Opinion
17-P-1296
04-29-2019
COMMONWEALTH v. JOSE ORTIZ-DEJESUS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery on a family or household member and assault and battery by means of a dangerous weapon. After review of the defendant's several issues raised on appeal, we affirm.
Discussion. 1. The victim's on-scene statements. The defendant contends that the judge erred in admitting, over objection, the victim's on-scene statements to the responding police officer regarding the defendant's physical assault on her. The defendant argues that these statements should not have been admitted because they (1) did not fall within the excited utterance exception to the hearsay rule and (2) violated his confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.
We conduct a two-part inquiry to determine the admissibility of these out-of-court statements. See Commonwealth v. Nardi, 452 Mass. 379, 391 (2008). "[A] statement must first be evaluated for admissibility under normal evidence rules, i.e., whether it qualifies as a hearsay exception." Id., quoting Commonwealth v. Burgess, 450 Mass. 422, 431 n.6 (2008). "Then, the statement must be appraised under the criteria of Crawford [v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006)], . . . to determine if it satisfies the confrontation clause of the Sixth Amendment . . . ." Nardi, supra at 391-392, quoting Burgess, supra.
a. Excited utterance. The defendant contends that the victim's statements to officers recounting the attack were not admissible because they were "elicited in response to police questioning afterwards" and were "not a spontaneous response to an exciting event." We disagree. "In determining whether a statement is admissible as an excited utterance, we afford the trial judge broad discretion and reverse only for an abuse of that discretion." Commonwealth v. Linton, 456 Mass. 534, 548 (2010). A statement is an excited utterance if there is an event "sufficiently startling to render inoperative the normal reflective thought process of the observer," and the statement was "a spontaneous reaction to the occurrence or event and not the result of reflective thought" (citation omitted). Commonwealth v. Santiago, 437 Mass. 620, 623 (2002).
The trial judge heard evidence, during the voir dire of a responding officer, that police were dispatched to an ongoing domestic violence incident. They arrived on scene within five minutes, at which point dispatch updated them with information that a child had called reporting that "Daddy's biting Mommy's finger." The officer parked his vehicle a few houses away from the dispatched location, from which distance he could hear a woman screaming. The officer followed the screams to the third floor of the apartment building, where he found the victim in the hallway "screaming, yelling, [and] hysterical." He observed blood on her person and blood covering the wall behind her, and further noticed that her shirt was ripped off. The officer allowed the victim to go into her bedroom to cover up, at which time he entered the apartment and noted the state of disarray. When the victim reappeared, she "was still very pretty much hysterical still." Within "a minute or two" of the officer arriving at the scene, the victim told the officer what had happened.
The physical attack on the victim was sufficiently startling to meet the first requirement. See, e.g., Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 319 (2016) (physical attack on victim qualifies as startling event). Additionally, the temporal closeness of the statements to the startling event, and the evidence of the victim's condition as upset, in distress, and highly emotional, provided the trial judge with a firm basis for his conclusion that her initial statements to the responding officer were the product of the ordeal she had just experienced and not the result of conscious reflection. See Commonwealth v. Robinson, 451 Mass. 672, 680-681 (2008). See also Commonwealth v. Simon, 456 Mass. 280, 296 (2010) (statement in response to question may be excited utterance); Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018) (same). Accordingly, the judge did not abuse his discretion in determining that the statements were admissible as an excited utterance.
b. Confrontation clause. The defendant further contends that the victim's statements to responding officers were made when "there was no emergency still ongoing" and the questions posed to the victim demonstrated "an investigative purpose." The statements, he argues, were therefore testimonial in nature and cannot be admitted without violating the confrontation clause.
Factors that help distinguish testimonial statements from nontestimonial statements include:
"(1) whether the [declarant] was talking about 'events as they were actually happening rather than describ[ing] past events'; (2) whether any reasonable listener would
recognize that the [declarant] was facing an 'ongoing emergency'; (3) whether what was asked and answered was, viewed objectively, 'necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past,' including whether it was necessary for [police] to know the identity of the alleged perpetrator; and (4) the 'level of formality' of the interview (emphasis in original)."Commonwealth v. Galicia, 447 Mass. 737, 743-744 (2006), quoting Davis, 547 U.S. at 827. While statements made in response to police questioning are often considered testimonial, such statements are nontestimonial where, when objectively assessed from the perspective of the parties at the time, there is an "ongoing emergency, and the primary purpose of the interrogation [is] to meet that emergency, not to prove past events that may be relevant to criminal investigation or prosecution." Commonwealth v. Beatrice, 460 Mass. 255, 259 (2011).
