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SJC-12467

                   COMMONWEALTH   vs.   JOSHUA ROSADO.



         Suffolk.       May 7, 2018. - September 14, 2018.

    Present:   Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


Constitutional Law, Confrontation of witnesses. Practice,
     Criminal, Confrontation of witnesses. Witness,
     Unavailability. Evidence, Unavailable witness.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on December 6, 2017.

     The case was reported by Budd, J.


     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
     Michelle A. Dame for the defendant.


     GANTS, C.J.    The issue on appeal concerns the scope of the

doctrine of forfeiture by wrongdoing.      In Commonwealth

v. Edwards, 444 Mass. 526, 540 (2005), we held that a defendant

forfeits the right to object to the admission in evidence of an

unavailable witness's out-of-court statements on both

confrontation and hearsay grounds if the Commonwealth proves by
                                                                    2


a preponderance of the evidence that "(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."   We conclude that, on the facts of this case,

the Commonwealth has failed to meet its burden of proving any of

the three elements articulated in Edwards.   See Mass. G. Evid.

§ 804(b)(6) (2018).

     Specifically, as to the first element, a witness who has

been served with out-of-State process and ordered to appear at a

trial in Massachusetts is not unavailable simply because the

witness has informed the prosecutor that he or she does not want

to testify.   As to the second element, the defendant was not

involved in, or responsible for, procuring the unavailability of

the witness where the defendant attempted, albeit

unsuccessfully, to intimidate the witness from testifying

against a friend of the defendant in a murder case, but did

nothing to cause her to be unavailable in the witness

intimidation case against himself.   As to the third element, the

defendant's intent to intimidate the witness to make her

unavailable to testify against his friend in the earlier murder

case, even if proved by a preponderance of the evidence, does

not suffice to prove that the defendant acted with the intent to

procure the witness's unavailability as a potential witness
                                                                      3


against the defendant regarding his acts of intimidation.

Consequently, we affirm the motion judge's denial of the

Commonwealth's motion in limine to admit in evidence the grand

jury testimony of the witness and her transcribed interview with

State police troopers.

     1.    Background.   The following facts were either stipulated

to by the parties or are undisputed.

     The defendant, Joshua Rosado, is the former boy friend of

the witness, Shakira Ortiz, and the father of her young

daughter.    On December 3, 2015, a Hampden County grand jury

indicted Jean C. Mercado for murder and other crimes.     Ortiz was

a key witness for the prosecution in that case, and the

defendant was a friend of Mercado.

     On February 7, 2017, the day before Mercado's trial began,

Ortiz was interviewed by two State police troopers regarding

communications she had received from the defendant.     Ortiz

stated that a friend had privately sent her messages on

Facebook, a social networking Web site, regarding certain public

messages that the defendant had "posted" on Facebook about

Ortiz.    One posted message stated:   "My baby mom is out here on

the bracelet jumping from house to house with my daughter.      And

she's a rat at that.     Like how you snitching on me, gonna shake

my head.    Can't trust nobody.   Fact, had this trifling bitch

around for so many years and I didn't know she was an undercover
                                                                     4


rat."   A second posted message stated:   "I'll give someone 200

to beat the fuck out of my baby mom when y'all see her or I'll

bring her to -- or I'll bring you to her right now."    The

defendant urged her not to testify against Mercado, and told her

that she should lie to the police so that she would not have to

testify.   Ortiz stated that she had telephoned the defendant

after she learned of these Facebook messages, and that he

responded by threatening to hit her every time he saw her.     She

said that these Facebook messages made her "[e]mbarassed" and

"[s]cared," and that she was afraid to walk around Springfield

and run the risk of encountering the defendant.    Ortiz did

testify at Mercado's trial, but the jury found Mercado not

guilty on all charges.

     On April 20, 2017, a Hampden County grand jury indicted the

defendant on one count of intimidation of a witness (Ortiz), in

violation of G. L. c. 268, § 13B.   On November 13, 2017, the

Commonwealth moved in limine to admit in evidence Ortiz's

recorded interview with the State police troopers and her grand

jury testimony under the doctrine of forfeiture by wrongdoing,

in lieu of Ortiz's testimony at the defendant's trial.

