At approximately 2 a.m. on December 13, 2007, the defendant entered his girl friend’s home, grabbed her by the throat while she was asleep, and held a knife to her throat. 1 On December 21, 2007, the defendant was charged in a criminal complaint with assault and battery, in violation of G. L. c. 265A, § 13A (a); assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B; and home invasion, in violation of G. L. c. 265, § 18C, and a warrant was issued for his arrest. 2 The defendant and the victim had not been engaged to marry at the time of the assault, but they were married on January 5, 2008, at the North Attleborough town hall. On Jаnuary 15, the defendant voluntarily surrendered himself to the court and was arraigned. At that time, the Commonwealth moved for a dangerousness hearing under G. L. c. 276, § 58A. At the dangerousness hearing on January 23, the victim testified that she was married to the defendant and invoked her spousal privilege. She continued to invoke her spousal privilege and refused to testify at trial. 3
Before trial, the Commonwealth moved in limine to admit hearsay statements made by the victim before she married the defendant to a close friend, to her sister, and to a police detective. Thе Commonwealth claimed that, by marrying the victim so that she could claim her spousal privilege, the defendant had *860 forfeited Ms right to object on confrontation and hearsay grounds to the admission of her out-of-court statements under the forfeiture by wrongdoing doctrine. After an evidentiary hearing, the judge allowed the Commonwealth’s motion in limine without making findings of fact or law. On May 6, 2008, a jury in the District Court convicted the defendant of one count of assault and battery. 4
We must decide whether the scope of our forfeiture by wrongdoing doctrine, as announced in
Commonwealth
v.
Edwards,
Discussion.
1.
Forfeiture by wrongdoing.
In 1878 the Supreme Court established the doctrine of forfeiture by wrongdoing in
Reynolds
v.
United States,
In 2005, we concluded that, under the doctrine of forfeiture by wrongdoing, a defendant may also forfeit his right to object to the admission of hearsay evidence under art. 12 of the Massachusetts Declaration of Rights and our common-law rules of evidence. 5 Edwards, supra at 536. We held that thrеe factual findings are required for forfeiture by wrongdoing to apply: “(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.” Edwards, supra at 540. “A defendant’s involvement in procuring a witness’s unavailability need not consist of a criminal act”; the “wrongdoing” in forfeiture by wrongdoing is simply the intentional act of making the witness unavailable to testify or helping the witness become unavailable. Id. at 540-542. Forfeiture by wrongdoing “may include a defendant’s collusion with a witnеss to ensure that the witness will not be heard at trial.” Id. at 540. The Commonwealth need not show that the defendant threatened, coerced, persuaded, or pressured a witness to avoid testifying, or physically prevented the witness from testifying. Id. at 541. Where a defendant actively assists a witness’s efforts to avoid testifying, with the intent to keep the witness from testifying, forfeiture by wrongdoing may be established “regardless of whether the witness already decided ‘on [her] own’ not to testify.” Id.
Three years after our decision in
Edwards,
the Supreme Court in
Giles
held that, under the Sixth Amendment, the forfeiture by wrongdoing doctrine applies only where the defendant acts with the intent to prevent the witness from testifying.
6
Giles, supra
at 360 (right to confrontation not forfeited without showing that
*862
defendant “intended to prevent a witness from testifying”). It is not enough for the defendant to know that his wrongdoing will cause the witness’s unavailability to testify at trial; he must intend that result.
7
Id.
at 360, 368-369, 377. The Court observed that it previously had approved Fed. R. Evid. 804(b)(6), which “codifies the forfeiture doctrine,”
Giles, supra
at 367, quoting
Davis
v.
