Com. v. Galicia

• Decision Date: 30 November 2006
• Citation: 447 Mass. 737,857 N.E.2d 463
• Parties: COMMONWEALTH v. Carlos I. GALICIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

857 N.E.2d 463

447 Mass. 737

COMMONWEALTH v. Carlos I. GALICIA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued September 5, 2006.

Decided November 30, 2006.

COPYRIGHT MATERIAL OMITTED

Theodore F. Riordan, Quincy (Deborah Bates Riordan with him) for the defendant.

Nicole Allain, Assistant District Attorney (Marguerite Grant, Assistant District Attorney, with her) for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

MARSHALL, C.J.

We consider in this case whether a judge properly admitted in evidence statements made by a victim in the course of an emergency 911 telephone call and later to police officers who responded to the scene. The statements concerned an assault by the defendant, Carlos Galicia, the husband of the victim, and were admitted in the defendant's trial at which he was convicted of assault and battery. See G.L. c. 265, § 13A(a). The victim did not testify at the trial.

On appeal, the defendant claims that the admission of the victim's statements violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution.¹ He also claims that the trial evidence was insufficient to support his conviction because it failed to identify him as the perpetrator.

The disposition of this case turns on recent developments in the United States Supreme Court's confrontation clause jurisprudence. On March 8, 2004, the Supreme Court issued Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford). The defendant's appeal was entered in the Appeals Court on November 22, 2004. Crawford concerned the admission in evidence of tape-recorded statements made by a victim during a police interrogation while in police custody. The Court held that those statements were testimonial and therefore barred from admission by the confrontation clause of the Sixth Amendment. Id. at 68, 124 S.Ct. 1354. In his initial appellate brief, the defendant claimed that Crawford mandated the reversal of his conviction.

On July 5, 2005, we transferred the case here on our own motion. After the case was entered and briefs submitted, but before oral argument, the United States Supreme Court decided Davis v. Washington, ___ U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (Davis),² which elucidated the distinction between nontestimonial (and therefore admissible) statements and testimonial (and therefore inadmissible) statements left open in Crawford.³

The Commonwealth and the defendant agree that Davis governs our analysis of the defendant's Sixth Amendment claims, see Griffith v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ("failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication"), and, unremarkably, both assert that it supports their position. Neither is entirely correct. We conclude that, under the rule announced in Davis, and as we explain more fully below, the statements made by the victim to the 911 dispatcher were admissible because they were made in circumstances that objectively indicated that their primary purpose was to enable police to meet an ongoing emergency. Davis, supra at 2273, 126 S.Ct. 2266. Conversely, the statements the victim made to responding officers at her home when the emergency had passed were improperly admitted in evidence. Because the admission of the latter was harmless beyond a reasonable doubt, we decline to reverse the conviction. We further conclude that the evidence as to the defendant's identity was sufficient to sustain his conviction. We therefore affirm.

1. Background. On June 16, 2003, the defendant was arraigned on a complaint of assault and battery, assault and battery by means of a dangerous weapon (shod foot), and witness intimidation in connection with an assault on June 15, 2003, of the victim. The defendant pleaded not guilty to the charges.⁴ He subsequently waived his right to a jury trial.

Prior to trial, the Commonwealth filed a motion in limine to introduce a recording of a telephone call made by the victim to the Ashland police department, as well as statements the victim later made to Ashland police officers at the scene. Over the defendant's objection,⁵ the judge ruled that the statements were admissible as "excited utterances."⁶ The trial took place that same day, before the same judge. At the close of the Commonwealth's case, the defendant moved for a required finding of not guilty on the sole ground that the Commonwealth had failed to prove that the defendant was the perpetrator. The motion was denied. At the close of evidence, he renewed the motion, which was again denied. The judge found the defendant guilty.

We summarize the evidence at trial,⁷ reserving the recitation of certain facts for later discussion.

