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Appeals Court of Massachusetts.



Decided: March 22, 2021

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


After a jury trial in the Superior Court, the defendant, Jose Gonzalez, was convicted of several crimes arising from an attack on his girlfriend, who was four months pregnant at the time.2 On appeal he argues that the judge erred by admitting as an excited utterance the victim's statement to the police, which she later recanted. He also claims error in the exclusion of two exhibits he characterizes as third-party culprit evidence. We affirm.

Discussion. 1. Excited utterance. The trial judge held a voir dire hearing on the Commonwealth's motion in limine to admit the victim's statement; the victim and Fall River Police Officer Kwin Silva testified. According to Silva, when the victim arrived at the police station, accompanied by a friend, she “was visibly upset, crying, pretty hysterical.” She was breathing and crying so heavily that she could not form full sentences. She repeated, “I'm pregnant, I'm pregnant, my baby,” and said that her boyfriend had assaulted her. Silva observed injuries on her face and redness and bruising developing around her neck. The victim told Silva that she had passed out after the altercation with her boyfriend and that “basically she came straight over” to the police station after she regained consciousness. Silva's and the victim's testimony established that the victim arrived at the station approximately three hours after the beating took place.

The victim testified that her statement to Silva was false. What really happened, according to the victim, was that a group of four women in hoodies attacked her outside her house. Because the victim was mad at the defendant for cheating on her -- presumably with one of the women who attacked her -- and because he did not answer her phone calls after the attack, she decided to tell the police that he had assaulted her. She admitted that she was crying when she made the report, and that the first words out of her mouth were that her boyfriend beat her up and she was pregnant.

Based on Silva's testimony, the judge found that the victim “was under the influence of this exciting event when she arrived at the police station that day,” notwithstanding the delay caused by her passing out and then getting her friend to take her to the police station. The judge found that the victim was “almost hyperventilating. She was crying, she was breathing heavily, trying to breathe in between crying, couldn't form full sentences, she had facial injuries ․ redness on the neck, bruising on the left eye. [Silva] said she was hysterical, again, with difficulty breathing and crying.” To the extent the victim's account of her demeanor at the police station contradicted Silva's testimony, the judge credited Silva's testimony over that of the victim. With respect to the defendant's claim that the victim had formed a plan to fabricate the accusation against him, the judge referred to Silva's description of the victim being hysterical and crying and commented, “[S]he's not that good of an actor.” Accordingly, Silva was permitted to testify during the Commonwealth's direct case that when the victim first arrived at the police station, “All she kept saying was, [m]y boyfriend beat me up, I'm pregnant.”

“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). Accord Mass. G. Evid. § 803(2) (2020). “[O]ur courts have not set a definite and fixed time limit on the excited utterance exception to the hearsay rule, but instead have held that a victim need only be still sufficiently agitated or ‘under the influence of the exciting event’ at the time the statement was made.” Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008), quoting Commonwealth v. King, 436 Mass. 252, 254 (2002). See Mass. G. Evid., supra at § 803(2), note at 310. The trial judge has “broad discretion” to determine whether the Commonwealth sufficiently demonstrated the existence of these foundational requirements. Commonwealth v. Linton, 456 Mass. 534, 548 (2010); King, supra at 255. “Thus, a judge's determination that, in light of the timing and all other surrounding circumstances, the declarant was still under the influence of the exciting event will only be disturbed for abuse of discretion.” King, supra.

The judge did not abuse his discretion in determining that the victim was still under the influence of the beating when she arrived at the police station hysterical, crying, and breathing so heavily she had difficulty speaking. See, e.g., Commonwealth v. Grant, 418 Mass. 76, 81-82 (1994) (defendant's girlfriend's responses to police questioning about one hour after shooting properly admitted as excited utterance where police described girlfriend as “close to hysterical”); Commonwealth v. Ivy, 55 Mass. App. Ct. 851, 854-855 (2002) (victim's statement given in emergency room that her boyfriend had beaten her four and one-half hours earlier properly admitted as excited utterance where victim was experiencing pain from incident and was in a “state of distress, whimpering and [in] fear”).

The defendant contends, based on the victim's voir dire testimony, that the exciting event had not overwhelmed her capacity for reflection, and that her statement to the police was in fact the product of a deliberative thought process. He further argues that the judge erred because he appeared to take the victim's credibility into account in deciding to admit the statement as an excited utterance.

To be sure, in determining whether to admit an excited utterance, the judge may not consider the credibility of the statement itself -- that is a question for the trier of fact. “Rather, admissibility is determined solely by reference to the requirements of the exception itself.” King, 436 Mass. at 257. See Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018). However, if the parties present a factual dispute over the existence of the foundational requirements, a credibility determination is inevitable. To the extent the judge found Silva's testimony concerning the victim's conduct and demeanor at the police station more credible than the victim's, we discern no error.

This case is readily distinguishable from Commonwealth v. Dunn, 56 Mass. App. Ct. 89, 93 (2002), where “not only was there opportunity for [the victim's] premeditation and fabrication, there was undeniably premeditation in fact” (emphasis added). Rather, this case is governed by King, 436 Mass. at 253-254, where the victim, who was shaking, crying, and visibly upset, told police officers that the defendant had choked her just moments before they arrived, but at voir dire recanted her earlier statements. “Such contrary evidence goes to the weight to be given the spontaneous utterance by the finder of fact, not to its admissibility.” Id. at 256. See Commonwealth v. Napolitano, 42 Mass. App. Ct. 549, 551-553 (1997) (judge did not abuse discretion in finding that foundational requirements for excited utterance had been met, notwithstanding victim's testimony that she had lied to police because she was in jealous rage and wanted to get defendant into trouble).

