Com. v. DiMonte

• Decision Date: 10 April 1998
• Citation: 427 Mass. 233,692 N.E.2d 45
• Parties: COMMONWEALTH v. Ivan A. DiMONTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 45

692 N.E.2d 45

427 Mass. 233

COMMONWEALTH v. Ivan A. DiMONTE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 5, 1998.

Decided April 10, 1998.

William G. Small, Woburn, for defendant.

Maryanne E. Kilty, Assistant District Attorney, for Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

On July 21, 1995, a jury in the Boston Municipal Court returned a guilty verdict of assault and battery, G.L. c. 265, § 13A, against the defendant, Ivan A. DiMonte husband). ¹ The complainant, DiMonte's wife ² (wife), did not testify at trial. The defendant appeals from his conviction based on claimed errors in the admission in evidence of several extrajudicial statements by the wife and by the defendant. We agree that the judge erred in admitting some testimony that was hearsay. The hearsay evidence may well have contributed to the jury's verdict. We therefore reverse the judgment of the Boston Municipal Court and set aside the verdict.

1. The jury could have found the following facts. On April 18, 1995, Rabbi Michael Luckens telephoned the wife regarding selections for her planned singing performance honoring a Japanese diplomat who had helped to save many Jews during the Holocaust. ³ Luckens estimated that he telephoned between noon and 1 P.M., although he conceded that it may have been as early as 10:30 A.M. During the conversation Luckens heard in the background a man, whom the wife identified to Luckens as her husband, arguing with and then screaming at her. Luckens then heard a "blood curdling" scream from the wife, after which the telephone was hung up. After calling back several times and reaching only the answering machine, Luckens called 911, and was referred to and then spoke with the Boston police department. There is no evidence concerning what, if any, action the police took at that time.

Later that evening, at 9:23 P.M., Yuson Hasegawa-Johnson, an acquaintance of the wife, received a facsimile transmission from the wife, written in Japanese. ⁴ Hasegawa-Johnson took the facsimile to the Boston police, and accompanied by a friend, Michael Thompson, went with the police to the apartment where the wife lived with her husband. The police forced entry into the apartment after the defendant refused to open the door. The wife was found in a bedroom, holding her son. Her face was bloodied, she had facial cuts and bruises, and her left eye was swollen shut. She told police that the defendant had struck her in the face with some furniture. The police then arrested the defendant. It was later determined that the wife's orbital bone was fractured. Hasegawa-Johnson and Thompson accompanied the wife to a hospital. They both testified about the wife's injuries that they had observed. Thompson also testified that some six weeks prior to the incident, the defendant had said that he was jealous of his wife, and that "once he had spent a day and an evening outside a building in the rain watching for her."

On the day the trial commenced, the defendant filed a motion to suppress the wife's statements in the facsimile and her oral statements to Hasegawa-Johnson and to a police officer. Treating the motion to suppress as a motion in limine, the judge conducted a voir dire of Hasegawa-Johnson before ruling the facsimile admissible. ⁵ The defendant also filed a motion in limine to exclude from evidence, inter alia, Thompson's statement as to DiMonte's jealousy. During the trial the Commonwealth introduced, over the defendant's objection, the wife's medical records of her emergency room visit.

2. For the second time this term, we are asked to decide how facsimile transmissions fit within preexisting law. See Commonwealth v. Richards, 426 Mass. 689, 690 N.E.2d 419 (1998) (discussing whether a facsimile transmission is a telephone call). The defendant asks whether a facsimile transmission ever can be considered a spontaneous exclamation, qualifying as an exception to the hearsay rule. We have never addressed the question. We decline to establish a categorical rule, as we can envision rare circumstances in which a writing, whether in the form of a facsimile transmission or otherwise, could be considered a spontaneous exclamation made when a person is in an excited or agitated state. In the case of the facsimile transmission sent by the wife, however, we agree with the defendant that it lacks adequate indicia of reliability to qualify as an hearsay exception.

