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16-P-245 Appeals Court
COMMONWEALTH vs. WALTON VALENTIN.
No. 16-P-245.
Essex. February 28, 2017. - May 12, 2017.
Present: Vuono, Carhart, & Kinder, JJ.1
Assault by Means of a Dangerous Weapon. Assault and Battery. Stalking. Protective Order. Abuse Prevention. Evidence, Hearsay, Unavailable witness. Witness, Unavailability, Self-incrimination, Immunity. Constitutional Law, Confrontation of witnesses, Self-incrimination. Practice, Criminal, Hearsay, Confrontation of witnesses, Required finding, Instructions to jury, Reasonable doubt, Question by jury. Reasonable Doubt.
Indictments found and returned in the Superior Court Department on January 2, 2014.
The cases were tried before Richard E. Welch, III, J.
Robert L. Sheketoff for the defendant. David F. O'Sullivan, Assistant District Attorney, for the Commonwealth.
1 Justice Carhart participated in the deliberation on this case prior to his retirement. 2
KINDER, J. Following a jury trial in Superior Court, the
defendant, Walton Valentin, was convicted of multiple crimes of
violence against his former girl friend, whom we shall call
Jane.2 The jury found him guilty of entering a building with
intent to commit a felony, G. L. c. 266, § 17; assault by means
of a dangerous weapon, G. L. c. 265, § 15B; aggravated assault
and battery in violation of a restraining order, G. L. c. 265,
§ 15A(c)(iii)3; assault and battery, G. L. c. 265, § 13A;
stalking in violation of a restraining order, G. L. c. 265,
§ 43(b); and violations of a restraining order (twelve counts),
G. L. c. 209A, § 7.4 On appeal, the defendant claims (1) the
judge erred in admitting the victim's hearsay statements
pursuant to the doctrine of forfeiture of the right of
confrontation by wrongdoing; (2) the evidence was insufficient
on the charges of stalking, aggravated assault and battery, and
entering a building with intent to commit a felony; (3) the
judge's instruction on reasonable doubt was error; and (4) the
2 A pseudonym. 3 The indictment cites G. L. c. 265, § 13(b)(iii), but the language of the indictment charges a violation of G. L. c. 265, § 15A(c)(iii). No claim is raised regarding this variance. 4 The defendant was acquitted of charges of assault by means of a dangerous weapon and kidnapping alleged to have occurred on November 9, 2013. 3
judge abused his discretion in responding to a question from the
jury. We affirm.
Background. 1. The break-in and assaults. 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 June 24, 2013, Jane obtained
a restraining order prohibiting the defendant from contacting or
abusing her. The order was in effect through January 7, 2014.
In October 2013, Jane began staying at the home of her co-
worker and friend, Susan5, in Lawrence. On October 28, 2013,
Jane and Susan attended a party in Boston. Following the party,
in the early morning hours of October 29, they went to the Chau
Chow City restaurant in Boston. At approximately 4:00 A.M, the
defendant appeared at the restaurant uninvited and confronted
Jane.
After leaving Chau Chow City at approximately 6:00 A.M.,
Jane and Susan went to a Boston police department (BPD) station
to report the contact with the defendant. Jane told the police
that the defendant slapped her three times at the restaurant.6
She further reported that the defendant had "keyed" her car, a
5 A pseudonym. 6 This evidence was admitted through the testimony of a Boston police officer, over objection, pursuant to the doctrine of forfeiture by wrongdoing. 4
statement corroborated, in part, by the officer's observations
of marks on the exterior of the vehicle. While they were at the
BPD, the defendant called Susan twice looking for Jane.
Jane and Susan then drove to the Lawrence police department
(LPD) where Jane again reported what had occurred at Chau Chow
City. She explained that the defendant followed them from
Boston to Lawrence. She further reported the telephone calls
they had received from the defendant. The calls from the
defendant continued while they were at the LPD.
Jane and Susan left the LPD at approximately 7:30 A.M.,
returned to Susan's apartment, and went to sleep in the same
bedroom. At approximately 9:00 A.M. they were awakened by the
defendant emerging from the bedroom closet. A struggle ensued.
