Commonwealth v. Rosado

Summary

The Massachusetts Supreme Judicial Court held that the Commonwealth had not established the elements required to invoke forfeiture by wrongdoing and admit an unavailable witness's out-of-court statements. The court concluded that the witness was not shown to be unavailable, that the defendant did not cause her unavailability in the witness-intimidation case, and that he lacked the requisite intent to prevent her from testifying against him. The court affirmed the denial of the Commonwealth's motion in limine.

Holdings

1. A defendant forfeits confrontation and hearsay objections only when the defendant's wrongdoing was intended to prevent the witness from testifying against the defendant in the proceeding at issue; an intent to prevent testimony against a third party in another proceeding is insufficient.
2. A witness who has been served with out-of-State process and ordered to appear at a Massachusetts trial is not shown to be unavailable merely because the witness tells the prosecutor that the witness does not want to testify.
3. Rosado was not involved in or responsible for procuring Ortiz's unavailability because the evidence showed that Ortiz feared retaliation from Mercado and his associates, not that Rosado had caused her refusal to return or testify in the present case.
4. The motion judge correctly denied the Commonwealth's motion in limine to admit Ortiz's grand jury testimony and recorded interview under the doctrine of forfeiture by wrongdoing.

Questions Presented

1. Whether the doctrine of forfeiture by wrongdoing permits admission of Ortiz's out-of-court statements when Rosado's alleged wrongdoing was intended to prevent her from testifying against a third party in an earlier proceeding, rather than against Rosado in the present case.
2. Whether Ortiz was unavailable within the meaning of the forfeiture-by-wrongdoing doctrine when she had been served with out-of-State process and ordered to appear but merely told the prosecutor that she did not want to testify.
3. Whether Rosado was involved in or responsible for procuring Ortiz's unavailability.
4. Whether Rosado acted with the intent to procure Ortiz's unavailability as a witness against him.

Disposition

affirmed