Commonwealth v. Rosado

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SJC-12467
COMMONWEALTH vs. JOSHUA ROSADO.
Suffolk. May 7, 2018. - September 14, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Constitutional Law, Confrontation of witnesses. Practice,
Criminal, Confrontation of witnesses. Witness,
Unavailability. Evidence, Unavailable witness.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on December 6, 2017.
The case was reported by Budd, J.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
Michelle A. Dame for the defendant.
GANTS, C.J. The issue on appeal concerns the scope of the
doctrine of forfeiture by wrongdoing. In Commonwealth
v. Edwards, 444 Mass. 526, 540 (2005), we held that a defendant
forfeits the right to object to the admission in evidence of an
unavailable witness's out-of-court statements on both
confrontation and hearsay grounds if the Commonwealth proves by
2
a preponderance of the evidence that "(1) the witness is
unavailable; (2) the defendant was involved in, or responsible
for, procuring the unavailability of the witness; and (3) the
defendant acted with the intent to procure the witness's
unavailability." We conclude that, on the facts of this case,
the Commonwealth has failed to meet its burden of proving any of
the three elements articulated in Edwards. See Mass. G. Evid.
§ 804(b)(6) (2018).
Specifically, as to the first element, a witness who has
been served with out-of-State process and ordered to appear at a
trial in Massachusetts is not unavailable simply because the
witness has informed the prosecutor that he or she does not want
to testify. As to the second element, the defendant was not
involved in, or responsible for, procuring the unavailability of
the witness where the defendant attempted, albeit
unsuccessfully, to intimidate the witness from testifying
against a friend of the defendant in a murder case, but did
nothing to cause her to be unavailable in the witness
intimidation case against himself. As to the third element, the
defendant's intent to intimidate the witness to make her
unavailable to testify against his friend in the earlier murder
case, even if proved by a preponderance of the evidence, does
not suffice to prove that the defendant acted with the intent to
procure the witness's unavailability as a potential witness
3
against the defendant regarding his acts of intimidation.
Consequently, we affirm the motion judge's denial of the
Commonwealth's motion in limine to admit in evidence the grand
jury testimony of the witness and her transcribed interview with
State police troopers.
1. Background. The following facts were either stipulated
to by the parties or are undisputed.
The defendant, Joshua Rosado, is the former boy friend of
the witness, Shakira Ortiz, and the father of her young
daughter. On December 3, 2015, a Hampden County grand jury
indicted Jean C. Mercado for murder and other crimes. Ortiz was
a key witness for the prosecution in that case, and the
defendant was a friend of Mercado.
On February 7, 2017, the day before Mercado's trial began,
Ortiz was interviewed by two State police troopers regarding
communications she had received from the defendant. Ortiz
stated that a friend had privately sent her messages on
Facebook, a social networking Web site, regarding certain public
messages that the defendant had "posted" on Facebook about
Ortiz. One posted message stated: "My baby mom is out here on
the bracelet jumping from house to house with my daughter. And
she's a rat at that. Like how you snitching on me, gonna shake
my head. Can't trust nobody. Fact, had this trifling bitch
around for so many years and I didn't know she was an undercover
4
rat." A second posted message stated: "I'll give someone 200
to beat the fuck out of my baby mom when y'all see her or I'll
bring her to -- or I'll bring you to her right now." The
defendant urged her not to testify against Mercado, and told her
that she should lie to the police so that she would not have to
testify. Ortiz stated that she had telephoned the defendant
after she learned of these Facebook messages, and that he
responded by threatening to hit her every time he saw her. She
said that these Facebook messages made her "[e]mbarassed" and
"[s]cared," and that she was afraid to walk around Springfield
and run the risk of encountering the defendant. Ortiz did
testify at Mercado's trial, but the jury found Mercado not
guilty on all charges.
On April 20, 2017, a Hampden County grand jury indicted the
defendant on one count of intimidation of a witness (Ortiz), in
violation of G. L. c. 268, § 13B. On November 13, 2017, the
Commonwealth moved in limine to admit in evidence Ortiz's
recorded interview with the State police troopers and her grand
jury testimony under the doctrine of forfeiture by wrongdoing,
in lieu of Ortiz's testimony at the defendant's trial.