Susan escaped and screamed to the apartment manager that there
was someone in the apartment. Susan pointed to the defendant as
he ran through the parking lot.7 Meanwhile, Jane called 911 and
reported "I was here sleeping with a girlfriend, at my
girlfriend's house, with my girlfriend, and he came into the
7 Surveillance video played for the jury shows the defendant entering the building at 4:46 A.M. Susan is seen descending the stairs at 9:13 A.M., speaking with the property manager and pointing out something in the parking lot. Another camera showed the defendant leaving by way of a rear stairwell at 9:10 A.M. 5
house, we don't know how, with a knife, and attacked both of
us."8
Police responded within minutes. They observed that the
door to the apartment was damaged and the interior of the
apartment was in disarray. Broken lamps and pieces of furniture
were strewn about, chairs were overturned, and a glass table-top
was shattered. There was swelling on the arms and necks of both
women. Susan appeared disheveled. She was shaking and crying.
She told officers that the defendant appeared at the foot of the
bed armed with a knife and that she and Jane had screamed as the
defendant made slashing and stabbing motions toward them. Susan
also reported that the defendant smashed her head against the
wall. Susan handed the officers a large knife she retrieved
from a closet near the entry to the apartment, which she claimed
the defendant had used.
Crying hysterically, Jane told the officers that she
awakened to see the defendant standing at the foot of the bed
with a knife. After Jane calmed down, she explained that the
defendant had swung the knife in her direction.9,10 She, too,
8 The 911 call was admitted under the excited utterance exception to the rule against hearsay. A redacted tape recording of the call was played for the jury. Because the recorded 911 call was in Spanish, a written English translation was provided to the jury as the tape was played. 9 Jane's initial statements were admitted as excited utterances. The statements regarding the defendant swinging the 6
reported that the defendant grabbed her and slammed her head
against the wall. She said the defendant fled the apartment
when Susan began screaming for help. Police efforts to locate
the defendant that day were unsuccessful.
2. The alleged abduction. On November 9, 2013, police
responded to the Parkview Inn in Salem, New Hampshire. They
found Jane in one of the rooms. She was crying and had
lacerations on her head. She reported that the defendant
abducted her at gunpoint as she entered her vehicle in Lawrence.
They drove to the Parkview Inn where the defendant directed Jane
to pay for a room while he waited in the vehicle. She told the
officers that the defendant struck her multiple times with the
firearm while they were in the room. Eventually she escaped,
and the defendant fled in her vehicle. The next day the vehicle
was found parked on the side of the road in Andover,
Massachusetts. Five days later, the defendant was arrested in
the Bronx, New York.11
Discussion. 1. Forfeiture by wrongdoing. Under the
doctrine of forfeiture by wrongdoing,
knife at her and slamming her against the wall were admitted pursuant to the doctrine of forfeiture by wrongdoing. 10 Neither Jane nor Susan suffered any knife wounds. 11 The defendant was acquitted of the kidnapping and assault by means of a dangerous weapon charges, but convicted of violating the restraining order on November 9, 2013. 7
"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). "A defendant's involvement in
procuring a witness's unavailability need not consist of a
criminal act, and may include a defendant's collusion with a
witness to ensure that the witness will not be heard at trial."
Edwards, supra.
Pursuant to this doctrine, the Commonwealth sought a
ruling, in limine, to admit Jane's hearsay statements as
substantive evidence at trial. The Commonwealth asserted that
the defendant, while incarcerated awaiting trial, had numerous
telephone conversations with Jane in violation of the
restraining order in which he "pressured and threatened [Jane]
about her participation in the case and urged and counseled
[her] about obtaining an attorney so she would not have to
testify." After a pretrial evidentiary hearing, which included
a review of the tape-recorded telephone calls,12 the judge made
comprehensive findings of fact. The judge concluded that (1)
12 The telephone calls were recorded as a matter of jail policy. 8
Jane had a valid privilege under the Fifth Amendment to the
United States Constitution not to incriminate herself and was
therefore unavailable as a witness; (2) the defendant, in
numerous telephone conversations with Jane, suggested to her the
idea of not testifying by threats, persuasion, and pressure; and
(3) he did so with the intent to procure her unavailability.
