Commonwealth v. Dorisca

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13-P-1971 Appeals Court
COMMONWEALTH vs. JOSENER DORISCA.
No. 13-P-1971.
Plymouth. September 11, 2015. - December 23, 2015.
Present: Vuono, Agnes, & Maldonado, JJ.
Homicide. Constitutional Law, Confrontation of witnesses.
Practice, Criminal, Confrontation of witnesses, Harmless
error, Argument by prosecutor. Evidence, Previous
testimony of unavailable witness, Unavailable witness,
Relevancy and materiality. Witness, Unavailability.
Error, Harmless.
Indictment found and returned in the Superior Court
Department on June 27, 2008.
The case was tried before Richard J. Chin, J.
Andrew S. Crouch for the defendant.
Jessica R. Heaton, Assistant District Attorney, for the
Commonwealth.
AGNES, J. The purpose of the confrontation clause is "'to
put beyond the possibility of alteration except by the people
themselves the principle already established as a part of the
common law that the witnesses should confront the accused face
2
to face' . . . [in order to] 'exclude any evidence by
deposition, which could be given orally in the presence of the
accused.'" Commonwealth v. Bergstrom, 402 Mass. 534, 544-545
(1988), quoting from Commonwealth v. Gallo, 275 Mass. 320, 333
(1931), and Commonwealth v. Slavski, 245 Mass. 405, 413 (1923).1
See Coy v. Iowa, 487 U.S. 1012, 1015-1016 (1988). There are
only limited exceptions to this right. Bergstrom, 402 Mass. at
545-546. One such exception is when the prosecution
demonstrates that a witness is unavailable to testify during the
trial, and that she has made a statement out-of-court that is
sufficiently trustworthy and reliable to qualify for admission
under a recognized exception to the hearsay rule. Id. at 545.
In this case, in which the defendant was tried before a
jury and convicted of murder in the second degree, we must
decide whether the judge erred in concluding that the witness
was unavailable without requiring the Commonwealth to provide
additional information about her condition and without
considering whether alternative arrangements were feasible as
required by Commonwealth v. Housewright, 470 Mass. 665, 671-673
(2015). Although the judge did not have the benefit of
1
"A deposition does not necessarily deny a defendant the
right to face his accuser directly and to cross-examine
testimony. Rather, its vice is in preventing the jurors who are
to judge the defendant from viewing for themselves this
confrontation." Bergstrom, 402 Mass. at 548 n.15.
3
Housewright, we conclude that it is applicable to this case,2 and
that it was error to admit the witness's deposition in evidence.
However, we also conclude that the erroneous admission of the
videotaped deposition was harmless beyond a reasonable doubt.
Background. 1. The shooting death of the victim. On June
8, 2008, the victim and the defendant attended a graduation
cookout on Turner Street in the city of Brockton.3 Numerous
eyewitnesses, along with the defendant, testified that the
victim, Bensney Toussaint, confronted the defendant at the
cookout and initiated a physical altercation.4 Shortly
thereafter, the victim was found dead from multiple gunshot
wounds on a grassy area near the party. Many witnesses
testified that they heard the gunshots or saw the sparks from
2
In Housewright, decided after the trial in this case, the
Supreme Judicial Court established a framework for judges "to
analyze whether a witness is unavailable because of illness or
infirmity." 470 Mass. at 671. Such a framework had not
previously existed. We agree with the parties that Housewright
does not establish a new constitutional rule but, instead,
amplifies existing Massachusetts law. Ibid. ("[W]e have yet to
provide trial judges with a framework to analyze whether a
witness is unavailable because of illness or infirmity. We do
so now"). As in Housewright, nothing in this case turns on the
differences between a criminal defendant's confrontation clause
rights under art. 12 of the Massachusetts Declaration of Rights
and the Sixth Amendment to the United States Constitution.
3
Prior to opening statements the jury went on a view to the
area of Turner Street in Brockton.
4
The victim and the defendant had exchanged words on at
least one prior occasion; the victim was dating the mother of
the defendant's children.