The prosecutor attested that Ortiz now resides outside
Massachusetts and had been subpoenaed and ordered to appear in
court, pursuant to G. L. c. 233, § 13B, for the defendant's
5
trial on November 14, 2017. 1 However, on October 31, 2017, Ortiz
told the prosecutor during a telephone call that she was not
going to testify at trial because she was fearful for the safety
of herself and her daughter. Ortiz had informed a number of
individuals, including the prosecutor, that the defendant had
not "bothered" her since he was arrested on the witness
intimidation charge, and that she was no longer afraid of the
defendant. But Ortiz believed that the Facebook messages that
the defendant had posted created a safety risk for her from
known and unknown individuals, and that she feared retribution
from Mercado and his associates if she returned to Springfield.
At the motion hearing, the prosecutor informed the judge that he
"was under the impression" that Ortiz, if forced to return to
Springfield to testify, would refuse to testify and risk being
held in contempt.
On November 28, 2017, the motion judge issued a written
memorandum of decision denying the Commonwealth's motion in
limine. The judge, citing Edwards, noted that, "[h]ere, the
Commonwealth must prove by a preponderance of the evidence
1 The Commonwealth filed an impounded motion, pursuant to
G. L. c. 233, § 13B, of the Uniform Law to Secure the Attendance
of Witnesses from Without a State in Criminal Proceedings to
secure the attendance of Shakira Ortiz. Following a hearing in
a court in the State where Ortiz currently resides, Ortiz was
ordered by that court to appear in Massachusetts for the
defendant's trial, despite her testimony that she was afraid to
return to Massachusetts.
6
that[,] through the defendant's intimidation of the witness to
prevent her from testifying in a prior case against one of his
associates, he also had the intent of procuring her
unavailability in the present proceeding against him for those
same acts of intimidation." The judge concluded that the
Commonwealth had not met that burden, declaring that "[t]he
Commonwealth has not presented evidence that the defendant
intended to intimidate the witness in order to prevent her from
testifying against him in the future for that same intimidation,
or for any other future charges against him."
The Commonwealth petitioned for relief under G. L. c. 211,
§ 3, from the judge's order denying the Commonwealth's motion in
limine. The single justice reserved and reported the matter to
the full court. 2
2 The defendant contends that the Commonwealth has failed to
establish exceptional circumstances sufficient to justify the
extraordinary relief available under G. L. c. 211, § 3. "We
bypass the issue, however, because where a single justice
reserves decision and reports a case to the full court, we grant
full appellate review of the matters reported." Charbonneau v.
Presiding Justice of the Holyoke Div. of the Dist. Court Dep't,
473 Mass. 515, 518 (2016). We add that it is appropriate to
exercise our powers under G. L. c. 211, § 3, to address
questions reserved and reported by a single justice which
"involve matters of great import not only to the defendant but
also to the Commonwealth," Blaisdell v. Commonwealth, 372 Mass.
753, 755 (1977), keeping in mind that "we can and should act 'at
whatever stage in the proceedings it becomes necessary to
protect substantive rights.'" Id., quoting Myers v.
Commonwealth, 363 Mass. 843, 844 (1973).
7
2. Discussion. The doctrine of forfeiture by wrongdoing
balances a criminal defendant's rights under the Sixth Amendment
to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights to confront the witnesses
against him or her, see Commonwealth v. Greineder, 464 Mass.
580, 589, cert. denied, 571 U.S. 865 (2013), with the equitable
principle that a defendant should not benefit from his or her
wrongdoing in making a witness unavailable to be confronted.
See Reynolds v. United States, 98 U.S. 145, 159 (1878) ("the
rule has its foundation in the maxim that no one shall be
permitted to take advantage of his own wrong"); United States
v. Houlihan, 92 F.3d 1271, 1282-1283 (1st Cir. 1996), cert.
denied, 519 U.S. 1118 (1997) (doctrine "ensure[s] that a
wrongdoer does not profit in a court of law by reason of his
miscreancy").
