Commonwealth v. Dorisca (Lawyers Weekly No. 11-193-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 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 […]