author: LOWY, J.

text:
    COMMONWEALTH v. Maksim LUTSKOV.
    SJC-12411
    Supreme Judicial Court of Massachusetts, Hampden..
    Argued March 5, 2018 Decided September 14, 2018.
    Merritt Schnipper, for the defendant.
    David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.
    Barbara Kaban, for Youth Advocacy Division of the Committee for Public Counsel Services & others, amici curiae, submitted a brief.
    Meredith Shih, for Boston Bar Association, amicus curiae, submitted a brief.
    Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   LOWY, J.

The defendant, Maksim Lustkov, was sixteen years old in October, 1999, when he committed an armed home invasion during which he shot one occupant three times in front of the occupant's teenage daughter. A Juvenile Court jury adjudicated the defendant a youthful offender on indictments charging armed home invasion and various related offenses, and he was sentenced to a mandatory minimum State prison term of from twenty years to twenty years and one day.

In 2016, after our decision in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015), the defendant filed a motion for relief from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501 (2001), arguing that all mandatory minimum sentences violate art. 26 of the Massachusetts Declaration of Rights when applied to juveniles. He also argued that the evidence was insufficient to sustain his adjudication as a youthful offender, and that the judge incorrectly instructed the jury on the issue. A Juvenile Court judge denied the motion, and we granted the defendant's application for direct appellate review.

On appeal, the defendant primarily argues that in light of this court's decision in Commonwealth v. Perez, 477 Mass. 677, 80 N.E.3d 967 (2017) ( Perez I ), his mandatory twenty-year minimum sentence is presumptively disproportionate because it imposes a longer period of incarceration prior to eligibility for parole than that applicable to a juvenile convicted of murder without a finding of extraordinary circumstances based on consideration of the factors articulated in Miller v. Alabama, 567 U.S. 460, 477-478, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ( Miller ). He further argues that our reasoning in Perez I applies with equal force to invalidate all mandatory minimum sentences when applied to juveniles.

For the reasons that follow, we conclude that the evidence was sufficient to sustain the defendant's adjudication as a youthful offender and, although we agree that the judge failed to instruct the jury that they were required to find the defendant's qualifying age in order to adjudicate him a youthful offender, this error does not require reversal. As to the constitutionality of the defendant's sentence, we agree that the defendant's sentence violates the proportionality requirement inherent in art. 26. Our decision in Perez I, 477 Mass. at 686, 80 N.E.3d 967, requires sentencing judges to follow an individualized process that allows for the consideration of mitigating circumstances related to the juvenile's age and youthful characteristics before imposing a sentence with a longer period of incarceration prior to eligibility for parole than that applicable to a juvenile convicted of murder. The defendant was sentenced to a mandatory minimum term exceeding that applicable to a juvenile convicted of murder without a Miller hearing in violation of the requirements announced in Perez I, and refined in Commonwealth v. Perez, 480 Mass. (2018) (Perez II ), also decided today. Accordingly, we remand the case to the Juvenile Court for resentencing. Background. 1. Facts. We summarize the facts relevant to the present appeal in the light most favorable to the Commonwealth, reserving certain details for later discussion. At approximately 8:30 P.M. on October 31, 1999, Fulia Aiken heard a knock at the door of the house where she lived with her father, Amhet Aiken. Fulia opened the door and the defendant, who was armed with a firearm and accompanied by two accomplices, forced his way inside. All three individuals were wearing masks. Ahmet, in response to his daughter's screams, came downstairs and a struggle ensued. During the struggle, Ahmet knocked off the defendant's mask and the defendant shot Ahmet three times. The defendant and his accomplices fled, leaving behind the mask that Ahmet had knocked off the defendant's face.

2. Trial. During its direct case at trial, the Commonwealth offered evidence of the defendant's age through two witnesses. A Springfield police detective testified that a fingerprint lifted from the mask left at the Aikens' house was identical to the defendant's left thumbprint, and a fingerprint card bearing the defendant's name and date of birth ("02/06/83") was admitted in evidence. Fulia also testified that the intruders appeared to be "kids ... [a]bout sixteen, seventeen, eighteen [at] the most." At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on all charges, which the judge denied. After the Commonwealth rested, the defendant offered medical records and testimony from his physician establishing that he was sixteen years old on the date of the offenses. The defendant was adjudicated a youthful offender pursuant to G. L. c. 119, § 54, on all charges.

3. Sentencing. At the sentencing hearing, the Commonwealth recommended a sentence of from thirty to forty years in State prison on the home invasion charge, and a combination of concurrent and from-and-after sentences on the remaining counts. Pursuant to G. L. c. 119, § 58, as amended through St. 1996, c. 200, § 5, the defendant requested a sentence of commitment to the Department of Youth Services (DYS) until age twenty-one, and thereafter a commitment to State prison for a term of from five to seven years.

The judge did not follow the defendant's sentence recommendation. She explained that armed home invasion carried a mandatory minimum sentence and, although a split sentence with commitment to DYS was an available option, such a disposition was not appropriate considering the defendant's age at the time of sentencing (almost nineteen years old), public safety concerns, and the violent nature of the offenses. The judge sentenced the defendant to from twenty years to twenty years and one day in State prison on the armed home invasion charge.

4. Posttrial proceedings. In August, 2013, after serving one-half of his committed sentence, the defendant filed, pro se, a motion for relief from unlawful restraint and for a new trial pursuant to Mass. R. Crim. P. 30 (a) and (b), as appearing in 435 Mass. 1501 (2001), claiming ineffective assistance of counsel. The defendant primarily argued that he was entitled to resentencing in light of the United States Supreme Court's decision in Miller. The trial judge denied the motion, and the defendant did not appeal.

In November, 2016, the defendant, represented by counsel, filed his second motion for relief from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a). He argued that art. 26 prohibited the automatic application of any mandatory minimum sentence for a juvenile defendant. He also argued that the Commonwealth presented insufficient evidence that he was between fourteen and seventeen years of age at the time of the crimes, and that the trial judge failed to instruct the jury that they were required to find the defendant's age within this range in order to adjudicate him a youthful offender. A different judge of the Juvenile Court (the trial judge having retired) denied the motion, concluding that the defendant's failure to raise either argument at trial, on direct appeal, or in his first rule 30 motion constituted waiver. After finding the defendant's arguments waived, the judge nonetheless went on to consider whether any of the claimed errors would give rise to a miscarriage of justice. The judge agreed that the jury heard insufficient evidence of the defendant's age at the time of the offenses and that the trial judge erred in failing to instruct the jury that in order to adjudicate the defendant as a youthful offender, they must find that the Commonwealth had proved that he was between fourteen and seventeen years of age at the time of the offenses. Nevertheless, the motion judge found no risk of a miscarriage of justice because, although she found that the Commonwealth failed to submit sufficient evidence of the defendant's age during its case-in-chief, the defendant introduced evidence establishing that he was between fourteen and seventeen years of age at the time of the crimes. The judge further concluded that the sentencing judge's imposition of a twenty-year mandatory minimum sentence was not automatic: the record demonstrated that she had considered the evidence presented at trial and the probation department's presentence report before imposing the mandatory minimum sentence.

Discussion. We review the denial of a motion for relief from unlawful restraint brought under Mass. R. Crim. P. 30 (a) for an abuse of discretion or error of law. See Perez I, 477 Mass. at 681-682, 80 N.E.3d 967 ; Commonwealth v. Wright, 469 Mass. 447, 461, 14 N.E.3d 294 (2014).

1. Sufficiency of the evidence. The defendant argues that the evidence at trial was insufficient to sustain his adjudication as a youthful offender, and therefore that his motion for a required finding of not guilty should have been allowed. Specifically, the defendant challenges the sufficiency of the evidence that he was between the ages of fourteen and seventeen at the time of the offenses. We consider this claim to determine whether, viewing the evidence in the light most favorable to the Commonwealth, any rational jury could have found each of the elements of the offense beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979).

In order for a juvenile to be adjudicated a youthful offender, the Commonwealth must present sufficient evidence that (1) the juvenile was between fourteen and seventeen years of age at the time of the offense; (2) the offense, if committed by an adult, is punishable by imprisonment in State prison; and (3) either the juvenile has previously been committed to DYS, the alleged offense involves certain enumerated firearms violations, or the alleged offense involves the infliction or threat of serious bodily harm. G. L. c. 119, § 54, as amended through St. 1996, c. 200, § 2.

