
    COMMONWEALTH v. Joseph HAFFORD.
    16-P-1222
    Appeals Court of Massachusetts.
    Entered: December 7, 2017
    A Superior Court jury convicted the defendant of witness intimidation, assault and battery, and misleading a police officer. On appeal, the defendant claims the judge erroneously admitted one victim's unreliable hearsay statements in violation of the confrontation clause, erroneously admitted a second victim's statements pursuant to the doctrine of forfeiture by wrongdoing, and erroneously instructed the jury regarding consciousness of guilt. The defendant also challenges the sufficiency of the evidence supporting the convictions of witness intimidation and misleading a police officer. We affirm.
    Background. We 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 January 9, 2014, at approximately 5:30 A.M. , the Marlborough police dispatcher received a 911 call from a woman whom we shall call Jane, who reported that she had been assaulted by the defendant. She sounded upset and intoxicated. She reported that she had been beaten and strangled by the defendant, who had left the apartment. Jane further reported that she and a friend who could be heard crying in the background, Mary, were afraid that the defendant would return to harm them.
    Marlborough police officers arrived at Jane's apartment at approximately 5:50 A.M. Jane, who appeared intoxicated and very upset, immediately stated that she had been assaulted by the defendant. Mary was lying on a bed in the living room, crying. Based on Jane's statement that she had been choked and the officer's observation of scratch marks on her neck, an ambulance was called. Meanwhile, Jane walked the police through the apartment, attempting to explain what had happened.
    After Jane was transported to the hospital, the police interviewed Mary. She reported that she had observed the defendant grab Jane around the neck, and that the assault lasted for about fifteen minutes. Mary reported that she did not call the police because the defendant had threatened her.
    When Mary appeared to testify before the grand jury, she changed her story. She told a detective that the responding officer's report was inaccurate. She explained that Jane had actually injured herself in a fall. Mary admitted that she was in a relationship with the defendant and had been in communication with him. Ultimately, Mary exercised her privilege under the Fifth Amendment to the United States Constitution not to incriminate herself. She did not testify before the grand jury or at trial.
    The jury heard multiple telephone conversations between Mary and the defendant which were recorded while the defendant was incarcerated at the Massachusetts Correctional Institution at Concord. The defendant instructed Mary how she should testify if asked about the assault. In one conversation on the day before Mary appeared at the grand jury, the defendant told her, "[H]ow many times do I gotta fucking remind you, when you go to fucking court, just fucking deny everything. You plead the Fifth. Say 'I don't want to fucking testify, and it ain't true what I said.' That's it. End of story."
    Discussion. 1. Jane's hearsay statements. The Commonwealth moved in limine to admit certain of Jane's out-of-court statements. After reviewing the recorded 911 call and conducting a voir dire of the responding officer, the judge concluded that the statements were not testimonial and allowed the motion in limine as to a recording of Jane's statements during the 911 call, and her statement to the responding officer immediately upon his arrival that she had been assaulted by the defendant. On appeal, the defendant claims the admission of these statements violated his constitutional right to confront witnesses against him. Because the defendant objected on these same grounds at trial, we review to determine whether the admission of the statements was error and, if so, whether the error was harmless beyond a reasonable doubt. See Commonwealth v. Galicia, 447 Mass. 737, 746 (2006).
    We conduct a two-part inquiry to determine the admissibility of these out-of-court statements. First, we evaluate whether a hearsay exception applies. Second, "the statement must be appraised under the criteria of Crawford-Davis and Commonwealth v. Gonsalves, 445 Mass 1, 3 (2005), to determine if it satisfies the confrontation clause of the Sixth Amendment." Commonwealth v. Burgess, 450 Mass. 422, 431 n.6 (2008). As to the first prong of the inquiry, we are satisfied that Jane's statements were excited utterances and therefore qualify as exceptions to the hearsay rule. That is, they were spontaneous reactions to a startling event rather than products of reflective thought. See Mass. G. Evid. § 803(2) (2017). The defendant does not suggest otherwise.
    The dispute here concerns the second prong of the analysis. Out-of-court statements deemed testimonial in nature are inadmissible under the confrontation clause of the Sixth Amendment to the United States Constitution, unless the witness is available at trial, or the witness is unavailable, but the defendant had a prior opportunity to cross-examine the witness. See Gonsalves, supra. "[S]tatements made in response to questioning by law enforcement officers are per se testimonial, except where the questioning is meant to secure a volatile scene or to establish the need for or provide medical care." Ibid. Answers to police questions objectively intended "to enable police assistance to meet an ongoing emergency" are nontestimonial. Burgess, supra at 428. "Nontestimonial statements, ... do not give rise to a right of confrontation and may be admitted if the admission is consistent with Massachusetts evidence law." Commonwealth v. Nesbitt, 452 Mass. 236, 244 (2008).