In 1878, the United States Supreme Court established the
doctrine of forfeiture by wrongdoing, declaring, "The
Constitution gives the accused the right to a trial at which he
should be confronted with the witnesses against him; but if a
witness is absent by his own wrongful procurement, he cannot
complain if competent evidence is admitted to supply the place
of that which he has kept away." Reynolds, 98 U.S. at 158.
See Crawford v. Washington, 541 U.S. 36, 62 (2004) (doctrine of
8
forfeiture by wrongdoing "extinguishes" criminal defendant's
right to confrontation under Sixth Amendment).
In 2005, we adopted the doctrine of forfeiture by
wrongdoing and concluded that a defendant, by his or her
wrongdoing, may also forfeit his or her right under art. 12 and
our common-law rules of evidence to object to the admission of
hearsay evidence. See Edwards, 444 Mass. at 536. We held that
the Commonwealth must prove three elements by a preponderance of
the evidence for forfeiture by wrongdoing to apply: "(1) the
witness is unavailable; (2) the defendant was involved in, or
responsible for, procuring the unavailability of the witness;
and (3) the defendant acted with the intent to procure the
witness's unavailability." Id. at 540. See Mass. G. Evid.
§ 804(b)(6) (incorporating common-law doctrine of forfeiture by
wrongdoing articulated in Edwards as exception to general rule
barring admission of hearsay evidence). 3 Whether the
Commonwealth has proved these three elements by a preponderance
of the evidence is a preliminary question of fact on the
3 In 2010, we added a fourth element for the admission of
otherwise inadmissible hearsay -- the hearsay must be reliable.
See Commonwealth v. Szerlong, 457 Mass. 858, 866 (2010), cert.
denied, 562 U.S. 1230 (2011). We noted that, "[e]ven though the
defendant forfeited his right to object on both confrontation
and hearsay grounds to the victim's out-of-court statements, he
is still entitled to due process," and "due process requires
that any hearsay admitted against the defendant be reliable."
Id. See Commonwealth v. Edwards, 444 Mass. 526, 540 n.21 (2005)
("There may be some statements so lacking in reliability that
their admission would raise due process concerns").
9
admissibility of evidence that is decided by a judge. See Mass.
G. Evid. § 104(a) (2018).
"A defendant's involvement in procuring a witness's
unavailability need not consist of a criminal act" -- the
"wrongdoing" in the doctrine of forfeiture by wrongdoing is
simply the intentional act of making the witness unavailable to
testify or helping the witness to become unavailable.
See Edwards, 444 Mass. at 540-542. For example, where a
defendant actively assists a witness's efforts to avoid
testifying, with the intent to keep that witness from
testifying, forfeiture by wrongdoing may be established
"regardless of whether the witness already decided 'on [her]
own' not to testify." Id. at 541. See Commonwealth
v. Szerlong, 457 Mass. 858, 864-865 (2010), cert. denied, 562
U.S. 1230 (2011) (forfeiture by wrongdoing applies where
defendant who was accused of assaulting his girl friend married
her with intent to enable her to claim spousal privilege and
thereby avoid testifying against defendant).
A defendant does not forfeit his or her right to object to
the admission of evidence on confrontation or hearsay grounds
simply by causing a witness's unavailability; the defendant must
also intend to prevent the witness from testifying against him
or her. See Giles v. California, 554 U.S. 353, 361-362 (2008).