Here, the evidence introduced at trial concerning the defendant's age was sufficient to support his adjudication as a youthful offender. During its case-in-chief, the Commonwealth offered a fingerprint card bearing the defendant's name and date of birth ("02/06/83"), and Fulia testified that the intruders were "kids ... [a]bout sixteen, seventeen, eighteen [at] the most." Accordingly, there was no error in the denial of the defendant's motion for a required finding.

2. Jury instructions. The defendant next contends that the trial judge's jury instructions were erroneous because the judge did not instruct the jury that if the defendant were to be adjudicated a youthful offender, they must find that he was between fourteen and seventeen years of age at the time of the offenses.

The judge instructed the jury only that the Commonwealth was proceeding against the defendant "as a youthful offender." The instruction should have informed the jury that the Commonwealth was required to prove beyond a reasonable doubt the requirements set forth in G. L. c. 119, § 54, including the defendant's qualifying age at the time of the offenses. See G. L. c. 119, § 54 ; Commonwealth v. Quincy Q., 434 Mass. 859, 866, 753 N.E.2d 781 (2001). The defendant did not object to the jury instruction as given, and did not request any additional instruction. Thus, we review to determine whether this error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999). See also Commonwealth v. Redmond, 53 Mass.App.Ct. 1, 6-7, 757 N.E.2d 249 (2001) (where defendant fails to object to jury instruction that omits element of crime, appellate court considers whether omission created substantial risk of miscarriage of justice).

We conclude that the judge's omission in her instruction to the jury does not warrant reversal. At the close of the case, the evidence showing that the defendant was between fourteen and seventeen years of age at the time of the offenses was so overwhelming that the defendant's age was not a contested issue at trial. See Quincy Q., 434 Mass. at 866, 753 N.E.2d 781. Indeed, the defendant himself presented documentary evidence that, at the time of the offenses, he was sixteen years old. Because there is no likelihood that the omitted instruction materially influenced the jury's verdicts, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Gabbidon, 398 Mass. 1, 5, 494 N.E.2d 1317 (1986) ("no harm accrues to a defendant if an error does not relate to an issue actively contested at trial").

3. Constitutionality of the sentence. The defendant was sentenced prior to the issuance of the United States Supreme Court's decision in Miller, 567 U.S. at 479, 132 S.Ct. 2455, and our decisions in Diatchenko, 466 Mass. at 667, 1 N.E.3d 270, and Perez I, 477 Mass. at 687, 80 N.E.3d 967.

In Miller, 567 U.S. at 479, 132 S.Ct. 2455, the Supreme Court held that the Eighth Amendment to the United States Constitution prohibits sentencing juveniles to mandatory sentences of life imprisonment without the possibility of parole. The Court explained that the sentencing judge must "have the ability to consider the mitigating qualities of youth" rather than imposing a mandatory sentence of life without parole (quotations and citation omitted). Id. at 476, 132 S.Ct. 2455. Three years later, in Diatchenko, 466 Mass. at 671, 1 N.E.3d 270, we held that art. 26, unlike its Federal counterpart, prohibits not only mandatory life sentences, but also discretionary juvenile sentences of life without the possibility of parole. After Diatchenko, supra, a juvenile sentenced to life without the possibility of parole would be eligible for parole after fifteen years. See Commonwealth v. Brown, 466 Mass. 676, 688-689, 1 N.E.3d 259 (2013), S.C., 474 Mass. 576, 52 N.E.3d 137 (2016).

In Perez I, 477 Mass. at 682-687, 80 N.E.3d 967, we considered whether art. 26 prohibits an aggregate term-of-years sentence for a juvenile convicted of nonhomicide offenses with a longer period of incarceration prior to eligibility for parole than that applicable to a juvenile convicted of murder. Applying the tripartite test established in Cepulonis v. Commonwealth, 384 Mass. 495, 497-499, 427 N.E.2d 17 (1981), we held that

"a juvenile defendant's aggregate sentence for nonmurder offenses with parole eligibility exceeding that applicable to a juvenile defendant convicted of murder is presumptively disproportionate. That presumption is conclusive, absent a hearing to consider whether extraordinary circumstances warrant a sentence treating the juvenile defendant more harshly for parole purposes than a juvenile convicted of murder."

Perez I, supra at 686, 80 N.E.3d 967. In determining whether extraordinary circumstances justify a longer period of incarceration prior to eligibility for parole, the judge must consider "(1) the particular attributes of the juvenile, including immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the family and home environment that surrounds [the juvenile] from which he cannot usually extricate himself; and (3) the circumstances of the ... offense, including the extent of [the juvenile's] participation in the conduct and the way familial and peer pressures may have affected him" (quotations omitted). Id., quoting Miller, 567 U.S. at 477, 132 S.Ct. 2455. Not every factor will necessarily be relevant in every case. A sentencing court exercising its discretion may afford whatever weight it reasonably determines appropriate to each Miller factor in light of the circumstances of the case. See Perez I, supra.

In Perez II, also decided today, we emphasized that under the individualized sentencing process outlined in Perez I, 477 Mass. at 686, 80 N.E.3d 967 :

"the criminal conduct alone is not sufficient to justify a greater parole eligibility period than is available for murder. The juvenile's personal and family history must also be considered independently; this consideration of the individual's personal and family history is also not the ordinary mitigation analysis associated with sentencing.... [B]oth the crime and the juvenile's circumstances must be extraordinary to justify a longer parole eligibility period."

Perez II, 480 Mass. at 569, 106 N.E.3d at 628. Although the Commonwealth need not show that "the defendant exhibited 'irretrievable depravity' or 'irreparable corruption,' " id. at 571, 106 N.E.3d at 630, the Commonwealth must prove "that the juvenile's personal characteristics make it necessary to delay parole eligibility for a time exceeding that available to juveniles convicted of murder." Id.In other words, "the Commonwealth must prove that there is no reasonable possibility of the juvenile's being rehabilitated within the time after which a juvenile convicted of murder becomes eligible for parole." Id.

The defendant in this case was sentenced to the mandatory twenty-year minimum sentence under the armed home invasion statute, G. L. c. 265, § 18C, without a Miller hearing. Because this is five years longer than the sentence applicable to a juvenile convicted of murder in 2001, the presumption announced in Perez I applies. See Perez I, 477 Mass. at 685, 80 N.E.3d 967 ("[t]here is a line between homicide and other serious violent offenses against the individual.... In the absence of extraordinary circumstances, ... this line must not be crossed to treat a juvenile convicted of a nonmurder offense, or multiple nonmurder offenses, more harshly than a juvenile convicted of murder" [quotations and citation omitted] ).

Where the mandatory minimum sentence imposed by statute exceeds the parole eligibility for murder, by definition, the sentencing judge is not afforded an opportunity to consider the Miller factors as they relate to imposing a sentence below the mandatory minimum. See Perez I, 477 Mass. at 686, 80 N.E.3d 967 (requiring individualized consideration of characteristics attendant to youth before imposing integrated sentence with resulting parole eligibility date in excess of that applicable for murder). Because the defendant's sentence was imposed without "a finding that the circumstances warrant treating the [defendant] more harshly for parole purposes than a juvenile convicted of murder," it is presumptively disproportionate under art. 26. Id. at 679, 80 N.E.3d 967. We therefore vacate the denial of the defendant's rule 30 motion. At resentencing, the judge may impose a committed sentence with parole eligibility in excess of fifteen years only after finding extraordinary circumstances under the factors identified in Perez I, and clarified in Perez II. In addition, because the defendant was sentenced in 2001, relevant evidence of the defendant's "particular attributes" of youth include evidence of postconviction rehabilitation, including any good behavior in prison since he was sentenced as a juvenile. This is consistent with "societal goals of punishment, deterrence, protection of the public, and rehabilitation" (quotations and citation omitted), Commonwealth v. Costa, 472 Mass. 139, 147, 33 N.E.3d 412 (2015), as well as the heightened capacity of juveniles for rehabilitation, Miller, 567 U.S. at 477-478, 132 S.Ct. 2455. See Pepper v. United States, 562 U.S. 476, 490-491, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (court may impose lesser sentence based on postconviction rehabilitation efforts). If the sentencing judge imposes a committed sentence, she may not impose a sentence below the minimum twenty-year sentence required by statute for armed home invasion. Nonetheless, the defendant would be eligible for parole after fifteen years absent a finding of extraordinary circumstances.

