Opinion
11-P-1506
12-10-2012
COMMONWEALTH v. ERIC C. HALL.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions of assault with intent to kill, two counts of assault and battery by means of a dangerous weapon, and intimidation of a witness, the defendant contends that (1) the trial judge erred in admitting the prior recorded testimony of an unavailable witness, and (2) defense counsel rendered ineffective assistance of counsel in failing to object to hearsay testimony regarding the defendant's past violence. We affirm.
1. Prior recorded testimony. We reject the contention that admission of Amanda Blaisdell's testimony at the defendant's dangerousness hearing violated the defendant's right to confront and cross-examine the witnesses against him. We determine the admissibility of prior recorded testimony under a two-part inquiry, looking first to normal State evidentiary rules, and then appraising it to determine if it satisfies the confrontation clause of the Sixth Amendment to the United States Constitution. See Commonwealth v. Arrington, 455 Mass. 437, 441 (2009). As a matter of evidentiary rule, '[b]efore [prior recorded testimony] can be admitted in evidence, the party offering it must show that ' the prior testimony was given by a person, now unavailable, in a proceeding addressed to substantially the same issues as in the current proceeding, with reasonable opportunity and similar motivation on the prior occasion for cross-examination of the declarant by the party against whom the testimony is now being offered." Id. at 442, quoting from Commonwealth v. Trigones, 397 Mass. 633, 638 (1986). Blaisdell, who was unavailable at trial because of her invocation of her Fifth Amendment privilege against self-incrimination, testified at length at the defendant's dangerousness hearing. In cross-examination, defense counsel questioned her vigorously and extensively regarding the circumstances of the defendant's involvement in the attack on William Dewey, the fight between Dewey and the defendant, and the actions of Patrick Flynn, Raymond Cable, and Charles Cable. In these circumstances, the Commonwealth established that Blaisdell's prior testimony arose in a proceeding addressed to substantially the same issues as at trial, and that defense counsel had reasonable opportunity and similar motivation to cross-examine her on the defendant's behalf. See Commonwealth v. Trigones, supra.
Counsel for Flynn and Cable also cross-examined Blaisdell at the dangerousness hearing, and the transcript of their examinations was admitted at the defendant's trial at the behest of defense counsel.
Here, the defendant maintains that Blaisdell's testimony at the defendant's dangerousness hearing did not bear adequate indicia of reliability to satisfy confrontation concerns, because her invocation of her privilege against self-incrimination called into question the reliability of that testimony. More particularly, he posits that Blaisdell's testimony is suspect, because her Fifth Amendment privilege arises from her purposefully denying that she had spoken with the defendant in order to portray his assault on Dewey as a random attack. Even assuming that Blaisdell's invocation of the privilege against self-incrimination was owing to that concern rather than some other, we are not persuaded that such a discrepancy would render her prior recorded testimony unreliable. Whether Blaisdell called, or didn't call, the defendant to ask him to meet her at John Dewey's house was not material to whether the attack upon William Dewey was criminal. See Commonwealth v. Allison, 434 Mass. 670, 678 (2001) (materiality an element of perjury); Commonwealth v. White, 70 Mass. App. Ct. 71, 76 (2007). Indeed, given the testimony of Patrick Flynn, who observed the defendant attack Dewey without provocation and with the assistance of the Cable brothers, we fail to discern how any discrepancy in Blaisdell's assertion that she did not call the defendant on the day of the attack placed in question the reliability of her entire testimony regarding the particulars of the attack upon Dewey. See Commonwealth v. Trigones, supra. Any such discrepancy goes to the weight to be accorded Blaisdell's testimony by the fact finder, not its admissibility as prior recorded testimony.
For substantially the same reasons, we discern no violation of the Sixth Amendment right to confrontation in the use of Blaisdell's prior recorded testimony. See Commonwealth v. Lao, 450 Mass. 215, 223-224 (2007) (where testimonial statements at issue, the confrontation clause commands, 'not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination,' quoting from Crawford v. Washington, 541 U.S. 36, 61 [2004]). See Commonwealth v. Newman, 69 Mass. App. Ct. 495, 498-499 (2007). Blaisdell's prior testimony was sufficiently tested in cross-examination and sufficiently reliable to satisfy confrontation concerns. Compare Commonwealth v. Arrington, 455 Mass. at 443-445 (prior recorded testimony unreliable where witness medicated, in impaired cognitive state, and no reasonable opportunity to cross-examine).
2. Defense counsel's failure to object. Even assuming that defense counsel had no tactical reason for not objecting to William Dewey's testimony, that Blaisdell told him that she didn't wish to speak with the defendant because he would 'get physical' with her and 'had problems in the past,' the admission of that testimony did not deprive the defendant of an available substantial ground of defense. See Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 836 (2010). Indeed, the substance of that testimony, and more, properly came before the jury in multiple other forms including Blaisdell's testimony that the defendant had threatened to punch her teeth in, the defendant's acknowledgment that he had previously been convicted of violating a restraining order, and his admission that he texted Blaisdell that Dewey was 'going to get his ass beat,' and told her he was upset with her being 'a snitch,' and she 'was next.'
Judgments affirmed.
By the Court (Grasso, Vuono & Milkey, JJ.),