Commonwealth v. Rosado
106 N.E.3d 651
Mass.2018Background
- Defendant Joshua Rosado was indicted for witness intimidation after allegedly sending threatening Facebook messages to his former girlfriend and prosecution witness, Shakira Ortiz, who had testified in a separate murder trial (Jean C. Mercado).
- Ortiz received threats and reported being scared and embarrassed; she did testify at Mercado's trial, which ended in acquittal for Mercado.
- The Commonwealth subpoenaed Ortiz to testify at Rosado's intimidation trial; Ortiz, then living out of state, told the prosecutor she would not return because of safety fears for herself and her child.
- The Commonwealth sought to admit Ortiz's grand jury testimony and a recorded police interview under the forfeiture-by-wrongdoing doctrine, arguing Rosado’s prior intimidation rendered her unavailable.
- The motion judge denied the Commonwealth's in limine motion; the Commonwealth sought appellate review. The Supreme Judicial Court considered whether the Edwards three‑part test for forfeiture by wrongdoing was satisfied.
Issues
| Issue | Commonwealth's Argument | Rosado's Argument | Held |
|---|---|---|---|
| Whether Edwards forfeiture elements are met so Ortiz's prior statements are admissible against Rosado | Edwards applies because Rosado's prior intimidation of Ortiz made her unavailable and showed intent to procure unavailability | Forfeiture does not apply because Rosado intended only to prevent Ortiz testifying at Mercado's trial, not to make her unavailable to testify against Rosado; Ortiz was not shown to be unavailable by process | Forfeiture not established; Commonwealth failed to prove Edwards elements by a preponderance |
| Whether witness was "unavailable" under the rule | Ortiz's refusal to testify in MA demonstrated unavailability despite out‑of‑state residence | Ortiz had been served and ordered to appear; mere reluctance does not prove unavailability | Not shown; serving and ordering to appear meant Commonwealth did not prove inability to procure attendance |
| Whether defendant procured or was responsible for the witness's unavailability | Prior threats and messages demonstrate Rosado caused Ortiz's fear and thus her unavailability | Ortiz’s stated fear derived from multiple sources (including Mercado and associates); Rosado did not cause her present unwillingness to attend | Not shown; no evidence Rosado caused Ortiz’s unwillingness to testify in his intimidation case |
| Whether defendant acted with intent to procure unavailability as to Rosado's trial | Rosado’s intimidation of Ortiz at Mercado’s trial shows intent to silence her as a witness generally | Intent was limited to preventing testimony against Mercado; no evidence he intended to keep her from testifying against himself | Not shown; intent must be to render witness unavailable as to defendant’s own proceeding, and that was not established |
Key Cases Cited
- Commonwealth v. Edwards, 444 Mass. 526 (2005) (establishes three‑part Edwards test for forfeiture by wrongdoing)
- Giles v. California, 554 U.S. 353 (2008) (forfeiture requires intent to prevent testimony against the defendant)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause protects right to confront witnesses; forfeiture can extinguish that right)
- Reynolds v. United States, 98 U.S. 145 (1878) (original common‑law statement of forfeiture‑by‑wrongdoing doctrine)
- Commonwealth v. Szerlong, 457 Mass. 858 (2010) (forfeiture can apply where defendant’s actions intentionally make victim unavailable)
- United States v. Gray, 405 F.3d 227 (4th Cir. 2005) (discusses scope of federal Rule 804(b)(6) and intent requirement)