Com. v. Crawford

• Decision Date: 21 March 1994
• Citation: 417 Mass. 358,629 N.E.2d 1332
• Parties: COMMONWEALTH v. Michael L. CRAWFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1332

629 N.E.2d 1332

417 Mass. 358

COMMONWEALTH v. Michael L. CRAWFORD.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 7, 1994.

Decided March 21, 1994.

Willie J. Davis, Boston, for defendant.

Jane Woodbury, Asst. Dist. Atty. (Daniel C. Mullane, Asst. Dist. Atty., with her) for the Com. Before WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

The defendant, Michael L. Crawford, was tried before a jury in the Superior Court on two indictments charging him with murder in the first degree in connection with the killing of his girl friend and their unborn child. The jury found the defendant guilty of involuntary manslaughter as to each death, and he was sentenced to consecutive terms of imprisonment at the Massachusetts Correctional Institution, Cedar Junction. On appeal, the defendant argues that the judge should not have admitted in evidence hearsay statements by the couple's child as spontaneous utterances, and, even if properly determined to be spontaneous utterances, the admission of the statements, when the child was available to testify, violated his constitutional rights to confrontation under the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution. The defendant also argues that the judge erred by refusing to give the jury a missing witness instruction and by failing to instruct properly on reasonable doubt. We transferred the appeal to this court on our own motion and now affirm the judgments of conviction.

The jury heard the following evidence at trial. Kimberly Noblin, the victim, lived with her four year old daughter, Tiara, in an apartment in the Dorchester section of Boston. The defendant, Tiara's father, kept his clothes and other effects at the apartment and was staying there about three nights a week. In July, 1990, the victim was pregnant by the defendant. She was killed by a single gunshot wound to the face on July 7, 1990. The fetus died of oxygen deprivation caused by the victim's death. ¹ The medical examiner testified that rigor was fully established when he arrived at the victim's apartment sometime after 10 P.M., and that, generally, rigor takes from four to six hours from the time of death to develop.

The defendant did not testify at trial, but a tape recording of a lengthy statement he voluntarily made to police on July 10, 1990, while accompanied by an attorney, was played for the jury. In the statement, the defendant said he left the victim's apartment early in the afternoon ² of July 7, accompanied by his daughter. As they left, the victim was returning to the apartment. He took his daughter to a canteen truck operated by a friend, arriving there while it was still light. When it started to become dark, the defendant became concerned about keeping his daughter with him and sought to make child care arrangements. He was unable to reach his grandmother, with whom he sometimes left the child. He eventually went to the house of a friend of the victim, Stacey Galvez, who agreed to watch the child for a short time, until the child's maternal aunt or grandmother could pick her up. After that, the defendant returned to the canteen truck, stayed for awhile, and then left with a woman friend. Together they went to her apartment, where they watched videotapes and ate Chinese food before the defendant fell asleep on the couch at about 3 A.M. He learned of the victim's death the next morning at 9 o'clock when he called his grandmother.

Brian Johnson, a friend of the defendant, testified that he telephoned the defendant at the victim's apartment at 3:30 P.M. The victim answered the telephone and told Johnson that the defendant was there, asleep. Around 4:30 P.M., Johnson drove to the apartment to find the defendant. He rang the doorbell and received no answer. No noise was coming from the apartment. Ricky Riley, the owner of the canteen truck, testified that the defendant arrived at the truck with his daughter in the early evening. Riley had no watch that day and was unsure of the exact time.

Stacey Galvez agreed that the defendant brought Tiara to her house around 8:30 P.M., and asked Galvez to babysit for Tiara. Galvez made arrangements for Tiara's grandmother (the victim's mother) to come get Tiara. The defendant left. Tiara stayed at Galvez's house for about a thirty minutes, playing with her three year old son. Galvez had no discussion with Tiara.

Sometime after 9 P.M., the grandmother picked up Tiara. As she climbed into her grandmother's car, Tiara immediately said, "Daddy shot Mummy." (Tiara referred to the defendant as "Daddy.") She repeated this statement. After attempting to reach the victim by telephone, the grandmother drove to the apartment, let herself in with her set of keys and discovered the victim's body in the bedroom. As the grandmother ran out of the bedroom screaming, Tiara said to her, "Mummy's dead."