The parameters of an ongoing emergency may depend on the "type and scope of danger posed to the victim, the police, and the public." Commonwealth v. Middlemiss, 465 Mass. 627, 634 (2013), quoting Michigan v. Bryant, 562 U.S. 344, 371 (2011). The duration of an ongoing emergency has no "concrete physical or temporal limits," and, because of the context-dependent nature of the determination, it is a finding "properly left to the trial courts." Middlemiss, supra at 635. The Court in Davis, 547 U.S. at 832, recognized that a police officer's initial approach in domestic disputes "may often" produce nontestimonial statements because of the officer's need to assess the situation and any threat to responders, the victim, and the public at large. See Beatrice, 460 Mass. at 262.
Here, the purpose of the initial questioning was to respond to an ongoing emergency. When the officers arrived on the scene, they could hear screaming from the street. As they made their way up to the third-floor apartment, they had only limited knowledge of an ongoing domestic dispute. When they reached the third floor, the officers observed the victim in the hallway, with her shirt ripped off, and in a hysterical state, with blood on her face and head and blood covering the wall outside of the apartment door. The defendant's location, condition, and threat level were all unknown. A reasonable person, viewing the scene, could conclude that there was an ongoing emergency at that time. The officer's question to the victim was concerned with settling the situation at hand, not investigating past events, and the victim's answer was necessary for the police to respond appropriately. Contrast Commonwealth v. Galicia, 447 Mass. at 745-746 (response to police questioning deemed testimonial where officer arrived at scene and "determined that the scene was safe").
Because we conclude the statements were nontestimonial and were admissible via a hearsay exception, we need not reach the defendant's claim that the Commonwealth's efforts fell short of establishing the victim's unavailability. See Commonwealth v. Nesbitt, 452 Mass. 236, 244 (2008) (nontestimonial statements do not invoke right to confrontation and may be admitted under Massachusetts evidence law).
2. Prosecutor's closing argument. For the first time on appeal, the defendant takes issue with a portion of the prosecutor's closing argument which, he asserts, invited the jury to speculate on the reason for the victim's absence from trial and to blame the defendant. Because the defendant did not object to those remarks at trial, we review only to determine whether a substantial risk of a miscarriage of justice occurred. Commonwealth v. Grandison, 433 Mass. 135, 142 (2001).
The prosecutor's remarks were made in response to comments made by defense counsel in closing argument, specifically, "Where's [the victim]? She's not here today. She's not here to tell her side of the story. You didn't hear from [the victim]." The prosecutor initially answered appropriately by indicating that the victim's testimony was not necessary and the reason for her absence was not an issue for the jury. The prosecutor went on, however, to say that the jurors could consider for themselves why the victim might not be present to testify, reminding them of the assault she endured, followed by, "Why do you think she's not here?" Although the latter comment should not have been made, we discern no substantial risk of a miscarriage of justice.
The judge instructed the jury on multiple occasions that closing arguments were not evidence and they were to decide the facts based solely on the testimony and the exhibits. See Commonwealth v. Jackson, 428 Mass. 455, 461 (1998) ("to the extent that any of the statements [in the prosecutor's closing] were improper, any resulting prejudice was adequately cured by the judge's instruction to the jury that closing arguments were not evidence and were intended by counsel to express a point of view"). See also Commonwealth v. Akara, 465 Mass. 245, 265 (2013). Additionally, the judge repeatedly cautioned the jury to not be persuaded by bias or sympathy. These instructions were clear, thorough, and reinforced through repetition, and the jury are presumed to have heeded them. Commonwealth v. Berry, 466 Mass. 763, 770 (2014).
