-: SJC-13050
Commonwealth v. Rowen D. Lowery.
-: Attorney Methe,
we're ready for you.
I think you're on mute.
There you go.
-: Is that better?
-: [Chief Justice Budd] Yes.
-: May it please the court,
my name is Attorney James Methe
and I represent Rowen Lowery in this appeal.
The first issue of my brief
concern the judge abusing her discretion
by allowing the Commonwealth's motion in limine
to admit statements of Passion as a joint venturer.
And this will also address the issue
in the Amicus announcement by this court
as to whether Passion
could be a joint venturer and a victim.
I'd be arguing that she did not participate
and I'm gonna quote the statute,
"subjecting, recruiting, enticing,
harboring, transporting another person to engage
in commercial sexual activity."
And that those two words, another person,
are very important here
because there's absolutely no evidence
that she did any of those things to another person.
Her crime was basically sexual conduct for fee.
-: Mr. Methe, don't we have to look at the nature
of the crime to determine whether or not
conspirator statements come in,
because this is,
this crime is unlike a robbery
or any other crime where,
by nature, the crime of sexual trafficking requires
prostitution plus someone who sells
or facilitates the prostitution, right?
Mr. Methe: That's right.
-: So how do we take that,
the nature of this crime into account
in figuring out whether or not
these statements are admissible?
-: Well, again, I think you have to
really look at the statute.
I don't think the fact that she's maybe a prostitute.
-: But you don't have the crime
absent the prostitution, correct?
-: Right.
But I don't see how that makes her a joint venturer
in a crime of sex trafficking.
-: Let me ask you about the search warrant
in this case.
The issue is whether or not the cell phones
were used to facilitate the sexual trafficking.
Here we have the victim exchanges money,
sends a text to someone,
then receives a text from someone,
and then starts to,
indicate she can start the session.
And then she also says, when arrested,
that a GPS was used to find the location.
How is that not the use of a cell phone
to facilitate sexual trafficking?
-: Well, as I argued in my brief,
I think the problem here is that
there may have been probable cause
to search her phone based on.
-: Well, she texts someone, right?
-: That's correct.
But there's no evidence.
Judge Gaziano: Don't you get to search
to see who she texts?
-: Well, I think you have to get
the records from her cell phone first
because there's no evidence,
there's nothing in the affidavit
of who she was texting.
-: She gets dropped off by a client, right?
-: Right.
-: Then he gets, then he gets picked up
and he's got five cell phones in his car
and she's texting someone after being dropped off.
And you're telling me that's not probable cause?
-: I don't think it's probable cause
to search five other cell phones
when there's no nexus
between her phone and the other phones.
As I, as I said,
there's nothing in the affidavit
saying that she was texting,
they have no proof she's texting him.
So what phone out of these five phones is she texting?
So I don't think there's probable cause
to search five other phones that are in the car.
As I said, in my brief,
I think the police should have gotten,
could have gotten a search warrant for her phone
based on the fact that
she placed the advertisement with her phone number,
she's communicating with Lieutenant McManus
using her phone
and then apparently texting while she's in a hotel room.
That probably gives you probable cause to search her phone.
But I don't know where the nexus is
between that and five other cell phones.
This court is taking a narrow view recently
in the last five years or so in it's decisions
about what constitutes probable cause to search cell phones.
And this court has found that even
communication between two parties that's proven
sometimes is not enough to search all those cell phones
and here we don't even have any communication
in the affidavit.
And, and the denial of the motion
was not harmless beyond a reasonable doubt
because the texts are the entire case against my client.
This is especially true because Passion testified favorably
for my client that he didn't know
what she was doing in the hotel room
and that he really dropped her off,
that she didn't pay him for the ride.
So the texts are extremely important
to the Commonwealth's case.
Without the texts, I don't think they really have a case.
-: What do we do with the fact that
your client dropped her off,
he was pulled over and had
condoms, lubricants,
escort service business cards in his car.
Does that add to the search warrant
as to his cell phones?
-: Well, again, I would argue that.
-: That is, it doesn't look like he's just
dropping her off randomly,
like on the way to the grocery store.
There are other things in his car
suggesting that he's involved in sex trafficking.
-: Well, I don't know that necessarily is true.
I believe that some of these items
were found in her pocketbook.
-: Well it's not necessarily.
I mean, that's not the standard
for whether or not you get the search warrant, right?
It's not necessarily, it's probable cause.
-: Probable cause.
Again, I go back to my argument that
I think there may have been probable cause
to search her cell phone
but the five other cell phones,
I don't see where the nexus is
to search five other cell phones that are in the car.
-: Most people don't carry five cell phones.
