Commonwealth v. Dorisca
| Citation | 88 Mass.App.Ct. 776,42 N.E.3d 1184 |
| Decision Date | 23 December 2015 |
| Docket Number | No. 13–P–1971.,13–P–1971. |
| Parties | COMMONWEALTH v. Josener DORISCA. |
| Court | Appeals Court of Massachusetts |
Andrew S. Crouch, Boston, for the defendant.
Jessica R. Heaton, Assistant District Attorney, for the Commonwealth.
Present: VUONO, AGNES, & MALDONADO, JJ.
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 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, 524 N.E.2d 366 (1988)
, quoting from Commonwealth v. Gallo, 275 Mass. 320, 333, 175 N.E. 718 (1931), and Commonwealth v. Slavski, 245 Mass. 405, 413, 140 N.E. 465 (1923).1 See Coy v. Iowa, 487 U.S. 1012, 1015–1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). There are only limited exceptions to this right. Bergstrom, 402 Mass. at 545–546, 524 N.E.2d 366. 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, 524 N.E.2d 366.
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, 25 N.E.3d 273 (2015)
. Although the judge did not have the benefit of 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 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 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 [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 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 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, 25 N.E.3d 273
, quoting from
Commonwealth v. Roberio, 440 Mass. 245, 247, 797 N.E.2d 364 (2003)
. See Mass. G. Evid. § 804(a)(4) (2015). In Housewright, 470 Mass. at 671, 25 N.E.3d 273, 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)
().”
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 extent to which the live trial testimony would likely differ from the prior recorded testimony.” Id. at 672, 25 N.E.3d 273
.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...
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REMOTE JUSTICE: CONFRONTING THE USE OF VIDEO TELECONFERENCE TESTIMONY IN MASSACHUSETTS CRIMINAL TRIALS.
...necessity" in that the "prosecution [must] either produce, or demonstrate the unavailability of, the declarant." Commonwealth v. Dorsica, 42 N.E.3d 1184, 1189 (Mass. 2015) (citing Commonwealth v. Housewright, 25 N.E.3d 273, 280 (Mass. 2015)). A similar statutory right of confrontation is re......