     The prosecutor attested that Ortiz now resides outside

Massachusetts and had been subpoenaed and ordered to appear in

court, pursuant to G. L. c. 233, § 13B, for the defendant's
                                                                   5


trial on November 14, 2017. 1   However, on October 31, 2017, Ortiz

told the prosecutor during a telephone call that she was not

going to testify at trial because she was fearful for the safety

of herself and her daughter.    Ortiz had informed a number of

individuals, including the prosecutor, that the defendant had

not "bothered" her since he was arrested on the witness

intimidation charge, and that she was no longer afraid of the

defendant.   But Ortiz believed that the Facebook messages that

the defendant had posted created a safety risk for her from

known and unknown individuals, and that she feared retribution

from Mercado and his associates if she returned to Springfield.

At the motion hearing, the prosecutor informed the judge that he

"was under the impression" that Ortiz, if forced to return to

Springfield to testify, would refuse to testify and risk being

held in contempt.

     On November 28, 2017, the motion judge issued a written

memorandum of decision denying the Commonwealth's motion in

limine.   The judge, citing Edwards, noted that, "[h]ere, the

Commonwealth must prove by a preponderance of the evidence


     1 The Commonwealth filed an impounded motion, pursuant to
G. L. c. 233, § 13B, of the Uniform Law to Secure the Attendance
of Witnesses from Without a State in Criminal Proceedings to
secure the attendance of Shakira Ortiz. Following a hearing in
a court in the State where Ortiz currently resides, Ortiz was
ordered by that court to appear in Massachusetts for the
defendant's trial, despite her testimony that she was afraid to
return to Massachusetts.
                                                                   6


that[,] through the defendant's intimidation of the witness to

prevent her from testifying in a prior case against one of his

associates, he also had the intent of procuring her

unavailability in the present proceeding against him for those

same acts of intimidation."   The judge concluded that the

Commonwealth had not met that burden, declaring that "[t]he

Commonwealth has not presented evidence that the defendant

intended to intimidate the witness in order to prevent her from

testifying against him in the future for that same intimidation,

or for any other future charges against him."

     The Commonwealth petitioned for relief under G. L. c. 211,

§ 3, from the judge's order denying the Commonwealth's motion in

limine.   The single justice reserved and reported the matter to

the full court. 2




     2 The defendant contends that the Commonwealth has failed to
establish exceptional circumstances sufficient to justify the
extraordinary relief available under G. L. c. 211, § 3. "We
bypass the issue, however, because where a single justice
reserves decision and reports a case to the full court, we grant
full appellate review of the matters reported." Charbonneau v.
Presiding Justice of the Holyoke Div. of the Dist. Court Dep't,
473 Mass. 515, 518 (2016). We add that it is appropriate to
exercise our powers under G. L. c. 211, § 3, to address
questions reserved and reported by a single justice which
"involve matters of great import not only to the defendant but
also to the Commonwealth," Blaisdell v. Commonwealth, 372 Mass.
753, 755 (1977), keeping in mind that "we can and should act 'at
whatever stage in the proceedings it becomes necessary to
protect substantive rights.'" Id., quoting Myers v.
Commonwealth, 363 Mass. 843, 844 (1973).
                                                                   7


     2.   Discussion.   The doctrine of forfeiture by wrongdoing

balances a criminal defendant's rights under the Sixth Amendment

to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights to confront the witnesses

against him or her, see Commonwealth v. Greineder, 464 Mass.

580, 589, cert. denied, 571 U.S. 865 (2013), with the equitable

principle that a defendant should not benefit from his or her

wrongdoing in making a witness unavailable to be confronted.