A neighbor, Yvonne Brown, who had heard the commotion, saw Tiara in the hallway. She did not know the child well. When the neighbor asked Tiara if she would be all right, Tiara responded, "Daddy ... my Daddy killed my Mommy."

Detective John Parlon of the Boston police department was among the first police officers to respond to the scene. He asked Tiara what had happened in the apartment and she responded, "My Daddy shot my Mummy. Daddy said, 'Give me the gun,' and then I heard a big noise. Then Daddy took me to Stacey's house in a car." Police officers investigating the case never questioned Tiara again. She did not testify at trial. Her statements to her grandmother, the neighbor, and Detective Parlon were admitted in evidence under the spontaneous utterance exception to the hearsay rule.

1. The defendant filed a motion in limine seeking to exclude from evidence Tiara's statement, "Daddy shot Mummy," initially made to Tiara's grandmother (and repeated to two other witnesses) under the spontaneous utterance exception to the hearsay rule. The defendant argued to the judge, as he does here, only that the spontaneity requirement for the exception was not met. The judge held a voir dire on the motion at which all the witnesses expected to be called at trial on the statements testified. The judge had previously interrogated Tiara in open court and ruled that Tiara was a competent witness. The requirements for admission of the hearsay statements as spontaneous utterances were satisfied.

"Under the spontaneous exclamation exception to the hearsay rule, 'a statement is admissible if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.' Blake v. Springfield St. Ry., 6 Mass.App.Ct. 553, 556, 379 N.E.2d 1112 (1978). See Commonwealth v. McLaughlin, 364 Mass. 211, 222-223, 303 N.E.2d 338 (1973). The statements ' "need not be strictly contemporaneous with the exciting cause" ... Wigmore on Evidence (3d ed.) § 1750.' Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197, 163 N.E.2d 157 (1960). In determining whether an utterance meets the tests of admissibility, the trial judge 'ought to be given broad discretion.... [A]nd only in clear cases ... of an improper exercise of discretion should his ruling be revised.' Commonwealth v. McLaughlin, supra, 364 Mass. at 223, 303 N.E.2d 338, quoting Rocco v. Boston-Leader, Inc., supra. See Commonwealth v. Fuller, 399 Mass. 678, 682, 506 N.E.2d 852 (1987)." Commonwealth v. Brown, 413 Mass. 693, 695-696, 602 N.E.2d 575 (1992). Particularly when the declarant is a young child who remains in the company of the alleged perpetrator after a traumatic event, precise contemporaneousness is not required. Id. at 695, 602 N.E.2d 575 (child's statement made about five hours after exciting event qualified as spontaneous utterance).

The evidence warranted the judge in finding at the conclusion of the voir dire, as he did, that Tiara had been in the defendant's custody after the killing, and that, when she left his custody, she made her initial statement at "the first safe opportunity, almost immediately on seeing her grandmother." This finding permits the inference that, during her brief stay with Stacey Galvez, Tiara may not have wished to reveal to a nonfamily member what had happened. The evidence also warranted the judge's finding that the initial statement was made when a very young girl was under the extreme stress of her mother's death, and in a context where she could be expected to be truthful. The judge noted as well that he had held a separate hearing on Tiara's competency, and that Tiara "possessed the intelligence to comprehend the exciting nature of the event, as well as having sufficient capacity to observe, remember and give an expression to that which she had seen, heard or experienced." Finally, the evidence warranted the judge additionally finding that Tiara's statements to Yvonne Brown and Detective Parlon were products of the continuing stress of her mother's homicide. ³

At the voir dire on Tiara's competency and the voir dire on the admission of her statements as spontaneous utterances, the basis of her knowledge of events in the apartment was not directly raised, and, therefore, not established. The focus of the first voir dire was whether Tiara had the capacity to be truthful, and the only challenge raised at the second voir dire was whether the statements qualified as spontaneous in the temporal sense. It is true that, when an extrajudicial statement is offered in court for its truth, the proponent of the statement may be required to establish that the declarant had personal knowledge of the information contained in the statement. See Bouchie v. Murray, 376 Mass. 524, 531, 381 N.E.2d 1295 (1978); Ricciardi v. Children's Hosp. Medical Ctr., 811 F.2d 18, 22 (1st Cir.1987). See also 2 McCormick, Evidence § 272, at 221 (4th ed. 1992); 5 J. Wigmore, Evidence § 1424 (Chadbourn rev. ed. 1974)....