Commonwealth v. Dorisca

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13-P-1971 Appeals Court

COMMONWEALTH vs. JOSENER DORISCA.

No. 13-P-1971.

Plymouth. September 11, 2015. - December 23, 2015.

Present: Vuono, Agnes, & Maldonado, JJ.

Homicide. Constitutional Law, Confrontation of witnesses.
Practice, Criminal, Confrontation of witnesses, Harmless
error, Argument by prosecutor. Evidence, Previous
testimony of unavailable witness, Unavailable witness,
Relevancy and materiality. Witness, Unavailability.
Error, Harmless.

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.

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
 2

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

(1988), quoting from Commonwealth v. Gallo, 275 Mass. 320, 333

(1931), and Commonwealth v. Slavski, 245 Mass. 405, 413 (1923).1

See Coy v. Iowa, 487 U.S. 1012, 1015-1016 (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

(2015). Although the judge did not have the benefit of

1
"A deposition does not necessarily deny a defendant the
right to face his accuser directly and to cross-examine
testimony. Rather, its vice is in preventing the jurors who are
to judge the defendant from viewing for themselves this
confrontation." Bergstrom, 402 Mass. at 548 n.15.
 3

Housewright, we conclude that it is applicable to this case,2 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.

Background. 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.3 Numerous

eyewitnesses, along with the defendant, testified that the

victim, Bensney Toussaint, confronted the defendant at the

cookout and initiated a physical altercation.4 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

2
In Housewright, decided after the trial in this case, the
Supreme Judicial Court established a framework for judges "to
analyze whether a witness is unavailable because of illness or
infirmity." 470 Mass. at 671. Such a framework had not
previously existed. We agree with the parties that Housewright
does not establish a new constitutional rule but, instead,
amplifies existing Massachusetts law. Ibid. ("[W]e have yet to
provide trial judges with a framework to analyze whether a
witness is unavailable because of illness or infirmity. We do
so now"). As in Housewright, nothing in this case turns on the
differences between a criminal defendant's confrontation clause
rights under art. 12 of the Massachusetts Declaration of Rights
and the Sixth Amendment to the United States Constitution.
3
Prior to opening statements the jury went on a view to the
area of Turner Street in Brockton.
4
The victim and the defendant had exchanged words on at
least one prior occasion; the victim was dating the mother of
the defendant's children.
 4

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.5 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 side of the head. He also suffered

5
The gun was never recovered.
 5

four chest wounds, resulting in two exit wounds in his back and

two rounds remaining in his body.

The defendant testified that he did not have a gun and did

not shoot the victim. He conceded that he and the victim

fought, but explained that he tried to free himself and flee,

but was being held down and punched by the victim. He said that

they were surrounded by the friends of the victim. The

defendant further testified that he heard a "boom." He felt the

victim move off him and drop. The defendant heard four more

"booms" and then saw that the victim was on his side with his

legs still wrapped around the defendant's waist. The defendant

moved the victim's legs and "took off." He testified that he

saw his cousin, Rodley Doriscat, running away holding a gun.6

The defendant testified that later in the evening he met

Rodley, who told him that during the fight, Rodley thought the

defendant's life was in danger, so Rodley poked the victim with

a gun to get him off the defendant, but the victim grabbed his

arm and Rodley shot him. Rodley dropped the defendant off in

Randolph and returned one hour later with two prepaid phones.

The pair then drove to New York City. The next morning the

defendant bought a bus ticket to Fort Lauderdale, Florida. The

defendant testified that Rodley told him that he was "gonna try

6
To avoid confusion, we refer to Rodley by his first name.
 6

[his] best to do what [he had] to do," which the defendant

understood to mean that Rodley would turn himself in to the

police, but he "need[ed] some time." Rodley never went to the

police. He committed suicide some three years before trial.

The defendant remained in Florida for nearly three years until

he was arrested on unrelated charges.7 This led to the discovery

of the outstanding warrant for his arrest for the victim's

murder.

Additional facts will be discussed below in connection with

the specific issues raised by the defendant.

2. The availability of the medical examiner. Two months

prior to trial, the Commonwealth moved for a continuance on the

basis that its medical examiner, Dr. Kimberley Springer, would

be on a six-month maternity leave on the scheduled date of the

trial and would be unable to testify. The motion was denied

without prejudice. The judge instructed the Commonwealth to

find a substitute witness. A few weeks later, the Commonwealth

again moved for a continuance because the digital photographs

from the victim's autopsy had been corrupted and were

unavailable for examination by a substitute medical examiner.

