COMMONWEALTH v. BALCHUINAS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in the District Court, the defendant was convicted of assault and battery on a family or household member, subsequent offense, under G. L. c. 265, § 13M (a). On appeal, the defendant claims that the trial judge erred in precluding him from attacking the credibility of the nontestifying victim, who was the declarant of an excited utterance admitted in evidence. We agree and reverse.

Background. 1. Pretrial proceedings. As a result of a December 1, 2016 incident, the defendant was charged with assaulting his girlfriend, the victim. On January 17, 2017, the victim testified at a proceeding, under G. L. c. 209A, seeking to modify an abuse prevention order that had issued in connection with the December 1, 2016 incident. When the criminal case proceeded to trial on June 28, 2018, however, the victim asserted her Fifth Amendment privilege against self-incrimination. Although the victim did not testify at trial, the Commonwealth obtained permission to admit the victim's statement made on December 1, 2017, to her father -- to the effect that the defendant beat her up -- as an excited utterance. Defense counsel then indicated that he intended to rebut the victim's excited utterance with a recording of the January 17, 2017 hearing in which the victim testified to the effect of: “I was the initial aggressor. I was the aggressor in this matter.”² The judge denied defense counsel's request.³

2. Trial. a. Commonwealth's case-in-chief. At approximately 3 p.m. on December 1, 2016, the victim got a call from the defendant, her boyfriend, and then left the house where she lived with her parents. Three or four hours later, the victim returned home crying, with bruises on her face and neck, and told her father: “I've been beat up by Randy. I got body slammed down on the road and I got beat up.”⁴

b. Defendant's case. On the afternoon of December 1, 2016, the defendant picked up the victim from her home and could smell alcohol on her breath.⁵ They stopped at a package store so that the victim could pick up Fireball nips, which she consumed. At some point, the defendant brought her to his home, where he lived with his daughter. The daughter saw them arrive and argue in the car, before the defendant came in alone. The victim, who remained in the car, proceeded to hit and punch the dashboard. A man with an infant in a baby carrier approached to get into an adjacent car, when the victim started screaming and yelling at him, using profanity. The man testified that the victim appeared angry and intoxicated. He got into his car and left the unpleasant altercation as fast as he could.

The defendant, who had heard the victim's loud rant, grabbed his keys to take the victim home. The victim was upset about having to go home and started yelling at him. As the defendant drove, the victim began kicking and hitting him, while he attempted to block the blows. Within minutes of leaving the house, the defendant called his daughter and asked her not to hang up the telephone. The daughter heard the defendant sounding distraught, fearful, and scared, repeatedly saying, “Stop,” while the victim yelled and screamed angrily, with banging noises in the background. The defendant drove the victim to her home. Although she continued to argue with the defendant, the victim eventually got out of the car. The defendant returned home to his daughter, a short distance away, within minutes.

Discussion. The defendant contends that the judge erred in preventing him from attacking the victim's credibility by way of a prior inconsistent statement. There is no question that the credibility of the declarant of a hearsay statement “may be attacked ․ by any evidence which would be admissible for those purposes if declarant had testified as a witness.” Commonwealth v. Mahar, 430 Mass. 643, 649 (2000), quoting Proposed Mass. R. Evid. 806. Further, “[e]vidence of a statement or conduct by the declarant at any time, inconsistent with [her] hearsay statement, is not subject to any requirement that [she] may have been afforded an opportunity to deny or explain.” Mahar, supra, quoting Proposed Mass. R. Evid. 806. Here, the defendant sought to impeach the victim by showing that, in contrast to the excited utterance admitted at trial that she was “beat up” by the defendant, the victim had previously testified under oath that she was the “aggressor” in the incident.

On appeal, the Commonwealth contends that the judge properly denied the defendant's request because the two statements were not inconsistent, in the sense that one can be the initial aggressor in a conflict but still get beaten. However, “[t]o be used for impeachment, it is not necessary that the witness's ‘prior statement be a complete, categorical, or explicit contradiction of [her] trial testimony.’ M.S. Brodin & M. Avery, Massachusetts Evidence § 6.13.2(b), at 321 (8th ed. 2007).” Commonwealth v. Parent, 465 Mass. 395, 400 (2013). “It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict.” Mass. G. Evid. § 613(a)(2) and (3) note (2020), quoting Commonwealth v. Hesketh, 386 Mass. 153, 161 (1982). Here, the victim's statement that she was the aggressor certainly gives “some indication” that the facts may be different from those suggested by the victim's statement that the defendant beat her up. See Commonwealth v. Pickles, 364 Mass. 395, 402 (1973) (prior statement inconsistent “if its implications tend in a different direction”).⁶

Moreover, “[a]lthough there is discretion involved in determining whether to admit or exclude evidence offered for impeachment, when the impeaching evidence is directly related to testimony on a central issue in the case, there is no discretion to exclude it.” Commonwealth v. Niemic, 483 Mass. 571, 581 (2019), quoting Mass. G. Evid. § 613(a)(4) note (2019), citing Commonwealth v. McGowan, 400 Mass. 385, 390-391 (1987). Here, the central issue in the case was whether the defendant beat the victim without right or excuse or whether he acted in self-defense. The excited utterance was the centerpiece of the Commonwealth's case. Indeed, the Commonwealth had no case without it. The victim's statement that she was the aggressor was therefore directly related to testimony on a central issue in the case. Exclusion was error.

