Commonwealth v. Brown

481 Mass. 77

112 N.E.3d 264

COMMONWEALTH

v.Jonathan E. BROWN.

SJC-12529

Supreme Judicial Court of Massachusetts, Essex.

Argued October 2, 2018

Decided December 11, 2018

David M. Osborne, Somerville, for the defendant.

Emily R. Mello, Assistant District Attorney, for the Commonwealth.

Maura Healey, Attorney General, & Maria Granik, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

KAFKER, J.

For over a century the Commonwealth has outlawed living off of or otherwise sharing in money earned by a known prostitute.¹ Historically, "pimps or purveyors" have been understood to be the objects of this prohibition, although no definition of either "pimp" or "purveyor" has ever appeared in the statutory text, currently codified at G. L. c. 272, § 7.² Claiming that, without further clarification, the language of this statute is unconstitutionally vague and that he suffered prejudice from jury instructions tracking such language, the defendant, Jonathan E. Brown, seeks reversal of his conviction on a single count of deriving support from prostitution under G. L. c. 272, § 7. We disagree and affirm.

We conclude that G. L. c. 272, § 7, is constitutional, as we construe it to target those who, with the intent to profit from prostitution, live or derive support or maintenance from, or share in the earnings or proceeds of, the known prostitution of others. We reach this conclusion from reading the statutory language in the context of common understanding and ordinary usage, as well as the statute's legislative history and severe penalty provisions, all of which demonstrate with sufficient clarity that G. L. c. 272, § 7, is directed at so-called "pimping." Because a pimp knowingly and intentionally profits from the prostitution of another, he or she differs from the child of a sex worker, a local merchant who sells food to a known sex worker, or a medical professional who provides a sex worker with counselling services; the literal language of the statute may reach all of these individuals, but, unlike a pimp, they lack the intention to profit from the prostitution of another.

Here, the evidence was sufficient for the jury to conclude that the defendant -- who accompanied a woman to a prearranged prostitution transaction and was caught, immediately after leaving the scene with that woman, with the entire proceeds of the transaction hidden in his shoe -- knowingly and intentionally profited from the prostitution of another, and therefore engaged in pimping within the meaning of G. L. c. 272, § 7. While we prospectively clarify the jury instructions to avoid any possible confusion that this statute might apply to those who lack such an intent, we discern no prejudicial or other reversible error in the instant case.

1. Facts. The facts, in the light most favorable to the Commonwealth, are as follows. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

On June 21, 2012, as part of a national antiprostitution "sting" operation, law enforcement officers arranged to meet two women at a hotel in Saugus after responding to Internet advertisements for female prostitution. Police were instructed to watch for two women arriving at the Saugus hotel, and that evening, a police surveillance team observed two women, the defendant, and another man arrive at the hotel in a black motor vehicle. The two men waited in the vehicle in the rear parking lot of the hotel while the women went inside to a hotel room. There, another surveillance team observed as an undercover officer, posing as a customer, agreed with one of the women to have sex for $250. The officer handed the woman $250 in cash, after which he answered a prearranged telephone call and told the two women they had to leave. The women returned to the vehicle and were driven away with the defendant.³ The police stopped the vehicle and, after frisking the defendant, found the same $250 that the officer had given the woman as payment for sex hidden in the defendant's shoe.

The defendant was subsequently charged and convicted at a bench trial of deriving support from prostitution under G. L. c. 272, § 7,⁴ but his conviction was reversed by the Appeals Court in an unpublished memorandum and order pursuant to its rule 1:28 due to the prosecution's errors in its closing argument. See Commonwealth v. Brown, 90 Mass. App. Ct. 1107, 2016 WL 5596255 (2016). Before his second trial, the defendant moved to dismiss the charge, claiming that the statute was unconstitutional for vagueness. That motion was denied. At the second trial, which was tried before a jury, the defendant moved for a required finding of not guilty, relying on the Appeals Court decision in Commonwealth v. Thetonia, 27 Mass. App. Ct. 783, 543 N.E.2d 700 (1989), which examined the meaning of the terms "pimp or purveyor" as set out in the statute's legislative history. That motion was also denied. Finally, relying again on Thetonia, the defendant sought supplementary instructions that would change Instruction 7.140 of the Criminal Model Jury Instructions for Use in the District Court (2009) (model jury instruction 7.140). The defendant's requested instruction, based on model jury instruction 7.140, with his requested supplementary language emphasized, is as follows:

"Deriving Support from Prostitution

"The defendant is charged with knowingly deriving support from the earnings of a prostitute. This is commonly known as the ‘pimping’ statute. Chapter 7 of Section 272 of our General Laws provides as follows: ‘Whoever, knowing a person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of his prostitution ... or shall share in such earnings or proceeds ... shall be punished.’