Conclusion. For the foregoing reasons, the order denying the defendant's rule 30 motion is vacated, and the matter is remanded to the Juvenile Court for resentencing consistent with this opinion.

So ordered.

      The defendant was adjudicated a youthful offender on indictments charging armed home invasion; assault and battery by means of a dangerous weapon (two counts); armed assault with intent to rob; assault by means of a dangerous weapon; and assault and battery.

      We acknowledge the amicus briefs submitted by the youth advocacy division of the Committee for Public Counsel Services, Children's Law Center of Massachusetts, Citizens for Juvenile Justice, and the Massachusetts Association of Criminal Defense Lawyers; and by the Boston Bar Association.

      Because Fulia Aiken and her father, Amhet Aiken, share a last name, we refer to them by their first names.

      The version of the youthful offender statute in effect at the time of the defendant's offenses defined a "youthful offender" as "a person who is subject to an adult or juvenile sentence for having committed, while between the ages of fourteen and seventeen, an offense against a law of the commonwealth." G. L. c. 119, § 52, as amended through St. 1996, c. 200, § 1. In 2013, the Legislature amended the definition of a "youthful offender" to a person "between the ages of fourteen and [eighteen]." G. L. c. 119, § 54, as amended through St. 2013, 84, § 8.

      We agree with the motion judge's conclusion that Fulia's testimony regarding the defendant's physical appearance, by itself, would have been insufficient to support the defendant's adjudication as a youthful offender. See Commonwealth v. Pittman, 25 Mass.App.Ct. 25, 27, 514 N.E.2d 857 (1987) (physical appearance may be considered as factor in discerning age, but judging age on physical appearance alone is not sufficient). However, Fulia's testimony, considered together with the fingerprint chart bearing the defendant's age, was sufficient to satisfy the Commonwealth's burden of proof on this element. We note that the motion judge did not have the benefit of the fingerprint chart bearing the defendant's age (exhibit no. 15) in ruling on the defendant's motion. After the defendant's trial, that exhibit was transferred to the Superior Court for the trial of codefendant Artem Vaskanyan. When the fingerprint chart was admitted at Vaskanyan's trial, the exhibit sticker identifying the chart as Juvenile Court exhibit no. 15 was covered with a Superior Court exhibit sticker.

      Under the juvenile disproportionality test announced in Perez I, 477 Mass. at 683-685, 80 N.E.3d 967, we examine first the "nature of the offense and the offender," with regard to the degree of danger present to society (citation omitted). Id. at 684, 80 N.E.3d 967. Second, a comparison is made of the challenged sentence with those imposed for juveniles convicted of more serious crimes. Id. Third, the challenged sentence is compared with those imposed for the same offense in other jurisdictions. Id. The unique characteristics of a juvenile defendant "weigh more heavily in the proportionality calculus" under art. 26. Id. at 683, 80 N.E.3d 967, citing Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 671, 1 N.E.3d 270 (2013), S.C., 471 Mass. 12, 27 N.E.3d 349 (2015).

      The Commonwealth contends that the defendant's sentence is not presumptively disproportionate under Perez I, 477 Mass. at 684, 80 N.E.3d 967, because, given the good conduct credits available at the time of the defendant's offenses, he would be eligible for parole after serving fourteen and one-half years. See G. L. c. 127, § 129D ; G. L. c. 127, § 133 ; 120 Code Mass. Regs. § 200.02(2) (1997). See also Commonwealth v. Brown, 431 Mass. 772, 774 & n.6, 730 N.E.2d 297 (2000). We disagree. Although the defendant's minimum twenty-year sentence under G. L. c. 265, § 18C, may be reduced for "good conduct credits," Perez I, supra, focuses on the parole eligibility date at the time of sentencing, not future computation of "good time." Moreover, good conduct programs are controlled by the Department of Correction, not the sentencing judge.

      A Juvenile Court judge has three dispositional choices after a defendant is adjudicated a youthful offender: (1) a sentence provided by law (i.e., an adult punishment for the offense); (2) a combination sentence consisting of a commitment to the Department of Youth Services (DYS) until the juvenile reaches the age of twenty-one followed by a suspended adult sentence; or (3) commitment to DYS until the age of twenty-one. G. L. c. 119, § 58, third par. See Commonwealth v. Samuel S., 476 Mass. 497, 503, 69 N.E.3d 573 (2017). We need not reach the issue, not argued or briefed by the parties, whether the so-called Truth in Sentencing Act, St. 1993, c. 432, § 11, which, inter alia, amended G. L. c. 127, § 133, to prohibit imposition of a suspended State prison sentence, bars the sentencing judge from imposing a combination sentence pursuant to G. L. c. 119, § 58, third par.


source: Caselaw Access Project

author: CYPHER, J.

license: Public Domain

text:
    COMMONWEALTH v. Richard GARDNER.
    SJC-12495
    Supreme Judicial Court of Massachusetts, Plymouth..
    Argued May 7, 2018. Decided September 14, 2018.
    Gail M. McKenna, Assistant District Attorney (Shanan L. Buckingham, Assistant District Attorney, also present) for the Commonwealth.
    Joseph M. Kenneally, for the defendant.
    David B. Hirsch, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
   CYPHER, J.

We are called upon once again to determine the scope of persons who the Commonwealth may lawfully seek to commit as sexually dangerous persons under G. L. c. 123A. General Laws c. 123A, § 12 (b ), authorizes the Commonwealth to file a petition to civilly commit a "prisoner or youth" deemed likely to be a "sexually dangerous person" (SDP), as that phrase is defined in G. L. c. 123A, § 1. "Prisoner" refers, in pertinent part, to a person who has previously been convicted of an enumerated sexual offense in § 1, and is presently in custody as a result of a criminal conviction. See Commonwealth v. Libby, 472 Mass. 93, 95-96, 32 N.E.3d 1247 (2015). We consider in this case whether "prisoner" includes an individual in the custody of, and serving a sentence in, another State. Applying the required narrow construction of the SDP statute, our answer is no. There can be no doubt that the Legislature intended SDP commitment to extend only to those prisoners who are in Massachusetts custody, serving a Massachusetts sentence, at the time the Commonwealth files a commitment petition under § 12 (b ).

When the Commonwealth filed the petition in this case, the defendant was serving a Rhode Island sentence, albeit in a Massachusetts prison, pursuant to his transfer under the New England Interstate Corrections Compact (NEICC). The NEICC is an agreement among the six New England States authorizing the transfer of inmates between correctional facilities in those States, in order to provide "for the confinement, treatment and rehabilitation of offenders with the most economical use of human and material resources." Under the NEICC, the defendant remains under the jurisdiction of Rhode Island, not Massachusetts, following his transfer to a Massachusetts prison -- meaning the transfer conferred upon the Commonwealth no greater authority to commit him than it possessed while the defendant was in Rhode Island, which is none. We affirm the motion judge's dismissal of the Commonwealth's petition.

Facts. The defendant, Richard Gardner, was convicted of several sexual assaults committed against four children in 1987 and 1988. The 1987 offense occurred when the defendant was twenty-one years old; he was charged with kidnapping and rape of a child in Massachusetts. While released on bail, in June and July of 1988, the defendant sexually assaulted three additional children in Massachusetts and Rhode Island. He was apprehended in Rhode Island, and in May, 1989, a Rhode Island jury found him guilty of sexual offenses and other crimes. He was ultimately sentenced in Rhode Island to fifty years in prison, with thirty years to serve and the balance suspended. Separately, in August, 1989, while in Rhode Island custody, the defendant pleaded guilty to the Massachusetts charges of kidnapping and child rape, stemming from the 1987 incident; for this he received a sentence of from ten to fifteen years in prison. In May, 1991, the defendant also pleaded guilty to Massachusetts charges for the sexual offenses he had committed in July, 1988, and received another sentence of from seven and one-half to ten years.

In April, 2004, Rhode Island released the defendant to the custody of the Massachusetts Department of Correction to serve the two Massachusetts sentences. Near the end of the defendant's sentences, the Plymouth County district attorney (district attorney) was notified of the defendant's impending release, but for reasons that are unclear, the district attorney failed at that time to petition to have the defendant civilly committed as a sexually dangerous person. In October, 2016, the defendant was released from Massachusetts custody to begin his probationary sentence in Rhode Island.