Isn't, isn't that suspicious in and of itself,
that, particularly when we've got testimony
from the police officer, that, you know,
this type of business is heavily reliant on phones
and how they communicate to set, set up,
you know, the sexual.
-: Well, admittedly, most people don't carry
five cell phones in their car, I would admit that.
But whether that.
-: Well, they don't carry five cell phones,
escort services, condoms, lubricants,
dropping off a prostitute at a,
at a hotel, I mean.
Can we return to the joint venture issue for a second?
-: Yes, I'd like to return to the joint venturer.
-: There are no, there seems to be no cases.
The cases cited don't seem to be very helpful
by either party.
I'm just trying to understand the principle here
and does the fact that this is an unusual crime
where one of the participants is also the victim
mean that joint venture analysis is inapplicable?
Help us out here,
'cause we're gonna have to think through this
as opposed to just look something up.
-: Well, I would agree with you
that there really aren't any cases on point,
certainly not in Massachusetts.
And the cases that were cited by the Assistant DA
in his brief
really are not helpful because they're
cases from federal, other circuits,
federal cases of other circuits,
a case of Mississippi and they're not sex trafficking cases.
And they have nothing to do with admitting statements
from a joint venturer.
-: What's the logic of why we allow those statements in
and is that logical and applicable
in the trafficking context,
where the participant is the victim?
Reason it out for us.
Give me your reason why it doesn't,
why we should draw a distinction here.
-: Well, I think again,
that even though she's participating in this
sex trafficking crime by being a prostitute
I don't think that gets you by,
as I quoted the statute earlier,
what her activity just doesn't comply
with what the statute says.
She didn't do anything.
-: Isn't the rationale for the doctrine
that of vicarious liability?
That if, if partners in crime agree to commit a crime
then I'm gonna be bound by what my compatriot says
during, in furtherance of the crime,
isn't that the rationale?
-: I don't see where her intent is
to commit sex trafficking.
She has no intent to commit sex trafficking.
-: Well her intent is, is, is to prostitute herself.
And he, and, and without the prostitution
you don't have sex trafficking, right?
-: Right.
But her crime was sexual conduct for a fee.
I, again, I don't see how you get to,
she's a joint venturer in sex trafficking
based on the statute.
And.
-: You have to be a joint venturer as to sex trafficking
or a joint venturer as to the sexual conduct for a fee?
Can't you be an aider and abettor
and a co-conspirator in helping to accomplish that crime
even if, as a third person,
before there was ever a sex trafficking crime?
-: Well, I think that her participation has to
go along with what the statute says.
You don't think her participation.
-: Do we have other, are there cases,
the cases where you have co-conspirator statements
doesn't mean that the co-conspiracy statement has to be made
in furtherance of the particular crime being prosecuted.
-: I think that it does have to be
in furtherance of crime being prosecuted.
-: It has to be in furtherance of the conspiracy.
Let me ask you a question about the,
the cell phones, if I could.
If you're, you keep on saying, and I understand why,
that, well, doesn't give them probable cause
to search five cell phones.
Isn't the way to engage in
human trafficking like this then
that if you're going to engage in it
and you're going to use a cell phone,
just buy 10 or 12 other cell phones
and keep them with you
so that the government can never get probable cause?
-: Well, again, I would go back to what I said that
there may have been probable cause to search her phone
and by getting, by searching her phone
and getting the phone records,
then she could've, they could've seen
who she communicated with at the time
and then get a search warrant
for that phone or other phones.
But to just search numerous phones, I think was improper.
-: Counsel, can you remind me just factually
was her identification in his car?
-: I believe it was.
Whether it was in, it may have been
in her own pocketbook, which was in the car.
I don't, it could have been in her own pocketbook.
-: Do you want to talk about the expert testimony?
Because quite frankly, that's your best argument.
-: I'm surprised to hear that.
(laughing)
I would have thought that the joint venturer
was the best argument based on the Amicus announcement.
I thought that's what you'd be interested in.
-: Justice Lowy is often interested in different things.
-: Well, the argument was Lieutenant McManus
should not have been allowed to testify
as an expert and a percipient witness.
First of all, there was discovery violation.
The judge did indicate at this trial
that notice should have been given to the defense
because the DA insisted he wasn't an expert,
Judge says he is an expert.
And it's important to the case
because he's the one who explained that the,
the terminology and the text,
the relationship of a pimp and a prostitute
and how it related to the facts of this case.
-: Counsel, can I just interrupt you on this one
because this isn't the normal case, because in this case
the defense lawyer was an incredibly experienced lawyer,
one of the better defense lawyers
in the Commonwealth of Massachusetts history.