Based on these findings, the judge allowed the motion in limine
as to Jane's statements that he found reliable.
On appeal, the defendant argues it was error to admit
Jane's hearsay statements. According to the defendant,
collusion to assert a valid Fifth Amendment privilege does not
meet the Edwards test if, as in this case, the defendant wanted
the witness to testify and the Commonwealth could have immunized
her.13 We are not persuaded. The defendant cites no authority
in support of this argument, and we have found none.
Grants of immunity are discretionary at the request of the
Commonwealth. Commonwealth v. Figueroa, 451 Mass. 566, 578
(2008) ("Subject to the approval of the court, it is the purview
of the prosecutor to seek a grant of immunity . . ."). The
question is not whether Jane had a right to refuse to testify,
but whether the defendant intentionally procured her
13 By the time of trial, the defendant, through counsel, had changed his position regarding Jane's testimony, apparently assuming that her testimony would now be helpful. 9
unavailability as a witness. See Commonwealth v. Szerlong, 457
Mass. 858, 864-865 (2010), cert. denied, 562 U.S. 1230 (2011)
(forfeiture by wrongdoing properly applied where defendant
married witness with intent to have her exercise spousal
privilege). Here, the evidence established that the defendant
had multiple conversations with Jane regarding her testimony,
all in violation of the restraining order. He repeatedly
suggested that she tell her lawyer about the Fifth Amendment, so
that she would not have to testify. The judge found that "he
did so by way of threats, persuasion, and pressure." These
findings were supported by a preponderance of the evidence. See
Edwards, supra at 542-543 (application of forfeiture by
wrongdoing doctrine is a preliminary question of fact subject to
proof by a preponderance of the evidence). Accordingly, the
doctrine of forfeiture by wrongdoing was properly applied.
Due process requires that hearsay statements admitted under
the doctrine of forfeiture by wrongdoing be reliable. Szerlong,
supra at 866. Based on the pretrial testimony of the Lawrence
police officers regarding the 911 call from Jane, her physical
and emotional state upon their arrival, and the condition of the
apartment, the judge found that Jane's hearsay statements
regarding the break-in and assaults on October 29 were 10
sufficiently reliable.14 This independent corroborating evidence
adequately supported the judge's finding.15
As an alternative argument, the defendant contends that
this is the exceptional case in which the judge should have, sua
sponte, granted "equitable immunity" to Jane, so that the jury
could hear her testimony. According to the defendant, the judge
must have known that Jane would make "significant retractions"
if she testified at trial16 and proceeding to trial without those
retractions would put the defendant at an unfair disadvantage.
Put another way, the defendant suggests that without Jane's
testimony "the [trial] process was short circuited and [his]
constitutional rights were violated." We disagree.
The Supreme Judicial Court has explained:
14 The judge did not admit all of Jane's hearsay statements. For example, Jane reported that the defendant told her he would send armed men to her mother's home. The judge found that statement was not sufficiently reliable. 15 In light of the defendant's acquittal on the kidnapping and assault charges on November 9, 2013, we need not address the reliability of Jane's statements regarding those allegations. 16 The judge conducted an in camera hearing with Jane and her counsel pursuant to Commonwealth v. Martin, 423 Mass. 496 (1996), to determine whether the invocation of her Fifth Amendment privilege was valid. Neither defense counsel nor the prosecutor was present. The transcript of that hearing was sealed, but made available for our review. At argument, counsel acknowledged that the transcript of the hearing was included in the public record on appeal. Neither party sought an order of impoundment. 11
"While a prospective defense witness's assertion of [her] right under the Fifth Amendment . . . could affect a defendant's ability to present his defense most effectively, the compulsory process provisions of the Federal and State Constitutions do not mandate a judicial grant of immunity to such a witness as a matter of course. See Commonwealth v. Curtis, 388 Mass. 637, 646 (1983), S.C., 417 Mass. 619 (1994). Although we have left open the possibility that 'unique circumstances' could require a judge to grant a limited form of immunity to a defense witness, see id., we have not been presented yet with such a scenario."