Eleven days after his release, the defendant was arrested in Quincy for violating a local bylaw that prohibits sex offenders from entering the public library. He was brought back to Rhode Island where he was found in violation of his probation and sentenced to one year in prison, with the balance of his probation to resume upon his release. In March, 2017, the district attorney contacted an administrator with the Massachusetts Department of Correction to inform him of the district attorney's ongoing efforts to "get [the defendant] back to" Massachusetts to secure "access to [the defendant] to file the [SDP] petition." With four weeks left to serve on his one-year Rhode Island sentence, the defendant was involuntarily transferred to Massachusetts, pursuant to the NEICC, to serve the remainder of his sentence. The day after the defendant's transfer from Rhode Island to Massachusetts, the Commonwealth filed the underlying petition in the Superior Court seeking his civil commitment as an SDP.

With the defendant's sentence set to expire on July 13, 2017, the Superior Court judge temporarily committed the defendant pending a probable cause determination. Later that month, the judge found probable cause to believe that the defendant was sexually dangerous, and continued his temporary commitment pending a psychological examination and trial. In August, 2017, the defendant moved to dismiss the petition, arguing that (1) the district attorney lacked the authority to file the petition because the defendant was not serving a Massachusetts sentence at the time it was filed, and (2) the defendant's transfer was invalid because it violated provisions of the NEICC. The judge granted the defendant's motion, agreeing that because the defendant was not serving a Massachusetts sentence, the district attorney lacked the authority to petition for the defendant's commitment. The judge stayed the defendant's release pending the Commonwealth's appeal, which entered in the Appeals Court in January, 2018, and was transferred, sua sponte, to this court in March. The defendant remains civilly committed in the Massachusetts Treatment Center, where he has been since the expiration of his Rhode Island sentence in July, 2017.

Discussion. General Laws c. 123A, § 12 (b ), provides:

"When the district attorney or the attorney general determines that the prisoner or youth ... is likely to be a sexually dangerous person as defined in [ § 1 ], the [prosecutor] ... may file a petition alleging that the prisoner ... is a sexually dangerous person ...."

"Prisoner or youth" are not defined terms in G. L. c. 123A. We have recognized, however, that those terms (as they are employed in § 12 [b ] ) are "plainly a shorthand reference" to "the three categories of persons for whom notice must be given of their impending release" under § 12 (a ), "and are limited in scope to those three categories." Libby, 472 Mass. at 95, 100, 32 N.E.3d 1247. See id. at 95, 32 N.E.3d 1247 ("It is plain from the statute that the relevant district attorney or the Attorney General may file an SDP petition only against a person who is included within the three categories of persons for whom notice must be given"). Under § 12 (a ), an "agency with jurisdiction" must notify "the district attorney of the county where the offense occurred and the attorney general six months prior to the release" of three categories of persons. These are "person[s] who [have] been convicted of a sexual offense," and are presently "in custody because of [1] a criminal conviction, [2] an adjudication as a delinquent juvenile or youthful offender, or [3] a judicial finding that the person is incompetent to stand trial." Libby, supra at 93, 32 N.E.3d 1247. See G. L. c. 123A, § 12 (a ). The Commonwealth contended that the defendant falls under the first category, as he was previously convicted of an enumerated sexual offense, and is currently in custody as a result of a conviction for violating his Rhode Island probation. In the Commonwealth's view, the fact that the defendant is not currently serving a Massachusetts sentence makes no difference concerning its authority to petition for his commitment in Massachusetts. Its position was that G. L. c. 123A confers the authority to file a petition against a person serving an out-of-State sentence anywhere in the country, so long as he or she previously committed a sex offense in Massachusetts. The defendant moved to dismiss, arguing in part that the Commonwealth lacks jurisdiction because he was not serving a Massachusetts sentence at the time the Commonwealth filed the petition. The Superior Court judge agreed, finding an absence of legislative intent that the SDP commitment scheme should extend to prisoners of other States. He also noted that "[t]he Commonwealth's interpretation would drastically expand the scope of the SDP statute, implicating due process concerns."

Because G. L. c. 123A is a statute in derogation of liberty, we must interpret its terms narrowly. Commonwealth v. Gillis, 448 Mass. 354, 357, 861 N.E.2d 422 (2007). This "more stringent analysis ... not only helps avoid possible constitutional due process problems ... but also helps ensure that individuals are not deprived of liberty without a clear statement of legislative intent to do so." Id., citing Commonwealth v. Nieves, 446 Mass. 583, 597-598, 846 N.E.2d 379 (2006). Accordingly, our courts have consistently declined to broaden the class of persons subject to SDP commitment in the absence of such a clear statement of legislative intent. Gillis, supra at 358, 861 N.E.2d 422, citing Commonwealth v. McLeod, 437 Mass. 286, 294, 771 N.E.2d 142 (2002). See, e.g., Gillis, supra at 354-355, 861 N.E.2d 422 (individuals not serving any criminal sentence and have no pending charges, but who are in State custody as result of civil commitment due to mental illness, not subject to SDP proceedings); Commonwealth v. Allen, 73 Mass. App. Ct. 862, 864, 903 N.E.2d 231 (2009) (individual who had completed criminal sentence, yet remained in custody solely due to clerical error, not "prisoner" subject to commitment); Coffin v. Superintendent, Mass. Treatment Ctr., 458 Mass. 186, 187, 936 N.E.2d 418 (2010) (Commonwealth may not petition for commitment of individual incarcerated for violating terms of sentence imposed under unconstitutional statute); Libby, 472 Mass. at 100, 32 N.E.3d 1247 (persons previously convicted of sexual offense who are currently in custody awaiting trial not subject to SDP commitment).

In support of its position that a § 12 (b ) petition may be filed against an out-of-State prisoner, the Commonwealth cites the plain language of the statute, which permits a commitment petition to be filed against a "prisoner," without any qualifier. The Legislature never restricted § 12 (b ) solely to "Massachusetts prisoners," the Commonwealth argues, and by imposing such a limitation the motion judge effectively rewrote the statute, by inserting the word "Massachusetts." The Commonwealth suggests that the all-purpose definition of "prisoner" is contained in G. L. c. 125, § 1 (m ), which defines that term as "a committed offender and such other person as is placed in custody in a correctional facility in accordance with law." Gardner fits these definitions, the Commonwealth posits, as he was found in violation of his Rhode Island probation, Rhode Island sentenced him to one year in prison, and he is presently in custody serving that sentence in a correctional facility.

Our cases make clear, however, that "[i]n determining eligibility for civil commitment, the fact of custody alone is not determinative.... Nor is it enough that an individual is serving a sentence." Coffin, 458 Mass. at 189, 936 N.E.2d 418, citing Allen, 73 Mass. App. Ct. at 864, 903 N.E.2d 231. Likewise, this court rejected the Commonwealth's argument that the definition of "prisoner" in G. L. c. 125, § 1 (m ), applies in the SDP context over a decade ago, in Gillis, 448 Mass. at 358-359, 861 N.E.2d 422. See Allen, 73 Mass. App. Ct. at 864, 903 N.E.2d 231, citing Gillis, supra ("the Supreme Judicial Court has held that the definition of 'prisoner' contained in G. L. c. 125, § 1 (m ), ... is not to be used for G. L. c. 123A, § 12 [b ]"). There we observed that G. L. c. 125, § 1, states that its definitions shall apply "unless the context otherwise requires," and we held that "the context of the SDP statute" -- a statute in derogation of liberty -- "requires a construction of 'prisoner' that is no broader than its ordinary usage." Gillis, supra at 359, 861 N.E.2d 422. Accordingly, the court adopted, for purposes of deciding that case, the more narrow, dictionary definition of "prisoner," which is "an individual who is either serving a criminal sentence or awaiting trial." Id. at 358-259, 861 N.E.2d 422 citing 12 Oxford English Dictionary 513 (2d ed. 1989).