See Reynolds v. United States, 98 U.S. 145, 159 (1878) ("the

rule has its foundation in the maxim that no one shall be

permitted to take advantage of his own wrong"); United States

v. Houlihan, 92 F.3d 1271, 1282-1283 (1st Cir. 1996), cert.

denied, 519 U.S. 1118 (1997) (doctrine "ensure[s] that a

wrongdoer does not profit in a court of law by reason of his

miscreancy").

     In 1878, the United States Supreme Court established the

doctrine of forfeiture by wrongdoing, declaring, "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."   Reynolds, 98 U.S. at 158.

See Crawford v. Washington, 541 U.S. 36, 62 (2004) (doctrine of
                                                                     8


forfeiture by wrongdoing "extinguishes" criminal defendant's

right to confrontation under Sixth Amendment).

     In 2005, we adopted the doctrine of forfeiture by

wrongdoing and concluded that a defendant, by his or her

wrongdoing, may also forfeit his or her right under art. 12 and

our common-law rules of evidence to object to the admission of

hearsay evidence.   See Edwards, 444 Mass. at 536.    We held that

the Commonwealth must prove three elements by a preponderance of

the evidence 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."   Id. at 540.    See Mass. G. Evid.

§ 804(b)(6) (incorporating common-law doctrine of forfeiture by

wrongdoing articulated in Edwards as exception to general rule

barring admission of hearsay evidence). 3   Whether the

Commonwealth has proved these three elements by a preponderance

of the evidence is a preliminary question of fact on the

     3 In 2010, we added a fourth element for the admission of
otherwise inadmissible hearsay -- the hearsay must be reliable.
See Commonwealth v. Szerlong, 457 Mass. 858, 866 (2010), cert.
denied, 562 U.S. 1230 (2011). We noted that, "[e]ven though the
defendant forfeited his right to object on both confrontation
and hearsay grounds to the victim's out-of-court statements, he
is still entitled to due process," and "due process requires
that any hearsay admitted against the defendant be reliable."
Id. See Commonwealth v. Edwards, 444 Mass. 526, 540 n.21 (2005)
("There may be some statements so lacking in reliability that
their admission would raise due process concerns").
                                                                     9


admissibility of evidence that is decided by a judge.    See Mass.

G. Evid. § 104(a) (2018).

     "A defendant's involvement in procuring a witness's

unavailability need not consist of a criminal act" -- the

"wrongdoing" in the doctrine of forfeiture by wrongdoing is

simply the intentional act of making the witness unavailable to

testify or helping the witness to become unavailable.

See Edwards, 444 Mass. at 540-542.    For example, where a

defendant actively assists a witness's efforts to avoid

testifying, with the intent to keep that witness from

testifying, forfeiture by wrongdoing may be established

"regardless of whether the witness already decided 'on [her]

own' not to testify."   Id. at 541.   See Commonwealth

v. Szerlong, 457 Mass. 858, 864-865 (2010), cert. denied, 562

U.S. 1230 (2011) (forfeiture by wrongdoing applies where

defendant who was accused of assaulting his girl friend married

her with intent to enable her to claim spousal privilege and

thereby avoid testifying against defendant).

     A defendant does not forfeit his or her right to object to

the admission of evidence on confrontation or hearsay grounds

simply by causing a witness's unavailability; the defendant must

also intend to prevent the witness from testifying against him

or her.   See Giles v. California, 554 U.S. 353, 361-362 (2008).

In Giles, the defendant allegedly killed his former girl friend
                                                                      10


