Logan v. Gelb

52 F.Supp.3d 122

Julian Castle LOGAN (formerly known as Joao Pedro Barbosa Jr.), Petitioner

v.Bruce GELB, Respondent.

Civil Action No. 1:13–cv–11534–WGY.

United States District Court, D. Massachusetts.

Signed Sept. 25, 2014.

Dana A. Curhan, Boston, MA, for Petitioner.

Annette C. Benedetto, Department of Attorney General, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

In this pro se petition for a writ of habeas corpus, the petitioner, Julian Castle Logan (formerly known as Joao Pedro Barbosa Jr.) (“Logan”), challenges his conviction in the Massachusetts Superior Court sitting in and for the County of Middlesex for deriving support from the earnings of a minor prostitute. He raises six grounds for the granting of the writ: (1) that his trial counsel was ineffective in violation of the Sixth Amendment by failing to object to hearsay testimony regarding the age of the alleged prostitute; (2) that the evidence offered by the government was insufficient to convict him; (3) that an expert witness offering testimony regarding prostitutes' work habits and relationships with their pimps was not qualified to do so; (4) that the same expert witness impermissibly based his testimony on hearsay; (5) that the Commonwealth impermissibly used this expert's opinion testimony as substantive evidence against Logan; and (6) that the fruits of local police officers' investigations outside their jurisdiction should be suppressed.

A. Massachusetts Superior Court Proceedings

In Commonwealth v. Barbosa, 76 Mass.App.Ct. 1115, 2010 WL 680349 (Mar. 1, 2010), the Massachusetts Appeals Court (“Appeals Court”) described the underlying facts of this case, which this Court now “supplement[s] with other record facts consistent with the [court's] findings.” Yeboah–Sefah v. Ficco, 556 F.3d 53, 62 (1st Cir.2009) (quoting Healy v. Spencer, 453 F.3d 21, 22 (1st Cir.2006) ).

On the evening of February 23, 2004, Detective Lawrence Hall [ (“Hall”) ] of the Everett police department was on Beecham Street in Everett, an area known by the police to be frequented by prostitutes. Hall saw two young women walking down the road smiling and waving at passing vehicles, consistent with invitations for the persons in the vehicles to stop. At one point, the women walked over to the parking lot of a nearby club, and the two women entered the back seat of a gray Saab convertible. (As shall be further described, the defendant was arrested in a gray Saab convertible.)

The following night, February 24, 2004, Detective Hall observed one of the same two women, later identified as Harriet [a pseudonym], again, out on the street, waving and smiling at passing vehicles on Beecham Street. A large delivery truck pulled over next to Harriet and she got in. The truck drove across the boundary line from Chelsea, where Harriet had been picked up, into Everett, then back into Chelsea. The truck stopped on a desolate side road. After trying to no avail to contact the Chelsea police and the State police, Detective Richard Connor [ (“Connor”) ] of the Everett police department, also conducting surveillance in the area, observed Harriet performing oral sex on the driver.

Harriet was dropped off on Beecham Street and spoke briefly on a walkie-talkie. Thereafter, a large white sedan pulled up, and Harriet got in. The sedan drove to another desolate area. The police could not conduct direct surveillance to see what happened inside the white sedan. However, ten minutes later, the sedan returned to a vantage point from which the police saw Harriet get out of the car and again walk over to a gray Saab convertible parked in the same lot where the Saab had been the previous night. The Saab drove away. Hall radioed for a cruiser to stop the car. The defendant, who was driving the Saab, was arrested.

Barbosa, 2010 WL 680349 at *1. Logan was subsequently charged with violating, inter alia, Mass. Gen. Laws ch. 272, section 4B, which criminalizes deriving support from the earnings of a minor prostitute. Pet. Relief Conviction Sentence Person State Custody (“Pet.”) 2, ECF No. 1. An initial trial, running from August 20 to 22, 2007, ended in a mistrial due to a hung jury. Pet., Ex. 1, Def. Barbosa's Mot. New Trial & Incorporated Mem. Law (“Mot. New Trial”) 1, ECF No. 1–1. Logan's second trial ran from September 3 to 6, 2007. Id. There, in addition to testifying to the facts stated above,

Detective Hall testified that he had been on the police force for more than ten years and had spent the previous five years specializing in narcotics and prostitution investigations. Hall testified that he had made between sixty and seventy prostitution arrests over the course of his career. Hall was qualified as an expert and testified that, at the time of the events in question, the average price for prostitution services of oral sex was between $40 and $60, and for vaginal intercourse was $100 or more. When the defendant was arrested in the gray Saab convertible on the second night of the police surveillance, the defendant had $1,459 in cash on his person. Harriet, who was also arrested, had $32 in cash on her person.