At approximately 9:50 P.M., Ashland police department dispatcher Tamar Luciani received an emergency 911 telephone call. As reflected in the recording of that telephone call, Luciani asked, "What is your emergency?" A female voice stated, "My husband's beating me up right now!" After confirming that the caller lived in apartment 8 at 19 Joanne Drive, Luciani asked, "Where is your husband now?" The caller responded, "Ow! . . . I'm in the kitchen!" When the dispatcher asked who else was home with her, the caller responded, "My son and my daughter." The dispatcher asked, "Is your last name `Galicia'?" to which the caller responded, "Yes. Ow!"

Less than five minutes later, Officer Greg Wildman arrived at 19 Joanne Drive.⁸ He testified that he found the door to apartment 8 open, and noted several chairs turned over inside the apartment. Also inside the apartment was a man with his shirt off and a woman who was "upset." She had "some scratches on her face and her chin" and appeared "tearful." Officer Wildman asked the woman, then standing in the hallway outside the apartment, to take some deep breaths to calm herself, and then proceeded to talk to her. The woman informed the officer that her husband had accused her of being unfaithful and that a physical altercation had ensued during which her husband had punched, choked, and kicked her.

Officer Elena Downey arrived at the scene while Officer Wildman was in the hallway talking to the victim. She testified that the victim showed her marks on her back, face, neck, and legs,⁹ and stated that she had been choked, pushed, and kicked to the ground. The victim also told Officer Downey that her husband had accused her of being unfaithful, and that she was planning to move with her two children to Chicago for a job in two weeks.

We now turn to the grounds for appeal.

2. Confrontation clause. The defendant contends that, because the victim's statements to the police dispatcher and her statements to the responding officers were "testimonial" under the confrontation clause, they were improperly admitted at trial. See Crawford, supra at 68, 124 S.Ct. 1354. Our analysis of his claims turns on the distinction between testimonial and nontestimonial statements set out in Crawford and Davis, to which we now turn.

Both Crawford and Davis counsel that the determination whether a statement is testimonial or nontestimonial for confrontation clause purposes is highly dependent on the context in which the statement was made. At issue in Crawford was whether a wife's statements to police officers during the course of a formal police interrogation were admissible against her husband at his trial for assault and attempted murder of a third party. Crawford, supra at 38-39, 124 S.Ct. 1354. In examining whether the statements were testimonial for purposes of the Sixth Amendment, the Court considered the historical background of the right of a criminal defendant "to be confronted with the witnesses against him." The Court determined that, broadly speaking, at the time of the founding, a witness's out-of-court statement was "testimonial" if it was a "solemn declaration or affirmation made for establishing or proving some fact." Id. at 51, 124 S.Ct. 1354, quoting Webster's American Dictionary of the English Language (1828). The Court noted that, by barring such testimony from evidence except where the witness was unavailable and the defendant had prior opportunity for cross-examination, the Sixth Amendment sought to avert the "principal evil [of the] civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 50, 124 S.Ct. 1354. In contrast, "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design" to afford States the latitude to develop their own hearsay rules or other rules of admissibility concerning such statements. Id. at 68, 124 S.Ct. 1354.¹⁰ In Crawford the Court declined to provide a "comprehensive definition" of testimonial statements, id., but held that, under any reasonable construction of the term, statements made by the wife to law enforcement officers about the alleged crimes after she had been advised of her Miranda rights were "testimonial."

In Davis, the Court applied the rule announced in Crawford to two cases concerning 911 calls and initial police interrogation. In the first case, the victim reported a domestic disturbance to the 911 dispatcher as she was being attacked.¹¹ She is recorded in her 911 call as stating: "He's here jumpin' on me again. . . . He's usin' his fists. . . . He's runnin' now." Davis, supra at 2271. She identified her attacker to the 911 operator as Adrian Davis, her former boy friend. Id. At trial, the caller did not testify. Id. Over the defendant's objection, the trial court judge admitted the 911 conversation, as well as police observations at the scene¹² (to which there was no objection), and a jury convicted him. Id.

In the second case, police responded to a "reported domestic disturbance,"¹³ but when they arrived, the wife told them that "nothing was the...