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Appeals Court of Massachusetts.



Decided: March 15, 2021

By the Court (Sullivan, Massing & Englander, JJ.1)


After a jury trial in the Boston Municipal Court, the defendant, Yerman A. Loango, was convicted of a single count of threatening to commit a crime in violation of G. L. c. 275, § 2. The victim named in the complaint was the mother of the defendant's daughter. On appeal, the defendant primarily claims error regarding the admission the daughter's 911 call. We affirm.

Discussion. In the two-minute excerpt from the call that was admitted, the nine year old daughter, who was sobbing and audibly very upset, stated repeatedly, “I need help. Please, I need your help.” She told the dispatcher, “My father is downstairs. He's yelling at my mom․ He says he's going to kill us three, my mom, me, and my gramma.” The dispatcher promised to send help. The trial judge found that the daughter “was under the influence of [an] exciting event,” and that the statements were made “prior to the declarant having time to contrive or fabricate the statements.”

1. Excited utterance. The judge acted well within his “broad discretion” in determining that the daughter's statement qualified as an excited utterance. Commonwealth v. Linton, 456 Mass. 534, 548 (2010). “A spontaneous utterance will be admitted in evidence if (1) there is an occurrence or event ‘sufficiently startling to render inoperative the normal reflective thought processes of the observer,’ and (2) if the declarant's statement was ‘a spontaneous reaction to the occurrence or event and not the result of reflective thought.’ ” Commonwealth v. Santiago, 437 Mass. 620, 623 (2002), quoting 2 McCormick, Evidence § 272, at 204 (5th ed. 1999). Mass. G. Evid. § 803(2) (2020). The daughter was obviously under the influence of a traumatic event, which was ongoing at the time she made the call.

We disagree with the defendant's assertion that the daughter's pauses, or the fact her grandmother initiated the call before the daughter took the phone, indicated a reflective thought process. The suggestion that the grandmother was coaching the daughter, or that they were collaborating to concoct a story so the mother could gain leverage in a custody dispute -- as the defendant argued at trial -- is far-fetched. The obvious reason for the pause and for the daughter taking the phone was the grandmother's lack of proficiency in English. The daughter's demeanor in the call “negated premeditation.” Commonwealth v. Beatrice, 460 Mass. 255, 258-259 (2011), quoting Santiago, 437 Mass. at 625.

2. Testimonial hearsay. Nor were the daughter's statements testimonial. The content and circumstances of the excerpt from the 911 call objectively indicated “an ongoing emergency, and [that] the primary purpose of the interrogation [was] to meet that emergency, not to prove past events that may be relevant to criminal investigation or prosecution.” Beatrice, 460 Mass. at 259. Indeed, the judge excluded as testimonial hearsay later portions of the recording, in which, after obtaining enough information to send officers to respond to the emergency, the dispatcher sought to elicit additional information that would aid in later prosecution. There was no error in this regard.

3. Probative value vs. undue prejudice. Any undue prejudice from the emotional content of the daughter's call did not “substantially outweigh[ ]” its probative value. Commonwealth v. Crayton, 470 Mass. 228, 249 n.27 (2014). Mass. G. Evid. § 403 (2020). To obtain a conviction for threatening to commit a crime, the first element that the Commonwealth must establish beyond a reasonable doubt is that a threat was made. See Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995) (“The elements of threatening a crime include an expression of intention to inflict a crime on another and an ability to do so in circumstances[ ] that would justify apprehension on the part of the recipient of the threat” [emphasis added]). At trial, the defendant maintained that he never threatened the mother, or anyone else, and that the allegations against him, as well as the 911 call, were fabricated. The 911 call was highly probative evidence that he did, in fact, make the threat.

“Unfair prejudice does not mean that the evidence sought to be excluded is particularly probative evidence harmful to the opponent of the evidence.” Mass. G. Evid. § 403 note, at 44 (2020). See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 187-188 (2013). Even peripherally relevant evidence from the family of a victim does not have to be excluded because it may evoke sympathy. See Commonwealth v. Santiago, 425 Mass. 491, 496-497 (1997). Here, the content of the daughter's call was relevant to a central issue in the case, and the judge did not commit “palpable error” in admitting it. Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 8 (2019), quoting Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).

4. Closing argument. The prosecutor's references to and playing of the recording of the 911 call in closing argument did not unfairly exploit the jurors' potential sympathies for the daughter. While a prosecutor may not appeal to the jurors' emotions or sympathies, see Santiago, 425 Mass. at 494-495, she may make arguments based on the evidence and which fairly respond to the defendant's arguments. See Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018); Commonwealth v. Pontes, 402 Mass. 311, 315-317 (1988). Because the defendant did not object to the closing argument, we review for error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 548-549 (2009)

The prosecutor did not make repeated, gratuitous references to the daughter's 911 call. She properly referred to the call to establish that the incident happened and what time of day it occurred, both of which the defendant had contested. In response to the defendant's argument that the daughter manufactured the accusations in the call with prompting from the mother and the grandmother, the prosecutor properly argued that the jurors could listen to the call itself to determine whether the daughter's statements were credible. While the daughter did not say, “I'm scared,” as the prosecutor stated, she repeatedly asked for help, and that she was scared could be readily inferred from the evidence. Finally, the prosecutor's evidence-based argument that the daughter and the grandmother, as well as the mother, were all in fear was relevant to set forth the content and circumstances of the defendant's threat, which the jury were required to consider. See Commonwealth v. Sholley, 432 Mass. 721, 725-726 (2000), cert. denied, 532 U.S. 980 (2001); Commonwealth v. Maiden, 61 Mass. App. Ct. 433, 436 (2004). With the exception of the one minor misquote, which did not create a substantial risk of a miscarriage of justice, the prosecutor's closing argument was proper.

5. Rebuttal witness. The defense at trial was that the mother enlisted the daughter and grandmother to fabricate the charges to gain leverage in the couple's fight over visitation rights. In this regard, the defendant testified that the mother prevented him from visiting with his daughter except on a few occasions. The judge did not abuse his broad discretion in permitting the Commonwealth to present the defendant's ex-wife as a rebuttal witness on the limited issue of the frequency and nature of the visits. See Commonwealth v. Howell, 49 Mass. App. Ct. 42, 50-51 (2000). Although the defendant argues in his brief that the Commonwealth introduced impermissible character evidence through the ex-wife, the transcript of her testimony does not support this argument. Any danger of creating “side issues that may distract the jury from the main issues,” Commonwealth v. Nichols, 4 Mass. App. Ct. 606, 610 (1976), was caused by the defendant's introduction of this topic, not by the Commonwealth's rebuttal.

6. Jury instructions. The defendant claims that the jury instructions were “confusing and inadequate” because the “particular person” language of the model instruction permitted the jurors to convict the defendant based on threats to the daughter or the grandmother rather than the mother. We review the instruction, to which the defendant did not object, under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Although the judge used the nonspecific language of the model instruction in summarizing the four elements of the crime, the judge preceded this instruction by telling the jury, in strong language requested by the defendant, that the only alleged victim was the mother. The judge followed the model instruction language with three paragraphs expanding on how the elements applied to the mother specifically. In this context, the jury could not have been led astray by the less specific wording of the model instruction. There was no error, let alone a substantial risk of a miscarriage of justice.

Judgment affirmed.

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