Opinion
19-P-1753
12-23-2020
COMMONWEALTH v. GREGORY SAUNDERS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a jury trial in the Superior Court, the defendant was convicted of two counts of rape in violation of G. L. c. 265, § 22 (b); assault and battery causing serious bodily injury in violation of G. L. c. 265, § 13A (b); and assault and battery in violation of G. L. c. 265, § 13A (a). On appeal, he contends that the judge improperly admitted the victim's statements to her mother about the sexual assault in violation of the first complaint doctrine announced in Commonwealth v. King, 445 Mass. 217 (2005). As we discuss in more detail below, the statements were independently admissible as excited utterances and, therefore, their admission in evidence was not prohibited under King. Accordingly, we affirm.
Background. a. Facts. We summarize only those facts pertinent to our discussion of the issues on appeal. The defendant and the victim, whom we shall call Sally, had a tumultuous long-term relationship. The two had been separated for about five years when they started seeing each other again in the spring of 2013. Around that time, the defendant moved in with Sally and their daughter, who was now five years old, and Sally's son, L.J., who was sixteen years old. The reunification was not successful. On the evening before the events in question, the defendant and Sally attended a concert and argued. The argument continued after they returned home and retired for the night. When Sally told the defendant that the relationship was over, he responded by slapping and beating her. The assault soon escalated. At one point, the defendant pressed his foot against Sally's neck until she lost consciousness, and when she woke up, he raped her both vaginally and anally. As soon as the defendant fell asleep, Sally got dressed and left the house with her children. She drove approximately one-half hour to her mother's house. While driving, Sally called her mother and told her that the defendant had hit her and that she was on her way over, but she did not provide any details about the incident. When Sally arrived and the children were settled, Sally told her mother about the rapes. Sally testified that she sat on her mother's couch crying for some time before she was able to speak.
The mother testified that Sally was crying when she called from her car, so much so that the mother had trouble understanding her. When Sally arrived at the mother's home, she was still crying and had her head down. Sally continued to cry and wept for some time before telling the mother that she and the defendant had argued, that she had attempted to end the relationship, and that the defendant had beaten her. The mother also stated that "[Sally] said, then [the defendant] forced himself on me." The mother asked Sally, "[D]o you know what that means?" and Sally replied that "he raped her." According to the mother, Sally was crying during the entire conversation.
b. Admission of Sally's statements as excited utterances. The first trial in this case ended in a mistrial. The Commonwealth had designated Sally's mother as the first complaint witness, but when L.J. testified it became clear that he was the first person to whom Sally reported that she had been sexually assaulted. He testified that Sally told him about the sexual assault during the drive to her mother's house. At the defendant's request, the judge declared a mistrial on the basis of the improper designation of Sally's mother as the first complaint witness.
The second trial commenced about one month later before the same judge. By this time, the Commonwealth had decided not to offer first complaint testimony and instead sought to introduce Sally's statements to her mother as excited utterances. Over the defendant's objection, the judge ruled that the statements qualified as excited utterances and, as such, the first complaint rule did not apply. He explained his reasoning as follows:
"[I]f evidence meets the evidentiary foundation for a spontaneous utterance, then by definition, it's not first complaint evidence, it's a spontaneous utterance. And none of the limitations of King apply. But none of the benefits of King apply either, such as that the jury is told . . . in the instruction that there may have been other people to whom the alleged victim complained.The judge also denied the defendant's request for a voir dire, stating that, based on the testimony from the first trial, he was satisfied that the statements at issue qualified as excited utterances. The judge advised trial counsel that he would reconsider his ruling based on the evidence adduced at trial. Thereafter, following Sally's testimony at trial, the judge made additional findings:
"But be that as it may, it's -- it's not first complaint, because it satisfies a foundation under the spontaneous utterance."
"As a preliminary question of fact on which admissibility depends, I make th[e]se findings by a preponderance of the evidence[:] That there was an event or occurrence sufficiently startling to render inoperative reflective thought. The event being the allegations as it relates to the vaginal and anal rape. And that the declarant's statement was a spontaneous reaction and not a result of reflective thought.