    We have reviewed the recording of Jane's 911 call and conclude that the primary purpose of the questions to Jane was to meet an ongoing emergency rather than to record past events for future prosecution. Jane was frantic throughout the call to the dispatcher. A second person, later identified as Mary, was heard sobbing in the background. Jane exclaimed that she had just been beaten by the defendant and was petrified that he would return and carry out his threat to beat Mary. In these circumstances, the dispatcher's questions were properly designed to help the police resolve an emergent situation.
    Although the admission of Jane's statements to the responding officer presents a closer question, we conclude that those statements were also nontestimonial, and therefore admissible. The responding officer knew only that dispatch had reported an assault committed by a male against two females. Upon arrival, the officer was greeted by Jane, whom he described as very upset and intoxicated. She immediately told the officer that she was assaulted by the defendant. The officer observed Mary curled up on a bed and crying. He followed Jane through the apartment trying to decipher her "gibberish" about what had occurred. When she said she had been choked, the officer became more concerned about exactly what had transpired and began to ask her a series of questions. The judge correctly concluded that Jane's responses to this series of questions about the choking allegation were testimonial and therefore barred by the confrontation clause. We discern no error in the judge's reasoning that, prior to that point, "there was not much questioning going on at all for any purpose; it was information that was volunteered[,] ... because [the questioning] had not yet shifted into the investigative stage ... there's no confrontation-clause issue with its admissibility."
    The defendant also claims that Jane's intoxication rendered her statements so inherently unreliable that their admission in evidence violated the defendant's due process rights. We disagree. Due process does not bar the Commonwealth from proceeding solely on the basis of hearsay so long as the hearsay statements bear substantial indicia of reliability. See Commonwealth v. Szerlong, 457 Mass. 858, 866 (2010). Here, Jane's hearsay statements were corroborated by Mary's initial description of the assault, and the responding officer's observations of scratch marks on Jane's neck and a contusion on the back of her head. The responding officer also observed broken glass in a back bedroom. In addition, the defendant admitted that he and Jane "had gone at it" that morning. This evidence, independent of Jane's statements, provided the requisite indicia of reliability to satisfy due process. Evidence of Jane's intoxication bore on the weight of her hearsay statements rather than their admissibility. See Commonwealth v. Moquette, 439 Mass. 697, 706 (2003).
    2. Mary's hearsay statements. By motion in limine, the Commonwealth sought to introduce Mary's initial statements to the responding officer pursuant to the doctrine of forfeiture by wrongdoing. The Commonwealth's theory was that by dissuading Mary from testifying against him, the defendant had forfeited his right to object to her statements. Under 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 defendant acted with the intent to procure the witness's unavailability."
    Commonwealth v. Edwards, 444 Mass. 526, 540 (2005). See Mass. G. Evid. § 804(b)(6) (2017). After an evidentiary hearing, the judge allowed the Commonwealth's motion over the defendant's objection. On appeal, the defendant claims Mary's statements were not substantially reliable and should not have been admitted. Because this claim is raised for the first time on appeal we review any error for a substantial risk of a miscarriage of justice. See Galicia, 447 Mass. at 746.
    Due process requires that hearsay statements admitted under the doctrine of forfeiture by wrongdoing be reliable. Szerlong, supra. Based on the independent evidence previously discussed-Jane's description of the assault, her injuries, the responding officer's observations, and the defendant's admission that he and Jane had "gone at it"-we conclude that Mary's initial statements to the responding officer were sufficiently corroborated to be deemed reliable. We discern no error in the admission of her statements.
    3. Consciousness of guilt instruction. The judge instructed the jury that if they found that the defendant "intentionally tried to falsify evidence in this case or ... intentionally attempted to intimidate or coerce a witness," they may consider that as evidence of consciousness of guilt. On appeal, the defendant claims the instruction was error because it had the effect of reducing the Commonwealth's burden of proof. Because the defendant timely objected at trial, we "review the instruction to determine whether there was error and, if so, whether it was reversible error." Commonwealth v. Farley, 443 Mass. 740, 745 (2005).
