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Commonwealth v. Rosado

Supreme Judicial Court of Massachusetts, Suffolk

September 14, 2018

COMMONWEALTH
v.
JOSHUA ROSADO.

          Heard: May 7, 2018.

          Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 6, 2017. The case was reported by Budd, J.

          Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.

          Michelle A. Dame for the defendant.

          Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

          GANTS, C.J.

         The issue on appeal concerns the scope of the doctrine of forfeiture by wrongdoing. In Commonwealth v. Edwards, 444 Mass. 526, 540 (2005), we held that a defendant forfeits the right to object to the admission in evidence of an unavailable witness's out-of-court statements on both confrontation and hearsay grounds if the Commonwealth proves by a preponderance of the evidence that "(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." We conclude that, on the facts of this case, the Commonwealth has failed to meet its burden of proving any of the three elements articulated in Edwards. See Mass. G. Evid. § 804 (b) (6) (2018).

         Specifically, as to the first element, a witness who has been served with out-of-State process and ordered to appear at a trial in Massachusetts is not unavailable simply because the witness has informed the prosecutor that he or she does not want to testify. As to the second element, the defendant was not involved in, or responsible for, procuring the unavailability of the witness where the defendant attempted, albeit unsuccessfully, to intimidate the witness from testifying against a friend of the defendant in a murder case, but did nothing to cause her to be unavailable in the witness intimidation case against himself. As to the third element, the defendant's intent to intimidate the witness to make her unavailable to testify against his friend in the earlier murder case, even if proved by a preponderance of the evidence, does not suffice to prove that the defendant acted with the intent to procure the witness's unavailability as a potential witness against the defendant regarding his acts of intimidation. Consequently, we affirm the motion judge's denial of the Commonwealth's motion in limine to admit in evidence the grand jury testimony of the witness and her transcribed interview with State police troopers.

         1. Background.

         The following facts were either stipulated to by the parties or are undisputed.

         The defendant, Joshua Rosado, is the former boy friend of the witness, Shakira Ortiz, and the father of her young daughter. On December 3, 2015, a Hampden County grand jury indicted Jean C. Mercado for murder and other crimes. Ortiz was a key witness for the prosecution in that case, and the defendant was a friend of Mercado.

         On February 7, 2017, the day before Mercado's trial began, Ortiz was interviewed by two State police troopers regarding communications she had received from the defendant. Ortiz stated that a friend had privately sent her messages on Facebook, a social networking Web site, regarding certain public messages that the defendant had "posted" on Facebook about Ortiz. One posted message stated: "My baby mom is out here on the bracelet jumping from house to house with my daughter. And she's a rat at that. Like how you snitching on me, gonna shake my head. Can't trust nobody. Fact, had this trifling bitch around for so many years and I didn't know she was an undercover rat." A second posted message stated: "I'll give someone 200 to beat the fuck out of my baby mom when y'all see her or I'll bring her to -- or I'll bring you to her right now." The defendant urged her not to testify against Mercado, and told her that she should lie to the police so that she would not have to testify. Ortiz stated that she had telephoned the defendant after she learned of these Facebook messages, and that he responded by threatening to hit her every time he saw her. She said that these Facebook messages made her "[e]mbarassed" and "[s]cared," and that she was afraid to walk around Springfield and run the risk of encountering the defendant. Ortiz did testify at Mercado's trial, but the jury found Mercado not guilty on all charges.

         On April 20, 2017, a Hampden County grand jury indicted the defendant on one count of intimidation of a witness (Ortiz), in violation of G. L. c. 268, § 13B. On November 13, 2017, the Commonwealth moved in limine to admit in evidence Ortiz's recorded interview with the State police troopers and her grand jury testimony under the doctrine of forfeiture by wrongdoing, in lieu of Ortiz's testimony at the defendant's trial.

         The prosecutor attested that Ortiz now resides outside Massachusetts and had been subpoenaed and ordered to appear in court, pursuant to G. L. c. 233, § 13B, for the defendant's trial on November 14, 2017.[1] However, on October 31, 2017, Ortiz told the prosecutor during a telephone call that she was not going to testify at trial because she was fearful for the safety of herself and her daughter. Ortiz had informed a number of individuals, including the prosecutor, that the defendant had not "bothered" her since he was arrested on the witness intimidation charge, and that she was no longer afraid of the defendant. But Ortiz believed that the Facebook messages that the defendant had posted created a safety risk for her from known and unknown individuals, and that she feared retribution from Mercado and his associates if she returned to Springfield. ...


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