Commonwealth v. Brewer, 472 Mass. 307, 312 (2015), quoting from
Commonwealth v. Vacher, 469 Mass. 425, 438-439 (2014). A unique
circumstance might arise "where there exists prosecutorial
misconduct arising from the government's deliberate intent to
distort the fact-finding process." Brewer, supra, quoting from
Vacher, supra (quotations omitted). Here, the defendant has not
argued, much less shown, that the Commonwealth's decision not to
immunize Jane was improperly motivated. Indeed, in light of the
defendant's efforts to corrupt the trial process by dissuading
Jane from testifying against him, there was good reason for the
Commonwealth to be skeptical of her testimony.
Further, it is not clear that Jane's testimony would have
been material to the defense. The transcript of the hearing
held pursuant to Commonwealth v. Martin, 423 Mass. 496 (1996),
shows Jane made a single false statement regarding the events of 12
October 29.17 Jane stated that she falsely reported that the
defendant had broken the door. She did not retract her
statement that the defendant suddenly appeared at her bedside
and assaulted her at knifepoint. To be sure, had Jane
testified, the false statement would have undermined her
credibility, but judicial immunity is not available when the
proffered testimony relates only to the credibility of the
government's witnesses. Brewer, supra at 314. Therefore, on
the record before us, the judge properly declined to grant
"equitable immunity" to Jane.
2. Sufficiency of evidence: stalking in violation of an
abuse prevention order. "To establish the aggravated form of
stalking at issue in this case, § 43 (b) (stalking in violation
of court order), the Commonwealth must prove both a pattern of
conduct constituting stalking under § 43 (a) and that the
conduct violated (in this case) a 209A order that was in
effect." Edge v. Commonwealth, 451 Mass. 74, 76 (2011).
General Laws c. 265, § 43(a), as appearing in St. 2010, c. 92,
§ 9, provides that "[w]hoever (1) willfully and maliciously
engages in a knowing pattern of conduct or series of acts over a
period of time directed at a specific person which seriously
17 There was a second false statement regarding the alleged kidnapping. Because the defendant was acquitted of that charge, we consider it only as it may have impacted Jane's credibility regarding the October 29 incident. 13
alarms or annoys that person and would cause a reasonable person
to suffer substantial emotional distress, and (2) makes a threat
with the intent to place the person in imminent fear of death or
bodily injury is guilty of the crime of stalking . . . ." "A
pattern or a series in the context of this statute . . .
involve[s] more than two incidents." Commonwealth v.
Kwiatkowski, 418 Mass. 543, 478 (1994). Here, the judge
instructed the jury that to meet its burden of proof on the
stalking charge, the Commonwealth had to prove the defendant
committed three acts on October 29, 2013: (1) slapping Jane at
the Chao Chow City restaurant; (2) calling her at the BPD
station; and (3) confronting her at Susan's apartment.
The defendant argues that the Commonwealth failed to prove
a "series of acts over a period of time" because each of the
alleged acts, even if proved, occurred on the same day. We are
not aware of any authority that supports the defendant's
contention that, in this context, "over a period of time" means
over a period of time greater than one day. The statute does
not define "over a period of time," and our cases have not
further interpreted these words. Consequently, we "give them
their usual and accepted meanings, as long as these meanings are
consistent with the statutory purpose." Commonwealth v. Zone
Book, Inc., 372 Mass. 366, 369 (1977). "We derive the words'
usual and accepted meanings from sources presumably known to the 14
statute's enactors, such as their use in other legal contexts
and dictionary definitions." Ibid. The word "over" is defined
as "from one point to another across an intervening space."
Webster's Third New International Dictionary 1605 (2002).
