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Commonwealth v. Dabney

Supreme Judicial Court of Massachusetts, Suffolk

February 13, 2018

COMMONWEALTH
v.
KENYA DABNEY.

          Heard: November 6, 2017

         The cases were tried before Linda E. Giles, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          David Rangaviz, Committee for Public Counsel Services, for the defendant.

          Nicholas Brandt, Assistant District Attorney, for the Commonwealth.

          Emma Quinn-Judge & Zoraida Fernandez, for Massachusetts Association of Criminal Defense Lawyers & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

          GAZIANO, J.

         The defendant was convicted by a Superior Court jury of human trafficking, deriving support from prostitution, rape, and two counts of assault and battery. On appeal, he argues that, during voir dire, the judge improperly prevented his attorney from asking members of the venire whether they would expect an innocent defendant to testify. He also contends that the evidence presented was insufficient to sustain a conviction of human trafficking, and that the judge's instruction to the jury regarding the human trafficking charge was inadequate. The defendant claims further that the judge erred in allowing the introduction of certain records and then retroactively ordering them to be redacted, which prevented defense counsel from using the records for impeachment purposes.

         We conclude that the judge did not abuse her discretion in limiting defense counsel's questioning during voir dire, the evidence against the defendant was legally sufficient, the jury instructions were proper, and there was no abuse of discretion in the judge's evidentiary ruling. Accordingly, we affirm the convictions.[1]

         1. Background.

         a. Facts.

         We recite the facts the jury could have found, reserving certain details for later discussion.

         i. Commonwealth's case. The victim and the defendant met in approximately June, 2014, and started dating a few months later. The two began living together in a house in Chelsea belonging to "Uncle Otis, " a friend of the defendant; they also sometimes stayed in a house in Revere. Around the time the victim and the defendant started dating, the defendant encouraged the victim to begin prostituting herself. He told her that it "would be good money because [she] was a beautiful person." At some point before she met the defendant, the victim had engaged in prostitution in Chelsea.[2]

         Shortly after the defendant's suggestion, the victim began prostituting herself on Pearl Street in Chelsea. In exchange for a cash payment, she would perform sex acts in her clients' vehicles. Together, the defendant and the victim determined the prices she would charge for various acts. The defendant would accompany the victim to Pearl Street and would wait on the street or at a nearby bar for her to emerge from a client's automobile. The victim gave all the money she earned from these encounters to the defendant. He used the money to buy drugs and alcohol for them to share.

         At some point after the victim had been engaging in prostitution, the defendant told the victim about a Web site called Backpage that they could use to advertise her services. The two used the victim's personal electronic mail address and telephone number to create a Backpage account. They then posted advertisements, which included photographs of the victim's body, (without showing her face), a written description of her body, an "alias, " and contact information. The defendant took the photographs. The victim and the defendant together determined the alias that the victim would use and wrote the description of her body. The defendant used proceeds from the victim's prostitution to buy a prepaid credit card that they used to pay for the Backpage advertisements.

         The defendant told the victim that she was to notify him every time she received a telephone call from a client in response to the Backpage advertisement. He also occasionally listened to the calls. Often, these clients would meet the victim at the house in Revere where she and the defendant sometimes stayed. The defendant would wait in another room while the victim was with a client "in case [she] needed to scream for him." This arrangement continued for several months. At the time, the victim also was working at a fast food restaurant; the defendant was unemployed. In November or December, 2014, after a gap in their relationship "for a day or two, " the defendant asked the victim to stop using the Backpage site. She did so and also changed her telephone number.

         At some point during the week of December 7, 2014, the defendant punched the victim in the face because she had not given him all of the money she had earned from prostitution. The victim had a black eye, but did not seek medical treatment. She did not call the police because the defendant "apologized and said it wouldn't happen again."

         Approximately one week later, on December 13, 2014, the defendant hit the victim's head with his open hand. Later that night, the victim, the defendant, the victim's mother, and Uncle Otis were at the house in Revere; the defendant and the victim used cocaine and heroin. Sometime after midnight, the victim and the defendant went to a bar, where he told her that she was "on [her] own." The victim understood this to mean that they were no longer in a relationship, and left the bar.

         The victim then went to Pearl Street to prostitute herself. She saw two clients. Thereafter, she encountered the defendant on the part of Pearl Street where he ordinarily had waited for her when she met with clients. The defendant yelled at her and demanded to know why it had taken her so long to return. She responded, "why are you over here, you said I was on my own."

         The defendant punched the victim in the face, threw her to the ground, and kicked her, while continuing to yell. He grabbed her and told her that they were going home. He insisted that the victim was lying to him about the clients she had met with that night and the amount of money she had received. He continued to punch her, throw her against walls, choke her, and beat her, as he dragged her toward a taxicab stand. The victim continued to protest that she thought their relationship had ended. The defendant responded, "you're going with me and that's it."