This motion also was denied without prejudice to give the

7
Massachusetts State police Trooper Keith Sweeney testified
about the various investigative measures that were used in an
unsuccessful effort to locate the defendant and Rodley following
the shooting.
 7

defendant time to decide whether he would waive his

confrontation clause rights. The defendant declined to do so.

The Commonwealth then submitted a motion to conduct a deposition

of Dr. Springer. See Mass.R.Crim.P. 35, 378 Mass. 906 (1979).

This motion was allowed, and Dr. Springer was deposed on

videotape in a court room before the trial judge. There was

direct, cross, and redirect examination of the witness.8

On day five of the trial on Friday, March 15, 2013, the

Commonwealth moved to introduce the videotaped deposition in

evidence. Over the defendant's objection, the judge found that

Dr. Springer was unavailable to testify based on the report made

by the prosecutor on Monday of that week that she had gone into

labor. The videotaped deposition was played for the jury.9 The

8
The defendant does not raise any objection to the manner
in which the deposition was conducted. See Mass.R.Crim.P. 35(e)
("The scope and manner of examination and cross-examination at
the taking of the deposition shall be such as would be allowed
in the trial itself"). In particular, the defendant does not
contend that the deposition did not qualify as an exception to
the hearsay rule. See Mass. G. Evid. § 804(b)(1) (2015). Also,
the defendant does not raise any objection to the jury
instructions given by the judge with respect to the deposition.
The judge sustained the defendant's objection to the medical
examiner's testimony opining on the pain the victim possibly
experienced, and that portion of the video recording of the
deposition was redacted.
9
The discussion at trial of Dr. Springer's unavailability
on Friday was as follows:

Defense counsel: "Your Honor, please I know it's the
Commonwealth's intention to play the deposition of
Doctor Springer this morning. I object. I don't
 8

defendant contends that the admission of the videotaped

deposition was reversible error because it deprived him of his

State and Federal constitutional rights under the confrontation

clause.

Discussion. 1. The legal framework for determining that a

witness is unavailable due to infirmity or illness. The

confrontation clause, as it appears in both art. 12 of the

Massachusetts Declaration of Rights and the Sixth Amendment to

the United States Constitution, "establishes 'a rule of

necessity, i.e., that the prosecution either produce, or

demonstrate the unavailability of, the declarant.'"

Commonwealth v. Housewright, 470 Mass. at 670, quoting from

Commonwealth v. Roberio, 440 Mass. 245, 247 (2003). See Mass.

G. Evid. § 804(a)(4) (2015). In Housewright, 470 Mass. at 671,

believe that they have shown that she's unavailable.
The last we heard was that four days ago she was in
labor. We don't know if she delivered. I don't know
anything about it. I would suggest that even if she
did deliver on Monday that doesn't mean she's
unavailable today and I object."

The court: "Right."

Prosecutor: "Your Honor, she went into labor on
Monday. I'm not sure when she had the baby, but I
would say four days after giving birth, even if she
had it on Monday, she would still be unavailable at
this time."

The court: "Yeah. I think she is unavailable. I'm
going to allow the video to be played. The
objection's overruled."
 9

the Supreme Judicial Court clarified the requirements for a

judicial determination of unavailability:10

"Where the Commonwealth claims that its witness is
unavailable because of illness or infirmity and that it
wishes to offer in evidence the prior recorded testimony of
that witness, the Commonwealth bears the burden of showing
that there is an unacceptable risk that the witness's
health would be significantly jeopardized if the witness
were required to testify in court on the scheduled date.
To meet this burden, the Commonwealth must provide the
judge with reliable, up-to-date information sufficient to
permit the judge to make an independent finding. See
Commonwealth v. Bohannon, 385 Mass. 733, 744-745 (1992)
(second motion judge could not rely on first motion judge's
unavailability determination made eight months before
trial)."

The court explained further that such information must be

sufficiently detailed "about the witness's current medical

condition to allow the judge to evaluate the risk that would be

posed if the witness were to testify in court -- a conclusory

assertion is not enough." Ibid. In assessing whether the risk

to the health of a witness who is scheduled to testify is

unacceptable, Housewright added that "a judge should consider

the probability that the witness's appearance will cause an

adverse health consequence, the severity of the adverse health

consequence, such as whether it would be life-threatening, the

importance of the testimony in the context of the case, and the

10
In Housewright, the Supreme Judicial Court limited its
decision to "the meaning of unavailability in criminal cases
where the Commonwealth is the proponent of the evidence, thereby
implicating the defendant's right of confrontation." 470 Mass.
at 670 n.8.
 10