"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'.... The statements ' "need not be strictly contemporaneous with the exciting cause" '.... 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 [her] ruling be revised.' " (Citations omitted.) Commonwealth v. Crawford, 417 Mass. 358, 362, 629 N.E.2d 1332 (1994). See Proposed Mass. R. Evid. 803(2). In this case, the judge was faced with particularly difficult circumstances in reaching her decision: the message was written in a foreign language; the Commonwealth and the defendant could not agree on an accurate written translation of the facsimile; the Commonwealth did not offer in evidence a written translation of the facsimile transmission or the testimony of an independent translator; and the witness who did translate the facsimile orally was the wife's friend who admitted she could be biased against the defendant. Moreover, there is no precedent in this Commonwealth on which the judge could rely, and there is little precedent from other jurisdictions that was of assistance to her. In reaching a decision different from hers, we note the exceptionally careful way in which the judge considered this issue and balanced the competing interests at stake.

We take up first those objections to the admission of the facsimile transmission that are unique to it as a writing, rather than as a spoken communication. ⁶ The defendant argues that the acts of drafting and transmitting a facsimile message deprive it of the spontaneity required by the hearsay exception for spontaneous exclamations. Writing, he contends, is an inherently premeditated process; manipulation of a facsimile machine, once a message is written, is an additional deliberated sequence of actions. He further argues that the recipient of a written message has no percipient experience of the sender at the moment when she writes and sends the message, and cannot testify to the sender's demeanor, tone of voice, or degree of observed excitement or stress. The arguments are persuasive.

In admitting the facsimile transmission as an excited utterance, the judge based her decision in part on "the style used, the handwriting." This conclusion was based on Hasegawa-Johnson's testimony at voir dire. Hasegawa-Johnson claimed familiarity with the wife's handwriting primarily from her frequent facsimile transmissions to Hasegawa-Johnson, including three other transmissions sent earlier on that same day, but apparently before the conflict with the defendant arose. Hasegawa-Johnson characterized the wife's writing as usually neat, but said that the facsimile transmission at issue was different: "[i]t's like all the flying [sic ] ... like she, without really thinking carefully what to write, she just wrote what she thought was important to tell me." ⁷ While such observations of handwriting style may be entitled to some weight in assessing the spontaneity of the facsimile statement, handwriting style may vary due to a number of different circumstances, not only due to the excitement of an underlying stressful event. Here the conclusions concerning the wife's handwriting style depend wholly on the nonexpert opinion of Hasegawa-Johnson, a witness who could be viewed as harboring bias against the defendant. Moreover, our review of Hasegawa-Johnson's testimony indicates that, despite her clear attempt to assist the court, her expressions in English confuse exactly how she meant to characterize the wife's script. We are dubious that such evidence supplies an equivalent degree of reliability as that which would be available from someone testifying to a spoken excited utterance.

On our request during oral argument for authority for the proposition that a writing could qualify as an excited utterance, the Commonwealth brought to our attention only three cases that have addressed the issue. See State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990); State v. Justice, 92 Ohio App.3d 740, 637 N.E.2d 85 (1994); State v. Dixon, 37 Wash.App. 867, 684 P.2d 725 (1984). Of these, only in Boppre was a writing found to meet the requirements for the spontaneous exclamation exception to the hearsay rule. Boppre, supra at 950, 453 N.W.2d 406. In that case, a murder victim had scrawled the abbreviated name of his assailant in blood and grease on the floor in the estimated five- to ten-minute interval before he expired of gunshot wounds, a writing that also qualified as a dying declaration exception to hearsay. Id. at 929-930, 453 N.W.2d 406. ⁸ Courts in the other two cases held inadmissible written statements by victims given at police stations shortly after being assaulted, while affirming the admission of the victims' oral statements to police as excited utterances. Justice, supra at 747, 637 N.E.2d 85 (harmless error). Dixon, supra at 874, 684 P.2d 725 (same).

Boppre provides one example when a writing may be admissible as a spontaneous exclamation. Other occasions may be when a victim is held hostage and is unable to communicate in any way other than writing ⁹ or when a person's vocalization is impaired, as the judge here observed. Because a...