COMMONWEALTH v. KROMAH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, Lahai Kromah, was convicted of violating an abuse prevention order, G. L. c. 209A, § 7, after a bench trial in the District Court. On appeal, he contends that out-of-court statements made by the victim, his girlfriend, were erroneously admitted under the doctrine of forfeiture by wrongdoing and that the evidence was insufficient. We affirm.

Background. On July 30, 2018, the victim, whom we shall call Jane, obtained an ex parte protective order against the defendant under G. L. c. 209A. At the hearing after notice held on August 13, 2018, a judge modified the order to require the defendant not to abuse Jane and extended its duration by six months, through February 13, 2019.

The evidence at trial established that on December 6, 2018, Jane approached a police officer parked near the building where she shared an apartment with the defendant. Jane told the officer that she had an active restraining order against the defendant and that he had violated it by “cocking his hand back[ ] at her ․ swinging on her, along with throwing items around the apartment.” Jane also showed the officer her phone, which displayed an exchange of text messages earlier in the day between her and the defendant, whose name appeared as “Lahai Junior's Father”:

“[Defendant:] Make sure whatever it is you going when you stay the f*** there

“[Jane:] I'm getting the inspection of the car

“[Defendant:] If you think I'm motherfuking joking whatever garage go and get your car fixed you better stay at that garage to come home today I will f****** and you your life take it to the f****** police

“[Jane:] Now you're sitting here threatening my life why did you even come back.”

Jane gave the officer the keys to her apartment, and he entered, accompanied by additional officers. The defendant was sitting in the kitchen. The apartment was in a state of disarray, with “several items thrown about,” including a bag of potato chips, “multiple fist size holes punched in the doors,” and a television set “that looked like it was punched, lying face down.” The defendant said that he was moving the television when he tripped and it fell. The officers placed him under arrest.

The next day, December 7, 2018, the defendant was arraigned on a complaint charging violation of the no abuse order. He was held without bail pending a pretrial dangerousness hearing under G. L. c. 276, § 58A, which took place three days later. The defendant was found to be dangerous and detained without bail. A pretrial conference was held on January 2, 2019; on February 5, 2019, the defendant waived the right to a jury and was tried and convicted.

Motion in limine. Prior to trial the Commonwealth filed a motion in limine to admit Jane's statements to the police officer, a screen shot of the text messages, and certain recorded telephone conversations between Jane and the defendant under a theory of forfeiture by wrongdoing. The motion stated that “[b]y the time the detention hearing took place ․ [Jane] informed the Commonwealth that she was no longer going to cooperate with the criminal process and was now supportive of the defendant.” The motion offered an “unofficial transcription” of “a fraction” of the recorded “jail calls” between the defendant and Jane.²

On the trial date, Jane appeared in court and indicated that she intended to exercise her Fifth Amendment privilege against self-incrimination. The trial judge appointed counsel to confer with Jane, and counsel reported that Jane had a valid claim of the privilege and wished to assert it. After a colloquy with Jane, the judge found that she had properly invoked the privilege and excused her from testifying. Neither party objected.

The judge next conducted an evidentiary hearing on the Commonwealth's motion in limine. The Commonwealth introduced recordings of twelve telephone conversations between the defendant and Jane produced by the inmate telephone coordinator of the Middlesex County Sheriff's office, and played excerpts from each. The telephone calls dated from December 11 through December 27, the period between the § 58A hearing and the next court date. The tone of the calls ranged from affectionate to angry. The defendant at one point threatened to “hurt [him]self”; Jane responded that they should pray for his release on January 2 and assured him that she was doing everything she could to help him. At other times Jane threatened to stop speaking with him.

The couple often discussed the criminal charge against the defendant, the upcoming hearing, and what Jane could do to get the charge dropped. A recurring topic was whether Jane should invoke her Fifth Amendment privilege. In a call on December 14, the defendant said, “I don't see no reason why the fuck they should hold me if you going over there and testifying and pleading the fifth.” The next day, when the defendant said that the pending charges were stressing him out, Jane reassured him, “I already told you that when I go to court I'm pleading the fifth․ I'm pleading the fifth that all those charges are being dropped․ You have nothing to worry about.” A few days later, the defendant told Jane, “[I]f you go and testify and plead the fifth my lawyers [are] going to try to argue for me to come out that day.” ³ At one point, however, the defendant expressed reservations and suggested a different strategy, perjury: “I think you need to get your ass up there and testify and tell them that your ass wasn't on your medication. You made a whole bunch of accusations because you were hallucinating or whatever.” ⁴ Jane disagreed, saying, “It looks better to plead the fifth because then they don't have anything against you.”

The judge determined that the Commonwealth had established the elements necessary to invoke the doctrine of forfeiture by wrongdoing.

