Commonwealth v. McGhee

472 Mass. 405

35 N.E.3d 329

COMMONWEALTH

v.Tyshaun McGHEE (and seven companion cases¹ ).

SJC–11821.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted April 6, 2015.

Decided Aug. 13, 2015.

Sharon Dehmand for Tyshaun McGhee.

David M. Jellinek, Boston, for Sidney McGee.

Matthew T. Sears, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Amy Farrell, pro se.

Maura Healey, Attorney General, & Susanne G. Reardon, Assistant Attorney General, for the Attorney General.

Julie Dahlstrom, Felicia H. Ellsworth, Tasha Bahal, & Michelle L. Sandals, Boston, for Ascentria Care Alliance & others.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

SPINA, J.

In this case, we are asked to consider, for the first time, the constitutionality of the Massachusetts sex trafficking statute. On November 21, 2011, the Legislature approved “An Act relative to the commercial exploitation of people,” which criminalized sexual servitude, forced labor, and organ trafficking as of its effective date of February 19, 2012. St. 2011, c. 178, §§ 1–31. The portions of the enactment at issue here, pertaining to the

trafficking of persons for sexual servitude, were codified at G.L. c. 265, §§ 49, 50. See St. 2011, c. 178, § 23.

General Laws c. 265, § 50 (a ), states, in relevant part:

“Whoever knowingly: (i) subjects, or attempts to subject, or recruits, entices, harbors, transports, provides or obtains by any means ... another person to engage in commercial sexual activity ... or causes a person to engage in commercial sexual activity ... or (ii) benefits, financially or by receiving anything of value, as a result of a violation of clause (i), shall be guilty of the crime of trafficking of persons for sexual servitude and shall be punished by imprisonment in the state prison for not less than [five] years but not more than [twenty] years and by a fine of not more than $25,000.”

The phrase “[c]ommercial sexual activity” is defined as “any sexual act on account of which anything of value is given, promised to or received by any person.” G.L. c. 265, § 49.

On December 19, 2012, a Suffolk County grand jury indicted each defendant, Tyshaun McGhee and Sidney McGee, on nine counts of aggravated rape, G.L. c. 265, § 22 (a ), three counts of trafficking persons for sexual servitude, G.L. c. 265, § 50, and two counts of deriving support from the earnings of a prostitute, G.L. c. 272, § 7. The charges arose from allegations by three women (C.C., S.E., and B.G.² ) that the defendants approached them, took their photographs to post as advertisements on a Web site called Backpage.com, drove them to various locations to have sex with men who responded to the advertisements, and then retained some or all of the money that the women received as payment from these men. The defendants filed a joint pretrial motion to dismiss the sex trafficking charges on the grounds that G.L. c. 265, § 50, is unconstitutionally vague and overbroad, both on its face and as applied to them. A judge of the Superior Court denied the motion. Following a jury trial, Tyshaun was convicted on all three indictments charging him with trafficking persons for sexual servitude (C.C., S.E., and B.G.),³ and both indictments charging him with deriving support from the earnings

of a prostitute (C.C. and S.E.). He was found not guilty on the indictments charging him with aggravated rape. Sidney was convicted on all three indictments charging him with trafficking persons for sexual servitude (C.C., S.E., and B.G.),⁴ and he was found not guilty on the remaining indictments. Each defendant filed a timely notice of appeal, and we granted their subsequent applications for direct appellate review.

The defendants contend on appeal that (1) G.L. c. 265, § 50, is unconstitutionally vague as applied to them and, therefore, violated their rights to due process under the Fifth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights; (2) G.L. c. 265, § 50, is unconstitutionally overbroad on its face in violation of their right to freedom of association under the First Amendment to the United States Constitution; (3) the phrase “commercial sexual activity” is unconstitutionally overbroad; (4) the judge erred in allowing the substantive admission of grand jury testimony from one of the Commonwealth's witnesses; and (5) the judge violated their right to confrontation by hindering their cross-examination of C.C. with respect to several pending criminal charges against her and her purported history of prostitution. In addition, Tyshaun contends that the sentences imposed for his convictions of deriving support from the earnings of a prostitute were illegal. For the reasons that follow, we conclude that G.L. c. 265, § 50, is constitutional, that the sentences challenged by Tyshaun were illegal, and that the defendants' remaining claims of error have no merit. Accordingly, the judgments are affirmed. As to the indictments charging Tyshaun with deriving support from the earnings of a prostitute, those cases are remanded for resentencing in accordance with this opinion.⁵