    A consciousness of guilt instruction is appropriate where " 'evidence of flight, concealment, or similar acts,' such as ... bribing or threatening a witness," gives rise to an inference of the defendant's guilt. Commonwealth v. Morris, 465 Mass. 733, 738 (2013), quoting from Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008). "Evidence regarding threats of intimidation of key witnesses for the prosecution is admissible to demonstrate consciousness of guilt." Commonwealth v. Miles, 420 Mass. 67, 75 (1995). Here, the evidence of the defendant's threatening telephone calls to Mary directing her how to testify before the grand jury provided a factual basis from which the jury could reasonably infer consciousness of guilt. Because the judge also instructed the jury that the defendant could not be convicted on the basis of those threats alone, and that they were merely permitted, not required, to draw an inference of consciousness of guilt from that evidence, we discern no error in the consciousness of guilt instruction. See Commonwealth v. Toney, 385 Mass. 575, 585 (1982) (describing recommended instruction on consciousness of guilt). Nor did the instructions, read as a whole, lessen the Commonwealth's burden of proof; the judge repeatedly emphasized that the Commonwealth was required to prove each element of the charge of intimidating a witness, and each element of every other charge, beyond a reasonable doubt.
    4. Sufficiency. The defendant was convicted of misleading the police based on his direction to Mary to provide false statements during the course of the investigation. He claims that the evidence was not sufficient to prove beyond a reasonable doubt that he misled the police because Mary's false statements could not reasonably have "caused [the police] to pursue a course of investigation materially different from the course they otherwise would have pursued." Commonwealth v. Paquette, 475 Mass. 793, 800 (2016). To establish the offense of misleading a police officer, the Commonwealth must prove the following elements beyond a reasonable doubt: (1) that the defendant "wilfully misl[ed], directly or indirectly, (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with (4) a criminal investigation." Id. at 797.
    Here, the jury heard evidence that Mary, the defendant's girl friend, when appearing at the grand jury, changed her statement regarding what had occurred on the night of the assault. Contrary to her earlier statement, she told the detective that Jane caused the disturbance, and that Jane's injuries were the result of a fall, not an assault by the defendant. The jury also heard the recorded telephone conversation which preceded this new statement, during which the defendant told Mary in unequivocal terms that she should "plead the Fifth" and "deny everything." Viewing this evidence in the light most favorable to the Commonwealth, Latimore, 378 Mass. at 676-677, the jury could reasonably have inferred that the defendant, through his efforts to control Mary's testimony, sought to create a false impression in the minds of the police and the grand jury. That his efforts to mislead the police were unsuccessful does not matter. See Commonwealth v. Figueroa, 464 Mass. 365, 372-373 (2013). Mary's statements to the detective, as directed by the defendant, could reasonably have led police astray.
    Finally, the defendant claims that the evidence was not sufficient to support his conviction for intimidation of a witness based on his threats to Mary on the day of the assault. We disagree. "[T]he Commonwealth was required to prove that the defendant willfully engaged in intimidating conduct, that is, acts or words that would instill fear in a reasonable person, and did so with the intent to impede or influence a potential witness's testimony." Commonwealth v. Rivera, 76 Mass. App. Ct. 530, 535 (2010). Here, Mary told the responding officer that she did not call the police because the defendant had threatened her. The threat was made at the time Mary was witnessing the defendant's assault on Jane. "The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered." Commonwealth v. Ruano, 87 Mass. App. Ct. 98, 101 (2015) (quotation omitted). The jury should "evaluate the circumstances in which the statement was made, including its timing, to determine whether the defendant in fact intended to intimidate the victim." Ibid. Mindful of these principles, we conclude that this evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove intimidation of a witness beyond a reasonable doubt.
    
      
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      Jane was hospitalized on the eve of trial for reasons unrelated to the case and did not testify.
    
    
      
      Jane's statements contained in the hospital records "possess[ed] the characteristics justifying the presumption of reliability." Bouchie v. Murray, 376 Mass. 524, 528 (1978).
    
    
      
      The defendant did not move for required findings of not guilty on the charges of misleading a police officer and witness intimidation. Because convictions based on insufficient evidence are serious enough to create a substantial risk of a miscarriage of justice, we review the defendant's sufficiency claims. Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
    
   Judgments affirmed.  