Com. v. Alvarado

• Decision Date: 26 July 1994
• Docket Number: No. 93-P-1184,93-P-1184
• Citation: 634 N.E.2d 132,36 Mass.App.Ct. 604
• Parties: COMMONWEALTH v. Francisco O. ALVARADO.
• Court: Appeals Court of Massachusetts

Page 132

634 N.E.2d 132

36 Mass.App.Ct. 604

COMMONWEALTH v. Francisco O. ALVARADO.

No. 93-P-1184.

Appeals Court of Massachusetts Essex.

Argued Feb. 8, 1994.

Decided June 3, 1994.

Further Appellate Review Denied July 26, 1994.

Maureen L. Fox, Braintree, for defendant.

S. Jane Haggerty, Asst. Dist. Atty., for Com.

Before DREBEN, JACOBS and GILLERMAN, JJ.

JACOBS, Justice.

The defendant appeals from his conviction of assault and battery in violation of G.L. c. 265, § 13A, after a trial, without jury, in the District Court. We affirm.

The evidence supporting the conviction consisted essentially of the testimony of two police officers who stated that upon arriving at the apartment of Wanda Quiles within a minute of receiving a radio transmission "[s]he appeared to be very upset. Her entire face was wet with tears," and "[s]he was hysterical, crying; very, very emotional, upset, ... and very nervous." The police officers testified that Quiles was alone in the apartment and told them that she was upset because she and the defendant "were just involved in an argument," which occurred "just before our arrival [at] her apartment." They also testified, over objection, that she told them that the defendant hit and bit her in the course of their argument. The police officers testified to observing bite marks on Quiles's body which generally were consistent with her description of what had happened. The officers also testified that she said several kitchen chairs had fallen in the course of the fight, and one of the officers testified to seeing chairs tipped over and "other things thrown about" in the kitchen.

Called by the prosecution, Ms. Quiles denied that the defendant had bitten her, claimed that she had arranged to have a friend staying at her house bite her "[b]efore the cops came," and essentially otherwise invoked her rights under the Fifth Amendment to the Federal Constitution with respect to all other questions. Before proceeding with his case, the defendant unsuccessfully moved for a dismissal on the ground that he was effectively denied his right of cross-examination. His motions for a required finding of not guilty made at the close of the prosecution's and the defendant's cases were also denied. The defendant essentially argues that Quiles's out-of-court statements were erroneously admitted in evidence and that he was denied his constitutional right of confrontation.

Given the officers' observations of the physical disarray in the apartment, Quiles's excited emotional state, the bite marks on her body, her statement that the confrontation with the defendant had "just" occurred, and the brief lapse of time between the officers' being called and arriving at the apartment, it was well within the judge's "broad discretion" to admit Quiles's out-of-court statements under the spontaneous exclamation exception ¹ to the hearsay rule. Commonwealth v. Zagranski, 408 Mass. 278, 285, 558 N.E.2d 933 (1990). "For the purpose of the ... exception ... an utterance is spontaneous if it is made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus it has sufficient indicia of reliability.... The spontaneous utterance must qualify, characterize, and explain the underlying event that prompted the excited utterance." Ibid. See Commonwealth v. Fuller, 399 Mass. 678, 506 N.E.2d 852 (1987); Commonwealth v. Brown, 413 Mass. 693, 602 N.E.2d 575 (1992). Here, Quiles's statements clearly spoke to and described the events that prompted them, and there was ample evidence of their spontaneity.

For the first time on appeal, the defendant claims that the out-of-court statements should not have been admitted since there was no evidence of their spontaneity independent of the statements themselves. This argument ignores the independent evidence of spontaneity in the form of the police officers' response time and their observations of Quiles's excited state, the bite marks, and the disarray within the apartment. It also runs counter to the principle underlying the analogous, "generally prevailing practice" under which "the statement itself is taken as sufficient proof of the exciting event." 2 McCormick, Evidence § 272, at 217-218 (4th ed. 1992). Contrast People v. Burton, 433 Mich. 268, 445 N.W.2d 133 (1989).

The defendant also contends that he was deprived of his confrontation rights under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights ² by Quiles's reliance on her Fifth Amendment rights. "[E]xceptions to the hearsay rule, including ... spontaneous exclamations ... are part of our law." Opinion of the Justices, 406 Mass. 1201, 1213, 547 N.E.2d 8 (1989). Notwithstanding the importance of cross-examination in our jurisprudence, "where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." White v. Illinois, 502 U.S. 346, ----, 112 S.Ct. 736, 743, 116 L.Ed.2d 848 (1992). Moreover, the technical unavailability of Quiles established by her invocation of her Fifth Amendment rights effectively satisfied Sixth Amendment requirements. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980). Commonwealth v. Bohannon, 385 Mass. 733, 740-749, 434 N.E.2d 163 (1982). ...