The Massachusetts Appeals Court ruled today that the Commonwealth had not proven a medical examiner, who had gone into labor as the defendant’s murder trial was beginning, was unavailable to testify four days later. The name of the case is Commonwealth v. Dorisca.
In June of 2008, the defendant and the victim (who was dating the mother of the defendant’s children) got into a fight at a graduation party in Brockton. During the fight, somebody shot the victim twice in the head and six times in the chest. The victim was rushed to the hospital where he was pronounced dead. There were several eyewitnesses who watched the fight but none of them were able to identify the defendant as the shooter. The defendant testified he never possessed a gun and did not shoot the victim. He said he was fighting with the victim when he heard several “booms.” As the victim fell off to the side, the defendant stood up and ran away. As he was fleeing, the defendant saw his cousin running away holding a gun. According to the defendant, his cousin said he shot the victim because he was scared for the defendant’s life. The defendant believed his cousin was going to eventually turn himself into the police. Instead, the cousin killed himself three years before the trial started.
A jury convicted the defendant of second-degree murder. He appealed and argued the trial judge had violated his right to confront the witnesses against him by allowing the medical examiner, who was pregnant leading up to the trial, to testify by way of a deposition that was videotaped in advance of the trial.
The prosecutor informed the judge two months prior to the trial that the medical examiner, Dr. Kimberley Springer, was scheduled to give birth and be on a six-month maternity leave on the trial date. The judge denied the prosecutor’s request for a continuance. When the prosecutor was unable to find a substitute medical examiner to testify, she moved to conduct a deposition of Dr. Springer. The judge agreed to the Commonwealth’s request and presided over a deposition where Dr. Springer was questioned by the prosecutor and cross-examined by the defense attorney. At the defendant’s trial, the prosecutor asserted Dr. Springer was unavailable because she had gone into labor four days earlier. The prosecutor moved to introduce the videotaped deposition and the judge allowed its introduction over the defendant’s objection.
The Appeals Court ruled the trial judge had committed error in concluding Dr. Springer was unavailable based on the information provided by the prosecutor. The Court said even if Dr. Springer had given birth four days before she was needed to testify at the trial, there was no evidence that her appearance in court would have presented an unacceptable risk to her of adverse health consequences. The Court did concede that in some circumstances, a woman who had given birth four days earlier would not be able to testify without risking serious risks to her health, but said the trial judge did not have sufficient information about Dr. Springer’s condition to form that conclusion in this case. The Court also suggested the trial judge had not properly considered whether a short continuance would have allowed Dr. Springer to be present to testify in person at the defendant’s trial. Accordingly, the Commonwealth failed to prove Dr. Springer was unavailable in the constitutional sense and the defendant’s confrontation rights were violated.
Nevertheless, the Court held the trial judge’s error was harmless. The Court pointed out the central dispute in this case was the identity of the individual who fired the shots that killed the victim. Dr. Springer’s testimony involved only the cause of the victim’s death and did not shed light on whether the defendant or his cousin had shot the victim. Additionally, the defendant’s attorney had thoroughly cross-examined the doctor during the deposition and there was no evidence his cross-examination during the trial would have been different. Therefore, although the defendant was deprived of his right to confront the medical examiner at his trial, the error was harmless and his conviction for second-degree murder was upheld.