Opinion
20-P-947
03-30-2022
COMMONWEALTH v. Jorge MACHUCA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions, after a jury trial, of assault and battery by discharging a firearm, G. L. c. 265, § 15E, possession of a firearm without a license, G. L. c. 269, § 10 (a ), and carrying a loaded firearm without a license, G. L. c. 269, § 10 (n ). On appeal, he argues that the judge abused her discretion in admitting two statements by the victim identifying the defendant as the shooter. See Commonwealth v. Harrison, 100 Mass. App. Ct. 376, 386 (2021), citing Commonwealth v. Bonds, 445 Mass. 821, 831 (2006) ("[w]e review [a] judge's evidentiary rulings for an abuse of discretion"). We affirm.
Although the defendant was also convicted of possession of ammunition, G. L. c. 269, § 10 (h ) (1), that charge was dismissed by agreement. The jury acquitted the defendant of home invasion, G. L. c. 265, § 18C, and armed assault with intent to murder, G. L. c. 265, § 18 (b ). At the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty on a charge of assault and battery, G. L. c. 265, § 13A (a ).
The first of the two prior statements of identification was admitted, over the defendant's objection, as an excited utterance. See Mass. G. Evid. § 803(2) (2021). An out-of-court statement is admissible for substantive purposes as a spontaneous utterance if it was made "under certain external circumstances of physical shock ... which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock." Commonwealth v. Santiago, 437 Mass. 620, 623 (2002), quoting Commonwealth v. McLaughlin, 364 Mass. 211, 222 (1973). "[I]t is supposed that a person under stress tends to speak what comes spontaneously to mind, without energy or disposition to invent lies; his excited utterance is likely to be truthful in that sense, and so the hearsay objection is overcome." Commonwealth v. Carrasquillo, 54 Mass. App. Ct. 363, 368 (2002).
In determining whether an out-of-court statement offered as a spontaneous utterance should be admitted in evidence for its truth, the trial judge should assess whether "(1) there is an occurrence or event ‘sufficiently startling to render inoperative the normal reflective thought processes of the observer,’ and (2) ... the declarant's statement was ‘a spontaneous reaction to the occurrence or event and not the result of reflective thought.’ " Santiago, 437 Mass. at 623, quoting 2 McCormick, Evidence § 272, at 204 (5th ed. 1999). In order to fall within the spontaneous utterance exception to the hearsay rule, the statement should be made close in time to the exciting event. See W.G. Young, J.R. Pollets, & C. Porada, Annotated Guide to Massachusetts Evidence § 803 (2019-2020 ed. 2019) ("Any time that elapses between the exciting event and the statement will tend to remove the declarant from the stress of the situation thus tending to negate the rational[e] for admission"). But "[i]t is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated.... [T]here can be no definite and fixed limit of time. Each case must depend upon its own circumstances." Commonwealth v. Sellon, 380 Mass. 220, 229-230 (1980), quoting McLaughlin, 364 Mass. at 223. The elapse of ten minutes between the exciting event and the declarant's statement "does not even border on what we have described as an ‘outer limit.’ " Commonwealth v. Ruiz, 442 Mass. 826, 833 (2004), quoting Commonwealth v. DiMonte, 427 Mass. 233, 239-240 (1998). A judge has broad discretion in determining whether the foundational requirements for admissibility under the spontaneous utterance exception to the hearsay rule have been met. See Commonwealth v. Brown, 413 Mass. 693, 696 (1992).
The victim was attacked by two men, one of whom shot him twice, then shot at him again as the victim sought refuge behind a utility pole, and finally returned to point the gun at the victim's head but did not shoot further. Police responded within two to three minutes of the wounded victim's call to 911, and found the victim near his bed with "a lot of blood on him," apparently suffering from multiple gunshot wounds. The officers rendered first aid for approximately three minutes, until an ambulance arrived. During these moments, the victim repeatedly exclaimed that the defendant had shot him.
These circumstances placed the statements squarely within the excited utterance exception to the hearsay rule. See e.g., Ruiz, 442 Mass. at 832 (statements by stabbing victim's young daughter, who had witnessed stabbing, made about ten minutes afterward, were held admissible as spontaneous utterances); Commonwealth v. Mahar, 430 Mass. 643, 648 (2000) (police officer allowed to testify about victim's statements given to police immediately following home invasion); Sellon, 380 Mass. at 229-230 (victim's statements to friend few minutes after attack admissible as spontaneous utterances); Commonwealth v. Hampton, 351 Mass. 447, 449-450 (1966) (upstairs neighbor who saw stabbing victim bent over and bleeding approximately five or six minutes after stabbing occurred allowed to testify that victim said, "Call the police. My wife stabbed me").
Secondly, the defendant challenges the admission of the victim's statement to police later that same day, while he was in the hospital, again identifying the defendant as the shooter. The defendant argues that the judge erred in admitting this statement as a prior consistent statement because he did not raise a claim of recent fabrication. See Mass. G. Evid. § 613(b) (2021). Whether the defendant is correct is a question we need not answer because, in any event, the defendant has shown no prejudice. See Commonwealth v. Evans, 439 Mass. 184, 190 (2003) (preserved claim of error regarding admission of prior statement of identification reviewed for prejudicial error). The statement added nothing to the identification the victim made to officers when they first responded to the scene, was cumulative of the victim's in-court identification of the defendant, was a single sentence of testimony in the multi-day trial, and was not referred to further. Moreover, the focus of the defense was not on whether the defendant shot the victim, but rather that the Commonwealth failed to prove that the defendant had the intent to murder and also failed to prove the elements of armed home invasion, and that various witnesses' testimony was suspect. The verdict reflects the success of these defenses. In these circumstances, we can "say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole," that any "error did not influence the jury, or had but very slight effect" (citation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Judgments affirmed.