COMMONWEALTH v. S.A. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the District Court, the defendant was convicted of one count of assault on a family or household member and two counts of assault and battery with a dangerous weapon. G. L. c. 265, § 13M (a); G. L. c. 265, § 15A (b). He now appeals, asserting error in the admission of testimony by a police officer regarding statements made by the defendant's girlfriend, Susan,² who did not testify. The defendant contends that the statements contained testimonial hearsay, and violated his right to confront the witnesses against him. We agree that the admission of Susan's statements, as testified to by an investigating officer, were testimonial in nature, and reverse the convictions.

Background. The statements at issue were made by Susan to Malden Police Officer Martin Powell. On the day the case was first scheduled for trial, the Commonwealth moved in limine to permit Officer Powell to testify in lieu of Susan, who had declined to cooperate with the prosecution. The motion judge reviewed the police report, heard the prosecutor's representations as to what happened, and over the defendant's objections, ruled that the statements were excited utterances and thus nontestimonial.³ After the two-hour recess that followed, defense counsel moved for reconsideration based on an affidavit provided by Susan. The motion judge did not credit the affidavit and denied the motion. The motion judge continued the trial, however, as defense counsel then sought relief from a single justice of the Supreme Judicial Court pursuant to G. L. c. 211, § 3. A single justice of the Supreme Judicial Court denied the petition, noting that the motion could be reconsidered at trial.⁴ On a second motion for reconsideration, the motion judge again ruled that the statements were nontestimonial.

The trial proceeded before a different judge, who did not reconsider the motion judge's ruling. At trial, Officer Powell testified that Susan appeared at the Malden police station on Monday, July 24, 2017, at approximately 1 p.m. and gave a statement in an interview room. He stated that she was extremely emotional and upset when she first arrived, and he took her to an interview room to calm her down. Shaken and crying, she said that on Saturday morning the defendant hit her with an open hand, punched her with a closed fist, and then said, “I will spare you today.” On Sunday around 6 p.m. he punched her again, after she asked for a cigarette. He ordered her to keep her arms to the side so that he could hit her without obstruction, and ordered her to find a belt. He struck her buttocks with a ceramic crucifix and then, when the crucifix shattered, with a wooden plaque. According to Officer Powell, she reported being sodomized.⁵ She expressed great fear that the defendant would kill her if he knew she was at the police station.⁶

Over the course of two hours other officers asked questions about the incident and photographed Susan's injuries. After the photographs were taken, the police requested assistance from emergency medical technicians. Susan declined to go to the hospital at that time. Other officers were sent to the apartment where they took the defendant into custody and seized evidence.

After Officer Powell testified, the trial judge realized he “ha[d] been laboring under a false premise that [the motion judge] took testimony from these officers.” Although the defendant objected to Officer Powell's testimony, and requested that it be stricken, the defendant did not request a voir dire of the officer, despite the prosecutor's offer to recall Officer Powell for that purpose. The trial judge allowed the prior ruling of the motion judge to stand. After a voir dire of a second police officer, who had joined the interview after approximately fifteen minutes, the trial judge excluded statements made to that officer as testimonial.

Discussion. The statements attributed to Susan are admissible only if they pass a two-prong test. “First, the statement must be admissible under our common-law rules of evidence as an exception to the hearsay rule. Second, the statement must be nontestimonial for purposes of the confrontation clause of the Sixth Amendment” (citations omitted). Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011). See Crawford v. Washington, 541 U.S. 36, 61 (2004); Commonwealth v. Wardsworth, 482 Mass. 454, 463-464 (2019). “We review the judge's admission of [Susan's] hearsay statements for prejudicial error, Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), and [his] finding that those statements did not violate the defendant's right to confrontation for constitutional error, Commonwealth v. Burgess, 450 Mass. 422, 431-432 (2008).” Commonwealth v. Middlemiss, 465 Mass. 627, 631 (2013). “If constitutional error has occurred, we reverse the conviction unless the error was harmless beyond a reasonable doubt.” Burgess, supra.

Passing on whether the record is sufficient to support a finding that Susan's statements to Officer Powell were excited utterances, we conclude that the statements were testimonial, and therefore run afoul of requirements of the defendant's rights under the confrontation clause of the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Gonsalves, 445 Mass. 1, 14 (2005), cert. denied, 548 U.S. 926 (2006) (“constitutional provision of the confrontation clause trumps [our own] rules of evidence”).