4
the gun during the struggle between the defendant and the
victim. None of the witnesses identified the defendant as the
person who fired the shots, but there was compelling
circumstantial evidence that was sufficient to permit the jury
to find the defendant guilty beyond a reasonable doubt.5 This
evidence included eyewitness testimony that only two men were
fighting, one of whom was the defendant and the other the
victim, and conduct of and statements made by the defendant
indicating consciousness of guilt. It could be inferred from
the testimony of one of these witnesses, Kenny Cesar, that
several shots were fired by the defendant as the two men
struggled on the ground, and additional shots were fired by the
defendant as he stood over the victim.
First responders to the scene found the victim surrounded
by a large crowd of people. Someone was attempting to
administer cardiopulmonary resuscitation (CPR). The victim was
bleeding, and first responders observed that he had multiple
gunshot wounds. Emergency medical personnel performed CPR at
the scene and then transported the victim by ambulance to
Brockton Hospital, where he was pronounced dead. The victim had
suffered several gunshot wounds, including one on the back of
the head and one on the left side of the head. He also suffered
5
The gun was never recovered.
5
four chest wounds, resulting in two exit wounds in his back and
two rounds remaining in his body.
The defendant testified that he did not have a gun and did
not shoot the victim. He conceded that he and the victim
fought, but explained that he tried to free himself and flee,
but was being held down and punched by the victim. He said that
they were surrounded by the friends of the victim. The
defendant further testified that he heard a "boom." He felt the
victim move off him and drop. The defendant heard four more
"booms" and then saw that the victim was on his side with his
legs still wrapped around the defendant's waist. The defendant
moved the victim's legs and "took off." He testified that he
saw his cousin, Rodley Doriscat, running away holding a gun.6
The defendant testified that later in the evening he met
Rodley, who told him that during the fight, Rodley thought the
defendant's life was in danger, so Rodley poked the victim with
a gun to get him off the defendant, but the victim grabbed his
arm and Rodley shot him. Rodley dropped the defendant off in
Randolph and returned one hour later with two prepaid phones.
The pair then drove to New York City. The next morning the
defendant bought a bus ticket to Fort Lauderdale, Florida. The
defendant testified that Rodley told him that he was "gonna try
6
To avoid confusion, we refer to Rodley by his first name.
6
[his] best to do what [he had] to do," which the defendant
understood to mean that Rodley would turn himself in to the
police, but he "need[ed] some time." Rodley never went to the
police. He committed suicide some three years before trial.
The defendant remained in Florida for nearly three years until
he was arrested on unrelated charges.7 This led to the discovery
of the outstanding warrant for his arrest for the victim's
murder.
Additional facts will be discussed below in connection with
the specific issues raised by the defendant.
2. The availability of the medical examiner. Two months
prior to trial, the Commonwealth moved for a continuance on the
basis that its medical examiner, Dr. Kimberley Springer, would
be on a six-month maternity leave on the scheduled date of the
trial and would be unable to testify. The motion was denied
without prejudice. The judge instructed the Commonwealth to
find a substitute witness. A few weeks later, the Commonwealth
again moved for a continuance because the digital photographs
from the victim's autopsy had been corrupted and were
unavailable for examination by a substitute medical examiner.
This motion also was denied without prejudice to give the
7
Massachusetts State police Trooper Keith Sweeney testified
about the various investigative measures that were used in an
unsuccessful effort to locate the defendant and Rodley following
the shooting.
7
defendant time to decide whether he would waive his
confrontation clause rights. The defendant declined to do so.
The Commonwealth then submitted a motion to conduct a deposition
of Dr. Springer. See Mass.R.Crim.P. 35, 378 Mass. 906 (1979).
This motion was allowed, and Dr. Springer was deposed on
videotape in a court room before the trial judge. There was
direct, cross, and redirect examination of the witness.8
On day five of the trial on Friday, March 15, 2013, the
Commonwealth moved to introduce the videotaped deposition in
evidence. Over the defendant's objection, the judge found that
Dr. Springer was unavailable to testify based on the report made
by the prosecutor on Monday of that week that she had gone into
labor. The videotaped deposition was played for the jury.9 The
8
The defendant does not raise any objection to the manner
in which the deposition was conducted. See Mass.R.Crim.P. 35(e)
("The scope and manner of examination and cross-examination at
the taking of the deposition shall be such as would be allowed
in the trial itself"). In particular, the defendant does not
contend that the deposition did not qualify as an exception to
the hearsay rule. See Mass. G. Evid. § 804(b)(1) (2015). Also,
the defendant does not raise any objection to the jury
instructions given by the judge with respect to the deposition.