1. Factual background. We summarize the facts the jury could have found, reserving certain details for our discussion of the issues raised. As mentioned, the charges against the defendants arose from their interactions with three women in the fall of

2012.⁶ C.C., then approximately twenty-four years old, had a history of drug and alcohol use, and she had spent time in several treatment facilities. On September 7, 2012, as she left Boston Medical Center after having been treated for two drug overdoses within one twenty-four hour period, she encountered the defendants, who were standing outside the hospital. The defendants asked C.C. what she was doing, and she told them that she was interested in “party[ing].” After offering to give her a ride, the defendants walked C.C. to an apartment on Eustis Street in Boston, where C.C. observed an older man standing outside. Tyshaun gave the man some money, and then Tyshaun proceeded inside with C.C. and Sidney. They went upstairs to a bedroom where all three drank from a bottle of alcohol, C.C. smoked some “crack” cocaine that had been given to her by Tyshaun, and the defendants purportedly raped C.C. as she cried.⁷ Afterward, C.C. got dressed, all three individuals walked to an apartment on Dudley Street where Tyshaun's mother lived, and C.C. fell asleep on a couch. She did not attempt to run away because she was afraid of what might happen to her.

The next morning, the defendants and C.C. walked to a fast food restaurant where Tyshaun purchased some heroin from a friend and gave it to C.C., who proceeded to inject it into her foot. As they walked away from the restaurant, the defendants started talking with C.C. about a business arrangement whereby she could “make a lot of money,” “have a nice car,” and “have a nice apartment.” It was C.C.'s understanding that the defendants were talking about prostitution. They continued this conversation until they reached the Dudley Street apartment.

At the apartment, the defendants prepared to take photographs of C.C., which they planned to post as advertisements on the Web site Backpage.com. Tyshaun told C.C. that there would be a “rate,” which she understood as meaning that she would be having sex with people in exchange for money. Although “definitely hesitant,” C.C. agreed to proceed because she was “broke and homeless, and having a nice apartment and car and money seemed like the best option.” Tyshaun gave C.C. lingerie to wear, and he took photographs of her with a digital camera in the bathroom of the

apartment. C.C. started feeling “uncomfortable” and did not want to be in the situation in which she found herself. Nonetheless, the defendants transferred the photographs to Sidney's laptop computer and then posted them on Backpage.com. Tyshaun included his cellular telephone number with the photographs, and the name indicated on them was “Jamie Lynn.”

After about thirty minutes, Tyshaun's telephone started to ring. He answered it and handed the telephone to C.C., having told her what to say to the callers. C.C. would ask them “if they were a cop of any sort,” what they wanted, and whether they could meet at a particular location that had been chosen by Tyshaun and Sidney. Tyshaun established prices of one hundred dollars for thirty minutes of sex, and $150 for one hour of sex. When C.C. arranged to meet a man at the Eustis Street apartment for thirty minutes of sex, the defendants walked with her to that location, and Tyshaun again gave some money to the same older man who had been standing outside that location the previous day. C.C. was directed to a room, she had sex with the man she had arranged to meet, she was paid one hundred dollars, and she handed the money over to Tyshaun, keeping none of it for herself.

Over the course of the next three to four days, C.C. had sex with five or six other men in various locations. The defendants always accompanied C.C. to the designated meeting place and would wait for her until she had finished. She gave all of the money that she was paid to Tyshaun, who arranged the accommodations. At some point, Tyshaun stopped providing drugs and alcohol to C.C., telling her that she was not making enough money to support her habits.

On September 12, 2012, roughly five days after having met the defendants, C.C. woke up alone in a hotel room. Although neither defendant was there, Tyshaun's cellular telephone was in the room. C.C. telephoned her father. He told her to leave the hotel room, and she jogged to a nearby pharmacy, where she telephoned her father again to pick her up. On the drive to her parents' home, C.C. told her father in response to his questioning that she had been raped. After she arrived home, C.C.'s mother took her to Brockton Hospital where she was interviewed by a sexual assault nurse...