In the circumstances of this case, we cannot be “sure that the error did not influence the jury, or had but slight effect” (citation omitted). Commonwealth v. Ridge, 455 Mass. 307, 317-318 (2009). Here, there were no witnesses to the crime besides the defendant and the victim. Contrast Mahar, 430 Mass. at 650 (erroneous preclusion of victim's inconsistent statement denying assault, deemed nonprejudicial where defendant's assault on victim was recounted by several eyewitnesses). The victim's father only testified to the victim leaving in the afternoon and returning in the evening, saying that the defendant had beaten her. To be sure, the victim's injuries were witnessed by her father and a police officer. And those observations were corroborated by photographs and medical records. But the question in the case was how the victim sustained her injuries. The only evidence of that was the victim's excited utterance that she had been beaten by the defendant.

Certainly, the victim's statement under oath at a court proceeding, that she was the aggressor in the incident, served to cast doubt on her statement made on the day of the offense that the defendant beat her up. Coupled with evidence presented at trial that the victim was drunk and belligerent to others on the day of the offense, and attacked the defendant as he tried to drive her home, the impeachment evidence may well have made a difference in the jury's assessment of the credibility of the victim and her critical statement presented as an excited utterance.⁷

Because the finding of guilt as to the assault and battery required the jury to find beyond a reasonable doubt that the victim was credible in her allegation, and because the inconsistent statement the jury did not hear reasonably may have affected their evaluation of her credibility, we cannot say with fair assurance that the error did not influence the jury, or had but very slight effect. See Parent, 465 Mass. at 402. See also Commonwealth v. Gray, 463 Mass. 731, 745-746 (2012) (conviction reversed and remanded for new trial where erroneous preclusion of evidence pertinent to hearsay declarant's credibility “deprived the defendant of the ability to impeach a critical witness and, thus, deprived him of a fair trial”).

Judgment reversed.

Verdicts set aside.

FOOTNOTES

2.   The quoted language is defense counsel's representation of the victim's statement in the recording of the proceeding.

3.   During the defendant's presentation of his case, but before the defendant testified, defense counsel sought to introduce evidence that, approximately a week after the incident, the victim told the prosecution that she kicked the defendant during the December 1, 2016 incident. After initially denying the request, the judge conducted some independent research and, on the basis of Commonwealth v. Mahar, 430 Mass. 643 (2000), concluded that defense counsel could proceed. Subsequently, the judge examined the proffered evidence (the prosecutor's handwritten notes of the interview with the victim) and determined that admission of the statement would be unfair. The defendant does not challenge this ruling on appeal.

4.   The victim's father called the police, who responded and arranged for her to be taken to the hospital. At the hospital, the victim's face and neck were photographed; those photographs were admitted in evidence. Additionally, the victim's medical records from that night were admitted in evidence. Those records indicate that the victim's left side of neck was “noted to be red and bruised” and that the victim reported having been “choked,” “punched,” and “body slammed.”

5.   The victim's father had earlier testified that the victim had “a little tiny nip of Southern Comfort” with him before she left with the defendant.

6.   The Commonwealth's contrary statement in its brief that impeachment by inconsistent statement “must ‘plainly contradict’ or be ‘directly inconsistent’ with” (emphasis added) the statement to be impeached is not supported by the case law cited. See Commonwealth v. Auguste, 414 Mass. 51, 61 n.6 (1992) (judge has discretion to deny impeachment if it does not plainly contradict); Commonwealth v. Beatrice, 75 Mass. App. Ct. 153, 161 (2009) (in determining judge was within discretion in denying impeachment, court noted that statement was not directly inconsistent in that it related to entirely separate incident).

7.   The Commonwealth argues that the impeachment evidence would have made no difference in light of the “severity of the beating.” Yet the severity of the beating as reflected in the medical records was also reported by the victim (“choked,” “punched,” “body slammed”). Thus, impeachment of the victim would also have affected the jury's view of this evidence. The jury could well have found that the victim's injuries, as observed by her father (“bruises all over her face and neck”), the police officer (“some bruising to her neck,” “lip was a little swollen”), and medical personnel at the hospital (“left side of neck noted to be red and bruised”), were consistent with those which might be sustained during a struggle in a car while the driver attempted to ward off an attack from his front-seat passenger.