Examining § 12 (b ) in its proper context, and as part of G. L. c. 123A as a whole, see Commonwealth v. Poissant, 443 Mass. 558, 563, 823 N.E.2d 350 (2005) (we interpret SDP statute "as a whole to produce an internal consistency" [citation omitted] ), we discern no legislative intent to commit out-of-State prisoners. To the contrary, the several provisions of G. L. c. 123A that make up the commitment procedure evince a legislative recognition that the Commonwealth may only commit those within its own custody. Under § 12 (a ), which informs our understanding of "prisoner or youth" in § 12 (b ), see Libby, 472 Mass. at 95, 32 N.E.3d 1247, and which represents the first step in the commitment process, see Nieves, 446 Mass. at 586, 846 N.E.2d 379, an "agency with jurisdiction" over the person named in the petition "shall notify in writing" the relevant district attorney and the Attorney General six months prior to the prisoner's release, and "shall also identify those prisoners ... who have a particularly high likelihood of meeting the criteria for a sexually dangerous person." See Commonwealth v. Kennedy, 435 Mass. 527, 530, 762 N.E.2d 794 (2001) ("The word 'shall' in this context, where substantive rights are involved, indicates that the action is mandatory. This imperative is at its strongest in such cases"). "Agency with jurisdiction" is defined as "the agency with the authority to direct the release of a person presently incarcerated, confined, or committed." G. L. c. 123A, § 1.

Under the Commonwealth's interpretation, in the case of an out-of-State prisoner, § 12 (a ) would constitute a directive from Massachusetts to an agency of another State (for that State would possess "the authority to direct the release of [the] [prisoner]," § 1 ), to undertake such tasks as an analysis of Massachusetts law. We decline to interpret G. L. c. 123A in this manner, because legally and practically, the Legislature is powerless to impose such obligations on another State. See, e.g., New York Life Ins. Co. v. Head, 234 U.S. 149, 161, 34 S.Ct. 879, 58 L.Ed. 1259 (1914) ("it would be impossible to permit the statutes of [one State] to operate beyond the jurisdiction of that State ... without throwing down the constitutional barriers by which all the States are restricted within the orbits of their lawful authority and upon the preservation of which the Government under the Constitution depends").

The Commonwealth's argument fares no better even if it took the more narrow position that although SDP petitions generally cannot be filed against out-of-State prisoners, the defendant is in fact a Massachusetts prisoner due to his transfer to a Massachusetts correctional institution under the NEICC. The NEICC states that "[i]nmates confined in an institution pursuant to the terms of this compact shall at all times be subject to the jurisdiction of the sending state and may at any time be removed therefrom for transfer to a prison or other institution within the sending state ...." This provision is incorporated into the Federal and Interstate Compact policies and procedures of the Department of Correction. See 103 DOC 419.09 (2017) ("[i]nmates confined in an institution pursuant to the provisions of the [NEICC] shall be subject to the jurisdiction of the sending state"). Even in these circumstances, then, the "agency with jurisdiction" over the defendant remained a Rhode Island agency, not the Massachusetts Department of Correction. Likewise, the purpose of the six-month notice requirement in § 12 (a ) is to ensure "that the Commonwealth will be in a position to complete most, if not all, of the G. L. c. 123A proceedings before the inmate's discharge." Kennedy, 435 Mass. at 530-531, 762 N.E.2d 794. This cannot reasonably apply to prisoners such as the defendant who are transferred under the NEICC, because the agreement states that they can be removed from the Commonwealth "at any time." We applied the same reasoning in Libby to reject the Commonwealth's argument that a § 12 (b ) petition may be filed against a person held in custody before trial solely due to an inability to post bail. See Libby, supra at 99, 32 N.E.3d 1247 ("Such a notice requirement reasonably could not be applied to a person who is in custody only because of an inability to post bail, who could obtain immediate release upon posting bail.... If the Legislature had contemplated that an SDP petition could be filed after a person's arrest while that person was in custody awaiting a bail determination or seeking the funds to post bail, it would have recognized this possibility in its notice provision").

That the Legislature intended SDP commitment to extend only to those "prisoner[s] or youth[s]" within Massachusetts custody is further demonstrated by the other procedural components of G. L. c. 123A. After notice under § 12 (a ), and the filing of the § 12 (b ) petition, the court holds a hearing under § 12 (c ) to determine whether there is probable cause to believe that the person named in the petition is sexually dangerous. Here the Legislature specified that the prisoner "shall be provided ... an opportunity to appear in person" at the hearing, which would generally be impossible if he or she were in the custody of another State.

Likewise, G. L. c. 123A, §§ 12 (e ), 13 (a ), and 14 (a ), authorize the temporary commitment of the person named in the petition for the course of commitment proceedings; in particular, § 13 (a ) directs that the individual "shall" be held for the purposes of psychological examination and trial. This provision assumes that the Commonwealth has access to the person named in the petition, which, in the case of an out-of-State prisoner, would be possible only through the cooperation of another State sending its prisoner to Massachusetts, before the prisoner has completed his or her sentence in that State, for indefinite commitment here. It makes no sense that the Legislature would employ the word "shall" in this context, to impose several procedural requirements that in reality could only happen for out-of-State prisoners through the voluntary (and perhaps unlikely) act of another sovereign. The far more sensible interpretation, and the one that gives greatest effect to the terms of G. L. c. 123A, is that the Legislature intended SDP commitment to extend only to those "prisoner[s] or youth[s]" already in the Commonwealth's custody, serving a sentence here, when the § 12 (b ) petition is filed. See Chin v. Merriot, 470 Mass. 527, 537, 23 N.E.3d 929 (2015) ("we give effect to all words of a statute, assuming none to be superfluous" [quotations and citation omitted] ).

We note finally that this limitation is also necessary from a jurisdictional standpoint. If the Commonwealth is to deprive an individual of his or her liberty "for an indeterminate period of a minimum of one day and a maximum of such person's natural life," as the SDP statute provides, see G. L. c. 123A, § 14 (d ), there must be some jurisdictional basis -- a nexus to Massachusetts -- for that act. See, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011) ("As a general rule" under due process clause, "neither statute nor judicial decree may bind strangers to the State"). In the Superior Court, the Commonwealth argued that this nexus is established by a requirement that a prisoner has previously committed a sexual offense in Massachusetts. As the Superior Court judge explained, "the Commonwealth's position is that Chapter 123A confers the authority to file a petition against a prisoner serving an out of state sentence anywhere in the country, as long as he committed a sex offense in the Commonwealth at some point in the past". Although on the particular facts of this case, the defendant committed several sexual offenses in Massachusetts, that is not a prerequisite to his eligibility for commitment under the scheme enacted by the Legislature. In defining "sexual offense" -- the principal predicate for consideration as an SDP -- the Legislature included not only Massachusetts offenses, but also "like violation[s] of the laws of another state, the United States, or a military, territorial or Indian tribal authority." G. L. c. 123A, § 1. Were we to agree with the Commonwealth that G. L. c. 123A permits the commitment of out-of-State prisoners, in addition to those who have previously committed solely out-of-State sexual offenses, as the Legislature has already provided, the result would be that § 12 (b ) petitions could be filed against individuals with no connection to Massachusetts whatsoever. That cannot be the case if G. L. c. 123A is to comport with due process. See Commonwealth v. Lamb, 365 Mass. 265, 269, 311 N.E.2d 47 (1974) ("We must construe [G. L. c. 123A], if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score" [quotations and citation omitted] ).

Conclusion. We affirm the Superior Court judge's dismissal of the petition, and remand the case for proceedings consistent with this opinion.

So ordered.

      The defendant was originally sentenced to 190 years in prison, but in 1992 his Rhode Island convictions were reversed; he pleaded guilty to the same charges in 1993 and received the revised fifty-year sentence.

      While in Rhode Island custody, the defendant sued the Massachusetts commissioner of correction, in an unsuccessful attempt to receive credit against his Massachusetts sentences for the time he had served in Rhode Island. See Gardner v. Commissioner of Correction, 56 Mass. App. Ct. 31, 33-34, 775 N.E.2d 426 (2002).

      Because the defendant is a Massachusetts resident, his Rhode Island probation was transferred to the Superior Court in Norfolk County for supervision.

      We acknowledge the brief submitted by amicus curiae, the Committee for Public Counsel Services.

      "Sexually dangerous person" is defined, in pertinent part, as "any person who has been [ ] convicted of ... a sexual offense" enumerated in § 1, "and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility." G. L. c. 123A, § 1.
      "Sexual offense" is defined to include a host of enumerated sexual offenses under Massachusetts law, "or a like violation of the laws of another state, the United States or a military, territorial, or Indian tribal authority; and any other offense, the facts of which, under the totality of the circumstances, manifest a sexual motivation or pattern of conduct or series of acts of sexually-motivated offenses." Id.

