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
22-P-872
COMMONWEALTH
vs.
NICCO-KAWON PLEDGER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of murder in
the second degree, armed assault with intent to murder, assault
and battery by means of a dangerous weapon, carrying a firearm
without a license, and carrying a loaded firearm without a
license. 1 The defendant filed a motion for a new trial on the
ground of ineffective assistance of counsel, which the trial
judge denied. Before us is the defendant's consolidated appeal
from his convictions and the denial of his new trial motion. He
argues that his trial counsel was ineffective, largely for
failing to challenge the admission of certain cell site location
information (CSLI) evidence; that the judge erred by allowing
1 The jury also convicted the defendant of possession of ammunition without a firearm identification card, but that judgment was dismissed at the Commonwealth's request. the prosecutor to use peremptory challenges to exclude two Black
jurors; that the juror compensation statute is unconstitutional;
and that the judge should have sua sponte ordered a special
award of compensation to Black jurors who were dismissed because
of financial hardship. We are unpersuaded by these arguments
and thus affirm the judgments of conviction of murder in the
second degree, armed assault with intent to murder, and assault
and battery by means of a dangerous weapon. We vacate the
firearms convictions pursuant to Commonwealth v. Guardado, 491
Mass. 666 (Guardado I), S.C., 493 Mass. 1 (2023) (Guardado II).
Background. At about 3 A.M. on March 21, 2016, Allex
Bryant was shot and killed after leaving a party on Humboldt
Avenue in Roxbury. A second victim, Daquon Brown, was shot in
the leg.
Several hours earlier, at about 11:30 P.M., the defendant
arrived at the party after his half-sister, Aneka Smith, called
him twice at the request of another partygoer, Tyquan Neal. The
defendant left after only fifteen minutes, and Bryant and Brown
arrived together about ninety minutes later. After they
arrived, Smith called the defendant a third time at Neal's
request, but the defendant was not seen at the party again.
When the party ended at about 2:50 A.M., Bryant and Brown
left for Brown's car, which was parked near the corner of
Humboldt Avenue and Munroe Street. Soon thereafter, multiple
2 witnesses heard gunshots, and some saw parts of the shooting.
The host of the party heard gunfire involving "more than one
person." A neighbor saw two men shooting at each other and then
saw one of them throw something into a parked car before jumping
into a dark sedan that sped off in the wrong direction on Munroe
Street. Another neighbor noticed that the car leaving the scene
was a black Nissan with tinted windows.
Police responded soon after the shooting and found Bryant
unresponsive in the passenger seat of Brown's car. On Munroe
Street they recovered numerous shell casings, a firearm on the
sidewalk, and a magazine cartridge underneath a parked Toyota
Camry. After obtaining a search warrant, the police recovered
another firearm from the floor of the Camry. The Camry was
registered to the defendant's brother, Dartanyan Pledger.
Once they learned that the defendant had attended the
party, police acquired the cell phone records for a number (2364
number) that they believed belonged to him. They later
discovered that the number was registered to the defendant's
girlfriend, Lisa Lewis, who owned a 2006 black Nissan Maxima
with tinted windows. The records for the 2364 number showed
that its user had regular contact with another number registered
3 to Lewis and a number registered to Dartanyan 2 from 2:06 A.M. to
3:10 A.M. on the day of the shooting.
The police sent the records for all three numbers to Zetx,
a company founded by Sy Ray, for CSLI mapping. Using software
that he developed, Ray produced maps with shaded areas,
described as "handoff areas," around the cell phone towers used
by the phones before and after the shooting. According to Ray,
who testified as the Commonwealth's CSLI expert, the handoff
areas showed that the user of the 2364 number was in the area of
Munroe Street at about midnight; traveled to downtown Boston,
near Lewis's workplace, at about 2:25 A.M.; returned to the
Munroe Street area at about 2:45 A.M.; and remained there until
after the shooting. Ray acknowledged that the handoff areas did
not pinpoint a phone's exact location but represented only a
"rough estimation" of where the phone was when it connected to a
tower.
Discussion. 1. Ineffective assistance of counsel. In his
motion for a new trial, the defendant argued that his trial
counsel was ineffective for not moving to exclude Ray's
testimony as unreliable under the Daubert-Lanigan test 3 or
offering a rebuttal expert. The defendant also argued that
2 Because Dartanyan has the same surname as the defendant, we use his first name to avoid confusion. 3 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993); Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994).
4 counsel should have raised a hearsay objection to a detective's
testimony. The judge denied the motion without an evidentiary
hearing.