Finally, even if the judge erred in admitting the victim's statement through Silva, a proposition we do not accept, any such error was nonprejudicial. At trial, the victim's handwritten affidavit in support of her application for a G. L. c. 209A order, written and signed under oath in the emergency room where the victim was taken after the police station, was admitted in evidence. See Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 65-66 (2010). It described the beating, at the defendant's hands, in detail. The victim also testified that she told Silva and the paramedics that the defendant had beaten her up and that she was pregnant. In light of this evidence, Silva's testimony that the victim told him that the defendant had beaten her and that she was pregnant was repetitive of the victim's testimony and added hardly anything to the Commonwealth's case.3 Moreover, the defendant's claim of fabrication was fully aired. The victim testified that she lied to Silva because she was mad at the defendant, that she made several efforts to retract her statement, and that a group of women, not the defendant, attacked her. Thus, the jury had a full opportunity to weigh the credibility of the victim's statement. We are confident that any error in allowing Silva to testify to the content of the victim's statement had little or no influence on the jury. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).4

2. Third-party culprit evidence. The defense at trial, offered through the victim's testimony, was that the victim lied to the police and that the defendant did not attack her, but rather a group of young women jumped her. Because their faces were obscured, she could not identify any of them, but she later came to the conclusion that Bethany Rego, the other woman the defendant was seeing, must have been one of them.5 In support of this theory, the defendant sought to introduce two exhibits. One was a screen shot of text messages, sent from an application intended to hide the sender, threatening, “I won't leave her alone if I don't want to ․ I'll make her [lose] her kid ․ I'll ruin her life.” The defendant contended that Rego sent these messages to the defendant's phone two days after the crimes. The other was a Department of Children and Families (DCF) intake report, created approximately forty-five minutes after the text messages were sent, stating that Rego had reported that the victim, who was pregnant, was not a “good parent” because she was smoking marijuana while pregnant (information Rego attributed to the defendant). The judge excluded the proffered exhibits as hearsay, lacking in authentication, and speculative, given that the victim could not identify Rego as one of the women who attacked her.

A defendant has the right to introduce third-party culprit evidence, that is, “evidence that tends to show that another person committed the crime or had the motive, intent, and opportunity to commit it” (quotation and citation omitted). Commonwealth v. Silva-Santiago, 453 Mass. 782, 800 (2009). However, that right is not absolute; the evidence “must have a rational tendency to prove the issue the defense raises, and the evidence cannot be too remote or speculative.” Id. at 801, quoting Commonwealth v. Rosa, 422 Mass. 18, 22 (1996). See Mass. G. Evid., supra at § 1105 (third-party culprit evidence admissible “provided that the evidence has substantial probative value”). Accordingly, third-party culprit evidence is properly excluded where there is no evidence connecting the third party to the crime. See, e.g., Commonwealth v. Buckman, 461 Mass. 24, 31 (2011), cert. denied, 567 U.S. 920 (2012) (where defendant offered no evidence suggesting neighbor had more opportunity to kill than any other neighbor, evidence of “tensions” between neighbor and victim properly excluded); Commonwealth v. Rice, 441 Mass. 291, 306 (2004) (in absence of evidence connecting victim's boyfriend to her death, evidence about their “shaky relationship” properly excluded).

The judge did not preclude the defendant from offering his third-party culprit defense, speculative though it was, through the victim's testimony and argument of counsel. However, the proffered evidence that Rego expressed ill will toward the victim and the defendant, and followed through by reporting the victim to DCF, lacked a substantial basis to show that Rego physically assaulted the victim two days earlier. The evidence had “no tendency to prove that [Rego] was actually the [perpetrator], and would be confusing as no more than an opinion of [Rego's] involvement.” Commonwealth v. O'Brien, 432 Mass. 578, 589 (2000). The judge did not abuse his discretion by excluding these two exhibits, nor did justice require their admission. See Commonwealth v. Conkey, 443 Mass. 60, 66-67 & n.14 (2004); Rosa, 422 Mass. at 23.

Judgments affirmed.


2.   The defendant was convicted of strangulation, G. L. c. 265, § 15D (b); aggravated assault and battery upon a pregnant person, G. L. c. 265, § 13A (b) (ii); assault and battery upon a family or household member, G. L. c. 265, § 13M (a); and assault and battery by means of a dangerous weapon (a belt), G. L. c. 265, § 15A (b).

3.   While the excited utterance to Silva was admitted substantively and not as impeachment evidence, it is highly unlikely that the jury considered it as such. In the final charge the judge gave a strong limiting instruction that a witness's prior out-of-court statements were admitted solely for the jury to evaluate the witness's credibility, with only one exception: the victim's affidavit.

4.   The defendant's claim that the admission of the victim's excited utterance violated the Confrontation Clause of the Sixth Amendment to the United States Constitution requires no discussion: the victim testified and was cross-examined.

5.   The victim also testified that one week after the attack she told the Department of Children and Families that a group of young women had jumped her but that she falsely reported the defendant had attacked her.

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