So this isn't a surprise to this particular defense lawyer
that McManus has all of this experience.
He testified as, or the averments in his affidavit
in support of the search warrant
went through all of his training and experience
in sex trafficking and some of the other
ancillary parts of that.
So this, the fact that he's going to testify,
you would think that would be a preview
that there was gonna be,
not necessarily a melding of the lines
between expert and percipient witness,
but that he's not coming into this
as a regular garden variety beat cop.
So, is the whole purpose of the notice provision
kind of obviated by the fact that we know it's McManus?
-: Right, that's how the judge ruled, that the defense was,
I think, defense counsel indicated he wasn't surprised
because as you said, the affidavits had all of his
experience in there, so that's why she allowed it.
But as we also know, testifying as an expert
and a percipient witness has been disfavored
in the Commonwealth.
-: It has but that's, the next point I wanted to bring up.
He didn't, McManus didn't cross the line here, right?
In the cases that we've seen that
and where we've talked about the disfavoring of that,
they would cross the line to the ultimate conclusion
that the jury was there to decide.
And he didn't do that in this case.
So even though it's disfavored,
did he cross the line,
or was the judge wrong on that?
-: I don't believe he said any,
he didn't say that Passion was a victim in the case.
He didn't give an opinion about that, no.
But he certainly related the facts of this case,
through his knowledge and experience and training
about sex trafficking.
And that, again, has been
disfavored by the case law in this Commonwealth.
-: [Chief Justice Budd] Okay, we all set?
Any other questions?
-: [Justice Georges Jr.] No, thank you, Chief.
-: [Chief Justice Budd] Okay. Thank you.
Attorney Lee.
-: Madam Chief Justice, may it please the court.
Chichi Lee, Assistant District Attorney for Middlesex
on behalf of the Commonwealth.
In the sex trafficking conviction before you,
the victim's statements were properly admitted
against the defendant statements of a joint venturer
because the evidence establish a joint venture
between the defendant and the victim.
The fact that the co-venture in this case was a victim
does not affect analysis.
The relevant question here is whether the evidence show
by a preponderance that a joint venture existed
between the two and the evidence showed that.
Judge Gaziano: The judge never
instructed the jury, correct?
-: That's correct, your honor.
The judge.
-: This was very important evidence.
How is that not the substantial likelihood
of a miscarriage of justice?
-: So the standard is not substantial likelihood here
just because it's not a murder case.
The standard is potential risk of miscarriage of justice
where the defendant did not request
a limiting instruction.
Here the evidence were overwhelming where
a joint venture exists between the two.
The defendant is a manager for escort business.
On July 31st, the defendant drove the victim
to provide sexual services
and immediately before providing sex,
the victim was communicating with the defendant.
-: So that was error, correct?
-: It was, it was error.
The judge should have instructed the jury to find
by preponderance that there was joint venture.
-: Okay, and you, and you would concede, I would think,
that this was very important evidence in this case, correct?
-: In terms of the joint venture statements
from the victim, it is crucial.
However, it's not, it would not create a substantial risk
because even excluding the victim statements
you still have the defendant's statements
from the cell phone record
where he coached the victims through sexual services,
told her what to do during the services,
and explain to her the terms of the business.
Even that statements alone could find the defendant guilty,
especially on a social risk standard.
-: So we have the dropping off, we have the dropping off
and her effects in the car, and we have
whatever was found in the car,
plus the cell phone communications.
Attorney Lee: Yes.
-: And that's enough to overwhelm the, the error
in the, in the admission of the joint venture statements?
-: Yes, if it was error, yes.
And there is no substantial risk
because where the victim was transported
to provide sexual services should acknowledge
that she wrote the ad to provide sexual services
and the text messages where the defendant
coached her through sexual services at different occasions
provided that the defendant had knowledge
that what he was doing when he drove the victim
to Red Roof Inn in Woburn on July 31st.
-: So, Counselor, I just want to make sure
I understand your argument.
So does that dovetail into the admission
of the other text messages and what I mean by that is
does your argument weaken if those other text messages,
if we found that the, the judge abused her discretion
in admitting those other text messages,
does, it weaken your argument on the joint venture theory?
-: It certainly weakens, and it would be the same argument
whether it was error to admit or whether
it was error to not give a limiting instruction.
The standard is all the same here,
substantial risk.
And of course these statements would have,
have strengthened the Commonwealth's,
and probably did at a time to provide more context
on the relationship between the defendant and victim.
However, and these proposed or alleged error
did not create a substantial risk
because the text messages still provide statements
from the defendant to the victim
that will provide context and relationship
between the two and to show that on the day of July 31st
the defendant knowingly drove the victim
to provide sexual services.