      Section 12 (a ) describes the three categories of persons for whom notice must be given as "(1) 'a person who has ever been convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense as defined in [§ 1 ], regardless of the reason for the current incarceration, confinement or commitment'; (2) a person charged with such sexual offense who 'has been found incompetent to stand trial,' and (3) a person charged with 'any offense,' who 'is currently incompetent to stand trial,' and who 'has previously been convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense.' " Commonwealth v. Libby, 472 Mass. 93, 95, 32 N.E.3d 1247 (2015), quoting G. L. c. 123A, § 12 (a ). As mentioned, this court clarified in Libby that § 12 (a ) also defines "the three categories of persons ... who are subject to the filing of an SDP petition." Id. at 100, 32 N.E.3d 1247. Narrowly construing the statute, the court held that an SDP petition under § 12 (b ) may be filed "against a person who has been convicted of a sexual offense only where the person is in custody because of a criminal conviction, an adjudication as a delinquent juvenile or youthful offender, or a judicial finding that the person is incompetent to stand trial." Id. at 93, 32 N.E.3d 1247. Necessarily, this also means that these are the three categories of persons for whom notice must be given under § 12 (a ) -- and hence, we articulate these three categories using the language from Libby, rather than the literal language of § 12 (a ). It is also important to note that the court's interpretation in Libby was based in part on its explanation that the phrase in § 12 (a ), "regardless of the reason for the current incarceration, confinement or commitment," was intended only to "allow an SDP petition to be filed against a person convicted of a sexual offense who was serving a sentence for a nonsexual offense, or who was found incompetent to stand trial on a nonsexual offense." Libby at 97, 32 N.E.3d 1247.

      The Commonwealth conceded in the Superior Court that the defendant's transfer to Massachusetts under the NEICC did not transform his Rhode Island probation sentence into a Massachusetts sentence.

      "Committed offender" is defined as "a person convicted of a crime and committed, under sentence, to a correctional facility." G. L. c. 125, § 1 (c ). "Correctional facility" refers to "any building ... used for the custody, control and rehabilitation of committed offenders and of such other persons as may be placed in custody therein in accordance with law."G. L. c. 123A, § 1 (d ).

      Subsequently, in Libby, 472 Mass. at 99-100, 32 N.E.3d 1247, we clarified that our adoption of the dictionary definition of "prisoner" was for purposes of deciding the issue in Commonwealth v. Gillis, 448 Mass. 354, 358-359, 861 N.E.2d 422 (2007), and that persons in custody "awaiting trial" are not in fact subject to commitment under G. L. c. 123A. "[I]t would be unreasonable to strip the words 'prisoner or youth' from their context in § 12 (b ), apply their dictionary definitions, and conclude that the Legislature intended that a district attorney may file an SDP petition against any prisoner or youth, as those words are commonly used." Libby, supra at 100, 32 N.E.3d 1247.

      Although the Commonwealth's position in the Superior Court was that the defendant's transfer to Massachusetts under NEICC was irrelevant to its authority to petition for his commitment here, at oral argument before this court, the Commonwealth seemed to agree that had the defendant remained in Rhode Island and finished serving his sentence there, the Commonwealth would be powerless to initiate commitment proceedings against him.


author: GANTS, C.J.

text:
    COMMONWEALTH v. Joshua ROSADO.
    SJC-12467
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued May 7, 2018 Decided September 14, 2018
    Katherine E. McMahon, Assistant District Attorney, for the Commonwealth.
    Michelle A. Dame, Springfield, for the defendant.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
   GANTS, C.J.

The issue on appeal concerns the scope of the doctrine of forfeiture by wrongdoing. In Commonwealth v. Edwards, 444 Mass. 526, 540, 830 N.E.2d 158 (2005), we held that a defendant forfeits the right to object to the admission in evidence of an unavailable witness's out-of-court statements on both confrontation and hearsay grounds if the Commonwealth proves by a preponderance of the evidence 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." We conclude that, on the facts of this case, the Commonwealth has failed to meet its burden of proving any of the three elements articulated in Edwards. See Mass. G. Evid. § 804(b)(6) (2018).

Specifically, as to the first element, a witness who has been served with out-of-State process and ordered to appear at a trial in Massachusetts is not unavailable simply because the witness has informed the prosecutor that he or she does not want to testify. As to the second element, the defendant was not involved in, or responsible for, procuring the unavailability of the witness where the defendant attempted, albeit unsuccessfully, to intimidate the witness from testifying against a friend of the defendant in a murder case, but did nothing to cause her to be unavailable in the witness intimidation case against himself. As to the third element, the defendant's intent to intimidate the witness to make her unavailable to testify against his friend in the earlier murder case, even if proved by a preponderance of the evidence, does not suffice to prove that the defendant acted with the intent to procure the witness's unavailability as a potential witness against the defendant regarding his acts of intimidation. Consequently, we affirm the motion judge's denial of the Commonwealth's motion in limine to admit in evidence the grand jury testimony of the witness and her transcribed interview with State police troopers.

1. Background. The following facts were either stipulated to by the parties or are undisputed.

The defendant, Joshua Rosado, is the former boy friend of the witness, Shakira Ortiz, and the father of her young daughter. On December 3, 2015, a Hampden County grand jury indicted Jean C. Mercado for murder and other crimes. Ortiz was a key witness for the prosecution in that case, and the defendant was a friend of Mercado.

On February 7, 2017, the day before Mercado's trial began, Ortiz was interviewed by two State police troopers regarding communications she had received from the defendant. Ortiz stated that a friend had privately sent her messages on Facebook, a social networking Web site, regarding certain public messages that the defendant had "posted" on Facebook about Ortiz. One posted message stated: "My baby mom is out here on the bracelet jumping from house to house with my daughter. And she's a rat at that. Like how you snitching on me, gonna shake my head. Can't trust nobody. Fact, had this trifling bitch around for so many years and I didn't know she was an undercover rat." A second posted message stated: "I'll give someone 200 to beat the fuck out of my baby mom when y'all see her or I'll bring her to -- or I'll bring you to her right now." The defendant urged her not to testify against Mercado, and told her that she should lie to the police so that she would not have to testify. Ortiz stated that she had telephoned the defendant after she learned of these Facebook messages, and that he responded by threatening to hit her every time he saw her. She said that these Facebook messages made her "[e]mbarassed" and "[s]cared," and that she was afraid to walk around Springfield and run the risk of encountering the defendant. Ortiz did testify at Mercado's trial, but the jury found Mercado not guilty on all charges.

On April 20, 2017, a Hampden County grand jury indicted the defendant on one count of intimidation of a witness (Ortiz), in violation of G. L. c. 268, § 13B. On November 13, 2017, the Commonwealth moved in limine to admit in evidence Ortiz's recorded interview with the State police troopers and her grand jury testimony under the doctrine of forfeiture by wrongdoing, in lieu of Ortiz's testimony at the defendant's trial.

The prosecutor attested that Ortiz now resides outside Massachusetts and had been subpoenaed and ordered to appear in court, pursuant to G. L. c. 233, § 13B, for the defendant's trial on November 14, 2017. However, on October 31, 2017, Ortiz told the prosecutor during a telephone call that she was not going to testify at trial because she was fearful for the safety of herself and her daughter. Ortiz had informed a number of individuals, including the prosecutor, that the defendant had not "bothered" her since he was arrested on the witness intimidation charge, and that she was no longer afraid of the defendant. But Ortiz believed that the Facebook messages that the defendant had posted created a safety risk for her from known and unknown individuals, and that she feared retribution from Mercado and his associates if she returned to Springfield. At the motion hearing, the prosecutor informed the judge that he "was under the impression" that Ortiz, if forced to return to Springfield to testify, would refuse to testify and risk being held in contempt.

On November 28, 2017, the motion judge issued a written memorandum of decision denying the Commonwealth's motion in limine. The judge, citing Edwards, noted that, "[h]ere, the Commonwealth must prove by a preponderance of the evidence that[,] through the defendant's intimidation of the witness to prevent her from testifying in a prior case against one of his associates, he also had the intent of procuring her unavailability in the present proceeding against him for those same acts of intimidation." The judge concluded that the Commonwealth had not met that burden, declaring that "[t]he Commonwealth has not presented evidence that the defendant intended to intimidate the witness in order to prevent her from testifying against him in the future for that same intimidation, or for any other future charges against him."

