Com. v. Edwards

• Decision Date: 01 July 2005
• Citation: 444 Mass. 526,830 N.E.2d 158
• Parties: COMMONWEALTH v. Jermaine EDWARDS & others.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 158

830 N.E.2d 158

444 Mass. 526

COMMONWEALTH v. Jermaine EDWARDS & others.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 8, 2005.

Decided July 1, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Cory S. Flashner, Assistant District Attorney (Timothy M. Pomarole, Assistant District Attorney, with him) for the Commonwealth.

Gordon W. Spencer, Brockton, for Jermaine Edwards.

William A. Korman, Boston, for Eric Davis.

Arnold P. Cohen, Boston, for Tyrone Brown.

The following submitted briefs for amici curiae:

William M. Bennett, District Attorney, Jane Davidson Montori, Assistant District Attorney, & Katherine E. McMahon, Assistant District Attorney, for District Attorney for the Hampden District & others.

Carol A. Donovan, Committee for Public Counsel Services, Boston, for Committee for Public Counsel Services.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

This case presents the issue whether and in what circumstances the grand jury testimony of an unavailable witness may be admitted substantively against defendants who, the Commonwealth claims, procured the unavailability of that witness.² Three defendants are alleged to have colluded with the Commonwealth's key witness, Jeremy Crockett, to ensure Crockett's unavailability for trial. In particular, the Commonwealth points to a series of telephone calls made by the defendant Jermaine Edwards to Crockett while Edwards was incarcerated at the Suffolk County house of correction at South Bay, and just prior to two scheduled trial dates, in which the two can be heard orchestrating Crockett's leaving the jurisdiction. Crockett ultimately did appear in court, but refused to testify. We follow Federal and State courts that have considered the issue and adopt the "forfeiture by wrongdoing" doctrine whereby a defendant is deemed to have lost the right to object (on both confrontation and hearsay grounds) to the admission of the out-of-court statements of a witness whose unavailability the defendant has played a meaningful role in procuring.³ We conclude that this case must be remanded to the Superior Court for a determination whether, under the doctrine as we adopt it, Edwards forfeited his right to object on confrontation and hearsay grounds to the admission for substantive purposes of Crockett's grand jury testimony. As the Commonwealth has adduced no evidence to support its contention that the remaining two defendants were involved in the alleged procurement of Crockett's unavailability, we affirm the motion judge's denial of the Commonwealth's motion to introduce Crockett's testimony against those defendants.

Background. We summarize the facts and procedural history, but reserve for later discussion the details relevant to procuring the witness's unavailability. The parties have stipulated to the following facts, although the defendants make no admission as to their truth and reserve the right to contest them at trial. Because the procedural history plays an important role in our decision, we set it forth in some detail.

The charges against the defendants stem from the July 3, 2001, shooting of Yves Andre, a taxicab driver, in the Hyde Park section of Boston. The victim told Boston police officers that he had been shot by a young black male, approximately seventeen years of age, whom he had picked up in his taxicab along with two other young black males. As a result of the shooting, the victim is paralyzed from the waist down.

In September, 2001, a Suffolk County grand jury indicted Jermaine Edwards, Eric Davis, and Tyrone Brown in connection with the shooting. Edwards was charged with armed assault with intent to murder (G.L. c. 265, § 18 [b]); assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A); unlawful possession of a firearm (G.L. c. 269, § 10 [a]); unlawful possession of ammunition (G.L. c 269, § 10 [h]); and perjury (G.L. c. 268, § 1). Eric Davis was charged with assault and battery by means of a dangerous weapon; suborning perjury (G.L. c. 268, § 3); perjury; and being an accessory after the fact (G.L. c. 274, § 4). Tyrone Brown was charged with assault and battery by means of a dangerous weapon; perjury; and accessory after the fact.⁴

Jeremy Crockett testified on three occasions before the grand jury (August, 2, 8, and 9, 2001), each time elaborating on and amending his earlier testimony concerning the events of July 3, 2001. The three defendants spent the night at Crockett's home on the evening of July 3, 2001, and Crockett testified about his conversations with, and observations of, the defendants on that date. His testimony incriminated all three. For example, Crockett testified that one of the defendants, on arriving at his home, told him, "Cabby dude just got shot," and that the defendants searched for a gun that Edwards had hidden on a pathway. Crockett was, and remains, the Commonwealth's key witness. Without his testimony, the Commonwealth acknowledges that it has insufficient evidence to pursue any of the nonperjury charges.