"The time period is not particularly long. It appears less than an hour. But more importantly, I'd analogize to a
situation where sometimes there is a delayed response, particularly in the area of domestic violence.The defendant renewed his request to conduct a voir dire of the mother, which the judge again denied.
"It seems to me from the testimony, and I make findings consistent with this, that it's sort of analogous to somebody sort of escaping a dangerous situation after a period of time and then making a disclosure. . . . Having [found] that it was a spontaneous utterance, then the evidence is admitted for its truth. So therefore, the first complaint doctrine wouldn't apply."
We are not persuaded by the defendant's argument that the judge abused his discretion by denying the defendant's request to conduct a voir dire of Sally's mother. As the judge observed, he was already familiar with the relevant facts and circumstances as a result of presiding over the first trial.
Discussion. Under King, 445 Mass. at 218-219, the recipient of a victim's first complaint of an alleged sexual assault may testify about the fact of the first complaint, but "[t]estimony from additional complaint witnesses is not admissible." The defendant argues that because Sally's mother was not the first person to receive Sally's "complaint," her testimony about Sally's "complaint" was not admissible. However, as the judge explained, Sally's mother did not testify as a first complaint witness and, consequently, the requirements set forth in King concerning the admissibility of first complaint evidence did not apply. We therefore move to the issue whether the challenged statements were properly admitted as excited utterances.
The defendant's reliance on Commonwealth v. McGee, 75 Mass. App. Ct. 499 (2009), in support of his position that the Commonwealth improperly substituted first complaint evidence is misplaced. As the judge correctly observed, the mother's testimony did not constitute first complaint testimony.
"We review a decision that an out-of-court statement qualifies as an excited utterance under the abuse of discretion standard." Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 423 (2018). In making our determination, the "essential issue is whether the statement was made under the stress of an 'exciting event and before the declarant has had time to contrive or fabricate the remark, and thus . . . has sufficient indicia of reliability.'" Id. at 421, quoting Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017).
The defendant argues that Sally's statements to her mother do not qualify as excited utterances because Sally was "no longer under the sway of the startling event when she made the statements." "However, 'our 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'" (quotation omitted). Wilson, 94 Mass. App. Ct. at 422 n.7, quoting Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008). See Commonwealth v. Marshall, 434 Mass. 358, 364 (2001) (victim's statements made approximately two hours after violent altercation qualified as excited utterances where victim was "still 'very upset,' 'crying and nervous,' and 'in fear'").
Here, the judge found that the time period between the rapes and Sally's statements to her mother was relatively short, less than an hour. Sally spent that time quickly getting dressed and leaving her home with her children while the defendant slept. See Commonwealth v. Ivy, 55 Mass. App. Ct. 851, 854-855 (2002) (statements made over four hours from domestic assault qualified as excited utterances where victim "escaped" from home after boyfriend went out in morning and victim was visibly distressed and whimpering at hospital). The mother testified that Sally was crying both when she telephoned from the car and when she arrived at the mother's house. Once the children were settled, Sally wept for some time before being able to tell her mother what had happened. Given these circumstances, the judge did not abuse his discretion in concluding that Sally's statements qualified as excited utterances.
We also reject the defendant's argument that the probative value of the mother's testimony was substantially outweighed by the danger of unfair prejudice. This evidence was highly probative and not overly inflammatory. We note that "[e]vidence of a victim's state of mind or behavior following a crime has long been admissible if relevant to a contested issue in a case." Commonwealth v. Arana, 453 Mass. 214, 225 (2009) (challenged testimony regarding victim's demeanor was admissible not as first complaint evidence but as relevant evidence of contested issue whether victim had fabricated allegations of sexual assault). Here, a central theory presented by the defense was that Sally fabricated the physical and sexual assault. In his opening, trial counsel informed the jury that "the Commonwealth's case is based on a lie," and returned to this theme in his closing, telling the jury that Sally "told a lie." As the defense contested whether an assault had occurred, testimony regarding Sally's demeanor was admissible to bolster her credibility "in the face of the defendant's accusation that her story was fabricated." Id.
Judgments affirmed.
By the Court (Vuono, Kinder & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 23, 2020.