Massachusetts Appeals Court Reviews Scope of Forfeiture by Wrongdoing

The Massachusetts Appeals Court this week upheld the convictions of a man who violently stalked and attacked his ex-girlfriend by concluding the trial judge had properly admitted the ex-girlfriend’s hearsay statements under the forfeiture by wrongdoing rule.  The name of the case is Commonwealth v. Valentin.

The victim had obtained a restraining order against the defendant that prohibited him from contacting her.  In October of 2013, the victim was living with her friend in Lawrence.  The two women went to a party before spending the early morning hours in a restaurant in Boston.  The defendant found them in the restaurant and confronted the victim, slapping her three times and keying her car.  The defendant then followed them to Lawrence.  The women went first to the Boston Police Department to report the crime, and then to the Lawrence Police Department.  As they were meeting with the cops, the defendant broke into their apartment and hid in a bedroom closet.  After leaving the police station, the women returned to their apartment and went to sleep.  They were awakened by the defendant coming out of the bedroom closet and physically attacking them.  The cops quickly arrived on the scene and saw the interior of the home was a mess, with broken and displaced furniture.  The two women were crying and both had visible injuries on their arms and necks.  The victim described to the police how the defendant had attacked her.  The defendant had fled the scene and was later found and arrested in New York.  A superior court jury convicted him of various assault crimes, entering a building with the intent to commit a felony, violating a restraining order, and stalking in violation of a restraining order.

The primary issue on appeal was whether the victim’s hearsay statements to the police officers describing the defendant’s criminal behavior should have been introduced to the jury.  Before the trial, the victim’s attorney said she would refuse to testify because she had lied to the police about certain details of the case.  Because lying to the police is a crime in some circumstances, the victim had the right to refuse to testify pursuant to the Fifth Amendment to the United States Constitution, which states a witness cannot be compelled to incriminate herself.  Because the victim did not testify, the Commonwealth sought to introduce her statements to the police under a legal principle called forfeiture by wrongdoing.  The principle states that if a witness is unavailable to testify at trial and the defendant was intentionally involved in procuring the unavailability of the witness, the witness’ out-of-court statements can be introduced.  In this case, there was evidence that the defendant called the victim from jail and urged her to exercise her Fifth Amendment privilege and refuse to testify against him.  Even though the victim had a legal right to refuse to testify, because the defendant colluded with her to ensure she would not testify, forfeiture by wrongdoing applied.  Therefore, reasoned the Appeals Court, the statements were properly introduced to the jury and the defendant’s convictions were upheld.

So many defendants who are in custody prior to trial do irreparable damage to their cases by talking to witnesses on the jail telephones.  Every single jail call is recorded and prosecutors regularly listen to the conversations.  Statements defendants make on the recorded calls are admissible against them at trial, and as this case illustrated, any efforts to limit witness participation at their trials will likely backfire.