The judge sustained the defendant's objection to the medical
examiner's testimony opining on the pain the victim possibly
experienced, and that portion of the video recording of the
deposition was redacted.
9
The discussion at trial of Dr. Springer's unavailability
on Friday was as follows:
Defense counsel: "Your Honor, please I know it's the
Commonwealth's intention to play the deposition of
Doctor Springer this morning. I object. I don't
8
defendant contends that the admission of the videotaped
deposition was reversible error because it deprived him of his
State and Federal constitutional rights under the confrontation
clause.
Discussion. 1. The legal framework for determining that a
witness is unavailable due to infirmity or illness. The
confrontation clause, as it appears in both art. 12 of the
Massachusetts Declaration of Rights and the Sixth Amendment to
the United States Constitution, "establishes 'a rule of
necessity, i.e., that the prosecution either produce, or
demonstrate the unavailability of, the declarant.'"
Commonwealth v. Housewright, 470 Mass. at 670, quoting from
Commonwealth v. Roberio, 440 Mass. 245, 247 (2003). See Mass.
G. Evid. § 804(a)(4) (2015). In Housewright, 470 Mass. at 671,
believe that they have shown that she's unavailable.
The last we heard was that four days ago she was in
labor. We don't know if she delivered. I don't know
anything about it. I would suggest that even if she
did deliver on Monday that doesn't mean she's
unavailable today and I object."
The court: "Right."
Prosecutor: "Your Honor, she went into labor on
Monday. I'm not sure when she had the baby, but I
would say four days after giving birth, even if she
had it on Monday, she would still be unavailable at
this time."
The court: "Yeah. I think she is unavailable. I'm
going to allow the video to be played. The
objection's overruled."
9
the Supreme Judicial Court clarified the requirements for a
judicial determination of unavailability:10
"Where the Commonwealth claims that its witness is
unavailable because of illness or infirmity and that it
wishes to offer in evidence the prior recorded testimony of
that witness, the Commonwealth bears the burden of showing
that there is an unacceptable risk that the witness's
health would be significantly jeopardized if the witness
were required to testify in court on the scheduled date.
To meet this burden, the Commonwealth must provide the
judge with reliable, up-to-date information sufficient to
permit the judge to make an independent finding. See
Commonwealth v. Bohannon, 385 Mass. 733, 744-745 (1992)
(second motion judge could not rely on first motion judge's
unavailability determination made eight months before
trial)."
The court explained further that such information must be
sufficiently detailed "about the witness's current medical
condition to allow the judge to evaluate the risk that would be
posed if the witness were to testify in court -- a conclusory
assertion is not enough." Ibid. In assessing whether the risk
to the health of a witness who is scheduled to testify is
unacceptable, Housewright added that "a judge should consider
the probability that the witness's appearance will cause an
adverse health consequence, the severity of the adverse health
consequence, such as whether it would be life-threatening, the
importance of the testimony in the context of the case, and the
10
In Housewright, the Supreme Judicial Court limited its
decision to "the meaning of unavailability in criminal cases
where the Commonwealth is the proponent of the evidence, thereby
implicating the defendant's right of confrontation." 470 Mass.
at 670 n.8.
10
extent to which the live trial testimony would likely differ
from the prior recorded testimony." Id. at 672.11 Furthermore,
in Housewright, the Supreme Judicial Court stated that the
confrontation clause is not satisfied if the judge simply
determines that on the day a witness is scheduled to testify at
trial her appearance would create an unacceptable risk to her
health. Ibid. Instead, Housewright indicates that the judge
must consider whether the risk would become acceptable if the
trial is continued. Ibid. "Thus, a witness is unavailable if
there is an unacceptable risk that the witness's health would be
jeopardized by testifying in court on the scheduled date and
either (1) a continuance would not reduce the risk to an
acceptable level, or (2) a continuance would make the risk
acceptable but would not serve the interests of justice"
(emphasis added). Id. at 672-673.12
11
In Housewright, the court also explained that judges are
not limited to the information provided by the parties. "A
judge, in his or her discretion, may require more information
than is contained in a doctor's letter regarding the witness's
medical condition, and may direct the means to obtain that
additional information, such as a supplemental letter or
affidavit, a call to the physician over speaker telephone in the
presence of the attorneys, a deposition of the physician, or a
court hearing." Housewright, 470 Mass. at 672.
