Opinion
No. 14–P–1562.
07-26-2016
COMMONWEALTH v. Salatiel A. SOUSA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery. He appeals, arguing that the judge erred in allowing in evidence the victim's out-of-court statements under the doctrine of forfeiture by wrongdoing. The defendant contends that the challenged statements did not meet the requirements for forfeiture by wrongdoing and, even if they did, the statements should have been excluded because they were unreliable. As a result, he claims that he was denied due process of law. We affirm.
The defendant's motion for a required finding of not guilty was allowed as to the portion of the indictment alleging the use of a dangerous weapon.
At the heart of the equitable principle of forfeiture by wrongdoing is the notion “that a party may not gain advantage from his own wrong.” Commonwealth v. Edwards, 444 Mass. 526, 535 (2005). “[B]y discouraging untoward behavior toward witnesses by defendants, [the doctrine] serves to protect witnesses from intimidation, pressure, threats, and even physical harm.” Ibid. In order to apply the doctrine, three factual findings are required: “(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.” Commonwealth v. Szerlong, 457 Mass. 858, 861 (2010), quoting from Edwards, supra at 540. See Mass. G. Evid. § 804(b)(6) (2016). “[F]orfeiture by wrongdoing may be established regardless of whether the witness already decided on [her] own not to testify.” Szerlong, supra (quotation omitted).
The following evidence was admitted at the trial. On March 30, 2013, the defendant was arrested for assaulting his wife; the victim initially told the responding police officers that she had sustained her injuries when she tripped and fell because she was intoxicated. The officers did not believe that to be the full truth . After the defendant was arrested and taken from the scene, and while the officers were “waiting for a camera to come” to take pictures of the victim's injuries, Officer Leduc was standing with the victim on the steps of her townhouse. At that time, she told him that she and the defendant had gotten into a heated argument, and when the defendant went outside to smoke a cigarette, she locked the front door. After the defendant banged on the dining room window until it broke, she unlocked the door; once he came back into the house, he grabbed her by the back of her jacket and threw her out the front door and down the stairs.
The Commonwealth's motion in limine to admit the testimony was allowed after an evidentiary hearing held before a different judge. The testimony at the hearing was essentially the same as at trial, at least on the issues relevant to the admissibility of the out-of-court statements.
The defendant also told the officers that the victim was drunk and fell. Officer Chris Leduc testified that, based on his observations and experience, he did not believe the victim was intoxicated; however, he did conclude that the defendant was impaired (“wasn't fully intoxicated, but he had been drinking”).
In September, 2013, Officer David Priest served a trial subpoena on the victim's neighbor, Stanley Martin, Jr. At that time, Martin stated to the officer that, a few days earlier, the victim had told him that she had received a number of letters and several telephone calls from the then incarcerated defendant, telling her that, when he got out of jail, or if he got deported as a result of the charges, he would come back and “take care of the problem” or “the situation.” This caused the victim to be afraid for her life. Beginning in July, 2013, the victim told representatives of the District Attorney's office that she would invoke her spousal privilege if called to testify.
Martin had come to the victim's aid after his wife saw the defendant throw the victim down the stairs. Martin saw the victim “laying in the parking lot crying holding her head,” and observed that “[s]he was in bad shape”—“she had a black eye coming” and “skinned knees and her hands had been skinned.” He also noticed a slap mark on the side of the victim's face and that she had blood coming from the corner of her mouth; she told Martin that the defendant had pushed her down the stairs. Officer Priest testified that on the night of the incident, he observed the victim to be upset and crying, and bleeding from the nose and face area.
On November 29, 2013, after a hearing, the Commonwealth's motion to admit the hearsay statements was allowed. In a thorough and thoughtful memorandum, the motion judge noted that he found that the communications, initiated by the defendant from jail, put the victim “in fear for her personal safety and well-being”; the guidance the victim sought from Martin “strongly suggest[ed]” that the victim “was susceptible to being influenced by the defendant's communications and thus based her decision not to testify—at least in part—upon what the defendant said to her in his letters and telephone calls.” The motion judge further found that “the defendant's intent clearly was to cause the alleged victim to rethink her prior cooperation with the police and not testify against him at trial.” Taken together, the motion judge's factual findings satisfy the Edwards requirements. See Edwards, supra .
As to the reliability of the victim's out-of-court statement to Leduc, the statement clearly was corroborated by the testimony of Andrea Martin, Stanley Martin's wife, who testified that the defendant pushed the victim in the back when they were both yelling and the victim was crying. The victim fell down the stairs and landed on her face on cement; “[s]he was yelling, somebody please help me.” In addition, Stanley Martin and Leduc both made observations of the victim's demeanor and physical appearance that corroborated the version of the events contained in the victim's statement to Leduc. The record clearly supports the judge's conclusion that the hearsay statements were substantially reliable. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004). Any discrepancies in the testimony go to the credibility of the witnesses and issues of credibility were for him to evaluate. Cf. Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). We see neither error nor an abuse of discretion in the admission of the victim's out-of-court statements.
We note that Stanley Martin testified, without objection, that the victim told him in the parking lot, “He pushed me down the stairs.”
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Judgment affirmed.