The Commonwealth petitioned for relief under G. L. c. 211, § 3, from the judge's order denying the Commonwealth's motion in limine. The single justice reserved and reported the matter to the full court.

2. Discussion. The doctrine of forfeiture by wrongdoing balances a criminal defendant's rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights to confront the witnesses against him or her, see Commonwealth v. Greineder, 464 Mass. 580, 589, 984 N.E.2d 804, cert. denied, 571 U.S. 865, 134 S.Ct. 166, 187 L.Ed.2d 114 (2013), with the equitable principle that a defendant should not benefit from his or her wrongdoing in making a witness unavailable to be confronted. See Reynolds v. United States, 98 U.S. 145, 159, 25 L.Ed. 244 (1878) ("the rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong"); United States v. Houlihan, 92 F.3d 1271, 1282-1283 (1st Cir. 1996), cert. denied, 519 U.S. 1118, 117 S.Ct. 963, 136 L.Ed.2d 849 (1997) (doctrine "ensure[s] that a wrongdoer does not profit in a court of law by reason of his miscreancy").

In 1878, the United States Supreme Court established the doctrine of forfeiture by wrongdoing, declaring, "The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away." Reynolds, 98 U.S. at 158. See Crawford v. Washington, 541 U.S. 36, 62, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (doctrine of forfeiture by wrongdoing "extinguishes" criminal defendant's right to confrontation under Sixth Amendment).

In 2005, we adopted the doctrine of forfeiture by wrongdoing and concluded that a defendant, by his or her wrongdoing, may also forfeit his or her right under art. 12 and our common-law rules of evidence to object to the admission of hearsay evidence. See Edwards, 444 Mass. at 536, 830 N.E.2d 158. We held that the Commonwealth must prove three elements by a preponderance of the evidence 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." Id. at 540, 830 N.E.2d 158. See Mass. G. Evid. § 804(b)(6) (incorporating common-law doctrine of forfeiture by wrongdoing articulated in Edwards as exception to general rule barring admission of hearsay evidence). Whether the Commonwealth has proved these three elements by a preponderance of the evidence is a preliminary question of fact on the admissibility of evidence that is decided by a judge. See Mass. G. Evid. § 104(a) (2018).

"A defendant's involvement in procuring a witness's unavailability need not consist of a criminal act" -- the "wrongdoing" in the doctrine of forfeiture by wrongdoing is simply the intentional act of making the witness unavailable to testify or helping the witness to become unavailable. See Edwards, 444 Mass. at 540-542, 830 N.E.2d 158. For example, where a defendant actively assists a witness's efforts to avoid testifying, with the intent to keep that witness from testifying, forfeiture by wrongdoing may be established "regardless of whether the witness already decided 'on [her] own' not to testify." Id. at 541, 830 N.E.2d 158. See Commonwealth v. Szerlong, 457 Mass. 858, 864-865, 933 N.E.2d 633 (2010), cert. denied, 562 U.S. 1230, 131 S.Ct. 1494, 179 L.Ed.2d 324 (2011) (forfeiture by wrongdoing applies where defendant who was accused of assaulting his girl friend married her with intent to enable her to claim spousal privilege and thereby avoid testifying against defendant).

A defendant does not forfeit his or her right to object to the admission of evidence on confrontation or hearsay grounds simply by causing a witness's unavailability; the defendant must also intend to prevent the witness from testifying against him or her. See Giles v. California, 554 U.S. 353, 361-362, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). In Giles, the defendant allegedly killed his former girl friend approximately three weeks after he had accused her of infidelity, assaulted her, and threatened to kill her if he found her cheating on him. See id. at 356-357, 128 S.Ct. 2678. Even though the defendant's killing of her inevitably made her unavailable to testify at the trial regarding her murder, the Court declined to admit in evidence under the doctrine of forfeiture by wrongdoing the prior statements of the girl friend to law enforcement regarding the physical abuse she suffered at the hands of the defendant. See id. at 368, 128 S.Ct. 2678. But if the defendant in Giles had killed his former girl friend with the intent to prevent her from cooperating with law enforcement in an investigation of his prior assaults, or with the intent to prevent her from testifying against him with respect to those assaults, then her prior statements to law enforcement may have been admissible under the doctrine. See id. at 377, 128 S.Ct. 2678.

Here, the Commonwealth claims that the defendant's intent to prevent Ortiz from testifying in the murder trial against Mercado should suffice as the intent needed to invoke the doctrine of forfeiture by wrongdoing at the witness intimidation trial against the defendant. We decline to adopt such an expansion of the doctrine. A defendant forfeits his right to object to otherwise inadmissible hearsay solely as a result of his own wrongdoing in seeking to prevent a witness from testifying against him, not against a third party in another proceeding. See, e.g., Giles, 554 U.S. at 361, 128 S.Ct. 2678, quoting E. Powell, The Practice of the Law of Evidence 166 (1858) (forfeiture rule applied when witness "had been kept out of the way by the prisoner, or by some one on the prisoner's behalf, in order to prevent him from giving evidence against him" [emphasis added] ); United States v. Thompson, 286 F.3d 950, 962 (7th Cir. 2002), cert. denied, 537 U.S. 1134, 123 S.Ct. 918, 154 L.Ed.2d 824 (2003) ("[t]he primary reasoning behind" rule of forfeiture by wrongdoing is "to deter criminals from intimidating or 'taking care of' potential witnesses against them" [emphasis added] ).

The equitable principle at the heart of the doctrine of forfeiture by wrongdoing is that a defendant should not be able to benefit from the unavailability of a witness at his own trial where the defendant caused the witness to be unavailable. A defendant's attempt to make the witness unavailable at another trial that did not involve the defendant does not warrant forfeiting the fundamental "bedrock procedural guarantee" of an accused to be confronted with the witnesses against him, see Crawford, 541 U.S. at 42, 124 S.Ct. 1354, citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), because the defendant does not benefit from the unavailability of the witness at another person's trial. In the context of this case, the defendant would not benefit if he had successfully intimidated Ortiz from testifying against Mercado at the murder trial; the defendant would benefit only if he had prevented Ortiz from testifying against him at his witness intimidation trial. If the defendant had attempted to prevent Ortiz from testifying against him at his intimidation trial, then the doctrine might have applied if the other elements in Edwards were satisfied. But there is no evidence in the record before us that the defendant intended anything more than to prevent Ortiz from testifying against Mercado, and that does not suffice to establish the intent required for invoking the doctrine of forfeiture by wrongdoing in the defendant's trial. We are aware of no case in which the doctrine of forfeiture by wrongdoing has been applied where a defendant did not seek, alone or with others, to prevent a witness from testifying against him, and the Commonwealth has cited no such case. The Commonwealth relies for support primarily on United States v. Gray, 405 F.3d 227, 230-233 (4th Cir.), cert. denied, 546 U.S. 912, 126 S.Ct. 275, 163 L.Ed.2d 245 (2005), where the defendant was charged with mail fraud and wire fraud for her fraudulent receipt of life insurance proceeds following the deaths of her second husband and a former lover. The evidence in Gray demonstrated that the defendant shot and killed her second husband after he had brought criminal charges against her for assault, and that she received monies as the beneficiary of his life insurance policy. See id. at 231-232. The defendant challenged the admission of her deceased husband's prior statements under Fed. R. Evid. 804(b)(6), which codifies the Federal common-law doctrine of forfeiture by wrongdoing. See id. at 241. The defendant argued that the rule should not apply because the evidence showed that she did not intend, by killing her husband, to make him unavailable as a witness in a trial accusing her of fraudulently obtaining the proceeds of his life insurance policy. See id. The court rejected her argument, noting that the evidence showed that she had killed her husband to make him unavailable as a witness in a trial accusing her of assault, and declaring that "[a] defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding" (emphasis added). Id. at 242. The Commonwealth argues that this case supports the proposition that the doctrine of forfeiture by wrongdoing is not limited to the proceeding that was the focus of the defendant's attempt to make the witness unavailable to testify.