The trial was initially scheduled for June 10, 2003, and the Commonwealth expected that Crockett would testify against the defendants. The trial did not go forward on that date, and on June 21, 2003, Crockett first informed the prosecution that he did not want to testify and would prefer to serve a sentence for contempt of court. Crockett then failed to appear for several trial dates, including one scheduled for December 8, 2003. On December 12, 2003, Crockett was taken into custody by Boston police on a capias. Although granted immunity, after the appropriate hearing, Crockett persisted in his refusal to testify at the defendants' scheduled trial, and on April 12, 2004, was found in contempt of court in violation of G.L. c. 233, § 20H, and sentenced to 365 days in the house of correction.

The defendants' trial was eventually rescheduled for June, 2004. Prior to commencement of trial, the Commonwealth filed a motion in limine to admit Crockett's grand jury testimony as substantive evidence on the ground that the defendants wrongfully procured his unavailability (refusal to testify) through collusion with the witness, and thus waived their confrontation rights under the Sixth Amendment to the United States Constitution.⁵ Edwards filed a motion in limine to preclude the introduction of Crockett's grand jury testimony as substantive evidence on the grounds that the testimony was inadmissible hearsay, and that the Commonwealth presented no proof that Crockett's refusal to testify was "at the instruction of ... or based upon fear of Mr. Edwards, or that his refusal was grounded in intimidation" or "coerc [ion]," rather than "the result of [Crockett's] own free will." Brown filed a motion in limine to prohibit the Commonwealth from introducing "any evidence at all that any of its witnesses, especially Jeremy Crockett, was either threatened or induced by a person [other than Brown] ... not to testify in this matter."⁶ In the alternative, Brown moved for severance from his codefendants. Davis has not filed a motion in limine on this issue.

A Superior Court judge held a hearing on the motions in limine at which no testimony was presented and no exhibits were marked as evidence. As its primary indication of collusion, the Commonwealth relied on its representation of the contents of several recorded telephone conversations, initiated by Edwards while he was incarcerated and made just prior to two scheduled trial dates (those on June 10, 2003, and December 8, 2003), in which Edwards allegedly conspired with Crockett and others to procure Crockett's unavailability for trial.⁷ The Commonwealth offered to play the recordings for the judge, but he declined the offer. Relying on the Commonwealth's proffer,⁸ and issuing his findings and rulings from the bench, the judge denied the Commonwealth's motion to admit Crockett's grand jury testimony as substantive evidence against any of the defendants. The judge allowed Edwards's motion to preclude the admission of the testimony and Brown's motion to prohibit the introduction of evidence of threats or inducements.⁹ He apparently did accept the premise that a defendant who procures a witness's unavailability cannot object on confrontation or hearsay grounds to the admission of the out-of-court statements of that witness. To trigger such forfeiture, he stated, however, that the Commonwealth must "show that the defendant[s] participated in [Crockett's] absence in a significant way." The judge found that the telephone conversations "at best show that [Crockett] on his own had decided that he wasn't going to testify," and that "there's no showing that any of the defendants participated in encouraging or threatening with regard to [Crockett's] refusal to testify."

The Commonwealth petitioned a single justice of this court seeking relief under G.L. c. 211, § 3, from the judge's order denying its motion, or in the alternative leave to appeal under Mass. R.Crim. P. 15, as appearing in 422 Mass. 1501 (1996). The Commonwealth also requested a stay of the trial proceedings pending review. The single justice ordered the trial stayed and reserved and reported the matter to the full bench.

Discussion. The defendants assert that the judge properly denied the Commonwealth's motion to admit Crockett's grand jury testimony for substantive purposes because it consists of inadmissible hearsay and its use at trial would violate the defendants' confrontation rights. Without question, Crockett's grand jury testimony consists of hearsay, see Commonwealth v. Silanskas, 433 Mass. 678, 693, 746 N.E.2d 445 (2001), and we shall assume it is not admissible under any exception to the hearsay rule.¹⁰ See Commonwealth v. Rice, 441 Mass. 291, 305, 805 N.E.2d 26 (2004) (to be admissible, hearsay generally must fall within exception to hearsay rule). The confrontation clauses of our Federal and State Constitutions pose...