And I believe Justice Kafker earlier
asked more broader about what's the logic,
what's the policy for admitting these statements.
One key point about rule area 1B2E is
the community interest between the two.
Here, even the victim was a victim
because she was exploited by the defendant.
The communication between the two,
in order to achieve the crime here,
still shows that there's a,
the statements are minimally reliable.
The fact that she was a victim is not relevant
in the constitution here.
The question remains whether there was joint venture
existed between the two and the evidence show that.
-: You, but you you're, you begin
by saying there's a community of interest, right?
But, is, where you're the victim of trafficking
is that as simple?
Is that the principle we should focus on,
whether they have a community of interest
or 'cause isn't that sort of a cut against you
with trafficking?
-: No, your honor, because in this case it was,
it was very, it was a little bit different
from the common understanding of sex trafficking
where the victim is forced to do something.
Here the victim actively participated in the crime.
She created the backpage.com ad,
she coordinated the sex trade with the undercover officer,
she collected the money from the undercover officer.
-: You're not arguing it was within her interest
to be sexually trafficked?
Attorney Lee: No, your honor, no.
-: Okay, good.
(laughing)
-: It was, it was just the communication between the two
is reliable to show that the crime was ongoing
and that her statements would show
that the joint venture existed.
-: The more convincing that argument is,
the harder, the closing argument position is for you.
-: My apologies, your honor.
-: The more convincing you are about, you know,
they're partners, the whole theory of joint venture is
it's an admission by a party opponent
because you're in the thing.
Attorney Lee: Yes, your honor.
-: So you own it if you say it
if it happens during and in furtherance.
So the more you're saying they're really partners,
does that mean that the error
or potential error in the closing is more significant?
-: For the focus on the closing,
indeed at the Commonwealth or the trial prosecutor
spent some time to talk about the text messages
between the defendant and the victim
but the trial prosecutor was to focus more on
what the defendant say to the victim.
Here, the victim statements at trial
really were just to provide context that
because it was a conversation
between the defendant and the victim,
it's not a one side conversation
or one side communication from the victim
to the defendant, it was that context was important,
or is relevant to show, to explain to the jury,
the relationship between the two and in order to show
the intent or the knowledge of the defendant on July 31st.
-: Didn't, one of the arguments
made by the appellant was that
it overwhelmed the other evidence,
this evidence of, that was in all of the text messages.
And isn't that the point?
That there was such focus on those, the context,
that it overwhelmed whatever happened that night
on July 31st?
And that's the whole, that's the whole fear
of prior bad act testimony, isn't it?
-: No, your honor.
I believe Justice Georges is talking about
the prior bad act where the defendant argues that
the text messages submitted overwhelmed the case
because of sheer volume of those text messages.
-: [Justice Georges Jr.] Sure.
-: If you look at Commonwealth v. Robertson,
appeals court case where there was four to six years
worth of prior bad act that happened 10 years
before the charged crime,
the appeals court in that case held that
because the substantial probative value of the case,
those messages did not overwhelm the case.
Here, you have a six weeks worth of text messages.
And if you look at the exhibits in the supplemental record
from the Commonwealth, those actually
only consistent with nine days of text messages.
-: Maybe so, but a very smart judge once told me
if I really want to see what was important
to the Commonwealth
to read the transcript of the closing argument.
And in that transcript,
the Commonwealth made really, really clear
to go through the weeks before the 31st
to lay this foundation to show
that this is what was going on.
So isn't that exactly the fear
of why we say there should be a limitation on this
and maybe that this went too far
that it was really being convicted
on all of that other stuff
and not necessarily what happened that night?
-: No, your honor.
Of course, the Commonwealth's focus in closing
is one factor to evaluate whether the evidence
was overwhelming to a point that prejudice the defendant.
Here, of course the evidence was prejudicial
because it helped to convict the defendant.
However, if you look at other factors where the evidence,
the testimony was detailed and the amount of the testimony
or the amount of text messages,
when you evaluate these, especially when
the text messages were substantially
probative to the Commonwealth,
where you have an immunized victim
on the stand, lying about what happened
on the day of July 31st,
where she testified that there was
no communication between the defendant and the victim,
where the text messages show that that did communicate
where the defendant say, "okay" in responding to the victim,
the text messages of "I'm good."
When the text messages probative value is so substantial
that will outweigh any unfair prejudice, if there's any.
Here, the text messages were limited in time
and the scope and in a month where it was nine days,
six weeks prior to the charged crime.
It was limited and it did not overwhelm the case.