"Period" means "any extent of time." Id. at 1680. "Time" is
defined as a "measurable duration." Id. at 2394. Thus, the
phrase "over a period of time" simply denotes the passage of
time. We see no reason to require a particular interval of time
between acts. As long as the acts are separate, distinct, and
separated by some interval, they occur "over a period of time"
within the meaning of the statute.
Here, there was evidence that the defendant arrived at Chao
Chow City, confronted Jane and slapped her at approximately 4:00
A.M.; he called her repeatedly when she was at the BPD around
6:00 A.M., and he emerged from the bedroom closet wielding a
knife around 9:00 A.M. Examining this evidence in the light
most favorable to the prosecution, see Latimore, 378 Mass. at
677, the jury could have found beyond a reasonable doubt (1)
that the defendant engaged in three separate acts over a period
of time which alarmed and annoyed Jane, and would have caused a
reasonable person to suffer substantial emotional distress, and
(2) that the defendant threatened Jane with the intent to place
her in imminent fear of death or bodily injury. 15
The defendant was charged with an aggravated form of
stalking because the acts were alleged to have been committed in
violation of an abuse prevention order issued under G. L.
c. 209A, §§ 3 and 4. A violation of an abuse prevention order
consists of (1) the existence of the order at the time in
question, (2) the defendant's violation of the order, and (3)
the defendant's knowledge of the order. Commonwealth v. Silva,
431 Mass. 401, 403 (2000).
The defendant claims that the evidence of his knowledge of
the order was insufficient where the order indicates it was
served before it was issued. The order shows that it was issued
on June 27, 2013, at 3:40 P.M. However, it also indicates in
two different places that it was served in hand by a court
officer on June 24, 2013, at 3:50 P.M., three days earlier, at
the Lawrence District Court. Of course, a restraining order
cannot be served before it exists. However, given the times on
the order for issuance and service (a ten-minute interval), and
the two separate handwritten entries on the order indicating
service by a court officer on June 24, the jury could have
reasonably inferred that the date of issuance on the order was a
typographical error, and that the order had been issued and
served on the defendant at the Lawrence District Court on June
24, 2013. 16
Further, there was ample evidence that the defendant knew
that he was not permitted to contact Jane. The jury heard that
she had obtained two prior restraining orders against the
defendant, the most recent of which expired only one month
before the June, 2013, order was issued. The jury also heard
evidence that the defendant engineered a ruse, so that he could
see Jane in violation of the order while he was incarcerated.
From this evidence, the jury could have found that the defendant
knew he was prohibited from contacting Jane. For all of these
reasons, we conclude that the evidence was sufficient to support
the jury's guilty finding on the charge of stalking in violation
of a restraining order.18,19
3. Reasonable doubt instruction. Since January of 2015,
the preferred jury instruction on reasonable doubt in
Massachusetts includes the following language:
18 The defendant advances the same argument regarding the dates on the restraining order to challenge the sufficiency of the evidence on his conviction of aggravated assault and battery. We reject the argument for the reasons set forth above. 19 The indictment for breaking and entering with intent to commit a felony was placed on file with the defendant's consent. We do not consider appeals from convictions placed on file absent exceptional circumstances, "such as where the legal error affects all the charges." Commonwealth v. Prashaw, 57 Mass. App. Ct. 19, 27 (2003). The defendant's argument that his motion for required finding should have been allowed because the indictment did not allege that the entry occurred in the nighttime, does not affect all the charges. Accordingly, we do not address this claimed error. 17
"A charge is proved beyond a reasonable doubt if, after you have compared and considered all of the evidence, you have in your minds an abiding conviction, to a moral certainty, that the charge is true. When we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case."
Commonwealth v. Russell, 470 Mass. 464, 477 (2015). Here,
without the benefit of the Supreme Judicial Court's guidance in
Russell, the judge used different language, instructing the jury
that "proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant's guilt. In other words, you
have an abiding conviction that the charge is true." The
defendant argues that the judge's failure to include the words
"moral certainty" in his instruction was constitutional error.
We disagree.
