Opinion
20-P-787
07-01-2021
COMMONWEALTH v. Shane RAZA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the defendant, Shane Raza, was convicted of one count of assault and battery on a family or household member. On appeal, he argues that the judge abused her discretion in admitting a 911 recording in evidence. We affirm.
Background. On June 3, 2019, at approximately 1:50 A.M. , Officer Jonathan McDonald of the Woburn Police Department received a 911 call from a woman at 13 Church Avenue, apartment two in Woburn. The caller stated, multiple times, that "my husband is beating me ... I'm so scared," he "snatched my hair ... I need your help." She further stated that her husband was still home, but out of her room, and that her children were also home. During the call, Officer McDonald relayed the information to other officers who responded to the home. Officer Dennis Courtney arrived at the apartment and located a woman who was "on the outside porch at the top of [the] stairs." She "appeared a little upset, and she was on a cell phone." As Officer Courtney spoke to the woman, the defendant, who was "standing in the doorway leading onto the outside porch," "interrupted and said that they were having an argument, and everything was fine."
Other officers arrived, and they separated the defendant and the woman. The defendant stated to one officer that he was having an argument "with his wife." In the meantime, another officer spoke with the woman at the exterior of the apartment on the landing to the staircase. The woman was "visibly upset, she was shaking. Her hair was disheveled, and it looked like she had been recently crying." Her face was "very red." "She was upset and scared." Following the conversations, the officers arrested the defendant for assaulting his wife.
Discussion. The defendant contends that the judge erred in admitting the 911 call in evidence because the recording was not properly authenticated, the victim's statements do not qualify as excited utterances, and the admission of the recording violated his rights to confrontation. The arguments are unavailing.
The defendant preserved the issues for appeal through a motion in limine. See Commonwealth v. Grady, 474 Mass. 715, 718-719 (2016).
First, the 911 tape was properly authenticated. There were more than sufficient confirming circumstances to prove that the woman who made the 911 call was the victim who was discovered on the porch. The timing of the call, the discovery of the victim on the porch outside of the apartment on a cell phone, the emotional tone of the 911 caller, and the victim's demeanor and appearance when she spoke to the officers all tended to confirm that she was the same person who had called 911. See Commonwealth v. Loach, 46 Mass. App. Ct. 313, 316-317 (1999). The defendant's interruption of the questioning, and statement that he and his "wife" had just had an argument provided further confirming circumstances within the meaning of our precedent. See id. at 316.
Second, we have listened to the 911 tape, and have little difficulty concluding that the victim's statements were made during the startling event, and immediately after she had been struck by the defendant. See Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 418 (2018). The victim's statements, including her distressed voice begging for help to be sent and expressing fear of a continued "beating" qualified as excited utterances within the meaning of the exception. See id. at 421 ; Mass. G. Evid. § 803(2) (2021). The judge did not abuse her discretion.
Even assuming that only the first few minutes of the 911 recording should have been admitted in evidence, we discern no prejudice to the defendant. The latter part of the recording was largely cumulative. Furthermore, this was a jury-waived trial, and thus "[w]e assume that the judge is familiar with the law and did not permit [herself] to be influenced by such objectionable testimony." Commonwealth v. Montanez, 439 Mass. 441, 449 (2003). See Commonwealth v. Seesangrit, 99 Mass. App. Ct. 83, 91-92 (2021) (holding no prejudicial error in admission of evidence in bench trial because, inter alia, "we recognize that judges are less likely [than jurors] to be unduly swayed by potentially inflammatory evidence").
Finally, we disagree with the defendant's argument that the admission of the recording violated his confrontation rights. Contrary to the defendant's claim, the victim's statements in her 911 call were not testimonial where they were made during "an ongoing emergency, and the primary purpose of the interrogation [was to] meet that emergency." Commonwealth v. Beatrice, 460 Mass. 255, 259 (2011). See id. at 259-261 ; Commonwealth v. Nesbitt, 452 Mass. 236, 247-248 (2008).
Where the defendant's sufficiency argument on appeal is predicated on the assumption that the 911 recording was admitted in error, we conclude that the judge did not err in denying the motion for a required finding of not guilty.
Judgment affirmed.