Commonwealth v. SZERLONG

• Decision Date: 14 September 2010
• Docket Number: SJC-10635.
• Citation: 933 N.E.2d 633,457 Mass. 858
• Parties: COMMONWEALTH v. Leonard SZERLONG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 858

933 N.E.2d 633

COMMONWEALTH

v.Leonard SZERLONG.

SJC-10635.

Supreme Judicial Court of Massachusetts,Bristol.

Argued May 3, 2010.

Decided Sept. 14, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Neil L. Fishman, for the defendant.

Rachel J. Eisenhaure, Assistant District Attorney (Jessica Hanley with her) for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

At approximately 2 a.m. on December 13, 2007, the defendant entered his girl friend's home, grabbed her by the throat while she was asleep, and held a knife to her throat. ¹ On December 21, 2007, the defendant was charged in a criminal complaint with assault and battery, in violation of G.L. c. 265A, § 13A( a ); assault by means of a dangerous weapon, in violation of G.L. c. 265, § 15B; and home invasion, in violation of G.L. c. 265, § 18C, and a warrant was issued for his arrest. ² The defendant and the victim had not been engaged to marry at the time of the assault, but they were married on January 5, 2008, at the North Attleborough town hall. On January 15, the defendant voluntarily surrendered himself to the court and was arraigned. At that time, the Commonwealth moved for a dangerousness hearing under G.L. c. 276, § 58A. At the dangerousness hearing on January 23, the victim testified that she was married to the defendant and invoked her spousal privilege. She continued to invoke her spousal privilege and refused to testify at trial. ³

Before trial, the Commonwealth moved in limine to admit hearsay statements made by the victim before she married the defendant to a close friend, to her sister, and to a police detective. The Commonwealth claimed that, by marrying the victim so that she could claim her spousal privilege, the defendant had forfeited his right to object on confrontation and hearsay grounds to the admission of her out-of-court statements under the forfeiture by wrongdoing doctrine. After an evidentiary hearing, the judge allowed the Commonwealth's motion in limine without making findings of fact or law. On May 6, 2008, a jury in the District Court convicted the defendant of one count of assault and battery. ⁴

We must decide whether the scope of our forfeiture by wrongdoing doctrine, as announced in Commonwealth v. Edwards, 444 Mass. 526, 830 N.E.2d 158 (2005) ( Edwards ), is consistent with the United States Supreme Court's more recent articulation of the forfeiture doctrine in Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) ( Giles ). We conclude that it is. We also conclude that the hearsay evidence was properly admitted where the defendant forfeited his confrontation and hearsay objections to the admission of the victim's statements because he intended, by marrying the victim, to enable her to exercise her spousal privilege and thereby make her unavailable to testify at trial. We further conclude that the defendant's right to due process was not violated because the hearsay evidence bore substantial indicia of reliability, and that the prosecutor's improper closing argument did not create a substantial risk of a miscarriage of justice.

Discussion. 1. Forfeiture by wrongdoing. In 1878 the Supreme Court established the doctrine of forfeiture by wrongdoing in Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1878) ( Reynolds ): “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.” See Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (doctrine of forfeiture by wrongdoing “extinguishes” criminal defendant's right to confrontation under the Sixth Amendment to the United States Constitution). The Court explained that the doctrine of forfeiture by wrongdoing “has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong.” Reynolds, supra at 159.

In 2005, we concluded that, under the doctrine of forfeiture by wrongdoing, a defendant may also forfeit his right to object to the admission of hearsay evidence under art. 12 of the Massachusetts Declaration of Rights and our common-law rules of evidence. ⁵ Edwards, supra at 536, 830 N.E.2d 158. We held that three factual findings are required 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.” Edwards, supra at 540, 830 N.E.2d 158. “A defendant's involvement in procuring a witness's unavailability need not consist of a criminal act”; the “wrongdoing” in forfeiture by wrongdoing is simply the intentional act of making the witness unavailable to testify or helping the witness become unavailable. Id. at 540-542, 830 N.E.2d 158. Forfeiture by wrongdoing “may include a defendant's collusion with a witness to ensure that the witness will not be heard at trial.” Id. at 540, 830 N.E.2d 158. The Commonwealth need not show that the defendant threatened, coerced, persuaded, or pressured a witness to avoid testifying, or physically prevented the witness from testifying. Id. at 541, 830 N.E.2d 158. Where a defendant actively assists a witness's efforts to avoid testifying, with the intent to keep the witness from testifying, forfeiture by wrongdoing may be established “regardless of whether the witness already decided ‘on [her] own’ not to testify.” Id.

