Opinion
18-P-1216
10-22-2019
COMMONWEALTH v. Enrique AUCH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Enrique Auch, was convicted of murder in the second degree, G. L. c. 265, § 1, and two counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b ). He now appeals.
The defendant was convicted of shooting and killing D'Andre King-Settles. The jury saw surveillance videos showing two men walking toward the building at 58 Annunciation Road in the Roxbury section of Boston. Auch stipulated that he was the man in the video wearing khaki pants and a black, red, and white jacket. The other man was Tsunami Ortiz. Auch and Ortiz entered through the main entrance of the building and opened one door, then another. They remained in the building until they came to the rear exit, where Auch inspected the rear door. They left through the rear door. Auch and Ortiz returned approximately twenty minutes later, appearing to retrace their earlier route. They reentered the building, again through the main entrance, and walked through a door off camera. Two minutes later, Juan Garcia and Jaquan McIver-Bennett entered the building and rode the elevator to the third floor. Four minutes later, King-Settles entered the building and went up to the third floor on the elevator. He returned on the elevator with Garcia and McIver-Bennett less than two minutes later. They walked out the front door together. Seconds later, Auch emerged back into the camera view and followed King-Settles's group out the front door. Ortiz followed Auch approximately ten seconds later. Seconds later, shots were fired in front of 58 Annunciation Road. King-Settles died at the scene from four gunshot wounds.
Witnesses at trial included Aracelis Acosta, who testified that she heard gunfire and seconds later saw two male teenagers walking closely one behind the other, away toward Ruggles Station. After a second set of shots, she saw them break into a run. One had a white jacket and khaki pants. Yendry Guerrerro also heard gunshots and saw two males running away in the direction of Ruggles Station.
At trial, Garcia was called as a witness. He had testified before the grand jury, but gave nonresponsive answers to some preliminary questions from the Commonwealth at trial. The trial judge declared that Garcia was feigning lack of memory and therefore permitted the Commonwealth to read to the jury the questions and answers from Garcia's previous grand jury testimony. These included the statements that Garcia had turned around "for a quick second" during the shooting to see what was happening, and that he saw someone who was "shooting at [them]." This person was a male wearing "a hoodie with a rain jacket and some khaki[s]," who the jury could have concluded was Auch.
Before the grand jury, Garcia later testified that he saw "flashes," which he described at trial as "like a firework," from where the person was standing, and that he did not see the person actually shooting a gun. The jury could have inferred that these flashes were from the discharge of a gun being shot by Auch.
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The defendant argues that he was denied his Sixth Amendment right to confront the witnesses against him because on cross-examination, Garcia continued to feign memory loss, although he did episodically give substantive answers to some of defense counsel's questions. The confrontation clause requires that a defendant be given "adequate opportunity to cross-examine adverse witnesses." United States v. Owens, 484 U.S. 554, 557 (1988). This right gives the defendant the chance for "effective cross-examination of the witness at trial." Commonwealth v. Andrade, 481 Mass. 139, 142 (2018). But it does not guarantee "cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Owens, supra at 559, quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987).
There are circumstances in which a witness's refusal to answer questions during cross-examination has been held to deprive the defendant of his right to confrontation when that witness's prior statements have been introduced during direct examination. See Commonwealth v. Kirouac, 405 Mass. 557, 560 (1989) (confrontation rights violated where complainant witness, aged six, "resisted answering nearly all questions put to her on cross-examination"). See also Commonwealth v. Funches, 379 Mass. 283, 293 (1979) (confrontation rights violated when key prosecution witness testified extensively on direct but then asserted privilege when cross-examined on same subject). However, as we said in Andrade, "any limitation on the effectiveness of a cross-examination of a witness who has been found to have feigned memory loss generally does not implicate the confrontation clause" (quotations and citation omitted). Andrade, 481 Mass. at 143. See United States v. Fiore, 443 F.2d 112, 115 (2d Cir. 1971) (Friendly, J.) (cross-examination is sufficient to meet confrontation clause objection if there is "meaningful cross-examination on the issue whether his present alleged lack of recollection of the defendant's participation in the crime or his previous sworn testimony to the contrary was the truth"). Indeed, the defendant has not cited, and we have not found, any case in which the feigning of memory loss by a witness during cross-examination about his or her prior testimony resulted in a finding of a violation of the confrontation clause. Because under the case law the defendant had the opportunity effectively to cross-examine the witness, we conclude that the confrontation clause was not violated by the Commonwealth's introduction of Garcia's grand jury testimony.
Given this, the defendant's second argument, that there was insufficient evidence to support his convictions, is also without merit. The grand jury testimony, along with the video evidence and statements of the other witnesses, permitted a rational jury to find the defendant guilty beyond a reasonable doubt.
Judgments affirmed.