Discussion. 1. Forfeiture by wrongdoing. 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.” Commonwealth v. Rosado, 480 Mass. 540, 544 (2018), quoting Commonwealth v. Edwards, 444 Mass. 526, 540 (2005). See Mass. G. Evid. § 804 (b) (6) (2019). As in Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 519 (2017), where the defendant, while incarcerated awaiting trial, had numerous telephone conversations with the victim, culminating with the victim invoking her Fifth Amendment privilege and refusing to testify at trial, here the trial judge did not err in determining that the Commonwealth proved the elements of forfeiture by wrongdoing.

The defendant attempts to distinguish Valentin, arguing that he did not use threats, persuasion, or pressure to induce Jane not to testify. Rather, he asserts, Jane made the decision independently, almost at the commencement of the case. These distinctions are not legally significant. “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.” Commonwealth v. Szerlong, 457 Mass. 858, 861 (2010), cert. denied, 562 U.S. 1230 (2011). In addition, “a defendant's joint effort with a witness to secure the latter's unavailability, regardless of whether the witness already decided ‘on his own’ not to testify, may be sufficient to support a finding of forfeiture by wrongdoing.” Edwards, 444 Mass. at 541. The evidence produced at the hearing on the motion in limine established, by a preponderance of the evidence, that the defendant colluded with and cajoled Jane with the intent to keep her from testifying against him at trial.

Nor does it matter that the defendant, during some conversations, urged Jane to perjure herself instead of remaining silent. “Where a defendant's goal in colluding with a witness is to deprive the Commonwealth of valuable testimony, the defendant may be no less successful where the desired result is achieved by means other than those originally contemplated (such as a witness's refusal to testify).” Edwards, 444 Mass. at 541. The elements of forfeiture by wrongdoing were satisfied.

In addition, Jane's hearsay statements carried substantial indicia of reliability, making their admission consistent with the defendant's due process rights. See Szerlong, 457 Mass. at 856, citing Commonwealth v. Durling, 407 Mass. 108, 118 (1990). We decline the defendant's invitation to infer that Jane's invocation of the privilege against self-incrimination necessarily implied that she had lied about the defendant violating the abuse prevention order. “Because a witness who exercises his Fifth Amendment right is not admitting guilt, no inferences, either in favor of the prosecutor or of the defendant, may be drawn from that refusal to testify.” Commonwealth v. Gagnon, 408 Mass. 185, 197-198 (1990). Instead, we look for indicia of reliability in the evidence available to the judge: the disarray of the apartment, with fist holes, a broken television set, and items thrown about (including a bag of chips); the content of the defendant's text message to Jane; and the defendant's statements in the recorded telephone conversations. The hard evidence confirmed the reliability of Jane's out-of-court statements.

Finally, to the extent any of Jane's statements about the defendant's conduct contained in the recorded telephone conversations were admitted solely under the doctrine of forfeiture by wrongdoing,⁵ we discern no error. By colluding with Jane to secure her silence, the defendant forfeited “the right to object to the admission of an unavailable witness's out-of-court statements on both confrontation and hearsay grounds.” Edwards, 444 Mass. at 540. Jane's recorded statements that were admitted in evidence at trial were relevant to prove the charge against the defendant. If she had been a witness at trial, she could have properly testified that the defendant “swung on [her],” “threw a bag of fucking chips,” and “threaten[ed] and ruin[ed] things.”

2. Sufficiency of the evidence. We agree with the defendant that to prove a violation of the no abuse provision of the G. L. c. 209A order, the Commonwealth had to prove “abuse” as defined in G. L. c. 209A, § 1. The relevant definition here was “placing another in fear of imminent serious physical harm.” G. L. c. 209A, § 1 (b). Accordingly, the Commonwealth had the burden to prove beyond a reasonable doubt that the defendant's actions placed Jane in fear of imminent serious physical harm, and that her fear was reasonable. See Iamele v. Asselin, 444 Mass. 734, 737 (2005). Viewed in the light most favorable to the Commonwealth, the evidence showed that the defendant violently destroyed items and doors in the apartment that he shared with Jane and threatened to kill her in a text message. She was so distraught that she felt it necessary to enlist a police officer to remove the defendant from her apartment. The evidence was sufficient to show that Jane reasonably feared imminent physical harm.

Judgment affirmed.

FOOTNOTES

2.   The motion disclosed, “The following statements are in sequential order, but are segments and fragments of larger conversations. They sometimes correspond one after the other, but not always.” At oral argument and in a postargument letter, the defendant's appellate counsel pointed out errors in the transcriptions and argued that the motion was misleading. At the panel's request, the Commonwealth submitted a full transcription of the twelve recorded conversations that were introduced in support of the motion in limine; the record before us also includes copies of the recordings themselves, which we have independently reviewed.

3.   During the same call he expressed concern that he might not be released, and might be looking at years in prison, if the prosecutors obtained his telephone conversations with Jane and learned that he had told her not to testify.

4.   To explain away the damage to the apartment and the television set, the defendant also suggested that Jane enlist her brother to say that someone had broken into the apartment.

5.   We agree with the Commonwealth, for the reasons stated at pages 27 to 28 of its brief, that some of Jane's statements were independently admissible as the defendant's adoptive admissions. See Mass. G. Evid. § 801(d)(2)(B) (2019).