Heard: February 28, 2017.
found and returned in the Superior Court Department on
January 2, 2014.
cases were tried before Richard E. Welch, III, J.
L. Sheketoff for the defendant.
F. O'Sullivan, Assistant District Attorney, for the
Present: Vuono, Carhart, & Kinder, JJ. 
a jury trial in Superior Court, the defendant, Walton
Valentin, was convicted of multiple crimes of violence
against his former girl friend, whom we shall call
Jane. The jury found him guilty of entering a
building with intent to commit a felony, G. L. c. 266, §
17; assault by means of a dangerous weapon, G. L. c. 265,
§ 15B; aggravated assault and battery in violation of a
restraining order, G. L. c. 265, § 15A(cO
(iii); assault and battery, G. L. c. 265, §
13A; stalking in violation of a restraining order, G. L. c.
265, § 4 3(b); and violations of a restraining order
(twelve counts), G. L. c. 209A, § 7. On appeal, the
defendant claims (1) the judge erred in admitting the
victim's hearsay statements pursuant to the doctrine of
forfeiture of the right of confrontation by wrongdoing; (2)
the evidence was insufficient on the charges of stalking,
aggravated assault and battery, and entering a building with
intent to commit a felony; (3) the judge's instruction on
reasonable doubt was error; and (4) the judge abused his
discretion in responding to a question from the jury. We
The break-in and assaults.
summarize the evidence the jury could have found, viewing it
in the light most favorable to the Commonwealth.
Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). On June 24, 2013, Jane obtained a
restraining order prohibiting the defendant from contacting
or abusing her. The order was in effect through January 7,
October 2013, Jane began staying at the home of her coworker
and friend, Susan, in Lawrence. On October 28, 2013, Jane
and Susan attended a party in Boston. Following the party, in
the early morning hours of October 29, they went to the Chau
Chow City restaurant in Boston. At approximately 4:00 A.M,
the defendant appeared at the restaurant uninvited and
leaving Chau Chow City at approximately 6:00 A.M., Jane and
Susan went to a Boston police department (BPD) station to
report the contact with the defendant. Jane told the police
that the defendant slapped her three times at the
restaurant.She further reported that the defendant had
"keyed" her car, a statement corroborated, in part,
by the officer's observations of marks on the exterior of
the vehicle. While they were at the BPD, the defendant called
Susan twice looking for Jane.
and Susan then drove to the Lawrence police department (LPD)
where Jane again reported what had occurred at Chau Chow
City. She explained that the defendant followed them from
Boston to Lawrence. She further reported the telephone calls
they had received from the defendant. The calls from the
defendant continued while they were at the LPD.
and Susan left the LPD at approximately 7:30 A.M., returned
to Susan's apartment, and went to sleep in the same
bedroom. At approximately 9:00 A.M. they were awakened by the
defendant emerging from the bedroom closet. A struggle
ensued. Susan escaped and screamed to the apartment manager
that there was someone in the apartment. Susan pointed to the
defendant as he ran through the parking lot. Meanwhile, Jane
called 911 and reported "I was here sleeping with a
girlfriend, at my girlfriend's house, with my girlfriend,
and he came into the house, we don't know how, with a
knife, and attacked both of us."
responded within minutes. They observed that the door to the
apartment was damaged and the interior of the apartment was
in disarray. Broken lamps and pieces of furniture were strewn
about, chairs were overturned, and a glass table-top was
shattered. There was swelling on the arms and necks of both
women. Susan appeared disheveled. She was shaking and crying.
She told officers that the defendant appeared at the foot of
the bed armed with a knife and that she and Jane had screamed
as the defendant made slashing and stabbing motions toward
them. Susan also reported that the defendant smashed her head
against the wall. Susan handed the officers a large knife she
retrieved from a closet near the entry to the apartment,
which she claimed the defendant had used.
hysterically, Jane told the officers that she awakened to see
the defendant standing at the foot of the bed with a knife.
After Jane calmed down, she explained that the defendant had
swung the knife in her direction.- She, too, reported that
the defendant grabbed her and slammed her head against the
wall. She said the defendant fled the apartment when Susan
began screaming for help. Police efforts to locate the
defendant that day were unsuccessful.
The alleged abduction.
November 9, 2013, police responded to the Parkview Inn in
Salem, New Hampshire. They found Jane in one of the rooms.
She was crying and had lacerations on her head. She reported
that the defendant abducted her at gunpoint as she entered
her vehicle in Lawrence. They drove to the Parkview Inn where
the defendant directed Jane to pay for a room while he waited
in the vehicle. She told the officers that the defendant
struck her multiple times with the firearm while they were in
the room. Eventually she escaped, and the defendant fled in
her vehicle. The next day the vehicle was found parked on the
side of the road in Andover, Massachusetts. Five days later,
the defendant was arrested in the Bronx, New
Forfeiture by wrongdoing.
the doctrine of forfeiture by wrongdoing,
"a defendant forfeits, by virtue of wrongdoing, the
right to object to the admission of an unavailable
witness's out-of-court statements on both confrontation
and hearsay grounds on findings that (1) the witness is
unavailable; (2) the defendant was involved in, or
responsible for, procuring the unavailability of the witness;
and (3) the ...