Com. v. Asmeron

• Decision Date: 07 November 2007
• Docket Number: No. 06-P-886.,06-P-886.
• Citation: 70 Mass. App. Ct. 667,875 N.E.2d 870
• Parties: COMMONWEALTH v. Eden Judy ASMERON.
• Court: Appeals Court of Massachusetts

875 N.E.2d 870

70 Mass. App. Ct. 667

COMMONWEALTH v. Eden Judy ASMERON.

No. 06-P-886.

Appeals Court of Massachusetts, Middlesex.

Argued September 12, 2007.

Decided November 7, 2007.

Robert A. O'Meara, Boston, for the defendant.

Loretta M. Lillios, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, KANTROWITZ, & COHEN, JJ.

CYPHER, J.

The defendant, Eden Judy Asmeron, was convicted by a Superior Court jury in February, 2005, of deriving support from the proceeds of prostitution committed by a minor, G.L c. 272, § 4B.¹ Subsequently, acting on the defendant's posttrial motion under Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), the trial judge denied her motion to set aside the verdict and enter a finding of not guilty or, in the alternative, order a new trial. The defendant appeals, challenging the sufficiency of the evidence corroborating the immunized witness's testimony and the judge's refusal to instruct the jury that they could not convict solely on the testimony of the immunized witness.

Factual background. While Belmont police Officer Michael Logan was on patrol in the area of 43 Burnham Street on December 4, 2001, at about 2:00 A.M., his attention was drawn to a Boston taxi idling in front of an apartment building at that address. He had a brief conversation with the driver of the taxi, and then moved his cruiser a little distance away to observe the scene. He saw a very young woman leave the building and enter the taxi. She was wearing a coat, very tight jeans, and stiletto heels. As the taxi drove away, Officer Logan followed it. He soon observed the commission of a motor vehicle infraction, and stopped the taxi. Approaching the driver, he saw that the meter was not running and that the young woman was sitting in the front passenger seat not wearing a seat belt. On inquiry, she identified herself to Officer Logan as Jennifer Poupart. In checking the identities of the driver and the young woman in a computer data base maintained by the Commonwealth and the United States, he determined there was no information on the name given by the young woman. She agreed to talk to the officer, however, and the two, along with Belmont police Officer Kristine Kennedy, had a twenty to thirty minute conversation at the rear of the taxi. During that time, she gave the officers an identification card with her picture and a different name, three keys, two hotel room keys, and a notebook. Toward the end of the conversation, the young woman's cellular telephone rang, Officer Logan instructed her to answer it, and she briefly spoke with the defendant. The young woman agreed to go the police station, where she talked to the police for about forty-five minutes.

Unknown to the police at that time, Jennifer Poupart was a false name, and the young woman was under eighteen years old and a runaway who had been in the custody of the Department of Social Services (DSS). Scared and wanting to get away from the police, she also gave the police a false address and telephone number. She eventually was released to a man she identified at trial as her "godfather," and they then traveled to Alabama and Georgia. While in Georgia, she spoke with her attorney and requested that DSS be contacted so that she could return to Massachusetts. Escorted by a DSS case worker, she flew back to Boston on December 17, 2001.

After her true identity was determined, Darcy's² refusal to testify to a Superior Court grand jury was overcome in April, 2002, when she received a grant of immunity.³

The trial. The Commonwealth's case principally was presented through Darcy's testimony. The jury heard the following. Growing up in Boston, Darcy had been in the custody of DSS from the age of six. On her sixteenth birthday, June 15, 2001, she ran away from her foster home, and ended up working as a prostitute for a pimp in Boston's "combat zone." Dissatisfied with what she was doing, she asked to return to the custody of DSS, but after being placed in her former foster home, she ran away a day later. Finding a recently made friend, Maritsa Vasquez, also known as Maritsa Gonzalves, who ran an escort and prostitution service in Dorchester called "International Tropical Girls," Darcy "worked" for her for a short time.

Darcy soon was introduced by Vasquez to the defendant and two others at apartment B-3 at 43 Burnham Street in Belmont. Vasquez explained to them that Darcy was a runaway from DSS, was sixteen years old, and needed a place to stay. It was arranged that Darcy would "work" in the escort and prostitution services run from apartment B-3 at 43 Burnham Street on nights and weekends and that she could sleep there. The defendant and Vasquez instructed her never to reveal her true name, age or Social Security number to anyone, in order to avoid being returned to DSS custody. Vasquez also provided her with a false identification card.

