NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-622
COMMONWEALTH
vs.
DIRISU C. ALASA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Dirisu C. Alasa, appeals from a conviction
after a jury trial in the Superior Court of trafficking a person
for sexual servitude, G. L. c. 265 § 50 (a), and deriving
support from prostitution, G. L. c. 272, § 7. Although an
agent's testimony intermittently blurred into expert testimony,
we discern no substantial risk of a miscarriage of justice in
light of its insignificance and cumulative nature. Further
concluding that testimony about the defendant's false statements
and marijuana use was not so prejudicial as to create a
substantial risk of a miscarriage of justice, we affirm.
1. Background. On December 11, 2018, Newton police
officers and at least one Federal Bureau of Investigation agent conducted a sex trafficking sting operation at a hotel in
Newton. An officer responded to the online advertisement of a
woman calling herself "Diamond" and, after a series of text
messages, arranged for a one-half hour "date" at the hotel in
exchange for $150. That afternoon, officers observed a woman of
similar appearance to that in the online advertisement exit the
passenger side of a motor vehicle and enter the designated
hotel. The driver did not exit the vehicle and instead parked
in the hotel lot, remaining there for the entirety of the
encounter.
Upon entering the officer's hotel room, Diamond told him to
place the $150 on the table and to send a text message to a
phone number that stated, "Got the room, safe." When she pulled
out a condom, the officer gave the prearranged signal, and
officers in surrounding rooms entered the room and handcuffed
Diamond.
At the same time, the agent and two officers approached the
parked vehicle which had dropped off Diamond. One officer saw
that the defendant had a cigar wrapper with marijuana in his
lap, and the agent smelled marijuana. When asked, the defendant
provided officers with a false name and claimed he did not have
any form of identification on his person. The defendant said
that "he dropped off a friend" and "didn't know why they were
there." He said that he did not know the name of the friend.
2 A detective subsequently found a driver's license bearing
the defendant's real name in his pocket. He also found
Diamond's belongings in the glove box and a cellular phone that
was later determined to be the one to which the officer sent a
text message from the hotel room.
2. Standard of review. "Because the defendant did not
object at trial to the challenged testimony . . . , 'we review
his claims to determine whether there was error, and, if so,
whether the error created a substantial risk of a miscarriage of
justice.'" Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 804
(2024), quoting Commonwealth v. Diaz, 100 Mass. App. Ct. 588,
596 (2022). "A substantial risk of a miscarriage of justice
exists when we have 'a serious doubt whether the result of the
trial might have been different had the error not been made.'"
Commonwealth v. Valentin, 470 Mass. 186, 189 (2014), quoting
Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.
72 (2005).
3. Expert testimony. "A percipient police witness may
also testify as an expert witness, though care should be taken
in presenting such expert testimony: 'It is easy for the line
between specific observations and expert generalizations to
become blurred in these situations.'" Commonwealth v. Ortiz, 50
Mass. App. Ct. 304, 306-307 (2000), quoting Commonwealth v.
Tanner, 45 Mass. App. Ct. 576, 579 (1998). "In determining
3 whether an expert witness's testimony was permissible, 'the
better practice is to focus the analysis on whether the evidence
is explanatory,' as opposed to 'conclusory' or 'couched simply
in terms of whether a defendant did or did not commit a
particular offense.'" Commonwealth v. Lowery, 487 Mass. 851,
871 (2021), quoting Tanner, supra at 581.
Here, the Commonwealth recognized the risk posed by the
same officer testifying as a percipient and expert witness and
accordingly planned for a separate expert witness who was not a
fact witness. At trial, the prosecutor specifically confirmed
that the agent was not testifying as an expert.
As it happened, the agent's intended lay testimony
intermittently blurred with expert testimony. For example, when
describing his role in the sting operation, the agent used the
term "date" and, when subsequently asked to define its meaning,
explained, "Date is a term that's used in that environment. A
date normally means meeting for a sex act." Because the
defendant did not object to this explanation or to similar
testimony, our review is limited to a review for a substantial
risk of a miscarriage of justice. See Ortiz, 50 Mass. App. Ct.
at 310.