approximately three weeks after he had accused her of

infidelity, assaulted her, and threatened to kill her if he

found her cheating on him.       See id. at 356-357.   Even though the

defendant's killing of her inevitably made her unavailable to

testify at the trial regarding her murder, the Court declined to

admit in evidence under the doctrine of forfeiture by wrongdoing

the prior statements of the girl friend to law enforcement

regarding the physical abuse she suffered at the hands of the

defendant.   See id. at 368. 4    But if the defendant in Giles had

killed his former girl friend with the intent to prevent her

from cooperating with law enforcement in an investigation of his

prior assaults, or with the intent to prevent her from

testifying against him with respect to those assaults, then her




     4 The Supreme Court noted, in a plurality opinion, that
"[t]he manner in which the [forfeiture by wrongdoing doctrine]
was [historically] applied makes plain that unconfronted
testimony would not be admitted without a showing that the
defendant intended to prevent a witness from testifying. In
cases where the evidence suggested that the defendant had caused
a person to be absent, but had not done so to prevent the person
from testifying -- as in the typical murder case involving
accusatorial statements by the victim -- the testimony was
excluded unless it was confronted or fell within the dying-
declarations exception. Prosecutors do not appear to have even
argued that the judge could admit the unconfronted statements
because the defendant committed the murder for which he was on
trial." (Emphasis in original.) Giles v. California, 554 U.S.
353, 361-362 (2008).
                                                                  11


prior statements to law enforcement may have been admissible

under the doctrine.   See id. at 377. 5

     Here, the Commonwealth claims that the defendant's intent

to prevent Ortiz from testifying in the murder trial against

Mercado should suffice as the intent needed to invoke the

doctrine of forfeiture by wrongdoing at the witness intimidation

trial against the defendant.   We decline to adopt such an

expansion of the doctrine.   A defendant forfeits his right to

object to otherwise inadmissible hearsay solely as a result of

his own wrongdoing in seeking to prevent a witness from

testifying against him, not against a third party in another

proceeding.   See, e.g., Giles, 554 U.S. at 361, quoting E.

Powell, The Practice of the Law of Evidence 166 (1858)

(forfeiture rule applied when witness "had been kept out of the

way by the prisoner, or by some one on the prisoner's behalf, in


     5 A plurality of the Court in Giles further noted that
"[a]cts of domestic violence often are intended to dissuade a
victim from resorting to outside help, and include conduct
designed to prevent testimony to police officers or cooperation
in criminal prosecutions." Giles, 554 U.S. at 377. They
invited the trial judge to consider on remand that, "[w]here
such an abusive relationship culminates in murder, the evidence
may support a finding that the crime expressed the intent to
isolate the victim and to stop her from reporting abuse to the
authorities or cooperating with a criminal prosecution --
rendering her prior statements admissible under the forfeiture
doctrine." Id. Highly relevant to this inquiry would be
"[e]arlier abuse, or threats of abuse, intended to dissuade the
victim from resorting to outside help," as well as "evidence of
ongoing criminal proceedings at which the victim would have been
expected to testify." Id.
                                                                  12


order to prevent him from giving evidence against him" [emphasis

added]); United States v. Thompson, 286 F.3d 950, 962 (7th Cir.

2002), cert. denied, 537 U.S. 1134 (2003) ("[t]he primary

reasoning behind" rule of forfeiture by wrongdoing is "to deter

criminals from intimidating or 'taking care of' potential

witnesses against them" [emphasis added]).

     The equitable principle at the heart of the doctrine of

forfeiture by wrongdoing is that a defendant should not be able

to benefit from the unavailability of a witness at his own trial

where the defendant caused the witness to be unavailable.    A

defendant's attempt to make the witness unavailable at another

trial that did not involve the defendant does not warrant

forfeiting the fundamental "bedrock procedural guarantee" of an

accused to be confronted with the witnesses against him,

see Crawford, 541 U.S. at 42, citing Pointer v. Texas, 380 U.S.

400, 406 (1965), because the defendant does not benefit from the

unavailability of the witness at another person's trial.    In the

context of this case, the defendant would not benefit if he had

successfully intimidated Ortiz from testifying against Mercado

at the murder trial; the defendant would benefit only if he had

prevented Ortiz from testifying against him at his witness

intimidation trial.   If the defendant had attempted to prevent

Ortiz from testifying against him at his intimidation trial,

then the doctrine might have applied if the other elements
                                                                     13