In Giles, the defendant allegedly killed his former girl friend
10
approximately three weeks after he had accused her of
infidelity, assaulted her, and threatened to kill her if he
found her cheating on him. See id. at 356-357. Even though the
defendant's killing of her inevitably made her unavailable to
testify at the trial regarding her murder, the Court declined to
admit in evidence under the doctrine of forfeiture by wrongdoing
the prior statements of the girl friend to law enforcement
regarding the physical abuse she suffered at the hands of the
defendant. See id. at 368. 4 But if the defendant in Giles had
killed his former girl friend with the intent to prevent her
from cooperating with law enforcement in an investigation of his
prior assaults, or with the intent to prevent her from
testifying against him with respect to those assaults, then her
4 The Supreme Court noted, in a plurality opinion, that
"[t]he manner in which the [forfeiture by wrongdoing doctrine]
was [historically] applied makes plain that unconfronted
testimony would not be admitted without a showing that the
defendant intended to prevent a witness from testifying. In
cases where the evidence suggested that the defendant had caused
a person to be absent, but had not done so to prevent the person
from testifying -- as in the typical murder case involving
accusatorial statements by the victim -- the testimony was
excluded unless it was confronted or fell within the dying-
declarations exception. Prosecutors do not appear to have even
argued that the judge could admit the unconfronted statements
because the defendant committed the murder for which he was on
trial." (Emphasis in original.) Giles v. California, 554 U.S.
353, 361-362 (2008).
11
prior statements to law enforcement may have been admissible
under the doctrine. See id. at 377. 5
Here, the Commonwealth claims that the defendant's intent
to prevent Ortiz from testifying in the murder trial against
Mercado should suffice as the intent needed to invoke the
doctrine of forfeiture by wrongdoing at the witness intimidation
trial against the defendant. We decline to adopt such an
expansion of the doctrine. A defendant forfeits his right to
object to otherwise inadmissible hearsay solely as a result of
his own wrongdoing in seeking to prevent a witness from
testifying against him, not against a third party in another
proceeding. See, e.g., Giles, 554 U.S. at 361, quoting E.
Powell, The Practice of the Law of Evidence 166 (1858)
(forfeiture rule applied when witness "had been kept out of the
way by the prisoner, or by some one on the prisoner's behalf, in
5 A plurality of the Court in Giles further noted that
"[a]cts of domestic violence often are intended to dissuade a
victim from resorting to outside help, and include conduct
designed to prevent testimony to police officers or cooperation
in criminal prosecutions." Giles, 554 U.S. at 377. They
invited the trial judge to consider on remand that, "[w]here
such an abusive relationship culminates in murder, the evidence
may support a finding that the crime expressed the intent to
isolate the victim and to stop her from reporting abuse to the
authorities or cooperating with a criminal prosecution --
rendering her prior statements admissible under the forfeiture
doctrine." Id. Highly relevant to this inquiry would be
"[e]arlier abuse, or threats of abuse, intended to dissuade the
victim from resorting to outside help," as well as "evidence of
ongoing criminal proceedings at which the victim would have been
expected to testify." Id.
12
order to prevent him from giving evidence against him" [emphasis
added]); United States v. Thompson, 286 F.3d 950, 962 (7th Cir.
2002), cert. denied, 537 U.S. 1134 (2003) ("[t]he primary
reasoning behind" rule of forfeiture by wrongdoing is "to deter
criminals from intimidating or 'taking care of' potential
witnesses against them" [emphasis added]).
The equitable principle at the heart of the doctrine of
forfeiture by wrongdoing is that a defendant should not be able
to benefit from the unavailability of a witness at his own trial
where the defendant caused the witness to be unavailable. A
defendant's attempt to make the witness unavailable at another
trial that did not involve the defendant does not warrant
forfeiting the fundamental "bedrock procedural guarantee" of an
accused to be confronted with the witnesses against him,
see Crawford, 541 U.S. at 42, citing Pointer v. Texas, 380 U.S.