The agent's testimony about the nature of sex trafficking
sting operations, although lengthy, was of no particular
significance to the defendant's guilt. The agent's testimony
4 about the meaning of "date" was duplicative of the expert
witness's more detailed testimony about sex trafficking. The
agent's testimony about his interactions with the defendant was
entirely factual, did not overlap with where the agent's
testimony bled into expert testimony, and thus was not
susceptible to being confused as conclusory by the jury. See
Lowery, 487 Mass. at 871. Finally, any error was insubstantial
given the later, properly admitted expert testimony and the
judge's sua sponte instruction distinguishing expert and lay
opinion during that expert's testimony. See Commonwealth v.
Huang, 489 Mass. 162, 177 (2022); Lowery, supra at 871-872.
Accordingly, we discern no substantial risk of a miscarriage of
justice.
4. Bad acts. "It is long established that evidence of
uncharged criminal acts or other misbehavior is not admissible
to show a defendant's bad character or propensity to commit the
charged crime, but may be admissible if relevant for other
purposes such as 'common scheme, pattern of operation, absence
of accident or mistake, identity, intent or motive.'"
Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006), quoting
Commonwealth v. Marshall, 434 Mass. 358, 366 (2001). "[E]ven if
the evidence is relevant to one of these other purposes, the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-622
COMMONWEALTH
vs.
DIRISU C. ALASA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Dirisu C. Alasa, appeals from a conviction
after a jury trial in the Superior Court of trafficking a person
for sexual servitude, G. L. c. 265 § 50 (a), and deriving
support from prostitution, G. L. c. 272, § 7. Although an
agent's testimony intermittently blurred into expert testimony,
we discern no substantial risk of a miscarriage of justice in
light of its insignificance and cumulative nature. Further
concluding that testimony about the defendant's false statements
and marijuana use was not so prejudicial as to create a
substantial risk of a miscarriage of justice, we affirm.
1. Background. On December 11, 2018, Newton police
officers and at least one Federal Bureau of Investigation agent conducted a sex trafficking sting operation at a hotel in
Newton. An officer responded to the online advertisement of a
woman calling herself "Diamond" and, after a series of text
messages, arranged for a one-half hour "date" at the hotel in
exchange for $150. That afternoon, officers observed a woman of
similar appearance to that in the online advertisement exit the
passenger side of a motor vehicle and enter the designated
hotel. The driver did not exit the vehicle and instead parked
in the hotel lot, remaining there for the entirety of the
encounter.
Upon entering the officer's hotel room, Diamond told him to
place the $150 on the table and to send a text message to a
phone number that stated, "Got the room, safe." When she pulled
out a condom, the officer gave the prearranged signal, and
officers in surrounding rooms entered the room and handcuffed
Diamond.
At the same time, the agent and two officers approached the
parked vehicle which had dropped off Diamond. One officer saw
that the defendant had a cigar wrapper with marijuana in his
lap, and the agent smelled marijuana. When asked, the defendant
provided officers with a false name and claimed he did not have
any form of identification on his person. The defendant said
that "he dropped off a friend" and "didn't know why they were
there." He said that he did not know the name of the friend.
2 A detective subsequently found a driver's license bearing
the defendant's real name in his pocket. He also found
Diamond's belongings in the glove box and a cellular phone that
was later determined to be the one to which the officer sent a
text message from the hotel room.
2. Standard of review. "Because the defendant did not
object at trial to the challenged testimony . . . , 'we review
his claims to determine whether there was error, and, if so,
whether the error created a substantial risk of a miscarriage of
justice.'" Commonwealth v. Cintron, 103 Mass. App. Ct. 799, 804
(2024), quoting Commonwealth v. Diaz, 100 Mass. App. Ct. 588,
596 (2022). "A substantial risk of a miscarriage of justice
exists when we have 'a serious doubt whether the result of the
trial might have been different had the error not been made.'"
Commonwealth v. Valentin, 470 Mass. 186, 189 (2014), quoting
Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.
72 (2005).
3. Expert testimony. "A percipient police witness may
also testify as an expert witness, though care should be taken
in presenting such expert testimony: 'It is easy for the line
between specific observations and expert generalizations to
become blurred in these situations.'" Commonwealth v. Ortiz, 50
Mass. App. Ct. 304, 306-307 (2000), quoting Commonwealth v.
Tanner, 45 Mass. App. Ct. 576, 579 (1998). "In determining
3 whether an expert witness's testimony was permissible, 'the
better practice is to focus the analysis on whether the evidence
is explanatory,' as opposed to 'conclusory' or 'couched simply
in terms of whether a defendant did or did not commit a
particular offense.'" Commonwealth v. Lowery, 487 Mass. 851,
871 (2021), quoting Tanner, supra at 581.