The judge's reasonable doubt instruction was derived from
Federal Judicial Center Pattern Criminal Jury Instruction 21
(1998), the same instruction considered by the Supreme Judicial
Court in Russell.20 There, the Supreme Judicial Court concluded
20 In relevant part, instruction 21 provides:
"Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not 18
that "the instruction met the minimum requirements of due
process under the Fourteenth Amendment and art. 12." Russell,
supra at 474. However, because of concern about potential
misinterpretation of the term "moral certainty,"21 the Supreme
Judicial Court exercised its supervisory power and provided a
uniform instruction on reasonable doubt which further defined
that term. The instruction is to be used by all Massachusetts
trial judges from that point forward. Id. at 477. Because
Russell was decided after the trial in this case, the judge did
not have the benefit of that uniform instruction.
We view the charge in its entirety to determine its
adequacy. Commonwealth v. Sellon, 380 Mass. 220, 231-232
(1980). The jury were instructed that the defendant was
presumed innocent and that the Commonwealth bore the burden of
proof. They were also instructed that "it is not enough for the
Commonwealth to establish a probability, even a strong
probability, that the defendant is more likely to be guilty than
not guilty." Instead, the jury were instructed that they must
be "firmly convinced and have an abiding conviction that the
guilty, you must give him the benefit of the doubt and find him not guilty." 21 The "moral certainty" language comes from Commonwealth v. Webster, 59 Mass. 295, 313 (1850). The Webster charge was the preferred instruction on reasonable doubt for 150 years before Russell. 19
defendant is guilty of the crime charged." These instructions,
taken as a whole, adequately "impressed upon the factfinder the
need to reach a subjective state of near certitude of the guilt
of the accused." Commonwealth v. Pinckney, 419 Mass. 341, 344
(1995). We discern no error.
4. The jury question. In connection with the stalking
charge, the jury asked "is it sufficient that he showed up at
Chao Chow or necessary we are convinced of slapping." The
defendant claims that the judge's answer to that question, set
forth in the margin,22 permitted conviction on a theory not
supported by the evidence. Again, we disagree.
22 The judge responded to the jury as follows:
"My answer to you is that it's not sufficient if the Commonwealth simply shows that he showed up at the Chao Chow restaurant. But the Commonwealth does not necessarily have to prove to you beyond a reasonable doubt that there was an incident of slapping or three slaps at the Chao Chow restaurant. Let me explain. The Commonwealth does have to prove to you that there was some incident at the Chao Chow restaurant that would cause a reasonable person to suffer substantial emotional distress; and that this act at the Chao Chow restaurant did indeed cause [Jane] to become seriously alarmed or annoyed; and that the defendant took these actions at the Chao Chow restaurant willfully and maliciously . . . .
"What the Commonwealth would have to prove is even if the Commonwealth couldn't prove an actual slapping, that the defendant showed up uninvited at the Chao Chow restaurant; that his presence was not consented to by the people at the Chao Chow restaurant; that he shows up intentionally knowing the people are there; that he doesn't show up just accidentally and, oh, jeez, there's [Jane]; instead, he intentionally knows that she's there at the 20
"The proper response to a jury question must remain within
the discretion of the trial judge, who has observed the evidence
and the jury firsthand and can tailor supplemental instructions
accordingly." Commonwealth v. Bell, 455 Mass. 408, 420 (2009),
quoting from Commonwealth v. Robinson, 449 Mass. 1, 7-8 (2007).
There was evidence that after attempting to reach Jane by
telephone, the defendant appeared at the restaurant uninvited
and angrily confronted her in violation of the restraining
order. From this evidence, the jury could have found, even
without the alleged slapping, that the defendant acted willfully
and maliciously in a way that alarmed and annoyed Jane, causing
her substantial emotional distress. Accordingly, we discern no
abuse of discretion in the judge's answer and supplemental
instruction.
Judgments affirmed.
time; that he knows that he is not supposed to have any contact with or be within a hundred yards of [Jane]; and that he does some action there at the Chao Chow restaurant willingly and maliciously that causes her to become seriously alarmed or annoyed and would cause a reasonable person to suffer substantial emotional distress."