in Edwards were satisfied.   But there is no evidence in the

record before us that the defendant intended anything more than

to prevent Ortiz from testifying against Mercado, and that does

not suffice to establish the intent required for invoking the

doctrine of forfeiture by wrongdoing in the defendant's trial. 6

     We are aware of no case in which the doctrine of forfeiture

by wrongdoing has been applied where a defendant did not seek,

alone or with others, to prevent a witness from testifying

against him, and the Commonwealth has cited no such case.      The

Commonwealth relies for support primarily on United States

v. Gray, 405 F.3d 227, 230-233 (4th Cir.), cert. denied, 546

U.S. 912 (2005), where the defendant was charged with mail fraud

and wire fraud for her fraudulent receipt of life insurance

proceeds following the deaths of her second husband and a former


     6 We need not decide in this case whether our doctrine of
forfeiture by wrongdoing may be invoked where a defendant causes
a witness to be unavailable through murder or intimidation
during a pending criminal investigation of the defendant, where
the defendant intends to prevent the witness from testifying,
and where it was "reasonably foreseeable that the investigation
[would] culminate in the bringing of charges" against the
defendant. See United States v. Burgos-Montos, 786 F.3d 92, 115
(1st Cir.), cert. denied, 136 S. Ct. 599 (2015), quoting United
States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996), cert.
denied, 519 U.S. 1118 (1997). Nor need we decide whether the
doctrine might apply if the defendant had recognized the
possibility that his conduct might result in a criminal charge
of intimidation of a witness and threatened Ortiz with harm if
she were to testify against Jean C. Mercado in the murder trial
or against him in a witness intimidation trial. There is no
evidence that the defendant recognized that possibility here, or
that his threats addressed that possibility.
                                                                        14


lover.       The evidence in Gray demonstrated that the defendant

shot and killed her second husband after he had brought criminal

charges against her for assault, and that she received monies as

the beneficiary of his life insurance policy.         See id. at 231-

232.       The defendant challenged the admission of her deceased

husband's prior statements under Fed. R. Evid. 804(b)(6), which

codifies the Federal common-law doctrine of forfeiture by

wrongdoing.       See id. at 241. 7   The defendant argued that the rule

should not apply because the evidence showed that she did not

intend, by killing her husband, to make him unavailable as a

witness in a trial accusing her of fraudulently obtaining the

proceeds of his life insurance policy.         See id.   The court

rejected her argument, noting that the evidence showed that she

had killed her husband to make him unavailable as a witness in a

trial accusing her of assault, and declaring that "[a] defendant

who wrongfully and intentionally renders a declarant unavailable

as a witness in any proceeding forfeits the right to exclude, on

hearsay grounds, the declarant's statements at that proceeding

and any subsequent proceeding" (emphasis added).         Id. at 242.

The Commonwealth argues that this case supports the proposition

that the doctrine of forfeiture by wrongdoing is not limited to

       7
       Rule 804(b)(6) of the Federal Rules of Evidence provides
that "[a] statement offered against a party" is not excluded by
the rule against hearsay where the party "wrongfully caused --
or acquiesced in wrongfully causing -- the declarant's
unavailability as a witness, and did so intending that result."
                                                                  15


the proceeding that was the focus of the defendant's attempt to

make the witness unavailable to testify.

     The court in Gray, however, made clear that the Federal

rule would apply only when "the defendant's wrongdoing was

intended to, and did, render the declarant unavailable as a

witness against the defendant" (emphasis added).   Id. at 241.

Indeed, the court specifically declared, "We emphasize that the

intent requirement in Rule 804(b)(6) continues to limit

application of the forfeiture-by-wrongdoing exception to those

cases in which the defendant intended, at least in part, to

render the declarant unavailable as a witness against him"

(emphasis added).   Id. at 242 n.9.   Because there is no evidence

in this case that the defendant intended to make Ortiz

unavailable as a witness against him, we need not reach the

issue whether our common-law doctrine of forfeiture by

wrongdoing would apply where a defendant renders a declarant

unavailable as a witness in "any proceeding" against that

defendant.   See id. at 242.