To establish ineffective assistance, a defendant must show
"serious incompetency, inefficiency, or inattention of counsel"
that likely deprived the defendant "of an otherwise available,
substantial ground of defense." Commonwealth v. Daley, 439
Mass. 558, 569 n.8 (2003), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). Where, as here, a claim of ineffective
assistance is based on a strategic decision by counsel, the
question is whether the decision was manifestly unreasonable
when made. Commonwealth v. Kolenovic, 471 Mass. 664, 674
(2015). We review the judge's decision for an abuse of
discretion, according "special deference" to her factual
findings and ultimate conclusions, as she was also the judge at
trial. Id. at 672-673, quoting Commonwealth v. Lane, 462 Mass.
591, 597 (2012).
The judge properly determined that trial counsel's decision
not to challenge Ray's expert testimony or call a rebuttal
witness was not manifestly unreasonable. Counsel averred in an
affidavit that he researched the issue 4 and determined that such
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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
22-P-872
COMMONWEALTH
vs.
NICCO-KAWON PLEDGER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of murder in
the second degree, armed assault with intent to murder, assault
and battery by means of a dangerous weapon, carrying a firearm
without a license, and carrying a loaded firearm without a
license. 1 The defendant filed a motion for a new trial on the
ground of ineffective assistance of counsel, which the trial
judge denied. Before us is the defendant's consolidated appeal
from his convictions and the denial of his new trial motion. He
argues that his trial counsel was ineffective, largely for
failing to challenge the admission of certain cell site location
information (CSLI) evidence; that the judge erred by allowing
1 The jury also convicted the defendant of possession of ammunition without a firearm identification card, but that judgment was dismissed at the Commonwealth's request. the prosecutor to use peremptory challenges to exclude two Black
jurors; that the juror compensation statute is unconstitutional;
and that the judge should have sua sponte ordered a special
award of compensation to Black jurors who were dismissed because
of financial hardship. We are unpersuaded by these arguments
and thus affirm the judgments of conviction of murder in the
second degree, armed assault with intent to murder, and assault
and battery by means of a dangerous weapon. We vacate the
firearms convictions pursuant to Commonwealth v. Guardado, 491
Mass. 666 (Guardado I), S.C., 493 Mass. 1 (2023) (Guardado II).
Background. At about 3 A.M. on March 21, 2016, Allex
Bryant was shot and killed after leaving a party on Humboldt
Avenue in Roxbury. A second victim, Daquon Brown, was shot in
the leg.
Several hours earlier, at about 11:30 P.M., the defendant
arrived at the party after his half-sister, Aneka Smith, called
him twice at the request of another partygoer, Tyquan Neal. The
defendant left after only fifteen minutes, and Bryant and Brown
arrived together about ninety minutes later. After they
arrived, Smith called the defendant a third time at Neal's
request, but the defendant was not seen at the party again.
When the party ended at about 2:50 A.M., Bryant and Brown
left for Brown's car, which was parked near the corner of
Humboldt Avenue and Munroe Street. Soon thereafter, multiple
2 witnesses heard gunshots, and some saw parts of the shooting.
The host of the party heard gunfire involving "more than one
person." A neighbor saw two men shooting at each other and then
saw one of them throw something into a parked car before jumping
into a dark sedan that sped off in the wrong direction on Munroe
Street. Another neighbor noticed that the car leaving the scene
was a black Nissan with tinted windows.
Police responded soon after the shooting and found Bryant
unresponsive in the passenger seat of Brown's car. On Munroe
Street they recovered numerous shell casings, a firearm on the
sidewalk, and a magazine cartridge underneath a parked Toyota
Camry. After obtaining a search warrant, the police recovered
another firearm from the floor of the Camry. The Camry was
registered to the defendant's brother, Dartanyan Pledger.
Once they learned that the defendant had attended the
party, police acquired the cell phone records for a number (2364
number) that they believed belonged to him. They later
discovered that the number was registered to the defendant's
girlfriend, Lisa Lewis, who owned a 2006 black Nissan Maxima
with tinted windows. The records for the 2364 number showed
that its user had regular contact with another number registered
3 to Lewis and a number registered to Dartanyan 2 from 2:06 A.M. to
3:10 A.M. on the day of the shooting.
The police sent the records for all three numbers to Zetx,
a company founded by Sy Ray, for CSLI mapping. Using software
that he developed, Ray produced maps with shaded areas,
described as "handoff areas," around the cell phone towers used
by the phones before and after the shooting. According to Ray,
who testified as the Commonwealth's CSLI expert, the handoff
areas showed that the user of the 2364 number was in the area of
Munroe Street at about midnight; traveled to downtown Boston,
near Lewis's workplace, at about 2:25 A.M.; returned to the
Munroe Street area at about 2:45 A.M.; and remained there until
after the shooting. Ray acknowledged that the handoff areas did
not pinpoint a phone's exact location but represented only a
"rough estimation" of where the phone was when it connected to a
tower.