"In order to prove the defendant guilty of this offense, the Commonwealth must prove three [ (and with the requested changes, four) ] things beyond a reasonable doubt:

"First, that a particular person was engaged in prostitution. A prostitute is a person who engages in common, indiscriminate sexual activity for hire.

"Second, The Commonwealth must prove beyond a reasonable doubt that the defendant knew [ (emphasis in original) ] that such person was a prostitute; and"Third, The Commonwealth must prove beyond a reasonable doubt that the defendant shared in some substantial way in the earnings or proceeds from that person's prostitution.

"Fourth, The Commonwealth must prove beyond a reasonable doubt that the Defendant played a substantial role in facilitating this person's prostitution. For example, it is not enough if the Defendant simply drove the prostitute to a job."

The judge denied the requested supplementary instructions and gave model jury instruction 7.140. The jury found the defendant guilty under G. L. c. 272, § 7, and this appeal followed.

2. Discussion. a. Purpose of G. L. c. 272, § 7. To determine the meaning of G. L. c. 272, § 7, we begin, as we must, with the statutory language, interpreted in light of "ordinary and approved usage" and "sound reason and common sense" (citations omitted). Commonwealth v. Brown, 479 Mass. 163, 166-167, 92 N.E.3d 1189 (2018). The text of G. L. c. 272, § 7, imposes criminal liability when a person (1) knows another person is a prostitute; and (2) lives off or otherwise shares in money that the prostitute earned from prostitution activities or received from a brothel or its employees. In other words, the statute plainly targets third parties who knowingly derive their livelihood or otherwise profit from prostitution. In common vernacular and understanding, the statute appears to target "pimps."

The legislative history confirms such an understanding of this century old provision. See Commonwealth v. Bundy, 465 Mass. 538, 545, 989 N.E.2d 496 (2013), quoting Perry v. Commonwealth, 438 Mass. 282, 285, 780 N.E.2d 53 (2002) ("We cannot interpret statutory language in a vacuum, ignoring the Legislature's purpose in enacting the statute and oblivious to ‘the time in which [the language] is used’ "). It expressly informs us that the statutory purpose of G. L. c. 272, § 7, is to target "pimps" who profit from "the business of commercialized prostitution." Report of the Commission for the Investigation of the White Slave Traffic, So Called, 1914 House Doc. No. 2281, at 22 (1914 report). A draft version of the original 1910 legislation, consistent with nearly identical contemporary legislation in other States, explicitly defines the prohibited conduct as "pimping."⁵ Also, a 1914 report commissioned by the Legislature recommended amending the 1910 statute to better prosecute "pimps and procurers," which it defined as "exploiters of women" who profit from "the business of commercialized prostitution." 1914 report, supra at 20, 22, 82-83. See St. 1914, c. 621 (enacting proposed amendment).⁶ Furthermore, G. L. c. 272, § 4B, which criminalizes living off of or sharing in the earnings of a prostitute who is a minor in language that parallels the language of G. L. c. 272, § 7, was introduced as a bill targeting "pimps."⁷ Finally, the title of the 1980 session law amending G. L. c. 272, §§ 6 and 7, is "An Act increasing the penalty for a so-called pimp or purveyor." St. 1980, c. 409.

Our case law has also recognized that the statutory language of G. L. c. 272, § 7, must be read in light of its purpose of proscribing pimping. We made this point in passing when we upheld the penalty provision of the statute in Commonwealth v. Lightfoot, 391 Mass. 718, 720–721, 463 N.E.2d 545 (1984) (inferring legislative intent to increase penalties for deriving support or maintenance from prostitute "from the title of the act, ‘An Act increasing the penalty for a so-called pimp or purveyor,’ St. 1980, c. 409"). The Appeals Court, in Thetonia, further analyzed and clarified the statutory purpose of proscribing pimping when it reversed the conviction of a defendant who,...