     We therefore conclude that the judge did not err in ruling

that the doctrine of forfeiture by wrongdoing did not apply in

this case because the Commonwealth failed to prove by a

preponderance of the evidence that the defendant intended to

make Ortiz unavailable as a witness against him.   Having found

that the Commonwealth failed to prove the third element of
                                                                   16


forfeiture by wrongdoing required under Edwards, 444 Mass. at

540, the judge did not address (and did not need to address)

whether the Commonwealth had met its burden of proving the first

two elements.   We address them here, and conclude that the

Commonwealth also failed to prove these two elements by a

preponderance of the evidence.

     Forfeiture by wrongdoing requires the Commonwealth to

demonstrate that the witness is unavailable.   See Edwards, 444

Mass. at 540.   A declarant is considered to be unavailable as a

witness if, as relevant here, the declarant "is absent from the

trial or hearing and the statement's proponent has not been able

to procure the declarant's attendance by process or other

reasonable means," Mass. G. Evid. § 804(a)(5), or if the

declarant "is exempted from testifying about the subject matter

of the declarant's statement because the court rules that a

privilege applies," Mass. G. Evid. § 804(a)(1). 8 Here, after

Ortiz was served with out-of-State process and ordered to come

to Massachusetts to testify, she informed the prosecutor that

she did not want to return.   But there is nothing in the record

to indicate that the Commonwealth was unable to compel her

appearance.   Moreover, there is nothing in the record to

     8 A declarant is also considered unavailable as a witness
where the declarant "cannot be present or testify at the trial
or hearing because of death or a then-existing infirmity,
physical illness, or mental illness." Mass. G. Evid.
§ 804(a)(4).
                                                                  17


indicate that Ortiz has invoked any privilege that would exempt

her from testifying, or that she has any valid privilege that

she could reasonably invoke.    We need not decide here whether to

adopt Proposed Mass. R. Evid. 804(a)(2), which, like Fed. R.

Evid. 804(a)(2), 9 treats a witness as "unavailable" if the

witness "persists in refusing to testify concerning the subject

matter of his statement despite an order of the court to do so,"

see Advisory Committee's Note to Proposed Mass. R. Evid.

804(a)(2), because the only indication in the record that Ortiz

would refuse to testify and risk being held in contempt is the

prosecutor's assertion that he "was under the impression" that

she would do so.    See Commonwealth v. Fisher, 433 Mass. 340, 355

(2001) (noting that "we have not yet adopted" Proposed Mass. R.

Evid. 804[a][2]).   See also Opinion of the Justices, 406 Mass.

1201, 1211 (1989) ("We do not . . . equate a refusal to testify

. . . with that measure of necessity which we have held permits

the use of prior testimony").   But see Commonwealth v. Pittman,

60 Mass. App. Ct. 161, 170 (2003) (witness unavailable where

"defense counsel made timely service of a subpoena upon [defense

witness,] which she ignored in favor of attending a family




     9 Under Fed. R. Evid. 804(a)(2), "[a] declarant is
considered to be unavailable as a witness if the declarant . . .
refuses to testify about the subject matter despite a court
order to do so."
                                                                      18


funeral").   On this record, the Commonwealth did not meet its

burden of proving that Ortiz was unavailable as a witness.

     Even if Ortiz were an unavailable witness, the Commonwealth

failed to meet its burden of proving that the defendant was

involved in, or responsible for, procuring her unavailability.

See Edwards, 444 Mass. at 540.   There is no evidence that the

defendant has taken any action to cause Ortiz not to testify

against him in the witness intimidation case.      She informed the

prosecutor, among other individuals, that the defendant had not

"bothered" her since he was arrested on the witness intimidation

charge, and that she no longer feared him.   Rather, she feared

retribution from Mercado and his associates as a result of

testifying at Mercado's murder trial.   We do not question the

sincerity of her fear, but she does not point to the defendant

as the cause of her fear.

     3.   Conclusion.   For the foregoing reasons, we affirm the

judge's order denying the Commonwealth's motion in limine to

admit Ortiz's out-of-court statements in evidence, pursuant to

the doctrine of forfeiture by wrongdoing.

                                     So ordered.
