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Witness Violates Sequestration Order in Massachusetts Assault and Battery Trial

lady-justice-1203983In Commonwealth v. Bonsu, the defendant was convicted of assault and battery with a dangerous weapon for using a stick on the victim. The defendant argued that the judge shouldn’t have admitted hearsay evidence and unfairly excluded rebuttal testimony by her husband on the issue of bias, creating a risk of miscarriage of justice.

During trial, the victim of the defendant’s assault with a stick testified that neighbors ran outside during their fight shouting “Stop hitting her.” The appellate court found the judge had not erred in admitting these statements because the prosecution was entitled to tell the jury everything that happened. They were not offered as hearsay—to show the victim was in distress—but to explain what caused the assault to stop.

The judge had instructed the jury that it couldn’t conclude the statement was actually made based only on the victim’s testimony. The court added that, even assuming the statements were inadmissible, there was no prejudice, since the testimony was cumulative to an eyewitness’s testimony. The eyewitness had testified that she called 911 because she saw the defendant beating the victim with a tire iron and told the defendant to get off the victim.

The defendant also argued that the judge shouldn’t have forbidden her husband from testifying. She explained that the judge had assumed the husband violated a sequestration order. The purpose of sequestration is to prevent perjury or witnesses tailoring testimony to be aligned with other witnesses. She argued that even if he’d violated the order, there was no risk of perjury.

The appellate court explained that the record actually supported the judge’s finding of a violation of the sequestration order. After the prosecution presented its case and rested, the judge took a recess. After the recess, the defense attorney announced the intention to present the defendant’s husband for the purpose of rebutting testimony that denied an extramarital affair. The prosecution indicated he’d observed that the husband asked his wife, the defendant, what had happened. The defendant told him what evidence was presented and also said “She’s going to hell.”

The defense attorney also saw the defendant talking to the witness. The attorney told his client they shouldn’t be talking. The judge asked the husband if he’d spoken his wife, and the husband confirmed it was true. The appellate court explained that a judge could reasonably form a conclusion from the comments by both attorneys and the husband’s admission that he’d discussed the witness testimony with his wife.

The appellate court also explained that it disagreed with the defendant’s claim that the husband didn’t fully understand that there was a sequestration order. The judge had relied on the defense attorney to explain the terms of the sequestration order to the defendant and witnesses. The husband had confirmed he was in fact told not to discuss other witness testimony prior to testifying. The court reasoned that the defendant’s claim there was no violation of the judge’s order was unavailing. The trial judge had discretion to exclude testimony in violation of the sequestration order. The appellate court affirmed the lower court’s judgment.

If you are charged in Massachusetts with an assault crime, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015

Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014