The court in Gray, however, made clear that the Federal rule would apply only when "the defendant's wrongdoing was intended to, and did, render the declarant unavailable as a witness against the defendant" (emphasis added). Id. at 241. Indeed, the court specifically declared, "We emphasize that the intent requirement in Rule 804(b)(6) continues to limit application of the forfeiture-by-wrongdoing exception to those cases in which the defendant intended, at least in part, to render the declarant unavailable as a witness against him" (emphasis added). Id. at 242 n.9. Because there is no evidence in this case that the defendant intended to make Ortiz unavailable as a witness against him, we need not reach the issue whether our common-law doctrine of forfeiture by wrongdoing would apply where a defendant renders a declarant unavailable as a witness in "any proceeding" against that defendant. See id. at 242.

We therefore conclude that the judge did not err in ruling that the doctrine of forfeiture by wrongdoing did not apply in this case because the Commonwealth failed to prove by a preponderance of the evidence that the defendant intended to make Ortiz unavailable as a witness against him. Having found that the Commonwealth failed to prove the third element of forfeiture by wrongdoing required under Edwards, 444 Mass. at 540, 830 N.E.2d 158, the judge did not address (and did not need to address) whether the Commonwealth had met its burden of proving the first two elements. We address them here, and conclude that the Commonwealth also failed to prove these two elements by a preponderance of the evidence.

Forfeiture by wrongdoing requires the Commonwealth to demonstrate that the witness is unavailable. See Edwards, 444 Mass. at 540, 830 N.E.2d 158. A declarant is considered to be unavailable as a witness if, as relevant here, the declarant "is absent from the trial or hearing and the statement's proponent has not been able to procure the declarant's attendance by process or other reasonable means," Mass. G. Evid. § 804(a)(5), or if the declarant "is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies," Mass. G. Evid. § 804(a)(1). Here, after Ortiz was served with out-of-State process and ordered to come to Massachusetts to testify, she informed the prosecutor that she did not want to return. But there is nothing in the record to indicate that the Commonwealth was unable to compel her appearance. Moreover, there is nothing in the record to indicate that Ortiz has invoked any privilege that would exempt her from testifying, or that she has any valid privilege that she could reasonably invoke. We need not decide here whether to adopt Proposed Mass. R. Evid. 804(a)(2), which, like Fed. R. Evid. 804(a)(2), treats a witness as "unavailable" if the witness "persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so," see Advisory Committee's Note to Proposed Mass. R. Evid. 804(a)(2), because the only indication in the record that Ortiz would refuse to testify and risk being held in contempt is the prosecutor's assertion that he "was under the impression" that she would do so. See Commonwealth v. Fisher, 433 Mass. 340, 355, 742 N.E.2d 61 (2001) (noting that "we have not yet adopted" Proposed Mass. R. Evid. 804[a][2] ). See also Opinion of the Justices, 406 Mass. 1201, 1211, 547 N.E.2d 8 (1989) ("We do not ... equate a refusal to testify ... with that measure of necessity which we have held permits the use of prior testimony"). But see Commonwealth v. Pittman, 60 Mass.App.Ct. 161, 170, 800 N.E.2d 322 (2003) (witness unavailable where "defense counsel made timely service of a subpoena upon [defense witness,] which she ignored in favor of attending a family funeral"). On this record, the Commonwealth did not meet its burden of proving that Ortiz was unavailable as a witness.

Even if Ortiz were an unavailable witness, the Commonwealth failed to meet its burden of proving that the defendant was involved in, or responsible for, procuring her unavailability. See Edwards, 444 Mass. at 540, 830 N.E.2d 158. There is no evidence that the defendant has taken any action to cause Ortiz not to testify against him in the witness intimidation case. She informed the prosecutor, among other individuals, that the defendant had not "bothered" her since he was arrested on the witness intimidation charge, and that she no longer feared him. Rather, she feared retribution from Mercado and his associates as a result of testifying at Mercado's murder trial. We do not question the sincerity of her fear, but she does not point to the defendant as the cause of her fear.

3. Conclusion. For the foregoing reasons, we affirm the judge's order denying the Commonwealth's motion in limine to admit Ortiz's out-of-court statements in evidence, pursuant to the doctrine of forfeiture by wrongdoing.

So ordered.

      The Commonwealth filed an impounded motion, pursuant to G. L. c. 233, § 13B, of the Uniform Law to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings to secure the attendance of Shakira Ortiz. Following a hearing in a court in the State where Ortiz currently resides, Ortiz was ordered by that court to appear in Massachusetts for the defendant's trial, despite her testimony that she was afraid to return to Massachusetts.

      The defendant contends that the Commonwealth has failed to establish exceptional circumstances sufficient to justify the extraordinary relief available under G. L. c. 211, § 3. "We bypass the issue, however, because where a single justice reserves decision and reports a case to the full court, we grant full appellate review of the matters reported." Charbonneau v. Presiding Justice of the Holyoke Div. of the Dist. Court Dep't, 473 Mass. 515, 518, 43 N.E.3d 712 (2016). We add that it is appropriate to exercise our powers under G. L. c. 211, § 3, to address questions reserved and reported by a single justice which "involve matters of great import not only to the defendant but also to the Commonwealth," Blaisdell v. Commonwealth, 372 Mass. 753, 755, 364 N.E.2d 191 (1977), keeping in mind that "we can and should act 'at whatever stage in the proceedings it becomes necessary to protect substantive rights.' " Id., quoting Myers v. Commonwealth, 363 Mass. 843, 844, 298 N.E.2d 819 (1973).

      In 2010, we added a fourth element for the admission of otherwise inadmissible hearsay -- the hearsay must be reliable. See Commonwealth v. Szerlong, 457 Mass. 858, 866, 933 N.E.2d 633 (2010), cert. denied, 562 U.S. 1230, 131 S.Ct. 1494, 179 L.Ed.2d 324 (2011). We noted that, "[e]ven 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," and "due process requires that any hearsay admitted against the defendant be reliable." Id. See Commonwealth v. Edwards, 444 Mass. 526, 540 n.21, 830 N.E.2d 158 (2005) ("There may be some statements so lacking in reliability that their admission would raise due process concerns").

      The Supreme Court noted, in a plurality opinion, that "[t]he manner in which the [forfeiture by wrongdoing doctrine] was [historically] applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying -- as in the typical murder case involving accusatorial statements by the victim -- the testimony was excluded unless it was confronted or fell within the dying-declarations exception. Prosecutors do not appear to have even argued that the judge could admit the unconfronted statements because the defendant committed the murder for which he was on trial." (Emphasis in original.) Giles v. California, 554 U.S. 353, 361-362, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).

      A plurality of the Court in Giles further noted that "[a]cts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions." Giles, 554 U.S. at 377, 128 S.Ct. 2678. They invited the trial judge to consider on remand that, "[w]here such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution -- rendering her prior statements admissible under the forfeiture doctrine." Id. Highly relevant to this inquiry would be "[e]arlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help," as well as "evidence of ongoing criminal proceedings at which the victim would have been expected to testify." Id.

      We need not decide in this case whether our doctrine of forfeiture by wrongdoing may be invoked where a defendant causes a witness to be unavailable through murder or intimidation during a pending criminal investigation of the defendant, where the defendant intends to prevent the witness from testifying, and where it was "reasonably foreseeable that the investigation [would] culminate in the bringing of charges" against the defendant. See United States v. Burgos-Montes, 786 F.3d 92, 115 (1st Cir.), cert. denied, --- U.S. ----, 136 S.Ct. 599, 193 L.Ed.2d 479 (2015), quoting United States v. Houlihan, 92 F.3d 1271, 1280 (1st Cir. 1996), cert. denied, 519 U.S. 1118, 117 S.Ct. 963, 136 L.Ed.2d 849 (1997). Nor need we decide whether the doctrine might apply if the defendant had recognized the possibility that his conduct might result in a criminal charge of intimidation of a witness and threatened Ortiz with harm if she were to testify against Jean C. Mercado in the murder trial or against him in a witness intimidation trial. There is no evidence that the defendant recognized that possibility here, or that his threats addressed that possibility.

      Rule 804(b)(6) of the Federal Rules of Evidence provides that "[a] statement offered against a party" is not excluded by the rule against hearsay where the party "wrongfully caused -- or acquiesced in wrongfully causing -- the declarant's unavailability as a witness, and did so intending that result."

      A declarant is also considered unavailable as a witness where the declarant "cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness." Mass. G. Evid. § 804(a)(4).

      Under Fed. R. Evid. 804(a)(2), "[a] declarant is considered to be unavailable as a witness if the declarant ... refuses to testify about the subject matter despite a court order to do so."