Argued September 11, 2015.
Indictment found and returned in the Superior Court Department on June 27, 2008.
The case was tried before Richard J. Chin, J.
Andrew S. Crouch for the defendant.
Jessica R. Heaton, Assistant District Attorney, for the Commonwealth.
Present: Vuono, Agnes, & Maldonado, JJ.
[42 N.E.3d 1186] Agnes, J.
The purpose of the confrontation clause is " 'to put beyond the possibility of alteration except by the people themselves the principle already established as a part of the common law that the witnesses should confront the accused face to face' ... [in order to] 'exclude any evidence by deposition, which could be
given orally in the presence of the accused.'" Commonwealth v. Bergstrom, 402 Mass. 534, 544-545, 524 N.E.2d 366 (1988), quoting from Commonwealth v. Gallo, 275 Mass. 320, 333, 175 N.E. 718 (1931), and Commonwealth v. Slavski, 245 Mass. 405, 413, 140 N.E. 465 (1923). See Coy v. Iowa, 487 U.S. 1012, 1015-1016, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). There are only limited exceptions to this right. Bergstrom, 402 Mass. at 545-546. One such exception is when the prosecution demonstrates that a witness is unavailable to testify during the trial, and that she has made a statement out-of-court that is sufficiently trustworthy and reliable to qualify for admission under a recognized exception to the hearsay rule. Id. at 545.
In this case, in which the defendant was tried before a jury and convicted of murder in the second degree, we must decide whether the judge erred in concluding that the witness was unavailable without requiring the Commonwealth to provide additional information about her condition and without considering whether alternative arrangements were feasible as required by Commonwealth v. Housewright, 470 Mass. 665, 671-673, 25 N.E.3d 273 (2015). Although the judge did not have the benefit of Housewright, we conclude [42 N.E.3d 1187] that it is applicable to this case, and that it was error to admit the witness's deposition in evidence. However, we also conclude that the erroneous admission of the videotaped deposition was harmless beyond a reasonable doubt.
1. The shooting death of the victim.
On June 8, 2008, the victim and the defendant attended a graduation cookout on Turner Street in the city of Brockton. Numerous eyewitnesses, along with the defendant, testified that the victim, Bensney Toussaint,
confronted the defendant at the cookout and initiated a physical altercation. Shortly thereafter, the victim was found dead from multiple gunshot wounds on a grassy area near the party. Many witnesses testified that they heard the gunshots or saw the sparks from the gun during the struggle between the defendant and the victim. None of the witnesses identified the defendant as the person who fired the shots, but there was compelling circumstantial evidence that was sufficient to permit the jury to find the defendant guilty beyond a reasonable doubt. This evidence included eyewitness testimony that only two men were fighting, one of whom was the defendant and the other the victim, and conduct of and statements made by the defendant indicating consciousness of guilt. It could be inferred from the testimony of one of these witnesses, Kenny Cesar, that several shots were fired by the defendant as the two men struggled on the ground, and additional shots were fired by the defendant as he stood over the victim.
First responders to the scene found the victim surrounded by a large crowd of people. Someone was attempting to administer cardiopulmonary resuscitation (CPR). The victim was bleeding, and first responders observed that he had multiple gunshot wounds. Emergency medical personnel performed CPR at the scene and then transported the victim by ambulance to Brockton Hospital, where he was pronounced dead. The victim had suffered several gunshot wounds, including one on the back of the head and one on the left ...