Opinion
No. 12–P–181.
2013-08-2
COMMONWEALTH v. Edmond P. WALSH.
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In November, 2009, a grand jury returned eleven indictments against the defendant, charging him with rape of a child by force, open and gross lewdness, and indecent assault and battery on a child. The charges stemmed from the defendant's alleged sexual abuse of three sisters (triplets), who, at the time the abuse occurred, lived near the defendant. The sisters were nineteen years old at the time of trial. They each claimed that the defendant abused them in his home when they were between the ages of eight and ten.
The defendant denied the allegations and mounted a vigorous defense. At trial, he testified that while the sisters and other neighborhood children often played at his house, they were always in a group and, further, that he was primarily occupied with taking care of his own young children and making dinner for his family. As a result, the defendant argued, there was no opportunity to be alone with any of the sisters. Other witnesses, including the mother of the defendant's children, testified on behalf of the defense. In addition, the defendant challenged the sisters' credibility by exploiting various inconsistences in their testimony and by emphasizing that the sisters previously had denied that any abuse had occurred. The jury acquitted the defendant of all charges involving two of the sisters, but convicted him of three counts of indecent assault and battery on a child and one count of open and gross lewdness involving one of the sisters, whom we shall call Eileen. Eileen's testimony was corroborated by her older brother, Richard, who stated that he had observed the defendant having oral intercourse with Eileen. On another occasion, he saw the defendant lying on the bed next to Eileen with his penis exposed. At the time of the trial, Richard was a soldier in the United States Army and was stationed in Afghanistan. His testimony was presented to the jury in a videotaped deposition, pursuant to Mass.R . Crim.P. 35(g), 378 Mass. 907 (1979), over the defendant's objection.
A pseudonym.
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On appeal, the defendant contends that the admission of the videotaped deposition constitutes reversible error because the Commonwealth did not carry its burden of demonstrating that Richard was unavailable for trial. The defendant also argues that the admission of this testimony violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution. Additionally, the defendant claims that his conviction of open and gross lewdness must be reversed because the judge erred by giving a supplemental “tender years” instruction. For the reasons that follow, we affirm the convictions.
1. The videotaped deposition.Rule 35(g) provides for the admission of a deposition as substantive evidence in a criminal trial “if the judge finds that the deponent is unavailable.” As we have noted, at the time of the trial of this case, Richard was stationed in Afghanistan. The Commonwealth, having anticipated Richard's unavailability, received permission to videotape Richard's testimony. He was deposed approximately three months before the start of the trial in accordance with rule 35. During a voir dire at the beginning of the deposition, Richard testified that he was a soldier in the United States Army and was scheduled to be deployed to Afghanistan within a few days for a period of 400 days. Richard explained that he would have a two-week leave approximately half way through his deployment, however, because he was assigned to a special unit engaged in clandestine operations, he did not know precisely when he would obtain that leave. Also, apart from that leave, Richard could obtain emergency leave only in the event of the death of a parent.
Richard then testified about the events in question and was cross-examined. The defendant was present at the deposition, which was conducted in the courtroom under the guidance of a Superior Court judge.
Thereafter, about one week before trial, on November 21, 2011, the trial judge held a hearing on the defendant's motion to exclude the deposition. In addition to reviewing Richard's voir dire testimony described above, the judge reviewed two sets of electronic mail message (email) exchanges between the prosecutor and Richard's officer in charge, Major Jeffrey Jackson. The subject of the emails was Richard's availability for trial. In the first email exchange, dated September 23, 2011, the major “confirm[ed] that [Richard] is ... unable to return for the trial,” which at that time was scheduled for October 25, 2011. In a second email exchange, dated November 17, 2011, which was just four days before the hearing and about eleven days before the new trial date of November 28, 2011, the major again stated that Richard “will still be unavailable” for trial. That email also stated: “Re: military members traveling out of the combat zone to attend trials.... Some positions and missions are more critical than others, and can absorb a short absence for the individual. [Richard]'s position does not have that flexibility.” The prosecutor also presented a copy of Richard's military orders to the judge. The orders specified the period of deployment and described Richard's security clearance as “TOP SECRET WITH SENSITIVE COMPARTMENTED INFORMATION.”
Apparently, the emails were not formally introduced in evidence as exhibits. Nonetheless, it is clear that they were presented to the judge, who considered them before marking them for identification.