3. Testimony regarding 911 call. Before trial, the Commonwealth asked the judge to allow a police witness to testify that he was notified by dispatch of a 911 call characterized as a possible incident of domestic violence and that the caller reported, "Daddy's biting Mommy's finger." The defendant objected on hearsay grounds. The judge agreed and allowed the officer to testify to the fact that he learned of a 911 call regarding the caller's parents being involved in a physical altercation but not to the specific statement relayed in that 911 call. The officer then testified at trial that he had received two calls from dispatch, the first of which notified him of a possible domestic violence situation and the second of which informed him that the caller had reported, "Daddy bit Mommy's finger." The defendant did not ask that the statement be stricken or otherwise object. On appeal, however, the defendant argues that the statement constituted inadmissible hearsay that prejudiced him.
We review for a substantial risk of a miscarriage of justice. See Commonwealth v. Almele, 474 Mass. 1017, 1019 (2016). Here, there was no such error because the substance of the statement was before the jury through other sources. See Commonwealth v. Vinnie, 428 Mass. 161, 172 (1998). Specifically, a police officer testified that the victim told him that the defendant had bitten her finger when she tried to hit him with a bottle. An emergency medical technician testified that he observed bite injuries on the victim's fingers. Additionally, the jurors had photographs and medical records concerning the bite injuries. Accordingly, even if the testimony was admitted in error, there was no substantial risk of a miscarriage of justice. See Commonwealth v. Esteves, 429 Mass. 636, 640 (1990).
4. Missing witness instruction. The defendant claims that the judge erred in denying his request for a missing witness instruction, which was based on the Commonwealth's failure to call the victim to testify. A judge's ruling on a missing witness instruction will not be disturbed unless manifestly unreasonable. See Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 252 (2012). Here, the prosecutor represented that she had summonsed the victim for trial but the victim failed to appear. Thus, one of the foundational elements for a missing witness instruction was absent -- the unexplained failure to call a witness. See Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 473 & n.5 (2004) (error to give missing witness instruction in face of counsel's representation that witness had been summonsed but failed to appear). Under the circumstances, there was no abuse of discretion.
5. Self-defense instruction. The defendant next claims that the judge committed reversible error by instructing the jury on self-defense over his objection, because the evidence did not warrant the instruction. Evidence that the defendant "bit [the victim's] finger when [the victim] hit him with the bottle, and that's how he received his injuries," allowed the judge to conclude that a self-defense instruction was warranted. See Commonwealth v. Pike, 428 Mass. 393, 395 (1998) (self-defense instruction warranted "if any view of the evidence would support a reasonable doubt as to whether the prerequisites of self-defense were present").
Although the defendant argues that the instruction harmed him in the sense that the jurors may have thought he was "clutching at straws" or admitting the conduct at issue, the instruction did not conflict with the defendant's trial strategy, which was to argue reasonable doubt from the absence of the victim's testimony. Cf. Commonwealth v. Norris, 462 Mass. 131, 143-144 (2012). In any event, the issue of self-defense was not mentioned in closing arguments at all. We discern no prejudice. See Commonwealth v. Souza, 428 Mass. 478, 485-487 (1998) (no error in giving self-defense instruction over defendant's objection where instruction was warranted by evidence).
6. Assault and battery on a household member. Finally, the defendant contends that the evidence was insufficient to support a finding that the victim and the defendant were members of the same household or family for purposes of G. L. c. 265, § 13M. We review a sufficiency of the evidence challenge to determine whether any rational trier of fact could have found the essential element of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-478 (1979). The Commonwealth may satisfy the challenged element with proof that the defendant and the victim "were married to one another," G. L. c. 265, § 13M (c) (i), or that they "have a child in common regardless of whether they have ever married or lived together," G. L. c. 265, § 13M (c) (ii).
The uncontroverted testimony regarding the relationship between the defendant and the victim was that he was her husband. The testifying officer, in recounting the victim's on-scene excited utterances, stated that "she didn't tell her husband that she was going to be late." The officer further testified, "[W]e arrested the -- her husband for the assault, assault and battery." At no point, either through cross-examination of the Commonwealth's witnesses, direct examination of his own witnesses, or during closing argument, did the defendant challenge the testimony that the defendant was the victim's husband. In addition, the evidence presented to the jury was that a child called 911 to report that her parents were in a violent altercation. This evidence, together with all of the inferences that could be reasonably drawn therefrom, sufficiently established that the victim and the defendant were married and that they had a child in common, and, thus, that they were members of the same family or household. We perceive no error.
Judgments affirmed.
By the Court (Blake, Lemire & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 29, 2019.