A social worker, [Rosa Andrade (“Andrade”),] without any objection, testified that Harriet's birthday was November 21, 1988, and that she was fifteen years old on February 24, 2004.

Barbosa, 2010 WL 680349 at *1–2. Andrade further testified that she works with adolescents and that Harriet was an adolescent. Supplemental Ans., Tab 13, Trial Tr. vol. 1, 22:24–23:18, Sept. 5, 2007.¹ She had worked with Harriet for two years, beginning approximately one year after the incident for which Logan was on trial, see id. at 24:10–13; during her time with Harriet, Andrade helped her with placements, school, and “any other services that pertained to her well being,” id. at 23:9–20. On cross-examination, Andrade admitted that she had never seen Harriet's birth certificate and that Harriet was born outside the United States. Id. at 25:21–26:5. At no point during the trial did Harriet herself testify. See Apr. 4, 2014 Mem. Law Supp. 28 U.S.C. § 2254 Pet. (“Pet.'s Supp. Mem.”) 1, ECF No. 71. Prior to the close of the defense's case, Logan moved for a required finding of not guilty based on the insufficiency of this evidence of Harriet's age. Supplemental Ans., Tab 14, Trial Tr. vol. 2, 40:14–41:4, Sept. 6, 2007. The motion was denied, though the trial judge noted that it was a “close call.” Id. at 49:14–19. The jury convicted Logan on September 6, Pet. 2, and on September 11, Logan filed a motion for judgment notwithstanding the verdict, which was also denied, Mot. New Trial 1. On September 20, Logan was given a prison sentence of between five and eight years, which he is currently serving out at the Souza–Baranowski Correctional Center. Pet. 2.

B. Logan's Direct Appeal

Logan filed a timely appeal, arguing two grounds for reversal: first, that the trial court should have granted his motion for a required finding of not guilty, and second, that the court should have excluded the testimony of Everett police detectives Hall and Connor regarding their observations in Chelsea as evidence gathered pursuant to an investigation made outside the geographical scope of their authority. Barbosa, 2010 WL 680349 at *1–2.

On March 10, 2010, the Appeals Court affirmed Logan's conviction. Id. at *1. The court held that the trial testimony of Andrade, Hall, and Connor was “sufficient direct and circumstantial evidence that (1) Harriet was engaged in prostitution; (2) she was a minor; (3) the defendant knew Harriet was engaged in prostitution; and (4) the defendant derived support or shared in the monetary proceeds of prostitution, knowing that such proceeds were from the prostitution of Harriet.” Id. at *2 (citing Commonwealth v. Asmeron, 70 Mass.App.Ct. 667, 672, 875 N.E.2d 870 (2007) ). The court further observed that circumstantial evidence may properly support a finding of guilt beyond a reasonable doubt, and that inferences from circumstantial evidence need not be inevitable in order to support such a verdict. Id. (citing Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989) ; Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977) ). Regarding Logan's second ground for appeal, the court noted that while police officers do have limited geographic authority to make stops and arrests, Hall and Connor only testified as “percipient witness[es]” regarding events in Chelsea, which is permissible under state law. Id. (“An officer may testify to events observed, even if the observations are made outside any town or city for which the officer works or where the officer has authority to arrest.”). On September 10, 2010, the Massachusetts Supreme Judicial Court (“SJC”) denied Logan's application for leave to obtain further appellate review. Commonwealth v. Barbosa, 458 Mass. 1101, 934 N.E.2d 824 (2010).

C. Logan's Motion for New Trial and Appeal

Logan filed a motion for a new trial on November 11, 2011. See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus (“Resp't's Mem.”) 3, ECF No. 74. His motion for a new trial focused on five issues: (1) a claim that Logan's trial counsel was constitutionally ineffective because he failed to object to Andrade's testimony regarding Harriet's date of birth as hearsay, thus allowing in noncumulative evidence of an element of the crime, Mot. New Trial 10–11; (2) a claim that Logan's trial counsel was ineffective because he failed to investigate Logan's claim that the $1459 found on his person at the time of his arrest came from a legitimate source, thus undercutting the Commonwealth's evidence that he received support from Harriet's prostitution, id. at 11–13; (3) a claim that Hall's expert testimony was, in essence, impermissible hearsay from out-of-court conversations with arrested prostitutes repackaged as expert opinion, id. at 13–18; (4) a claim that Hall blurred the lines between his roles as fact and expert witness and that the Commonwealth improperly used...