         As the victim and the defendant were entering a taxicab, two police officers arrived in response to a 911 call that a neighbor had placed; the neighbor had been awakened when he heard a woman screaming and reported that two women were fighting.[3] As the officers approached, the defendant held a switchblade to the victim's side and told her that if she said anything to the police officers about the incident, he would kill her. The officers interviewed the victim and the defendant separately, but the victim was afraid and did not tell them what had happened. The victim said that she had been fighting with another woman and that she did not want to press charges. The officer interviewing the victim noticed that she had a bruise under her eye that appeared to be "several days old and yellow, " but did not observe any fresh injuries. The officers did not see anyone else nearby. They left, and the victim and the defendant took a taxicab back to Uncle Otis's house. The victim's mother was staying at the house that night and inquired about the victim's injuries. Because the defendant was in the room when she did so, the victim lied and said that she had been "jumped" by two women.

         After the victim's mother had gone to bed, the defendant pushed the victim into the bathroom and pulled off her pants and underwear, while the victim repeatedly protested. The defendant forced his hands into her vagina. He said that he was going to kill her with his switchblade, and "tried" to stab her side and her leg until the knife broke. He then ordered the victim to sit on the living room couch and continued to hit her. When the victim asked to share some of the cigarette the defendant was smoking, he put the cigarette out on her face, again accused her of lying, and repeated that he was going to kill her.

         The victim managed to run into the bedroom where her mother was sleeping, and woke her mother up. The victim was "crying very hard." Her mother then confronted the defendant. He responded that he no longer wanted to be in a relationship with the victim, and asked if she was going to call the police. The victim and her mother did not call the police, because they did not want Uncle Otis to "get in trouble and lose his house." The victim slept that night in the same room with her mother.

         When the victim woke up the next morning, the defendant and his belongings were gone. Her mother arranged for a relative to take the victim to the hospital.[4] While the victim was at the hospital, an officer of the Chelsea police department interviewed her. He noticed that the victim had a swollen eye, scratches and marks on her neck, puncture wounds on her leg, an abrasion near her hip, and a burn mark on her face. The officer subsequently arrested the defendant.[5]

         ii. Defendant's case.

         The defendant called a nurse who served as a medical consultant to explain the contents of the victim's hospital records. The nurse had not treated the victim and had not met with her prior to testifying. The nurse explained that, based on the victim's computerized tomography (CT) scan, the doctors had concluded that the victim was suffering from swelling on the frontal bone of her skull, but had no brain injury. The victim also had a deformity or chip fracture of her jaw bone, without swelling or bruising in that area. The victim had swelling, bruising, and internal bleeding on her forehead, near her eyes, and on her nose and chin, and complained of lower back pain. The records indicated that the victim told the treating physicians that she had not lost consciousness during the incident, and contained no indication of any stab wounds or treatment for stab wounds. The hospital records stated that the victim had a burn on her cheek, but there was no indication that she was treated for a cigarette burn. The nurse opined that the mark on the victim's cheek "could" be a cigarette burn, but that it did not look like the cigarette burns she had seen in her own experience; based on the photographs taken by the investigating officer, the mark was superficial, had an irregular shape, and looked several days old. At the hospital, the victim had complained of blurred vision, but her vision test revealed entirely normal results with textbook acuity.

         b. Procedural history.

         A grand jury returned indictments against the defendant for eleven charges. He was indicted on charges of human trafficking, in violation of G. L. c. 265, § 50 (a.), and deriving support from prostitution, in violation of G. L. c. 272, § 7, for the period from September 1 to December 14, 2014. He also was indicted on two counts of assault and battery, in violation of G. L. c. 265, § 13A. For the incident on the evening of December 13 and the early morning hours of December 14, 2014, the defendant was indicted on charges of rape, G. L. c. 265, § 22; assault and battery by means of a dangerous weapon (a lit cigarette and a knife), G. L. c. 265, § 15A; assault by means of a dangerous weapon (a knife), G. L. c. 265, § 15B (b); strangulation, G. L. c. 265, § 15D (a.); assault and battery, G. L. c. 265, § 13A; and intimidation of a witness, G. L. c. 268, § 13B.

         The defendant moved unsuccessfully to have the human trafficking charge dismissed, arguing that the Commonwealth did not present sufficient evidence to the grand jury, and that the human trafficking statute was unconstitutionally vague as applied to him.

         Ultimately, the jury found the defendant guilty of human trafficking, deriving support from prostitution, rape, and two counts of assault and battery, one for the punching incident between December 1 and 10, 2014, and one for the events on the evening of December 13 and the early morning hours of December 14, 2014. He was acquitted of the other ...


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