COMMONWEALTH v. DIAZ (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury convicted the defendant of deriving support from prostitution, G. L. c. 272, § 7, and trafficking a person for sexual servitude, G. L. c. 265, § 50 (a), and acquitted him of kidnapping, G. L. c. 265, § 26. We affirm.

Discussion. 1. Corroboration. In his brief, the defendant argues that the victim was immunized and that there was no evidence corroborating her testimony, in violation of G. L. c. 233, § 20I. At oral argument, his attorney conceded correctly that the first premise of this argument is incorrect: the victim was not immunized.

The defendant argues in the alternative that the statute still requires corroboration because the victim and the prosecution had an understanding that the victim would not be prosecuted for various crimes she allegedly committed during the events in question, and the victim's testimony was the only source of evidence regarding key elements of the charged offenses. General Laws c. 233, § 20I, says, “No defendant in any criminal proceeding shall be convicted solely on the testimony of, or evidence produced by, a person granted immunity under the provisions of section twenty E.” Section 20E, in turn, describes a process whereby a judge, at the request of the government and after a hearing, immunizes a witness via a written order.

But even assuming, without deciding, that the statute has application to understandings between prosecutors and witnesses, like the one in this case, that do not involve this process,¹ the defendant's argument is unavailing because there was sufficient corroboration of each crime for which the defendant was convicted. The statute requires only “some evidence in support of the testimony of an immunized witness on at least one element of proof essential to convict the defendant.” Commonwealth v. DeBrosky, 363 Mass. 718, 730 (1973). Here, there was evidence that a cell phone registered in the defendant's ex-fiancée's name was used to place calls, in the relevant timeframe, to other (immunized) witnesses who testified to having sex with the victim for money. The account was opened on May 13, 2014, the first day in the sequence of events testified to by the victim, and the ex-fiancée testified to having no knowledge of the relevant phone number. In addition, the account included subscriber information for a second phone number registered to a Tony Sosa, which the ex-fiancée testified was the defendant's “main number.” The victim also testified that she was told that the defendant's name was Tony, and that she heard the defendant's confederate call him by that name. This evidence supports an inference that the defendant was involved in prostituting the victim, which suffices to corroborate both crimes of which the defendant was convicted. It supports the elements that the defendant knew the victim was a prostitute, see G. L. c. 272, § 7, and that he subjected her to commercial sexual activity. See G. L. c. 265, § 50 (a).

2. Jury instruction. Next, the defendant argues for the first time on appeal that, by not telling the jury that they must evaluate an immunized witness's testimony with “particular care,” the judge did not adequately instruct them that immunized testimony may not serve as the sole basis for a conviction. This argument fails because the victim was not immunized.² But in any event, the instruction which the defendant claims is inadequate was, in fact, proper. The judge instructed, “Now, we've had two witnesses who were granted immunity from prosecution. You may ․ take that into consideration in assessing the witness's credibility.” Commonwealth v. DePina, 476 Mass. 614, 628 (2017), upheld a virtually identical instruction.

3. References to rape. The defendant also argues that references throughout the trial to the rape of the victim by the defendant's confederate in the defendant's presence warrant reversal.³ First, the defendant argues that risk of unfair prejudice from the victim's testimony concerning this rape, including that the defendant “egged on the situation,” substantially outweighed its probative value. Defendant's counsel did not object. Therefore, we review the judge's ruling for abuse of discretion and find none. See Commonwealth v. Bonds, 445 Mass. 821, 835 (2006). The evidence of the rape was relevant to the victim's state of mind with respect to the kidnapping charge because it constituted evidence that she was confined against her will. The judge gave a corresponding limiting instruction to which the defendant did not object, and the judge excluded evidence of the confederate's rape of the victim when the defendant was not present. It was within the judge's discretion to find that the probative value of the admitted evidence was not substantially outweighed by the risk of unfair prejudice. Because the evidence was admissible, the defendant's argument that the prosecutor's references to it in her opening statement and closing argument were improper also fails.

The defendant argues finally that the judge should not have referred to the rape incident during jury voir dire or asked the jurors whether they, a family member, or a close friend had been either accused or victims of sexual assault. It is generally within the judge's discretion to ask questions of jurors to probe their impartiality, see Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 472 (1998), and, because evidence of a sexual assault was admissible in this case, the judge did not abuse his discretion.

Judgments affirmed.

FOOTNOTES

1.   The parties disagree about whether this understanding resulted from an agreement between the victim and the prosecutor or was simply a result of the prosecutor's unilateral decision not to prosecute the victim. This disagreement is immaterial.

2.   Other witnesses were immunized, but defense counsel clarified at oral argument that this argument related only to the immunized status of the victim.

3.   The confederate was tried separately.