“Testimonial statements are those made with the primary purpose of ‘creating an out-of-court substitute for trial testimony.’ See Commonwealth v. Imbert, 479 Mass. 575, 580, (2018), quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011). A statement made in response to police questioning is testimonial where ‘the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’ See Commonwealth v. Middlemiss, 465 Mass. 627, 633 (2013), quoting Davis v. Washington, 547 U.S. 813, 822 (2006)․ The test is an objective one; we examine ‘the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.’ Imbert, supra, quoting Williams v. Illinois, 567 U.S. 50, 84 (2012).” Wardsworth, 482 Mass. at 464. Accordingly, “[t]he parties' subjective motives or intentions are largely irrelevant.” Commonwealth v. Smith, 460 Mass. 385, 394 (2011).

In making that objective determination of the purpose of the interview, we look to four factors: “(1) whether the declarant was speaking about events as they were ‘actually happening, rather than describ[ing] past events’; (2) whether any reasonable listener would recognize that the declarant was facing an ‘ongoing emergency’; (3) whether what was asked and answered was necessary to resolve the present emergency rather than simply to learn what had happened in the past; and (4) the level of formality of the interview.” Middlemiss, 465 Mass. at 633–634, quoting Davis, 547 U.S. at 827. See Commonwealth v. Galicia, 447 Mass. 737, 743–744 (2006).

Here, the declarant spoke about events some fifteen to thirty-six hours in the past, not events as they were happening. She spoke from a place of safety, the police station. The officers, over the course of two hours, conducted interviews, documented injuries, and prepared a search warrant. They engaged in thorough investigation and questioning, which “took on the more formal cast of a police investigation of a crime.” Galicia, 447 Mass. at 746. The declarant expressed fear of further harm and stayed at the station until the defendant was apprehended. A reasonable person in the declarant's position, taking into account all the attendant circumstances, could not but conclude that the primary purpose of the interview was to bring a criminal prosecution, not to secure the scene or render aid. A reasonable person “would anticipate the statement[s'] being used against the accused in investigating and prosecuting a crime.” Gonsalves, 445 Mass. at 12-13.

The Commonwealth maintains that the statements were elicited to address an ongoing emergency or to procure medical care. Unlike those domestic violence cases where the police respond to the scene and undertake to secure it, see Beatrice, 460 Mass. at 260-261, here Susan had already left the scene and was no longer at immediate risk. The emergency had ended. See id. at 262 (“arrival of the police or the departure of the defendant” dispels threat to victim); Gonsalves, 445 Mass. at 17 (statements testimonial where assailant no longer present); Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 426-428 (2018) (statements made to police officer on scene after husband had left were testimonial). See also Davis, 547 U.S. at 828 (“emergency appears to have ended” when defendant drove away from premises); Commonwealth v. Lao, 450 Mass. 215, 226 (2007), S.C., 460 Mass. 12 (2011) (no ongoing emergency where defendant, after trying to run victim over with vehicle, had dropped victim at her home and left in vehicle). Contrast Imbert, 479 Mass. at 580-581 (statements made to fellow patrons to flee from an ongoing shooting nontestimonial).

Nor can it be said that the officers were providing emergency aid. The officers did not immediately call for paramedics. After Susan described her injuries, another officer was called to photograph them. Medical personnel were called to the station because Susan said “she just wanted to get checked out to make sure that she was all set.” She was not taken to the hospital, and she declined to go to the hospital at the conclusion of the interview.

“[T]he erroneously admitted evidence was not collateral or tangential -- it went to the heart of the case.” Wilson, 94 Mass. App. Ct. at 433. Officer Powell's testimony was the only testimony offered describing the assault as it occurred. While photographs and items recovered from the apartment remain, “we cannot say, beyond a reasonable doubt, that the erroneously admitted evidence did not contribute” to the jury verdict. Id. at 433-434.⁷

Judgments reversed. Verdicts set aside.

FOOTNOTES

2.   All of the names used herein are pseudonyms, as this case was impounded in its entirety by the District Court.

3.   Neither party requested an evidentiary hearing. See generally Commonwealth v. Hurley, 455 Mass. 53, 68 n.14 (2009).

4.   See Commonwealth v. Haskell, 438 Mass. 790, 792-793 (2003).

5.   Susan refused to testify before the grand jury, and the defendant was not charged with rape. The assault charges then proceeded in the District Court. A charge of witness intimidation, G. L. c. 268, § 13B, was dismissed at the request of the Commonwealth.

6.   According to the police report provided to the motion judge, Susan stated that the defendant took her cell phone and that she was afraid he would kill her if she left. Officer Powell did not testify to these facts at trial.

7.   The defendant claims that the trial judge erred by not giving the jury a so-called missing witness instruction. Although we discern no error, we need not address the issue. In the event of a retrial, the decision whether such an instruction is warranted will be revisited by the presiding judge.