Washington,
The defendant argues that the intent requirement of Giles requires us to narrow our holding in Edwards that forfeiture by wrongdoing may be established by collusion between the defendant and the unavailable witness. We conclude that our decision in Edwards is consistent with the Supreme Court’s decision in Giles. We declared in Edwards that a defendant’s collusion is sufficient to establish forfeiture only where “the defendant acted with the intent to procure the witness’s unavailability.” Edwards, supra at 540. See id. at 541-542 (“defendant’s intentional procurement of a witness’s unavailability through collusion . . . sufficient to trigger the doctrine” [emphasis added]). And, to establish collusion, we require that a defendant “actively facilitate^ the carrying out of the witness’s independent intent not to testify.” Id. at 541. By requiring that the defendant actively *863 assist the witness in becoming unavailable with the intent to make her unavailable, our doctrine of forfeiture by wrongdoing is at least as demanding as Fed. R. Evid. 804(b)(6), which permits a finding of forfeiture where the defendant “acquiesced” in conduct that was intended to, and did, make the witness unavailable to testify. 8
Nor does
Giles
require us to revisit our conclusion in
Edwards
that the wrongdoing that may justify forfeiture need not be criminal. See
Edwards, supra
at 540, 542. The Supreme Court in
Giles, supra
at 368, declared that the wrongdoing that may warrant forfeiture of a defendant’s confrontation rights was “conduct designed to prevent a witness from testifying.” Indeed, in
Reynolds, supra
at 159-160, forfeiture by wrongdoing was found where the witness, who was the defendant’s second wife, lived with the defendant but had left home for three weeks to avoid being served with a subpoena, and where the defendant told the process server that she was not at home but would not say where she was. There was no allegation that the defendant had made the witness unavailable through a criminal act.
Id.
See
Steele
v.
Taylor,
Having concluded that Giles does not affect the three factual findings required in Edwards for the doctrine of forfeiture by wrongdoing to apply, we turn to the evidence at the motion in limine hearing to determine whether it supports the judge’s finding of forfeiture. Tracy Jordan had been a close friend of the victim for twenty years and took care of the victim’s baby daughter. She testified that, at the time of the assault, the victim and the defendant did not have plans to marry. Later, the victim telephoned Jordan and said she had something to tell her but was afraid that Jordan would become angry and “lose respect” for her. The victim eventually admitted to Jordan that she had married the defendant. When Jordan becamе upset and questioned *864 the victim’s judgment in marrying the defendant, the victim explained that marriage was the only way that she would not have to testify against the defendant in this case. The victim said that she had discussed the matter with the defendant and they had decided to marry because they knew that, if they were married, she would not have to testify against him.
The only other witness to testify at the motion hearing was the victim’s sister, Ann Marie Johnson, who had reported the alleged assault to the police against the victim’s wishes. Johnson stated that, when she reported the incident to the police approximately one week after it occurred, she knew of no plans for the victim and the defendant to marry. Although the wedding occurred on January 5, 2008, Johnson did not learn the victim was married until March 10, 2008, three days before Johnson was to respond to a summons to appear in court. The victim said she told Johnson of the marriage so that she would not be “blindsided” by the information in court. The victim told Johnson that she married the defendant because it was the only way she could avoid having to testify in court against the defendant, and she did not want tо be the one to put the defendant in jail. Neither Johnson nor any other family member was present at the wedding; Johnson believed that, at the time of the eviden-tiary hearing, four months after the wedding, their parents still did not know of the marriage.
Though he made no findings of fact, the judge implicitly found that the defendant married the victim with the intent to enable her to claim her spousal privilege and thereby avoid testifying against the defendant.
9
,
10
We conclude that this implicit
*865
finding is supported by a preponderance of the evidence.
11
The defendant and the victim were not engaged to be married when the incident occurred on December 13, 2007, but they were wed in town hall on January 5, 2008, after Johnson reported the incident to the police but before the arraignment, while the defendant remained a fugitive. The defendant knew that, as a result of the marriage, the victim would be entitled to the spousal privilege, and that the victim intended to exercise the privilege because she did not want her testimony to cause his conviction. Even if the idea to marry originated with the victim, the defendant agreed to marry, and the victim’s spousal privilege existed only because of his agreement. In these circumstances, the judge wаs entitled to infer that the defendant intended to make her unavailable to testify by agreeing to marry her. The judge did not need to find that making her unavailable as a witness was the defendant’s sole or primary purpose in marrying her; it is sufficient that it was a purpose in marrying her. See
United States
v.
Montague,
2.
Due process.
Even though the defendant forfeited his right to object on both confrontation and hearsay grounds to the victim’s out-of-court statements, he is still entitled to due process. See
Commonwealth
v.
Wilcox,
We look now to the evidence at trial to determinе whether the hearsay statements admitted were sufficiently reliable to satisfy due process. Jordan, a friend of the victim for twenty years, testified that she cared for the victim’s baby while the victim was at work. On December 13, 2007, when the victim arrived with the baby, Jordan noticed and commented to the victim that the baby seemed uncharacteristically sad. The victim began to cry and, when she regained her composure after several minutes, stated that the night before, at 2 a.m., the defendant had broken into her house, entered her bedroom, attempted to stranglе her, held a knife to her throat, and threatened to kill her. She awoke to find him with his hands around her neck. The victim told Jordan that the defendant then held a large knife up to her neck and said that “if he wasn’t going to kill her, he was going to kill himself.” After some time, the victim was able to calm down the defendant, who slept in the living room that night with the baby. In addition to repeating these statements by the victim, Jordan testified that she observed that the entire side of the victim’s neck was “red” with “strangle marks.”
