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Appeals Court of Massachusetts.



Decided: February 02, 2021

By the Court (Green, C.J., Sullivan & Shin, JJ.1)


After a jury trial, the defendant was convicted of assault by means of a dangerous weapon, assault and battery on a family or household member, strangulation, and two counts of threatening to commit a crime.2 On appeal, he argues that a recording of a 911 call made by his wife, one of two victims, was improperly admitted in evidence, and also disputes the sufficiency of the evidence supporting his conviction for strangulation. We find no error in the admission of the 911 call, but agree that, even with the 911 call in evidence, his conviction for strangulation must be vacated.

Admissibility of 911 call. As the defendant's wife did not testify at trial, to be admissible her out-of-court statements to the 911 operator must fall within an exception to the hearsay rule, Commonwealth v. Beatrice, 460 Mass. 255, 258 (2011), and “must be nontestimonial for the purposes of the confrontation clause of the Sixth Amendment and art. 12.”3 Commonwealth v. Middlemiss, 465 Mass. 627, 631 (2013). We review the trial judge's evidentiary decisions for abuse of discretion. See Commonwealth v. Torres, 86 Mass. App. Ct. 272, 278 (2014).

Excited utterance. The defendant first challenges the judge's determination that the 911 call was an excited utterance, and, therefore, not inadmissible hearsay. To qualify as an excited utterance, an out-of-court statement must be made in response to an “event sufficiently startling to render inoperative the normal reflective thought processes of the observer,” and must be truly “spontaneous ․ and not the result of reflective thought.” Mass. G. Evid. § 803(2) (2020). See Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). “The relevant factors to consider include whether the statement was made in the same location as the startling event; the amount of time between the startling event and the making of the statement; and the age, spontaneity, and degree of excitement of the declarant.” Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018).

We see no abuse of discretion in the trial judge's conclusion that the 911 call qualified as an excited utterance. The wife made the call from her friend's cell phone after her friend, who was present during the altercation, ran downstairs to her apartment to get it. The wife stated that the defendant had “just choked [her]” and had left, but had threatened to come back. And though she delivered her words calmly, the words themselves -- conveying her fear “that he was going come back ․ to kill [her],” as he had threatened to do -- suggest that she was still in the grip of a startling event. See Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017); Wilson, supra at 422-423.

Confrontation clause. To avoid implicating the confrontation clause, the primary purpose of a statement must be objectively nontestimonial. See generally Middlemiss, 465 Mass. at 632-636. Central to this inquiry is whether the statement was made “to meet an ongoing emergency, rather than prove past events ․” Beatrice, 460 Mass. at 263.

We conclude that the trial judge did not abuse his discretion in determining that the wife's 911 call was not testimonial in purpose. The wife's situation resembles that of the 911 caller in Beatrice, who had been attacked by her boyfriend and sought refuge in a neighboring apartment, believing him to still be in the building. Id. at 261. The Supreme Judicial Court determined that her call describing the assault was nontestimonial, as “the emergency was ongoing” until the danger to the caller had passed. Id. at 262. Although the defendant in this case had left the premises, the chief reason for the wife's 911 call was her fear that he would return to inflict further harm, a fear instilled by threats made at knife-point moments before.4 A reasonable listener would conclude that she was in danger, and that the emergency was ongoing until the danger was dispelled. Cf. Commonwealth v. Lao, 450 Mass. 215, 226 (2007) (statements testimonial when made after caller had returned home and spoken to three people about the events and caller was “not in imminent personal peril”). Accordingly, the trial judge did not err in finding the call nontestimonial and admissible.

Strangulation. The defendant also argues that the jury were not presented with sufficient evidence to support a conviction for strangulation. We review to determine “whether, after viewing the evidence in the light most favorable to the prosecution, [a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).

“Strangulation is defined as ‘the intentional interference of the normal breathing or circulation of blood by applying substantial pressure on the throat or neck of another.’ ”5 Commonwealth v. Rogers, 96 Mass. App. Ct. 781, 782-783 (2019), quoting G. L. c. 265, § 15D (a). The Commonwealth argues that the wife's statement to the 911 operator that she had been “choked,” coupled with a photograph admitted in evidence and showing redness around her neck, provides a sufficient evidentiary basis for the jury's conviction.

Our review of the photograph reveals that it is centered on red scratches on the wife's cheek, and shows no significant redness on her neck -- certainly none that would allow a reasonable inference that the defendant had applied “substantial pressure” there.6 G. L. c. 265, § 15D (a). The propriety of the defendant's conviction thus turns on whether the wife's statement in the 911 call that she had been “choked,” standing alone, is sufficient proof. Absent any other detail, we do not believe that it is. Strangulation requires proof of two highly specific elements beyond a reasonable doubt: substantial pressure to the neck and interference with normal breathing. Id. In our view, the bare statement that “he choked me,” without more, is not sufficiently specific to allow a rational jury to reasonably infer that the defendant had both applied substantial pressure to the wife's throat and interfered with her normal breathing. Compare Rogers, 96 Mass. App. Ct. at 783-784 (sufficient evidence of strangulation where victim testified in detail to defendant grabbing her neck and throwing her across room; responding officer testified to observing marks on throat; and photographs showed marks).

Conclusion. For the reasons stated above, we vacate the judgment of conviction for strangulation, the verdict is set aside, and judgment on that count shall enter for the defendant. The judgments on the remaining counts are affirmed.

So ordered.

affirmed in part; vacated in part


2.   As alleged by the Commonwealth, the charges stemmed from a physical altercation with the defendant's wife and threats he made against her and her friend, who lived in a neighboring apartment but was present during the events at issue.

3.   The confrontation clause of the Sixth Amendment to the United States Constitution reads: “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him ․” Article 12 of the Massachusetts Declaration of Rights similarly states that “every subject shall have a right to produce all proofs, that may be favorable to him; [and] to meet the witnesses against him face to face ․”

4.   In her 911 call, the wife also reported that the husband had taken her phone and had it disconnected.

5.   The statute also criminalizes suffocation, “the intentional interference of the normal breathing or circulation of blood by blocking the nose or mouth of another.” G. L. c. 265, § 15D (a). Although the jury were instructed on both strangulation and suffocation, the Commonwealth concedes that no evidence was presented at trial that the defendant blocked the wife's nose or mouth.

6.   The photograph was authenticated by the police officer who responded to the scene following the 911 call. He testified that he observed the injury on the wife's cheek and “a little bit of red down around the bottom.” His police report made no mention of any marks or injury to the wife's neck.

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