At the conclusion of the hearing, the judge ruled that Richard was unavailable for trial and, accordingly, his videotaped deposition was presented to the jury. The defendant renewed his objection to the admission of the deposition both before and after it was played.
There is no dispute that the Commonwealth had the burden of proving that Richard was unavailable to testify at the time of trial. Commonwealth v. Ross, 426 Mass. 555, 557 (1998). Furthermore, rule 35(g) and our cases require that the Commonwealth “exercise substantial diligence in order to meet its burden of showing a witness's unavailability.” Id. at 557–558. The defendant argues that the Commonwealth failed to demonstrate that it made a reasonable effort to obtain Richard's presence because, in the prosecutor's communications with the major, the prosecutor merely confirmed Richard's unavailability rather than inquiring as to whether Richard could obtain leave for the purpose of testifying at trial. Thus, the defendant contends, the Commonwealth did not show that Richard was unavailable at the time of trial.
At one point in the second email exchange the prosecutor stated, “I just want[ed] to confirm with you that [Richard] will not be available” for the November trial date.
We are not persuaded by the defendant's argument. Commonwealth v. Ross, supra, upon which the defendant relies, is easily distinguishable. In that case, the Supreme Judicial Court concluded that the trial judge had erred by admitting a witness's deposition where the Commonwealth did no more than ascertain that the witness, a student at Williams College, was studying at Tel Aviv University in Israel and was spending her spring break in Rome. The court ruled that “[t]he fact that the deponent was in another country is not, standing alone, sufficient under the common law of the Commonwealth to justify admission of her deposition testimony.” Id. at 558. By contrast, here, the prosecutor made a good faith effort to obtain Richard's presence by contacting—on numerous occasions—Richard's officer in charge. Given the circumstances, in particular the fact that Richard was involved in clandestine operations, we do not believe that it was necessary for the prosecutor to have specifically requested that Richard be permitted to return to the United States to meet the Commonwealth's burden. “[T]he lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Commonwealth v.. Charles, 428 Mass. 672, 678 (1999), quoting from Ohio v. Roberts, 448 U.S. 56, 74 (1980). See Hardy v. Cross, 132 S.Ct. 490, 493–495 (2011). We see nothing unreasonable in the manner with which the prosecutor sought to determine Richard's unavailability. We therefore conclude that the judge did not err in allowing the Commonwealth to introduce the videotaped deposition in evidence.
We are likewise unpersuaded by the defendant's claim that his right of confrontation was violated because the videotape failed to capture the interaction between the witness, the defendant, and the examiners. The defendant did not object to the videotape on these grounds, and therefore we review the alleged error only to determine whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Amirault, 424 Mass. 618, 646 (1997). Because we discern no error, there was no such risk. As the Commonwealth correctly notes in its brief, rule 35(g) only requires that the prior testimony be reliably recorded. See Commonwealth v. Arrington, 455 Mass. 437, 442 (2009). In most instances, a transcript will suffice as long as the rule's other conditions have been satisfied. Id. at 442 n. 7. See Commonwealth v. Bohannon, 385 Mass. 733, 746 (1982). There is no claim that the videotape was not accurate, or that the defendant's ability to cross-examine Richard was hindered in any way. In these circumstances, we conclude that the defendant's constitutional rights were adequately protected.
2. Jury instruction. Even though he did not object at trial, the defendant claims that he is entitled to a new trial because the judge erred by giving a supplemental “tender years” instruction in connection with her instruction on the five elements required for a conviction of open and gross lewdness. As the Commonwealth appropriately concedes, the supplemental instruction should not have been given. See Commonwealth v. Kessler, 442 Mass. 770, 776–777 (2004) (the “tender years” instruction should be avoided because it suggests that it is unnecessary to prove one of the elements of the offense when children are involved). We conclude, however, that the error did not create a substantial risk of a miscarriage of justice. Viewing the charge in its entirety, see Commonwealth v. Belcher, 446 Mass. 693, 696 (2006), we are confident that the jury understood that the Commonwealth was required to prove all five elements of the offense. During trial, the judge clearly stated that if the Commonwealth failed to prove any one of the five elements, then the jury were to find the defendant not guilty. Moreover, as the defendant acknowledges, the evidence was sufficient to permit the jury to conclude that the Commonwealth had satisfied its burden of proving all five elements beyond a reasonable doubt. Accordingly, the error does not warrant reversal of the defendant's convictions.
Judgments affirmed.