*867 Johnson, the victim’s sister, testified that the victim telephoned her on December 16 to tell her that three days earlier, around 3 a.m., the defendant had broken down two doors to enter her home, tried to strangle her, held a knife to her throat, and threatened to kill her. The victim told Johnson that she had been screaming and “somehow” managed to escape the defendant’s grip. The victim stated that she ran into the baby’s room, the baby having awoken crying, and that the defendant then left. Johnson testified that she urged the victim to seek help, but the victim “said she did not want to be the one to put [the defendant] in jail.”
The Commonwealth also offered the testimony оf two police officers, Officer Scott Weiner and Detective John Reilly, both of the North Attleborough police department. Officer Weiner testified that he received a telephone call from Johnson on December 19 about the December 13 incident but that he was not able to reach the victim by telephone, despite numerous attempts. Detective Reilly testified that, approximately three hours after he was assigned to investigate Johnson’s complaint regarding the defendant’s alleged domestic abuse of the victim, hе spoke to the victim by telephone. 12 The victim stated that she would not cooperate with the investigation and “that she was not going to be the one responsible for putting [the defendant] in jail.” However, when Detective Reilly conveyed to the victim the allegations against the defendant — that he broke into her home by forcing the door open, entered her bedroom, climbed on top of her, held one hand over her throat while holding a knife in the other hand, indicated that he was under the influence of drugs, and threatened to kill her — the victim acknowledged that “[ejverything that [Detective Reilly] said was true,” except that the defendant had intended to harm himself, not her. The victim agreed to visit the police station to meet with Detective Reilly, but she did not arrive as scheduled, and the detective never met with her.
We conclude that the hearsay evidence had substantial indicia *868 of reliability to satisfy due process, recognizing that the hearsay statements comprised nearly all of the evidence against the defendant, with the exception of Jordan’s physical observation of “stranglе marks” on the victim’s neck and Detective Reilly’s observation of the broken casing of the door to the victim’s house. Jordan and Johnson recounted similar detailed versions of what the victim told them occurred, and the victim confirmed these details in speaking briefly with Detective Reilly. See Commonwealth v. Durling, supra at 121 (similarity of reports and factual detail indicative of reliability). The victim had no motive to deceive her old friend, her sister, or Detective Reilly as to what had occurred, because she did not intend to press charges against the defendant. The circumstanсes of her revelation to Jordan reflect its spontaneity and, consequently, the unlikelihood of fabrication. Cf. Mass. G. Evid. § 803(2), at 257 (2010) (excited utterance exception to hearsay rule). Cross-examination did not reveal any motive that Jordan or Johnson may have had to fabricate the victim’s account of the incident. Jordan’s observation of red marks on the victim’s “whole neck” and Detective Reilly’s observation of the broken door frame at the victim’s house corroborated the victim’s account.
3. Prosecutor’s closing argument. The defendant argues that it was improper for the prosecutor to make the following statement in her closing argument:
“You’ve heard some other testimony in this trial about the defendant and the victim getting — and the alleged victim getting married sometime after the incident. You’ve heard counsel’s argument about whether or not — how the victim is present in this court room.
“And I’m not going to instruct you on the law or any instructions that you’re going to get from the judge; but you, as the jury, can make your own inferences about witnesses and about whether or not they testify.”
The defendant contends that the prosecutor improрerly invited the jury to draw an adverse inference from the victim’s presence in the court room and her failure to testify. We agree that the prosecutor improperly invited such an inference where no *869 inference was warranted, but conclude that the impropriety did not result in a substantial risk of a miscarriage of justice.