-: Mr. Lee, not only did the judge here
not make the findings of during and furtherance
of the conspiracy, she didn't submit the finding
that she's required to to the jury.
Nor did she analyze whether separate
and distinct from all of these statements,
whether the joint venture of the conspiracy existed.
Does all that add up here
to a substantial risk of a miscarriage of justice?
-: So the judge is, of course the judge should have
made a preliminary finding
and should have instructed the jury
on making their own determination based on preponderance.
And it certainly adds
to the evaluation or analysis of substantial risks.
However.
-: But don't forget, also make a determination
of whether the conspiracy exists
independent of the statement.
She didn't do that either, right?
-: No, there was no preliminary findings.
However, the fact that the judge admitted these statements
show us the necessary important those preliminary findings,
this court's decision in Commonwealth v. Baker
where this court affirm the judge's admission
of business records without making
these preliminary findings.
-: Do the cell phone communications play into that
as Justice Lowy asked you?
'Cause those, the cell phone communications
those nine weeks that are so damning,
are those admitted as co-conspirator statements?
-: In motion limine, yes.
-: So we have to find the judge,
the jury should have found and didn't
that there was a joint venture independent
of anything involving the defendant and the victim, correct?
Including the cell phone records?
-: Yes, it would be independent of the victim statements.
However.
Judge Gaziano: You don't see that as a problem?
-: It would be better practice
and it would have been better in this case
if the judge made a finding
and give the limiting instruction.
However, where the standard substantial risk
and there's evidence that the defendant drove the victim
to provide sexual services and in his car is
all different items, lubricants and female IDs.
-: That's really the only, the only evidence independent
to prove the joint venture would be dropping her off
and having the implements in the car
as well as the, the, the cards, right, the business cards?
-: No because one key point, one key part is
the defendant's text messages to the victim.
Those statements were independently admissible
under area 1D2,
where it is a statement by a party opponent.
The court could consider statements.
-: Well, that's, that's why I asked you,
because you didn't say that before,
as to whether or not his side of it comes in
as a party opponent admission
versus co-conspirator statement.
-: Those statements will be
independent admissible as statement of party.
Judge Gaziano: But that wasn't
part of the motion in limine, correct?
-: It was not right.
-: Right, so they, so everything was admitted
as co-conspirator statements.
This whole scenario of admission
is kind of back fill in
to try to come up with another theory
why it would be admissible, right?
-: No, your honor.
I would like to correct myself.
In motion limine, when there were,
in the motion limine,
on April 10th, the Commonwealth, they bring up two motions.
One is the motion limine to admit the defendant's statements
of, as a party opponent and as a separate motion in limine
to admit the victim statements as co-conspirator statements.
So there was a motion limine to admit
the defendant's statements independently.
Judge Gaziano: And the judge allowed both?
-: Correct, your honor.
Judge Gaziano: Okay, thank you.
-: So this expert witness has important testimony
because it, your average juror doesn't necessarily know
and understand sex trafficking.
And additionally,
this witness is a percipient witness.
So doesn't that reality as an expert, you know,
they're looking at this person on the witness stand
as an expert about important testimony,
doesn't that augment his credibility in the eyes of the jury
as a percipient witness
and perhaps lean into vouching?
And isn't that concern what we have raised numerous times?
-: I see my time is about to expire, may I respond?
-: [Chief Justice Budd] Oh please, yes.
-: For the first question about discovery violation,
the defense counsel.
-: Ask you about that and I know
you have a limited amount of time
-: Sure.
So in terms of the, Detective McManus testified
as both a expert and percipient witness,
care was taken this case where
the detective was not officially qualified in open court
that he was an expert.
There was limiting instruction at the final charge where,
about expert testimony.
And Detective McManus did not testify to the ultimate issue
or even to opine on the final question
of guilt or innocence.
All he did was provide information
about the relationship between a pimp and prostitute
to provide a general sense how sex trafficking works.
And only one close question is when he was asked to
draw inference or to explain the significance
of certain items found in the car.
All he say was it's a control tactic.
He did not say that the defendant was a pimp
or these items were consistent with sex trafficking
where it usually see in a, in a trial case.
All he say was, it's a control tactic.
It, he did not cross the line.
And if you look at Commonwealth v. Tanner,
an appeals court case, where a detective only
to describe this general understanding of how things works
he does not cross the line,
even when the percipient witness testified as an expert.
-: [Chief Justice Budd] Okay, everybody all set?
-: [Justice Georges Jr.] Thanks, Chief.
-: Thank you very much.
Attorney Lee: Thank you.
-: Okay, we'll take our morning break.
Bailiff: All rise.