Darcy described her work as a prostitute. She worked for two "escort services" operating from the apartment "Utopia," run by the defendant and Keith Scher; and "Latin Princesses," run by Jonathan Ace.⁴ The services were promoted through newspaper advertisements and distribution of business cards. Telephone calls to different numbers for the escort services were answered at apartment B-3, and the caller would ask for either a strip tease or massage. The caller would provide a name and telephone number and state a preference for the "type of girl." One of the women, sometimes Darcy, would call back, confirm her physical attributes, and arrange a time and place to meet. The escort services rented area hotel and motel rooms that the women could use, if needed. In addition, the escort services made drivers available to transport the women and to protect them if "something went wrong."

Darcy was instructed to first collect a $100 fee for one-half hour and $200 for one hour when meeting a "client," before performing a strip tease or massage. After that, "extras" such as oral and vaginal sex could be discussed. Both Vasquez and the defendant instructed Darcy on performing "extras." The defendant and Scher instructed Darcy that the fees would be eighty-five dollars for the former and $185 for the latter. Darcy would call the escort service at the conclusion.

When Darcy first began working for the escort services, she went on calls with the defendant, who instructed her on how to perform "extras" and the need to obtain the fees before performing such "extras." The defendant stopped going on calls in about November, 2001, to operate the telephones for the escort services. The defendant and Vasquez instructed Darcy to keep names and telephone numbers of clients in a notebook. Darcy made various notations in her notebook that served to remind her of a client in case the client called a second time.

Darcy further testified that her financial arrangement with the escort services was to give one-half of her fees to the owner of the service, as well as twenty-five dollars to the driver, and to keep the rest. She gave the money either to Scher or, if he was not there, to the defendant. Darcy paid for her own clothing, food, and the prepaid telephone cards she used to communicate with the escort services.

Discussion. 1. Corroboration of testimony of immunized witness. The defendant invokes G.L. c. 233, § 20I,⁵ to claim that there was no evidence of the commission of the crime with which she was charged, apart from Darcy's testimony. While Darcy's testimony provides a comprehensive and coherent narrative of her participation in the prostitution enterprise, there was other evidence introduced by the Commonwealth, which we examine both for its sufficiency under Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), and for its value as corroboration of Darcy's testimony.

"The purpose of [G.L. c. 233, § 20I,] is to require support for the credibility of the immunized witness. That support may come as much in the form of corroboration of evidence of the commission of the crime as it does from proof that the defendant was a participant." Commonwealth v. DeBrosky, 363 Mass. 718, 730, 297 N.E.2d 496 (1973). It is "require[d] that there be some evidence in support of the testimony of an immunized witness on at least one element of proof essential to convict the defendant." Ibid. "The policy basis of evaluating credibility remains the most important factor behind [G.L. c. 233, § 20I]. Cases from other States support this view." Commonwealth v. Fernandes, 425 Mass. 357, 359, 681 N.E.2d 270 (1997) (footnote omitted). "`[E]vidence corroborating accomplice testimony "need not prove the commission of the crime"'; all that is necessary is that the evidence `satisfies the jury that the accomplice is telling the truth.'" Id. at 359-360, 681 N.E.2d 270, quoting from People v. Cunningham, 48 N.Y.2d 938, 940, 425 N.Y.S.2d 59, 401 N.E.2d 182 (1979).

The charged crime under G.L. c. 272, § 4B,⁶ requires the Commonwealth to prove beyond a reasonable doubt that (1) Darcy was engaged in prostitution (2) as a minor⁷; (3) the defendant knew Darcy was a prostitute; and (4) the defendant derived support or shared in the monetary proceeds of prostitution, knowing that such proceeds were from the prostitution of Darcy. The judge so instructed the jury. Those instructions are not contested in this appeal.⁸

The Commonwealth elicited the following evidence which supports the corroboration requirements.⁹

a. Officer Logan's observations of Darcy entering a Boston taxi in Belmont at an early morning hour, and the hotel keys, notebook, and false identification card she gave him, support her testimony describing how she set out on a "call." It is significant that this evidence was given voluntarily by Darcy to the police before she was granted immunity.¹⁰

b. Most of the defendant's argument is focused on an assertion that there was inadequate corroboration of Darcy's age. There was ample evidence that she was a minor. Darcy was...