Discussion. 1. Ineffective assistance of counsel. In his
motion for a new trial, the defendant argued that his trial
counsel was ineffective for not moving to exclude Ray's
testimony as unreliable under the Daubert-Lanigan test 3 or
offering a rebuttal expert. The defendant also argued that
2 Because Dartanyan has the same surname as the defendant, we use his first name to avoid confusion. 3 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589
(1993); Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994).
4 counsel should have raised a hearsay objection to a detective's
testimony. The judge denied the motion without an evidentiary
hearing.
To establish ineffective assistance, a defendant must show
"serious incompetency, inefficiency, or inattention of counsel"
that likely deprived the defendant "of an otherwise available,
substantial ground of defense." Commonwealth v. Daley, 439
Mass. 558, 569 n.8 (2003), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). Where, as here, a claim of ineffective
assistance is based on a strategic decision by counsel, the
question is whether the decision was manifestly unreasonable
when made. Commonwealth v. Kolenovic, 471 Mass. 664, 674
(2015). We review the judge's decision for an abuse of
discretion, according "special deference" to her factual
findings and ultimate conclusions, as she was also the judge at
trial. Id. at 672-673, quoting Commonwealth v. Lane, 462 Mass.
591, 597 (2012).
The judge properly determined that trial counsel's decision
not to challenge Ray's expert testimony or call a rebuttal
witness was not manifestly unreasonable. Counsel averred in an
affidavit that he researched the issue 4 and determined that such
4 Specifically, counsel averred that he "consulted with other counsel as well [as] individuals with professional training relative to CSLI and cell tower capabilities," "reviewed various
5 a challenge would either be unsuccessful or result in a
different expert testifying who would be less favorable to the
defense. Among other factors, counsel considered that Ray had a
"limited educational background," that his company had an
"obvious pro-law enforcement slant," and that his methods
departed from those typically used in CSLI mapping. 5 In
addition, counsel looked into other cases in which the
Commonwealth had introduced CSLI evidence through law
enforcement experts. Given that the CSLI evidence in those
cases "was essentially the same" as "the information imparted
[by Ray]," and given counsel's "past experiences with the level
of education, training, experience and demeanor of law
enforcement experts," counsel concluded that his chances of
discrediting the CSLI evidence would be greater if Ray testified
as the Commonwealth's expert. This strategic decision, as the
judge found, was "eminently reasonable."
The judge also properly concluded that counsel's decision
did not deprive the defendant of a substantial ground of
published materials relative [to] the function of cell towers to explore the nature of the anticipated testimony," and "conducted research regarding Sy Ray and Zetx, including, but not limited to, some of the cases in which he testified as an expert." Counsel then learned that Ray had "been previously admitted as an expert in a number of [c]ourts." 5 Counsel was aware that "the form of [CSLI] evidence" is
traditionally in the "cone/pie wedge shape rather than Zetx mapping."
6 defense. The defendant's motion and supporting affidavit and
report from Joseph Nicholls, a digital forensic examiner, failed
to show that materially different evidence would have come in
had another expert testified for the Commonwealth or had a
rebuttal expert testified. Nicholls's affidavit and report did
not rebut the crux of Ray's testimony, which was that the 2364
number used cell phone towers near Munroe Street at the time of
the shooting. As the judge found, a different expert applying
traditional methods would "still have to acknowledge that the
CSLI put the phone within a certain coverage area and, in a
densely populated city such as Boston, that coverage area is
relatively small." See Commonwealth v. Perry, 489 Mass. 436,
439-440 (2022). Thus, because the motion did not demonstrate
that "better work might have accomplished something material for
the defense," the judge did not abuse her discretion by
concluding that the defendant failed to establish prejudice.
Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Nor did the judge abuse her discretion by rejecting the
defendant's claim that counsel was ineffective for not raising a
hearsay objection. Underlying this claim is a detective's
affirmative response ("I was") to the question: "As part of
your investigation, were you able to obtain a potential phone
7 number that might belong to [the defendant]?" 6 The defendant
does not explain why the detective's response constituted
hearsay. It did not recount an out-of-court statement, see
Mass. G. Evid. § 801(c) (2023), and so counsel was not
ineffective for failing to object to it. See Commonwealth v.
Kruah, 47 Mass. App. Ct. 341, 344-345 (1999). The absence of
objection also did not deprive the defendant of a substantial
ground of defense, given that the detective immediately went on
to testify that the 2364 number was in fact registered to Lewis.
2. Peremptory challenges. We turn to the arguments the
defendant raises on direct appeal, beginning first with his
claim that the judge should have denied the Commonwealth's
peremptory challenges to two Black jurors. While peremptory
challenges are presumed to be proper, that presumption can be
rebutted if "the totality of the relevant facts gives rise to an
inference of discriminatory purpose." Commonwealth v. Mason,
485 Mass. 520, 529 (2020), quoting Commonwealth v. Sanchez, 485
Mass. 491, 511 (2020). If the defendant makes this showing, the
burden shifts to the Commonwealth to state a nondiscriminatory
reason for the challenge. See Mason, supra at 530.