12
In Housewright, the trial judge admitted the prior
recorded testimony of a witness given at a pretrial detention
hearing under G. L. c. 276, § 58A, whose testimony placed the
defendant at the scene of the shooting, based on a letter from
her doctor that stated as follows: "[The witness] is a 74 year
old patient under my care for: cardiomyopathy, coronary artery
11
2. Application of the Housewright framework. As noted
above, the judge in this case did not have the benefit of the
framework developed in Housewright for determining whether a
witness is unavailable to testify at trial due to an illness or
an infirmity.13 However, on the fifth day of trial, based
entirely on the prosecutor's report that four days earlier, Dr.
Springer had gone into labor, the judge ruled that Dr. Springer
disease, peripheral vascular disease, arthritis and angina. It
is my medical opinion that the stress of testifying in court
might be detrimental to her health. I urge you to exclude her
from your witness list." 470 Mass. at 669-670. "The letter
also provided the doctor's office telephone number '[i]f you
require additional information.'" Id. at 670. The doctor's
letter was dated October 24, 2011, and the first day of trial
was November 15, 2011. The judge's ruling that the witness was
unavailable at trial was based solely on the doctor's letter.
The court concluded that the letter was not sufficient to
support the judge's ruling, and faulted the Commonwealth for not
making a "'good faith effort' of providing timely notice to the
court and the defendant of its claim of unavailability." Id. at
675.
13
The record indicates that the prosecutor and the judge
took prudent and timely steps prior to trial in light of the
possibility that Dr. Springer would not be available to testify
at trial. The Commonwealth informed the judge and the defendant
in a timely manner of Dr. Springer's pregnancy and pending
maternity leave, and sought a continuance of the trial date. In
early February, 2013, when the prosecutor learned that she would
not be able to use a substitute medical examiner, and aware that
Dr. Springer's due date was March 3 and the trial was set to
commence on March 11, the prosecutor moved that the testimony of
Dr. Springer be preserved by deposition. When the trial
commenced, the Commonwealth informed the judge that Dr. Springer
had gone into labor four days earlier. Although she was unaware
of whether the baby had been born, or the condition of the
mother and baby, the prosecutor asserted that Dr. Springer was
unavailable to testify.
12
was unavailable, and overruled the defendant's objection to the
use of the videotaped deposition.
Certainly, in some circumstances, a woman who gives birth
to a child may not be able to testify as a witness at a criminal
trial four days later without assuming an unacceptable risk to
her health or to the health of her child. However, that may not
be true for all women. In this case, there was no inquiry into
Dr. Springer's particular circumstances. At the time her
deposition testimony was admitted, neither the judge nor the
parties knew whether or when she gave birth. Furthermore, even
if Dr. Springer's condition on the day she was scheduled to
testify did present an unacceptable risk to her of adverse
health consequences, no consideration was given to whether the
witness could appear later in the trial,14 or whether a short
continuance would alleviate this risk without compromising the
interests of justice. See United States v. Jacobs, 97 F.3d 275,
280-282 (8th Cir. 1996) (defendant's right to confrontation
violated where witness was pregnant and near her due date; her
physician reported that she required hospitalization for two
days; and court excused her from appearing in person and
14
The Commonwealth presented the deposition testimony of
Dr. Springer on March 15, 2013. However, it did not call its
final witness and rest until March 18, 2013, one full week after
Dr. Springer was reported to have been in labor. The record is
likewise devoid of any attempt by the Commonwealth to inquire as
to Dr. Springer's physical ability to appear on that later date.
13
permitted her to be cross-examined by telephone, without further
inquiry and without making express finding that she was
unavailable). Under the circumstances here, the judge's
determination that Dr. Springer was not available to testify at
trial did not satisfy the test established in Housewright, and
did not justify the admission of her deposition testimony.15
3. Harmless error. As in Housewright, 470 Mass. at 675,
our conclusion that it was error to admit Dr. Springer's
deposition testimony as an alternative to her live testimony
requires us to consider whether the error was harmless beyond a
reasonable doubt. See, e.g., Commonwealth v. Bacigalupo, 455
Mass. 485, 495 (2009). When, as in this case, the error
consists of a violation of a constitutional right, the
Commonwealth bears the burden of demonstrating "beyond a
reasonable doubt that the error complained of did not contribute
to the verdict obtained." Commonwealth v. Marini, 375 Mass.