“No comment may be made and no adverse inference may be drawn” in a criminal case based on the invocation of a privilege by a witness. Mass. G. Evid.,
supra
at § 525(b)(1), at 161. Because the spousal privilege belongs to the witness spouse, not the defendant spouse, and because the defendant cannot compel the spouse’s testimony, no inference is appropriate from the failure of a spouse to testify. See generally Annot., Propriety and Prejudicial Effect of Prosecutor’s Argument Commenting on Failure of Defendant’s Spouse to Testify,
Here, the defendant testified that he married the victim on
*870
January 5, 2008, and identified the victim as present in the court room. Defense counsel, in his closing argument, twice reminded the jury that the victim married the defendant after the incident and, immediately before he concluded his argument by asking the jury to find the defendant not guilty, told them that the victim “was in court yesterday, and she’s present today.” While defense counsel did not argue that the jury should infer from the marriage or the victim’s presence in the court room that the alleged assault had not occurred, his reference to these facts makes no sense except to invite that inference. We understand the prosecutor’s remarks to be in reply to that implicit invitation, which mitigates, but does not justify, the error. See
Commonwealth
v.
Kozec,
The defendant did not оbject to these remarks during or immediately after the prosecutor’s closing argument. Rather, the defendant waited until after the judge’s final instructions to the jury to proffer his objection. “The defendant’s objection . . . made after the jury instructions was too late.”
Commonwealth
v. Allison,
*871
the whole argument, the evidence admitted at trial, and the judge’s instructions to the jury.”
Commonwealth
v.
Caillot,
Judgment affirmed.
Notes
here is confusion in the record as to whether the incident occurred on December 12 or 13, but we conclude from the evidence that it more likely occurred in the early morning of December 13.
The home invasion count was subsequently nolle pressed, and the judge allowed the Commonwealth’s motion to join a new charge of breaking and entering into a building at nighttime with intent to commit a felony, G. L. c. 266, § 16.
Under the spousal privilege, a spouse may not be compelled to testify in any criminal proceeding brought against the other spouse. G. L. c. 233, § 20, Second. See Mass. G. Evid. § 504(a), at 104 (2010). The privilege applies even if the spouse and the defendant were not married at the time of the alleged acts that form the basis of the criminal charge against the defendant spouse. See
Commonwealth
v.
DiPietro,
At the close of all the evidence at trial, the judge allowed the defendant’s motion for a required finding of not guilty on the breaking and entering charge. The jury found the defendant not guilty of assault by means of a dangerous weapon. On the assault and battery conviction, the defendant was sentenced tо two and one-half years in a house of correction.
We noted that, “[i]n cases involving the hearsay rule and its exceptions, ... art. 12 [of the Massachusetts Declaration of Rights] provides no greater protection than the Sixth Amendment [to the United States Constitution].”
Commonwealth
v.
Edwards,
Elsewhere in
Giles
v.
California,
In Giles, the Supreme Court vacated the defendant’s murder conviction because the California Supreme Court affirmed the admission in evidence under the forfeiture by wrongdoing doctrine of hearsay statements made by the defendant’s former girl friend to the police three weeks before the shooting that caused her death without finding whether the defendant, in killing his former girl friend, intended to make her unavailable as a witness regarding the earlier report of domestic violence. Id. at 357, 377. In remanding the case for the court “to consider evidence of the defendant’s intent,” the Supreme Court noted that the doctrine of forfeiture by wrongdoing is not applicable to “the typical murder case involving accusatorial statements by the victim,” because in every murder case the defendant made the victim unavailable to testify. Id. at 361, 377.
“Acquiescence consists of ‘the act or condition of acquiescing or giving tacit assent; agreement or consent by silence or without objection.’ ”
United States
v. Rivera,
In the future, such findings should be made explicitly by the judge, either orally on the record or in a written ruling.
At the motion hearing, the judge properly declined the defendant’s invitation to compel the victim to waive her spousal privilege and testify for purposes of the motion only. A spouse may be compelled to testify outside the presence of the jury only to determine whether she intends to invoke the spousal privilege. See
Commonwealth
v. Fisher,
The defendant asks us to revisit our holding in
Edwards, supra
at 542-544, that the standard required to prove forfeiture by wrongdoing is a preponderance of the evidence. We decline to do so. In
Edwards,
we noted that a majority of the circuit courts of the United States Court of Appeals has applied the preponderance standard, as has a majority of the State courts that have ruled on the standard of proof.
Id.
at 542-543 & nn.24, 25. The Supreme Court has yet to decide the standard of proof but has noted that Federal сourts using Fed. R. Evid. 804(b)(6) have “generally” applied the preponderance standard and that “State courts tend to follow the same practice.”
Davis
v.
Washington,
In trying to contact the victim, Detective Reilly visited her address. The victim was not home at the time, but the detective observed “heavy damage” to the door casing of the interior door of the house. He testified that, though it was clearly broken, the casing had been put back in place and nailed together.
In
Commonwealth
v.
Spencer,