missing witness instruction. Should the defendant be retried and the issue again arises, it will be within the judge's discretion to determine whether to give the instruction. See Commonwealth v. Saletino, 449 Mass. 657, 667 (2007). Likewise, should similar evidentiary issues arise, they will be within the judge's discretion to decide in the context in which they present themselves.
Because we discern no “serious and obvious mistake pos[ing] a substantial risk of a miscarriage of justice,” we decline to comment upon the defendant's unpreserved arguments that G.L. c. 272, § 7, is facially unconstitutional. Commonwealth v. Johnson, 470 Mass. 300, 307 (2014) (quotations omitted). See Commonwealth v. Hendricks, 452 Mass. 97, 98 n. 1 (2008).