400, 406 (1965), because the defendant does not benefit from the
unavailability of the witness at another person's trial. In the
context of this case, the defendant would not benefit if he had
successfully intimidated Ortiz from testifying against Mercado
at the murder trial; the defendant would benefit only if he had
prevented Ortiz from testifying against him at his witness
intimidation trial. If the defendant had attempted to prevent
Ortiz from testifying against him at his intimidation trial,
then the doctrine might have applied if the other elements
13
in Edwards were satisfied. But there is no evidence in the
record before us that the defendant intended anything more than
to prevent Ortiz from testifying against Mercado, and that does
not suffice to establish the intent required for invoking the
doctrine of forfeiture by wrongdoing in the defendant's trial. 6
We are aware of no case in which the doctrine of forfeiture
by wrongdoing has been applied where a defendant did not seek,
alone or with others, to prevent a witness from testifying
against him, and the Commonwealth has cited no such case. The
Commonwealth relies for support primarily on United States
v. Gray, 405 F.3d 227, 230-233 (4th Cir.), cert. denied, 546
U.S. 912 (2005), where the defendant was charged with mail fraud
and wire fraud for her fraudulent receipt of life insurance
proceeds following the deaths of her second husband and a former
6 We need not decide in this case whether our doctrine of
forfeiture by wrongdoing may be invoked where a defendant causes
a witness to be unavailable through murder or intimidation
during a pending criminal investigation of the defendant, where
the defendant intends to prevent the witness from testifying,
and where it was "reasonably foreseeable that the investigation
[would] culminate in the bringing of charges" against the
defendant. See United States v. Burgos-Montos, 786 F.3d 92, 115
(1st Cir.), cert. denied, 136 S. Ct. 599 (2015), quoting United
States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996), cert.
denied, 519 U.S. 1118 (1997). Nor need we decide whether the
doctrine might apply if the defendant had recognized the
possibility that his conduct might result in a criminal charge
of intimidation of a witness and threatened Ortiz with harm if
she were to testify against Jean C. Mercado in the murder trial
or against him in a witness intimidation trial. There is no
evidence that the defendant recognized that possibility here, or
that his threats addressed that possibility.
14
lover. The evidence in Gray demonstrated that the defendant
shot and killed her second husband after he had brought criminal
charges against her for assault, and that she received monies as
the beneficiary of his life insurance policy. See id. at 231-
232. The defendant challenged the admission of her deceased
husband's prior statements under Fed. R. Evid. 804(b)(6), which
codifies the Federal common-law doctrine of forfeiture by
wrongdoing. See id. at 241. 7 The defendant argued that the rule
should not apply because the evidence showed that she did not
intend, by killing her husband, to make him unavailable as a
witness in a trial accusing her of fraudulently obtaining the
proceeds of his life insurance policy. See id. The court
rejected her argument, noting that the evidence showed that she
had killed her husband to make him unavailable as a witness in a
trial accusing her of assault, and declaring that "[a] defendant
who wrongfully and intentionally renders a declarant unavailable
as a witness in any proceeding forfeits the right to exclude, on
hearsay grounds, the declarant's statements at that proceeding
and any subsequent proceeding" (emphasis added). Id. at 242.
The Commonwealth argues that this case supports the proposition
that the doctrine of forfeiture by wrongdoing is not limited to
7
Rule 804(b)(6) of the Federal Rules of Evidence provides
that "[a] statement offered against a party" is not excluded by
the rule against hearsay where the party "wrongfully caused --
or acquiesced in wrongfully causing -- the declarant's
unavailability as a witness, and did so intending that result."
15
the proceeding that was the focus of the defendant's attempt to
make the witness unavailable to testify.
The court in Gray, however, made clear that the Federal
rule would apply only when "the defendant's wrongdoing was
intended to, and did, render the declarant unavailable as a
witness against the defendant" (emphasis added). Id. at 241.
Indeed, the court specifically declared, "We emphasize that the
intent requirement in Rule 804(b)(6) continues to limit
application of the forfeiture-by-wrongdoing exception to those
cases in which the defendant intended, at least in part, to
render the declarant unavailable as a witness against him"
(emphasis added). Id. at 242 n.9. Because there is no evidence
in this case that the defendant intended to make Ortiz
unavailable as a witness against him, we need not reach the
issue whether our common-law doctrine of forfeiture by
wrongdoing would apply where a defendant renders a declarant
unavailable as a witness in "any proceeding" against that
defendant. See id. at 242.
