Commonwealth v. Robinson
Commonwealth v. Robinson
Opinion of the Court
The defendant, Robert Robinson, was convicted by a Superior Court jury of unarmed robbery, G. L. c. 265, § 19(b), and assault and battery, G. L. c. 265, § 13A, occurring in New Bedford on April 11, 2004. On appeal he claims error (1) in the admission of the victim’s prior recorded testimony; (2) in the admission of other hearsay testimony; and (3) by ineffective assistance of counsel for failure to preserve constitutional error. We reverse the convictions because the prior recorded testimony should not have been admitted.
1. Background. On April 11, 2004, the victim, Mario Perez, was beaten and robbed outside of a bar in New Bedford where ,he had been drinking and had become intoxicated. His brother,
The muggers ran to a multi-family dwelling, went inside, and locked the door behind them. Mario and Francisco stayed outside the house until the police arrived. The police, after brief activity irrelevant to this discussion, proceeded to a third-floor landing where they found the defendant and one Angel Marcial crouching against a wall.
2. The victim’s unavailability for trial. The mugging took place on April 11, 2004. Mario testified at a probable cause hearing on July 6, 2004, and, at that time, lived on Washburn Street in New Bedford. The defendant was arraigned on October 12, 2004. On June 8, 2005, twelve days prior to trial, the Commonwealth filed a motion in limine seeking to introduce Mario’s testimony from the probable cause hearing, asserting his unavailability, and claiming the prior recorded testimony exception to the general hearsay prohibition. In support of its motion, the Commonwealth submitted factual assertions, legal authorities, an affidavit of State police Trooper Curtis West, and two affidavits of an assistant district attorney (ADA). Upon review of the submissions and hearing representations of counsel, the
In early 2005, the Commonwealth requested assistance from the Massachusetts State police in locating Mario for purposes of testifying at the trial.
As Trooper West was searching for Mario, the Commonwealth mailed summonses and letters to Mario at the Washburn Street address, but those communications were returned with the message of “not known at this address.”
Francisco complied with the summons and appeared at the Bristol Superior Court in New Bedford on the morning of June 20, 2005, the defendant’s scheduled trial date. It was not until that morning that the Commonwealth spoke with Francisco about the whereabouts of his brother, Mario. Francisco then explained that Mario had moved to New Jersey, but Francisco said he did not know where, and further stated that Mario telephones him occasionally from New Jersey, but that Mario does not have his own telephone number and uses a friend’s telephone to call.
After hearing from the parties, and reviewing the Commonwealth’s submissions, the judge found that “the Commonwealth has met its burden of demonstrating a good faith and diligent effort to locate the complaining witness, Mario Perez,” and ruled that Mario’s probable cause hearing testimony was admissible at the defendant’s trial.
3. Discussion. Our review of a judge’s decision to admit prior recorded testimony based on the unavailability
There is no list of specific efforts that the Commonwealth must make to secure the presence of a missing or recalcitrant witness so as to satisfy the unavailability prerequisite to the admission in evidence of the witness’s prior recorded testimony. Compare Commonwealth v. Perez, supra at 263-264 (cases are fact-dependant). In this case it was incumbent upon the Commonwealth to satisfy the judge that the Commonwealth had made a good faith effort to locate and produce Mario. See id. at 264. The judge here was satisfied; she ruled that Mario’s testimony was admissible, and admitted it. We disagree and conclude that the Commonwealth’s evidence was insufficient to support the judge’s findings and ruling, and thus that the admission of the probable cause testimony was error.
While we accept as true all that is reported by Trooper West and the ADA, the judge was placed at a decided disadvantage by a lack of detail as to the dates of actions reported as having been taken. It is, therefore, impossible to evaluate the timeliness of those efforts. The trooper’s activities begin in “early 2005.” No dates were specified for the trooper’s unnumbered (“several”) visits to Mario’s last known address on Washburn Street, and the same is true as to “several” visits to the address that was assumed to be Francisco’s on Weldon Street in Providence. Similarly, while the ADA reports the mailing of summonses and letters (each in the plural) to Mario at the Washburn Street address, the dates of mailing and of notice back (“not known at this address”) are unspecified.
Our reported decisions note various categories of actions that are relevant in the determination of the reasonableness of the
In this case the Commonwealth failed to use many potential and significant sources of information. Particularly glaring, and we think controlling, is the Commonwealth’s lack of attention to Mario’s family, especially his brother Francisco, until the very eve of trial. The brothers were together at the time of the incident. As it turned out, Francisco was an important source of highly relevant information that could have assisted in a more timely and reasonable effort to locate Mario and assure his presence at trial. While the Commonwealth’s submissions indicate a single late victory in finally serving Francisco in hand with a summons when he appeared in the District Court on his own case, the date of that service is missing, as is the date of the record examination that resulted in the information that there was, indeed, a case pending against Francisco. There is no explanation why there were no earlier efforts to inquire of Francisco; if that had been done, valid search activity would have included law enforcement and other data sources in New Jersey. However, Francisco was ignored for far too long, un
The judgments are reversed, the verdicts set aside, and the matter is remanded for a new trial.
So ordered.
We refer to the Perezes by their first names to avoid confusion.
Part of the defense was the testimony of Marcial (then serving a three-year sentence on a plea to the same charges) to the effect that the defendant accidentally encountered Marcial after he, alone, had assaulted Mario and taken his wallet. Marcial testified, essentially, that the defendant was unknown to him and just happened to follow him into the apartment building.
No more precise date was given. Furthermore, unless we specify to the contrary, no dates were provided to the judge for any of the Commonwealth’s activities that were asserted to show a good faith and diligent search for Mario. Also, no precise number of visits by Trooper West to the New Bedford and Providence residences were provided to the judge.
Apparently, no effort was made to determine from the neighbors if Francisco was a resident at, or otherwise frequented, the Weldon Street property.
The supplied affidavits did not specify the dates or number of summonses and letters mailed to Mario, the date of the tracking of Francisco’s District
The defendant does not contend that the prior recorded testimony would be inadmissible for any reason other than the Commonwealth’s failure to demonstrate Mario’s unavailability. See Commonwealth v. Perez, 65 Mass. App. Ct. 259, 264 n.3 (2005).
We respect the often impossible burden of a judge to balance session lists with attorneys’ schedules, and the perennial problems of juror and witness availability in the trial sessions.
Whether there should be a new trial has not been raised or briefed by the parties, but we are instructed by Commonwealth v. DiBenedetto, 414 Mass. 37, 45 (1992), citing Lockhart v. Nelson, 488 U.S. 33, 34 (1988), “that, even if there would be insufficient properly admitted evidence to justify a conviction [which we need not decide in this case] after improperly admitted evidence is excluded from consideration, the double jeopardy clause would not bar retrial of the defendant” where, as here, “the Commonwealth has shown a reasonable prospect of filling the gap in its proof,” Commonwealth v. Campbell, 60 Mass. App. Ct. 215, 224 (2003).
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