The Commonwealth used peremptory challenges on jurors nos.
101 and 69, both Black women, after discussions about their
6 Contrary to the defendant's characterization, the detective did not testify that he "learned" of the potential phone number.
8 criminal histories. Juror no. 101 disclosed that she had
previously been charged with a crime and stood trial "[i]n front
of a judge." In challenging her, the prosecutor stated that he
did not want "someone who's actually been to trial as a criminal
defendant sitting on [the] jury." Juror no. 69 disclosed that
she and her son were prosecuted for drug crimes by the same
district attorney's office involved in this case, that she had
served one year of incarceration, and that she believed she was
"made an example of" for other parents. The prosecutor
challenged her because of concerns that she had some "residual
feelings" about his office. The judge permitted both challenges
over the defendant's objections, finding no pattern of
discrimination and that the reasons given by the Commonwealth
were not pretext.
On appeal the defendant argues to the contrary that the
Commonwealth's reasons were "demonstrably pretextual" in light
of the fact that it did not challenge four other jurors with
criminal histories. But the record does not reveal the racial
identities of the four unchallenged jurors, and so we have no
factual basis on which to conclude that the Commonwealth acted
with discriminatory purpose. See Commonwealth v. Grier, 490
Mass. 455, 461-462 (2022). For this reason alone, the defendant
has failed to show that the judge erred by finding an absence of
pretext. Furthermore, the judge had a sound basis for her
9 rulings, as the struck jurors' "significant experiences with the
law provided . . . sufficient and obvious bas[es] for the
prosecutor's peremptory challenge[s]." Commonwealth v. Lopes,
478 Mass. 593, 601 (2018). By comparison none of the four
unchallenged jurors disclosed being charged with any crimes that
resulted in a trial or a committed sentence. 7 The Commonwealth
was also warranted in striking juror no. 69 for the independent
reason that she and her son had been prosecuted by the district
attorney's office involved in this case and "could harbor
resentment against the office." Commonwealth v. Walker, 69
Mass. App. Ct. 137, 143 (2007). See Commonwealth v. Scott, 98
Mass. App. Ct. 843, 848 (2020). Thus, on the record before us,
we discern no abuse of discretion in the judge's allowance of
the challenges.
3. Juror compensation statute. The defendant claims that
the juror compensation statute, G. L. c. 234A, § 51, is
unconstitutional on its face and as applied because it resulted
in the dismissal of four otherwise qualified Black jurors,
violating his right to a jury drawn from a fair cross section of
the community. According to the defendant, because the statute
7 The unchallenged jurors disclosed previous arrests -- at least two of which occurred in other jurisdictions -- for possession of a class B substance, "attaching plates," and operating under the influence. It is unclear from the record which, if any, of these arrests led to trials or convictions.
10 provides for payment of less than minimum wage, it has a
disparate impact on Black jurors and other people of color. The
defendant provides no record support for this assertion. The
record does not reveal what percentage of the jurors excused for
financial hardship were Black 8 and is devoid of information
regarding the racial composition of the venire or the seated
jury. We therefore have no basis on which to evaluate the
defendant's claim. See Commonwealth v. Mcfarlane, 102 Mass.
App. Ct. 264, 270 (2023), S.C. 493 Mass. 385 (2024).
4. Special compensation. Likewise, we cannot evaluate the
defendant's claim that the judge erred by failing to sua sponte
order awards of special compensation under G. L. c. 234A, § 56,
to the Black jurors excused for financial hardship. There is no
information in this record to support the defendant's suggestion
that the special awards were necessary to ensure a proportionate
number of Black people on the jury. His claim fails for at
least this reason.
5. Firearms convictions. As the parties agree, and we
have confirmed, the Commonwealth presented no evidence on the
defendant's licensure status as required by Guardado I, 491
Mass. at 668. The convictions of carrying a firearm without a
8 Almost twenty jurors were excused for financial hardship, including the four Black jurors and three white jurors. The racial backgrounds of the remaining jurors are not apparent from the record.
11 license and carrying a loaded firearm without a license must
therefore be vacated. The Commonwealth is free to retry the
defendant on those charges. See Guardado II, 493 Mass. at 12.
Conclusion. The judgments of conviction of carrying a
firearm without a license and carrying a loaded firearm without
a license are vacated. The remaining judgments and the order
denying the defendant's motion for a new trial are affirmed.
So ordered.
By the Court (Desmond, Shin & Singh, JJ. 9),
Assistant Clerk
Entered: March 18, 2024.
9 The panelists are listed in order of seniority.