Commonwealth v. Nicco-Kawon Pledger.

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

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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

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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."

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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

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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.

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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

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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.

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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.

12