510, 520 (1978), quoting from Chapman v. California, 386 U.S. 18(1967). See Commonwealth v. Morales, 76 Mass. App. Ct. 663,
666-667 (2010). Whether the Commonwealth in this case has met
15
In order to admit the deposition testimony of a
Commonwealth witness taken in accordance with Mass.R.Crim.P. 35
for substantive purposes, the judge must be satisfied that it
meets the requirements for admission under the law of evidence
and that the witness is unavailable for purposes of the
confrontation clause. See Commonwealth v. Ross, 426 Mass. 555,
557-558 (1998), discussing Mass.R.Crim.P. 35(g).
14
its burden of proof is determined on the basis of the other
evidence that was presented to the jury absent the deposition
testimony. See Coy v. Iowa, 487 U.S. at 1022. See also
Commonwealth v. DiBenedetto, 414 Mass. 37, 41 (1992) (error is
harmless if erroneously admitted deposition "was not a
substantial factor in the jury's decision to convict").
In Housewright, the court noted that the witness in
question (whom the defendant called Grandma) "was the only
witness who recognized the defendant at the scene of the crime,
and later identified him at an out-of-court identification
procedure." 470 Mass. at 675.16 Her testimony was thus
significant, if not indispensable, to the Commonwealth's case.
In the present case, by contrast, the deposition testimony of
the medical examiner was cumulative of other evidence in the
case. See Commonwealth v. Vinnie, 428 Mass. 161, 172 (1998).17
16
The court in Housewright took into consideration that the
witness's prior recorded testimony at the pretrial detention
hearing qualified for admission as an exception to the hearsay
rule because defense counsel had "reasonable opportunity and
similar motivation" to cross-examine the witness regarding her
testimony on direct examination. 470 Mass. at 676, quoting from
Commonwealth v. Hurley, 455 Mass. 53, 60 (2009). See Mass. G.
Evid. § 804(b)(1) (2015). Thus, if the witness were unavailable
to testify at the retrial of the case, the court noted that,
subject to certain redactions, her out-of-court testimony would
qualify for admission in evidence. Housewright, 470 Mass. at
678.
17
In her deposition, Dr. Springer testified about the
nature of the gunshot wounds suffered by the victim, gave her
opinion that the gunshots to his chest were the cause of death,
15
The central factual dispute in this case was the identity
of the shooter.18 Nothing in the testimony by the medical
examiner made it more likely that the shooter was the defendant,
as opposed to his cousin Rodley. In their closing statements,
the prosecutor and the defense attorney made only passing
reference to the testimony of the medical examiner. Defense
counsel actually relied on her testimony about the intermediate
and opined that the victim's wounds were not "close" wounds, but
were "intermediate range," which she defined as wounds caused by
gunshots fired from a distance of "a couple of inches to a few
feet away." There was no dispute in this case that the victim
died as a result of gunshot wounds. Dr. John Steinmetz, an
emergency room physician at Brockton Hospital, testified that
the victim was dead on arrival at the emergency room. The
medical records of the victim's treatment at the Brockton
Hospital emergency room, including a description of the gunshot
wounds, also were admitted as an exhibit. The certificate of
death was in evidence describing the cause of death as "gunshot
wounds of chest with perforation of lungs and aorta." Numerous
civilian witnesses described the victim's appearance following
the shooting. Trooper Keith Sweeney, the lead investigator,
described the crime scene; the collection of physical evidence,
including a projectile; the interviews of witnesses; and the
efforts made by law enforcement to locate the defendant and his
cousin Rodley after the shooting.
The testimony of Trooper John Conroy, the ballistician,
that two projectiles recovered from the medical examiner's
office had been fired by the same gun was not significant
because the defendant's position was that the victim's gunshot
wounds were caused by a single firearm fired by his cousin
Rodley.
18
Because the defendant was charged with murder in the
first degree and the judge charged the jury on the theory of
extreme atrocity and cruelty, testimony by the medical examiner
about the number and nature of the wounds suffered by the victim
could have been of great significance. However, the defendant
was found not guilty of so much of the indictment as charged
murder in the first degree.