extent to which the live trial testimony would likely differ

from the prior recorded testimony." Id. at 672.11 Furthermore,

in Housewright, the Supreme Judicial Court stated that the

confrontation clause is not satisfied if the judge simply

determines that on the day a witness is scheduled to testify at

trial her appearance would create an unacceptable risk to her

health. Ibid. Instead, Housewright indicates that the judge

must consider whether the risk would become acceptable if the

trial is continued. Ibid. "Thus, a witness is unavailable if

there is an unacceptable risk that the witness's health would be

jeopardized by testifying in court on the scheduled date and

either (1) a continuance would not reduce the risk to an

acceptable level, or (2) a continuance would make the risk

acceptable but would not serve the interests of justice"

(emphasis added). Id. at 672-673.12

11
In Housewright, the court also explained that judges are
not limited to the information provided by the parties. "A
judge, in his or her discretion, may require more information
than is contained in a doctor's letter regarding the witness's
medical condition, and may direct the means to obtain that
additional information, such as a supplemental letter or
affidavit, a call to the physician over speaker telephone in the
presence of the attorneys, a deposition of the physician, or a
court hearing." Housewright, 470 Mass. at 672.
12
In Housewright, the trial judge admitted the prior
recorded testimony of a witness given at a pretrial detention
hearing under G. L. c. 276, § 58A, whose testimony placed the
defendant at the scene of the shooting, based on a letter from
her doctor that stated as follows: "[The witness] is a 74 year
old patient under my care for: cardiomyopathy, coronary artery
 11

2. Application of the Housewright framework. As noted

above, the judge in this case did not have the benefit of the

framework developed in Housewright for determining whether a

witness is unavailable to testify at trial due to an illness or

an infirmity.13 However, on the fifth day of trial, based

entirely on the prosecutor's report that four days earlier, Dr.

Springer had gone into labor, the judge ruled that Dr. Springer

disease, peripheral vascular disease, arthritis and angina. It
is my medical opinion that the stress of testifying in court
might be detrimental to her health. I urge you to exclude her
from your witness list." 470 Mass. at 669-670. "The letter
also provided the doctor's office telephone number '[i]f you
require additional information.'" Id. at 670. The doctor's
letter was dated October 24, 2011, and the first day of trial
was November 15, 2011. The judge's ruling that the witness was
unavailable at trial was based solely on the doctor's letter.
The court concluded that the letter was not sufficient to
support the judge's ruling, and faulted the Commonwealth for not
making a "'good faith effort' of providing timely notice to the
court and the defendant of its claim of unavailability." Id. at
675.
13
The record indicates that the prosecutor and the judge
took prudent and timely steps prior to trial in light of the
possibility that Dr. Springer would not be available to testify
at trial. The Commonwealth informed the judge and the defendant
in a timely manner of Dr. Springer's pregnancy and pending
maternity leave, and sought a continuance of the trial date. In
early February, 2013, when the prosecutor learned that she would
not be able to use a substitute medical examiner, and aware that
Dr. Springer's due date was March 3 and the trial was set to
commence on March 11, the prosecutor moved that the testimony of
Dr. Springer be preserved by deposition. When the trial
commenced, the Commonwealth informed the judge that Dr. Springer
had gone into labor four days earlier. Although she was unaware
of whether the baby had been born, or the condition of the
mother and baby, the prosecutor asserted that Dr. Springer was
unavailable to testify.
 12

was unavailable, and overruled the defendant's objection to the

use of the videotaped deposition.

Certainly, in some circumstances, a woman who gives birth

to a child may not be able to testify as a witness at a criminal

trial four days later without assuming an unacceptable risk to

her health or to the health of her child. However, that may not

be true for all women. In this case, there was no inquiry into

Dr. Springer's particular circumstances. At the time her

deposition testimony was admitted, neither the judge nor the

parties knew whether or when she gave birth. Furthermore, even

if Dr. Springer's condition on the day she was scheduled to

testify did present an unacceptable risk to her of adverse

health consequences, no consideration was given to whether the

witness could appear later in the trial,14 or whether a short

continuance would alleviate this risk without compromising the

interests of justice. See United States v. Jacobs, 97 F.3d 275,

280-282 (8th Cir. 1996) (defendant's right to confrontation

violated where witness was pregnant and near her due date; her

physician reported that she required hospitalization for two

days; and court excused her from appearing in person and

14
The Commonwealth presented the deposition testimony of
Dr. Springer on March 15, 2013. However, it did not call its
final witness and rest until March 18, 2013, one full week after
Dr. Springer was reported to have been in labor. The record is
likewise devoid of any attempt by the Commonwealth to inquire as
to Dr. Springer's physical ability to appear on that later date.
 13