We therefore conclude that the judge did not err in ruling
that the doctrine of forfeiture by wrongdoing did not apply in
this case because the Commonwealth failed to prove by a
preponderance of the evidence that the defendant intended to
make Ortiz unavailable as a witness against him. Having found
that the Commonwealth failed to prove the third element of
16
forfeiture by wrongdoing required under Edwards, 444 Mass. at
540, the judge did not address (and did not need to address)
whether the Commonwealth had met its burden of proving the first
two elements. We address them here, and conclude that the
Commonwealth also failed to prove these two elements by a
preponderance of the evidence.
Forfeiture by wrongdoing requires the Commonwealth to
demonstrate that the witness is unavailable. See Edwards, 444
Mass. at 540. A declarant is considered to be unavailable as a
witness if, as relevant here, the declarant "is absent from the
trial or hearing and the statement's proponent has not been able
to procure the declarant's attendance by process or other
reasonable means," Mass. G. Evid. § 804(a)(5), or if the
declarant "is exempted from testifying about the subject matter
of the declarant's statement because the court rules that a
privilege applies," Mass. G. Evid. § 804(a)(1). 8 Here, after
Ortiz was served with out-of-State process and ordered to come
to Massachusetts to testify, she informed the prosecutor that
she did not want to return. But there is nothing in the record
to indicate that the Commonwealth was unable to compel her
appearance. Moreover, there is nothing in the record to
8 A declarant is also considered unavailable as a witness
where the declarant "cannot be present or testify at the trial
or hearing because of death or a then-existing infirmity,
physical illness, or mental illness." Mass. G. Evid.
§ 804(a)(4).
17
indicate that Ortiz has invoked any privilege that would exempt
her from testifying, or that she has any valid privilege that
she could reasonably invoke. We need not decide here whether to
adopt Proposed Mass. R. Evid. 804(a)(2), which, like Fed. R.
Evid. 804(a)(2), 9 treats a witness as "unavailable" if the
witness "persists in refusing to testify concerning the subject
matter of his statement despite an order of the court to do so,"
see Advisory Committee's Note to Proposed Mass. R. Evid.
804(a)(2), because the only indication in the record that Ortiz
would refuse to testify and risk being held in contempt is the
prosecutor's assertion that he "was under the impression" that
she would do so. See Commonwealth v. Fisher, 433 Mass. 340, 355
(2001) (noting that "we have not yet adopted" Proposed Mass. R.
Evid. 804[a][2]). See also Opinion of the Justices, 406 Mass.
1201, 1211 (1989) ("We do not . . . equate a refusal to testify
. . . with that measure of necessity which we have held permits
the use of prior testimony"). But see Commonwealth v. Pittman,
60 Mass. App. Ct. 161, 170 (2003) (witness unavailable where
"defense counsel made timely service of a subpoena upon [defense
witness,] which she ignored in favor of attending a family
9 Under Fed. R. Evid. 804(a)(2), "[a] declarant is
considered to be unavailable as a witness if the declarant . . .
refuses to testify about the subject matter despite a court
order to do so."
18
funeral"). On this record, the Commonwealth did not meet its
burden of proving that Ortiz was unavailable as a witness.
Even if Ortiz were an unavailable witness, the Commonwealth
failed to meet its burden of proving that the defendant was
involved in, or responsible for, procuring her unavailability.
See Edwards, 444 Mass. at 540. There is no evidence that the
defendant has taken any action to cause Ortiz not to testify
against him in the witness intimidation case. She informed the
prosecutor, among other individuals, that the defendant had not
"bothered" her since he was arrested on the witness intimidation
charge, and that she no longer feared him. Rather, she feared
retribution from Mercado and his associates as a result of
testifying at Mercado's murder trial. We do not question the
sincerity of her fear, but she does not point to the defendant
as the cause of her fear.
3. Conclusion. For the foregoing reasons, we affirm the
judge's order denying the Commonwealth's motion in limine to
admit Ortiz's out-of-court statements in evidence, pursuant to
the doctrine of forfeiture by wrongdoing.
So ordered.