Three years after our decision in Edwards, the Supreme Court in Giles held that, under the Sixth Amendment, the forfeiture by wrongdoing doctrine applies only where the defendant acts with the intent to prevent the witness from testifying. ⁶ Giles, supra at 2684 (right to confrontation not forfeited without showing that defendant “intended to prevent a witness from testifying”). It is not enough for the defendant to know that his wrongdoing will cause the witness's unavailability to testify at trial; he must intend that result. ⁷ Id. at 2683, 2688, 2693. The Court observed that it previously had approved Fed.R.Evid. 804(b)(6), which “codifies the forfeiture doctrine,” Giles, supra at 2687, quoting Davis v. Washington, 547 U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and includes an intent requirement. Rule 804(b)(6) provides that a hearsay statement is admissible in evidence where the declarant is unavailable and the statement is offered against a party that has “engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Fed.R.Evid. 804(b)(6) (2010). See generally 5 C.B. Mueller & L.C. Kirkpatrick, Federal Evidence § 8:134, at 232 (3d ed.2007).

The defendant argues that the intent requirement of Giles requires us to narrow our holding in Edwards that forfeiture by wrongdoing may be established by collusion between the defendant and the unavailable witness. We conclude that our decision in Edwards is consistent with the Supreme Court's decision in Giles. We declared in Edwards that a defendant's collusion is sufficient to establish forfeiture only where “the defendant acted with the intent to procure the witness's unavailability.” Edwards, supra at 540, 830 N.E.2d 158. See id. at 541-542, 830 N.E.2d 158 (“defendant's intentional procurement of a witness's unavailability through collusion ... sufficient to trigger the doctrine” [emphasis added] ). And, to establish collusion, we require that a defendant “actively facilitate[ ] the carrying out of the witness's independent intent not to testify.” Id. at 541, 830 N.E.2d 158. By requiring that the defendant actively assist the witness in becoming unavailable with the intent to make her unavailable, our doctrine of forfeiture by wrongdoing is at least as demanding as Fed.R.Evid. 804(b)(6), which permits a finding of forfeiture where the defendant “acquiesced” in conduct that was intended to, and did, make the witness unavailable to testify. ⁸

Nor does Giles require us to revisit our conclusion in Edwards that the wrongdoing that may justify forfeiture need not be criminal. See Edwards, supra at 540, 542, 830 N.E.2d 158. The Supreme Court in Giles, supra at 2686, declared that the wrongdoing that may warrant forfeiture of a defendant's confrontation rights was “conduct designed to prevent a witness from testifying.” Indeed, in Reynolds, supra at 159-160, forfeiture by wrongdoing was found where the witness, who was the defendant's second wife, lived with the defendant but had left home for three weeks to avoid being served with a subpoena, and where the defendant told the process server that she was not at home but would not say where she was. There was no allegation that the defendant had made the witness unavailable through a criminal act. Id. See Steele v. Taylor, 684 F.2d 1193, 1203 (6th Cir.1982), cert. denied, 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932 (1983); United States v. Mayes, 512 F.2d 637, 650-651 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975).

Having concluded that Giles does not affect the three factual findings required in Edwards for the doctrine of forfeiture by wrongdoing to apply, we turn to the evidence at the motion in limine hearing to determine whether it supports the judge's finding of forfeiture. Tracy Jordan had been a close friend of the victim for twenty years and took care of the victim's baby daughter. She testified that, at the time of the assault, the victim and the defendant did not have plans to marry. Later, the victim telephoned Jordan and said she had something to tell her but was afraid that Jordan would become angry and “lose respect” for her. The victim eventually admitted to Jordan that she had married the defendant. When Jordan...