16
range of the victim's gunshot wounds to buttress his argument
that the shooter was the defendant's cousin Rodley. The closing
arguments were primarily about the credibility of the testimony
given by the various eyewitnesses and, in particular, the
defendant. The defendant has not identified any testimony by
the medical examiner that was essential to the Commonwealth's
case or significant to the jury's resolution of the defendant's
guilt. Defense counsel thoroughly cross-examined Dr. Springer
at her deposition, and there is no indication that either her
testimony or the defense strategy on cross-examination would
have differed at trial. Thus, we hold that the admission of Dr.
Springer's videotaped deposition was harmless error beyond a
reasonable doubt. See, e.g., McGaha v. State, 926 N.E.2d 1050,
1057 (Ind. Ct. App. 2010); State v. Hassapelis, 620 A.2d 288,
293-294 (Me. 1993); State v. Ash, 169 N.C. App. 715, 727 (2005).
4. Remaining issues. a. Prosecutor's closing argument.
The defendant timely objected to the prosecutor's statement that
"[the defendant] says [he] can still see Rodley Doriscat come
up, poke [the victim] with the gun. [He] can see [the victim]
reach for it and then [he] see[s] Rodley shoot him." The
defendant is correct that this was a misstatement of the
evidence by the prosecutor because the defendant did not testify
that he saw Rodley fire the shots. We apply the prejudicial
error standard. See Commonwealth v. Wood, 469 Mass. 266, 285-
17
286 (2014). The judge instructed the jury that the arguments
were not evidence, and that the jurors were to rely on their own
memories of the evidence. The principal factor is whether the
error was significant, based on the evidence as a whole.
Commonwealth v. Kozec, 399 Mass. 514, 523 (1987). The defendant
testified that he heard shots, and then saw Rodley running from
the scene holding a gun. The defendant also testified that
Rodley told him that he poked the victim with a gun. Under the
circumstances, the prosecutor's misstatement was not
prejudicial.19
b. Testimony regarding investigative efforts. Finally,
the defendant argues that the judge erred in permitting the
prosecutor to elicit testimony from Trooper Keith Sweeney, the
lead investigator in the case, that following the shooting and
over the course of the days and weeks that followed, he and a
team of police investigators interviewed numerous witnesses.
During a sidebar discussion, defense counsel told the judge that
he could not rule out a request for an instruction that the jury
could consider the inadequacy of the police investigation. The
19
The defendant also objected to the prosecutor's
recounting of the police stop in Florida that led to the
defendant's arrest. Although the prosecutor's statements
slightly differ from the defendant's account, the difference --
whether the officer first asked for the name of the car's driver
and then the defendant's, or in reverse order -- is not
significant when the evidence is considered as a whole. See
Commonwealth v. Richenburg, 401 Mass. 663, 674-675 (1988).
18
defendant does not maintain that the disputed testimony
contained any inadmissible hearsay. The defendant does not cite
any authority for the proposition that the Commonwealth cannot
anticipate that the defendant may attack the adequacy of the
police investigation as permitted by Commonwealth v. Bowden, 379
Mass. 472, 486 (1980), by offering testimony, as in this case,
about the general extent of the police investigation. The
defendant's reliance on Commonwealth v. Stuckich, 450 Mass. 449,
457 (2008), is misplaced because that case turned on the need to
avoid unfair vouching for the victim in a sexual assault case in
view of the special and limited purpose for which hearsay
evidence is admitted under the first complaint doctrine. "[T]he
prosecution with its burden of persuasion needs evidentiary
depth to tell a continuous story." Old Chief v. United States,
519 U.S. 172, 190 (1997). The extent to which the prosecutor is
permitted to inform the jury of the nature and extent of the
police investigation as part of its case-in-chief is best left
to the sound discretion of the judge.20
Judgment affirmed.
20
"[I]nquiries into relevancy should relate to the way
people learn and should permit jurors to 'draw inferences,
whatever they may be, necessary to reach a correct verdict.'"
Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris,
Inc., 138 F. Supp. 2d 357, 368 (E.D.N.Y. 2001), quoting from Old
Chief, 519 U.S. at 187.