permitted her to be cross-examined by telephone, without further

inquiry and without making express finding that she was

unavailable). Under the circumstances here, the judge's

determination that Dr. Springer was not available to testify at

trial did not satisfy the test established in Housewright, and

did not justify the admission of her deposition testimony.15

3. Harmless error. As in Housewright, 470 Mass. at 675,

our conclusion that it was error to admit Dr. Springer's

deposition testimony as an alternative to her live testimony

requires us to consider whether the error was harmless beyond a

reasonable doubt. See, e.g., Commonwealth v. Bacigalupo, 455

Mass. 485, 495 (2009). When, as in this case, the error

consists of a violation of a constitutional right, the

Commonwealth bears the burden of demonstrating "beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained." Commonwealth v. Marini, 375 Mass.

510, 520 (1978), quoting from Chapman v. California, 386 U.S. 18

(1967). See Commonwealth v. Morales, 76 Mass. App. Ct. 663,

666-667 (2010). Whether the Commonwealth in this case has met

15
In order to admit the deposition testimony of a
Commonwealth witness taken in accordance with Mass.R.Crim.P. 35
for substantive purposes, the judge must be satisfied that it
meets the requirements for admission under the law of evidence
and that the witness is unavailable for purposes of the
confrontation clause. See Commonwealth v. Ross, 426 Mass. 555,
557-558 (1998), discussing Mass.R.Crim.P. 35(g).
 14

its burden of proof is determined on the basis of the other

evidence that was presented to the jury absent the deposition

testimony. See Coy v. Iowa, 487 U.S. at 1022. See also

Commonwealth v. DiBenedetto, 414 Mass. 37, 41 (1992) (error is

harmless if erroneously admitted deposition "was not a

substantial factor in the jury's decision to convict").

In Housewright, the court noted that the witness in

question (whom the defendant called Grandma) "was the only

witness who recognized the defendant at the scene of the crime,

and later identified him at an out-of-court identification

procedure." 470 Mass. at 675.16 Her testimony was thus

significant, if not indispensable, to the Commonwealth's case.

In the present case, by contrast, the deposition testimony of

the medical examiner was cumulative of other evidence in the

case. See Commonwealth v. Vinnie, 428 Mass. 161, 172 (1998).17

16
The court in Housewright took into consideration that the
witness's prior recorded testimony at the pretrial detention
hearing qualified for admission as an exception to the hearsay
rule because defense counsel had "reasonable opportunity and
similar motivation" to cross-examine the witness regarding her
testimony on direct examination. 470 Mass. at 676, quoting from
Commonwealth v. Hurley, 455 Mass. 53, 60 (2009). See Mass. G.
Evid. § 804(b)(1) (2015). Thus, if the witness were unavailable
to testify at the retrial of the case, the court noted that,
subject to certain redactions, her out-of-court testimony would
qualify for admission in evidence. Housewright, 470 Mass. at
678.
17
In her deposition, Dr. Springer testified about the
nature of the gunshot wounds suffered by the victim, gave her
opinion that the gunshots to his chest were the cause of death,
 15

The central factual dispute in this case was the identity

of the shooter.18 Nothing in the testimony by the medical

examiner made it more likely that the shooter was the defendant,

as opposed to his cousin Rodley. In their closing statements,

the prosecutor and the defense attorney made only passing

reference to the testimony of the medical examiner. Defense

counsel actually relied on her testimony about the intermediate

and opined that the victim's wounds were not "close" wounds, but
were "intermediate range," which she defined as wounds caused by
gunshots fired from a distance of "a couple of inches to a few
feet away." There was no dispute in this case that the victim
died as a result of gunshot wounds. Dr. John Steinmetz, an
emergency room physician at Brockton Hospital, testified that
the victim was dead on arrival at the emergency room. The
medical records of the victim's treatment at the Brockton
Hospital emergency room, including a description of the gunshot
wounds, also were admitted as an exhibit. The certificate of
death was in evidence describing the cause of death as "gunshot
wounds of chest with perforation of lungs and aorta." Numerous
civilian witnesses described the victim's appearance following
the shooting. Trooper Keith Sweeney, the lead investigator,
described the crime scene; the collection of physical evidence,
including a projectile; the interviews of witnesses; and the
efforts made by law enforcement to locate the defendant and his
cousin Rodley after the shooting.

