## Facts

- At about 2:00 a.m. on December 13, 2007, Leonard Szerlong entered his girlfriend’s home while she slept, grabbed her by the throat, and held a knife to her throat.
- On December 21, 2007, a criminal complaint issued charging assault and battery, assault by means of a dangerous weapon, and home invasion; an arrest warrant issued.
- While still at large, Szerlong and the victim married on January 5, 2008.
- After Szerlong surrendered and was arraigned, the Commonwealth sought pretrial detention based on dangerousness; at the hearing, the victim invoked spousal privilege and later refused to testify at trial.
- The Commonwealth moved to admit the victim’s pre-marriage statements to a close friend, her sister, and a police detective.
- The trial judge allowed admission of those statements under forfeiture by wrongdoing, without making findings of fact or law.
- A jury convicted Szerlong of assault and battery; it acquitted him of assault by means of a dangerous weapon, and the home invasion charge had been dismissed.

## Issues

1. Whether Massachusetts’s forfeiture-by-wrongdoing doctrine (as stated in Commonwealth v. Edwards) is consistent with Giles v. California’s requirement that the defendant intend to make the witness unavailable.
2. Whether marrying the victim to enable assertion of spousal privilege can constitute “wrongdoing,” such that the defendant forfeits Confrontation Clause and hearsay objections to the victim’s prior statements.
3. Whether admitting the victim’s hearsay statements violated due process because they lacked sufficient indicia of reliability.
4. Whether improper remarks in the prosecutor’s closing argument created a substantial risk of a miscarriage of justice.

## Decision

- The Supreme Judicial Court affirmed the assault and battery conviction.
- The court held Massachusetts’s forfeiture-by-wrongdoing doctrine was consistent with Giles because it already requires intent to cause unavailability.
- The court held Szerlong forfeited confrontation and hearsay objections by marrying the victim with the intent that she invoke spousal privilege and thereby be unavailable to testify.
- The court held due process was satisfied because the admitted hearsay bore substantial indicia of reliability.
- The court held the prosecutor’s improper closing remarks did not create a substantial risk of a miscarriage of justice.

## Legal Principles

- Forfeiture by wrongdoing applies only when the defendant engaged in wrongdoing with the intent to make the witness unavailable; such forfeiture extinguishes Confrontation Clause and related hearsay objections to the witness’s prior statements.
- A defendant’s intentional manipulation of spousal privilege—by marrying a witness to induce invocation of the privilege and prevent testimony—can qualify as wrongdoing supporting forfeiture.
- Even where confrontation rights are forfeited, due process requires that admitted hearsay carry substantial indicia of reliability, assessed from the circumstances of the statements (including timing, audience, and consistency).
- Improper closing argument warrants relief only if it creates a substantial risk of a miscarriage of justice in the context of the full trial record.

## Conclusion

The court upheld admission of the victim’s pre-marriage statements because the defendant intentionally caused her unavailability by marrying her to trigger spousal privilege, thereby forfeiting confrontation and hearsay objections; the statements were sufficiently reliable for due process, and the prosecutor’s improper comments did not warrant reversal.


Commonwealth v. Szerlong, 457 Mass. 858, 933 N.E.2d 633 (Mass. 2010)