Commonwealth v. Szerlong

457 Mass. 858, 933 N.E.2d 633 (2010)

 

RULE:

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.

FACTS:

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. On December 21, 2007, the defendant was charged in a criminal complaint with assault and battery, in violation of G. L. c. 265, § 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. 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. 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 Attleboro District Court convicted the defendant of one count of assault and battery.

ISSUE:

Did the defendant forfeit his confrontation and hearsay objections to the admission of the victim's statements because he intended, by marrying her, to enable her to exercise her spousal privilege and thereby make her unavailable to testify at trial?

ANSWER:

Yes.

CONCLUSION:

The Supreme Judicial Court found, inter alia, that defendant forfeited his confrontation and hearsay objections to the admission of the victim's statements because he intended, by marrying her, to enable her to exercise her spousal privilege and thereby make her unavailable to testify at trial. Even if the idea to marry originated with the victim, her spousal privilege existed only because of defendant's agreement. The hearsay evidence presented by a police officer, the victim's sister, and her friend bore substantial indicia of reliability. The prosecutor's improper closing argument did not create a substantial risk of a miscarriage of justice. Accordingly, pursuant to Mass. Gen. Laws ch. 233, § 20 and Mass. Const. Decl. Rights art. 12, the victim's out-of-court statements were properly admitted under the forfeiture by wrongdoing doctrine.

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