The testimony of Trooper John Conroy, the ballistician,
that two projectiles recovered from the medical examiner's
office had been fired by the same gun was not significant
because the defendant's position was that the victim's gunshot
wounds were caused by a single firearm fired by his cousin
Rodley.
18
Because the defendant was charged with murder in the
first degree and the judge charged the jury on the theory of
extreme atrocity and cruelty, testimony by the medical examiner
about the number and nature of the wounds suffered by the victim
could have been of great significance. However, the defendant
was found not guilty of so much of the indictment as charged
murder in the first degree.
 16

range of the victim's gunshot wounds to buttress his argument

that the shooter was the defendant's cousin Rodley. The closing

arguments were primarily about the credibility of the testimony

given by the various eyewitnesses and, in particular, the

defendant. The defendant has not identified any testimony by

the medical examiner that was essential to the Commonwealth's

case or significant to the jury's resolution of the defendant's

guilt. Defense counsel thoroughly cross-examined Dr. Springer

at her deposition, and there is no indication that either her

testimony or the defense strategy on cross-examination would

have differed at trial. Thus, we hold that the admission of Dr.

Springer's videotaped deposition was harmless error beyond a

reasonable doubt. See, e.g., McGaha v. State, 926 N.E.2d 1050,

1057 (Ind. Ct. App. 2010); State v. Hassapelis, 620 A.2d 288,

293-294 (Me. 1993); State v. Ash, 169 N.C. App. 715, 727 (2005).

4. Remaining issues. a. Prosecutor's closing argument.

The defendant timely objected to the prosecutor's statement that

"[the defendant] says [he] can still see Rodley Doriscat come

up, poke [the victim] with the gun. [He] can see [the victim]

reach for it and then [he] see[s] Rodley shoot him." The

defendant is correct that this was a misstatement of the

evidence by the prosecutor because the defendant did not testify

that he saw Rodley fire the shots. We apply the prejudicial

error standard. See Commonwealth v. Wood, 469 Mass. 266, 285-
 17

286 (2014). The judge instructed the jury that the arguments

were not evidence, and that the jurors were to rely on their own

memories of the evidence. The principal factor is whether the

error was significant, based on the evidence as a whole.

Commonwealth v. Kozec, 399 Mass. 514, 523 (1987). The defendant

testified that he heard shots, and then saw Rodley running from

the scene holding a gun. The defendant also testified that

Rodley told him that he poked the victim with a gun. Under the

circumstances, the prosecutor's misstatement was not

prejudicial.19

b. Testimony regarding investigative efforts. Finally,

the defendant argues that the judge erred in permitting the

prosecutor to elicit testimony from Trooper Keith Sweeney, the

lead investigator in the case, that following the shooting and

over the course of the days and weeks that followed, he and a

team of police investigators interviewed numerous witnesses.

During a sidebar discussion, defense counsel told the judge that

he could not rule out a request for an instruction that the jury

could consider the inadequacy of the police investigation. The

19
The defendant also objected to the prosecutor's
recounting of the police stop in Florida that led to the
defendant's arrest. Although the prosecutor's statements
slightly differ from the defendant's account, the difference --
whether the officer first asked for the name of the car's driver
and then the defendant's, or in reverse order -- is not
significant when the evidence is considered as a whole. See
Commonwealth v. Richenburg, 401 Mass. 663, 674-675 (1988).
 18

defendant does not maintain that the disputed testimony

contained any inadmissible hearsay. The defendant does not cite

any authority for the proposition that the Commonwealth cannot

anticipate that the defendant may attack the adequacy of the

police investigation as permitted by Commonwealth v. Bowden, 379

Mass. 472, 486 (1980), by offering testimony, as in this case,

about the general extent of the police investigation. The

defendant's reliance on Commonwealth v. Stuckich, 450 Mass. 449,

457 (2008), is misplaced because that case turned on the need to

avoid unfair vouching for the victim in a sexual assault case in

view of the special and limited purpose for which hearsay

evidence is admitted under the first complaint doctrine. "[T]he

prosecution with its burden of persuasion needs evidentiary

depth to tell a continuous story." Old Chief v. United States,

519 U.S. 172, 190 (1997). The extent to which the prosecutor is

permitted to inform the jury of the nature and extent of the

police investigation as part of its case-in-chief is best left

to the sound discretion of the judge.20

Judgment affirmed.

20
"[I]nquiries into relevancy should relate to the way
people learn and should permit jurors to 'draw inferences,
whatever they may be, necessary to reach a correct verdict.'"
Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris,
Inc., 138 F. Supp. 2d 357, 368 (E.D.N.Y. 2001), quoting from Old
Chief, 519 U.S. at 187.