COMMONWEALTH v. TOLEDO (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant was convicted of strangulation, in violation of G. L. c. 265, § 15D (b), and assault and battery on a household member, in violation of G. L. c. 265, § 13M (a).² On appeal, the defendant claims that the admission of the victim's statements to emergency medical personnel as excited utterances was improper, and that the evidence was insufficient to identify him as the perpetrator of the crime. We affirm.

Background. We recite the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant and the victim, whom we shall call Sally, were married and were living in the second-floor apartment of a two-family residence in Haverhill, with Sally's young son. Carmelo Valle lived in the first-floor apartment with his wife and daughter, Stephanie Valle,³ and his friend, Miguel Berroa.

In the early morning on March 17, 2019, Valle heard knocking on his back door. When he opened the door, he saw Sally and her son. Sally was “bent over” and “bleeding.” Sally entered the apartment and, once inside, she fell to the floor “crying” and “screaming in pain.” Berroa heard the screams and got out of bed. He saw Sally on the floor and called 911. Stephanie spoke with Sally, who reported that her “boyfriend” had “hit her.”

Soon after the 911 call, the police and emergency medical technicians (EMTs) from Trinity EMS, Inc., arrived at the scene.⁴ One of the officers, Albert Betances, spoke with the defendant, who was standing outside the residence. The defendant was intoxicated. He was wearing a T-shirt despite the chilly weather and his face appeared bruised. In response to Betances's questions, the defendant said he did not know where his wife was. He also stated that the bruises were from injuries that he received in a car accident. At one point, the defendant attempted to leave, but Betances detained him, and eventually he was arrested at the scene.

At the same time, Sally was evaluated by the EMTs, who observed “visible contusions,” including a “swollen right eye [and] lip,” “bruising ․ on her ribs,” and “bruising around her neck,” and there was “visible blood on her face.” The EMTs questioned Sally about her injuries. Sally was crying and said that her “boyfriend” had “pulled [her] out of bed” and “punched, ․ hit, [and] choked [her] to the point of unconsciousness.” Sally was taken to the hospital, where she received treatment for her injuries.

The Commonwealth also introduced records of Trinity EMS, Inc. According to those records, Sally relayed to emergency personnel that “she was asleep in her second[-]floor apartment” when “her ‘boyfriend’ arrived home and pulled her from bed and started physically assaulting her (punching) and also choked her to the point of unconsciousness.” “[S]he experienced blurred vision and saw ‘stars’ before she passed out.” Following the initial evaluation, Sally was “slightly agitated.” The reference to Sally's “boyfriend” was not redacted, at the defendant's request.

Discussion. 1. Admission of Sally's statements to the EMTs. Sally asserted her marital privilege and did not testify at trial. As a result, the Commonwealth sought to introduce Sally's statements to the EMTs as excited utterances. The judge issued a preliminary pretrial ruling that the statements were admissible based on the Commonwealth's offer of proof. Later, during the trial, the judge found that the statements qualified as excited utterances because “a very short time period passed” between the time of the event and the time the statements were made. “[Sally] was crying, in obvious pain, and clearly still under the influence of the events that had precipitated the police being called at the time that the statements were made to the EMT[s].” The judge further concluded that the statements were nontestimonial even though the ongoing emergency had ended because they were elicited by the EMTs for the purpose of medical evaluation and treatment, and Sally would not have anticipated that her statements would be used in a criminal prosecution.

We review the judge's ruling for an abuse of discretion, see Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 423 (2018), and conclude that the judge did not err. First, in light of the evidence that Sally was crying, agitated, and in pain when she spoke with the EMTs, the judge's ruling that her statements during the examination qualified as excited utterances was not an abuse of discretion. See id. Second, contrary to the defendant's assertion, the statements were not testimonial and therefore their admission did not violate the defendant's right of confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. As the judge correctly determined, the statements were elicited for the purpose of medical treatment and it matters not that the police were on the scene. See Commonwealth v. Nesbitt, 452 Mass. 236, 249 (2008); Commonwealth v. DeOliveira, 447 Mass. 56, 64 (2006). In any event, because the same statements were contained in the ambulance records, which were properly admitted under G. L. c. 233, § 79G, with no objection, we discern no prejudice.⁵ See Commonwealth v. Dyer, 77 Mass. App. Ct. 850, 854 (2010) (“Medical records generated for evaluation and treatment purposes do not constitute testimonial evidence triggering a constitutional right of confrontation” and are admissible under G. L. c. 233, § 79G).

2. Sufficiency of the evidence. The defendant argues that there was insufficient proof that he was the person who committed the crimes against Sally. He primarily relies on evidence that Sally referred to the perpetrator as her “boyfriend” rather than her “husband.” We agree with the defendant that proof of identity is an essential element that must be proved by the Commonwealth. See Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 443-444 (2007). Here, however, the evidence was sufficient to prove identity beyond a reasonable doubt.

We review to determine whether, after viewing the evidence in the light most favorable to the Commonwealth, “[a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). “Proof of the identity of the person who committed the offense may be established in a number of ways[,] and ‘[i]t is not necessary that any one witness should distinctly swear that the defendant was the man, if the result of all the testimony, on comparison of all its details and particulars, should identify him as the offender’ ” (citation omitted). Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 483 (2010). Moreover, “[t]he Commonwealth is entitled to the reasonable inferences that a jury may draw from its evidence on identification, and the inferences drawn by the jury need only be ‘reasonable and possible,’ not ‘necessary or inescapable’ ” (citations omitted). Id. See Raedy, supra at 444 (“The identity of a third person always is a matter of inference and opinion[.] It presents a judgment [for the jury] which may vary indefinitely in the degree of its certainty” [citation omitted]).

Here, the jury could reasonably infer that the defendant was the perpetrator from the following facts. First, the defendant was at the scene when the police arrived. The jury could infer that he had been home and indoors based on the fact that he was wearing a T-shirt. Second, given the time of day, the jury could reasonably draw an adverse inference from the defendant's statement that he did not know where his wife was. Third, the defendant was intoxicated, and Sally had described her “boyfriend” as “drunk.” Fourth, the defendant had visible bruises. The jury was not required to accept the defendant's explanation that he had been injured in a car accident. Instead, the jury could reasonably infer that the defendant had received the bruises during the course of the physical altercation with Sally. This was sufficient evidence to permit the jury to conclude that the defendant had committed the crimes. Accordingly, his motion for a required finding of not guilty was properly denied.

Judgments affirmed.

FOOTNOTES

2.   An additional charge of intimidation of a witness in violation of G. L. c. 268, § 13B, was dismissed after the judge granted the defendant's motion for a required finding of not guilty.

3.   Because Valle and Stephanie have the same surname, we refer to Stephanie Valle as Stephanie.

4.   There is some discrepancy in the evidence as to when Berroa called 911. According to Valle and Berroa, Sally arrived at their apartment around 4 a.m. or 4:30 a.m., and her screams woke up Berroa, who called 911 shortly thereafter. However, the police and the EMTs testified that they responded to the scene around 7 a.m.

5.   In addition, Stephanie testified that Sally told her that her “boyfriend” had assaulted her. The defendant objected to Stephanie's testimony at trial, but has not pursued any argument concerning the admissibility of that evidence on appeal.