Here, the Commonwealth recognized the risk posed by the
same officer testifying as a percipient and expert witness and
accordingly planned for a separate expert witness who was not a
fact witness. At trial, the prosecutor specifically confirmed
that the agent was not testifying as an expert.
As it happened, the agent's intended lay testimony
intermittently blurred with expert testimony. For example, when
describing his role in the sting operation, the agent used the
term "date" and, when subsequently asked to define its meaning,
explained, "Date is a term that's used in that environment. A
date normally means meeting for a sex act." Because the
defendant did not object to this explanation or to similar
testimony, our review is limited to a review for a substantial
risk of a miscarriage of justice. See Ortiz, 50 Mass. App. Ct.
at 310.
The agent's testimony about the nature of sex trafficking
sting operations, although lengthy, was of no particular
significance to the defendant's guilt. The agent's testimony
4 about the meaning of "date" was duplicative of the expert
witness's more detailed testimony about sex trafficking. The
agent's testimony about his interactions with the defendant was
entirely factual, did not overlap with where the agent's
testimony bled into expert testimony, and thus was not
susceptible to being confused as conclusory by the jury. See
Lowery, 487 Mass. at 871. Finally, any error was insubstantial
given the later, properly admitted expert testimony and the
judge's sua sponte instruction distinguishing expert and lay
opinion during that expert's testimony. See Commonwealth v.
Huang, 489 Mass. 162, 177 (2022); Lowery, supra at 871-872.
Accordingly, we discern no substantial risk of a miscarriage of
justice.
4. Bad acts. "It is long established that evidence of
uncharged criminal acts or other misbehavior is not admissible
to show a defendant's bad character or propensity to commit the
charged crime, but may be admissible if relevant for other
purposes such as 'common scheme, pattern of operation, absence
of accident or mistake, identity, intent or motive.'"
Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006), quoting
Commonwealth v. Marshall, 434 Mass. 358, 366 (2001). "[E]ven if
the evidence is relevant to one of these other purposes, the
evidence will not be admitted if its probative value is
outweighed by the risk of unfair prejudice to the defendant."
5 Commonwealth v. Foreman, 101 Mass. App. Ct. 398, 401 (2022),
quoting Commonwealth v. Bryant, 482 Mass. 731, 734-735 (2019).
"These matters are 'entrusted to the trial judge's broad
discretion and are not disturbed absent palpable error.'"
Commonwealth v. Waterman, 98 Mass. App. Ct. 651, 659-660 (2020),
quoting Commonwealth v. Childs, 94 Mass. App. Ct. 67, 71 (2018).
Here, the officers' testimony concerning what the defendant
told them when they first approached him was relevant and
probative. After exiting his vehicle, the defendant claimed
that he did not have identification, but his identification was
found on his person. The defendant said he could not remember
the name of the person he had dropped off, but the jury could
infer this was false as Diamond's belongings were found in the
defendant's vehicle and the phone retrieved from the vehicle was
the one Diamond asked the officer to send a text message to from
the hotel room. The defendant's immediate and successive
provision of false information was relevant evidence of
consciousness of guilt. See Commonwealth v. Alcantara, 471
Mass. 550, 555 (2015).
Evidence that the defendant was about to smoke a marijuana
cigar was less probative, but still relevant. The defendant's
claim that he was just dropping off a friend was rebutted by the
evidence that he was preparing to smoke a marijuana cigar. This
was consistent with the Commonwealth's theory that the defendant
6 intended to wait in the parking lot until Diamond finished acts
of prostitution and then pick her up. Considering the
relatively limited social stigma to marijuana use, the judge
would have been well justified in concluding that the probative
value of this evidence outweighed its prejudicial effect, had
the defendant objected. See Commonwealth v. Bonds, 445 Mass.
821, 834-835 (2006). We discern no substantial risk of a
miscarriage of justice.1
Judgments affirmed.
By the Court (Blake, C.J., Ditkoff & D'Angelo, JJ.2),
Clerk
Entered: December 27, 2024.
1 "We are unpersuaded by the defendant's further argument that even if no single error warrants relief, the cumulative effect of the asserted errors justifies a new trial." Commonwealth v. Conley, 103 Mass. App. Ct. 496, 517 n.23 (2023).
2 The panelists are listed in order of seniority.