Com. v. Gonsalves

• Decision Date: 29 August 2005
• Citation: 445 Mass. 1,833 N.E.2d 549
• Parties: COMMONWEALTH v. Hermany GONSALVES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 549

833 N.E.2d 549

445 Mass. 1

COMMONWEALTH v. Hermany GONSALVES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 7, 2005.

Decided August 29, 2005.

COPYRIGHT MATERIAL OMITTED

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

Brownlow M. Speer, Committee for Public Counsel Services, Boston (Jason Benzaken, Committee for Public Counsel Services, with him) for the defendant.

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

SPINA, J.

Hermany Gonsalves is charged with assault and battery and assault and battery by means of a dangerous weapon. The complainant is unavailable to testify at trial and previously has not been subject to cross-examination. A judge in the District Court determined in a pretrial ruling that out-of-court statements made by the complainant in response to questioning by a police officer and questioning by her mother were testimonial in nature and therefore inadmissible under the recent United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford). The Commonwealth sought review of that ruling before a single justice, who thereafter reserved and reported the matter to the full court.

The Crawford case reestablished the principle that testimonial out-of-court statements are inadmissible under the confrontation clause of the Sixth Amendment to the United States Constitution, regardless of local rules of evidence, unless the declarant is available at trial or the declarant formally is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Although the Supreme Court deferred articulating "a comprehensive definition of `testimonial,'" it did determine that the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id. at 68, 124 S.Ct. 1354. The Court also noted that certain out-of-court statements are, "by their nature ... not testimonial — for example, business records or statements in furtherance of a conspiracy." Id. at 56, 124 S.Ct. 1354. This case represents our first opportunity to interpret the confrontation clause in light of Crawford.

We hold that statements made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care. Further, out-of-court statements that are not testimonial per se must be examined to determine if they are nonetheless testimonial in fact by evaluating whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

1. Background. On March 16, 2003, the twenty year old complainant was in her bedroom with the defendant, her boy friend at the time. The complainant's mother was two rooms away, in her own bedroom. The mother is prepared to testify that she heard an argument between the complainant and the defendant with yelling, screaming, and crying. The mother went to the complainant's room to see what was wrong. The defendant had left and the complainant was lying on her bed, crying.

The mother would further testify that she asked the complainant what had happened and if the defendant had hit her. The complainant answered that she and the defendant had argued, that he had grabbed the front of her shirt so tight she could not breathe, and that he had hit her.

Neither the complainant nor her mother telephoned anyone for assistance, but about ten to fifteen minutes after the mother first heard the argument, the police arrived at the apartment. Two responding officers had received a dispatch for a domestic disturbance and arrived within a couple of minutes. They went straight to the second floor of the apartment building and spoke with the mother and the complainant.

As the defendant already had left, there was no active conflict at the time the officers arrived. Although upset, the complainant was verbal, mobile, and had no obvious injuries. The officers found the complainant crying and hysterical, ranting, loud, hyperventilating, and pacing around the room. One officer asked the complainant what happened and spoke with her about the situation for "probably not more than five minutes." In response to the officer's questioning, the complainant stated that her boy friend had grabbed her by the neck, lifted her off the ground, choked her, and hit her head on the floor. The complainant identified her boy friend by name and described him as a "medium-skinned black male," six feet, two inches tall, and weighing 275 pounds. After an ambulance arrived to take the complainant to a hospital, the officer remained at the scene and spoke to the mother for "a brief period," asking her what she saw. Any exchange that occurred between the second officer and the complainant or the mother is not in the record before us. The record similarly does not disclose what medical treatment the complainant received or whether the ambulance was part of the initial dispatch or summoned separately.

A complaint issued against the defendant and he was arraigned on charges of assault and battery and assault and battery by means of a dangerous weapon. On December 16, 2003, the Commonwealth filed a motion in limine seeking to be allowed to introduce the out-of-court statements made by the complainant, pursuant to the "spontaneous utterance" exception to the hearsay rule.¹ At that time, the complainant was available to testify, so the confrontation clause was not implicated. The mother and one of the officers testified at the hearing on the Commonwealth's motion in limine. The other officer's proffered testimony was postponed until the day of trial, which has not yet occurred. Based on the preliminary hearing, the Commonwealth's motion to admit the out-of-court statements was allowed.

On March 31, 2004, the defendant filed a motion for reconsideration in light of the Supreme Court's Crawford decision (statement made by unavailable coconspirator was testimonial and therefore inadmissible under confrontation clause, notwithstanding its admissibility under statement against penal interest exception to State's hearsay rule). On April 2, 2004, the complainant invoked her privilege under the Fifth Amendment to the United States Constitution and therefore became unavailable to testify at trial. See Commonwealth v. Galloway, 404 Mass. 204, 208, 534 N.E.2d 778 (1989). At a hearing on the motion for reconsideration, the judge received further filings, but no testimony, and took the matter under advisement. On May 24, 2004, the judge vacated his prior ruling. He found, "These statements were clearly `testimonial' and were made in response to interrogation." Therefore, based on the Crawford case he concluded "that these statements should not be admitted into evidence."

The Commonwealth sought review of that ruling through a petition pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), and a petition for relief pursuant to G.L. c. 211, § 3. The single justice thereafter reserved and reported the matter to the full bench.

2. Legal framework. a. The Crawford decision. The Sixth Amendment's confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." Despite this language, under previous Supreme Court jurisprudence an unavailable witness's out-of-court statements were sometimes admissible at trial. Admissibility was determined by whether the statements displayed "adequate `indicia of reliability'," similar to the rationale behind the rules of evidence related to hearsay. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

The Supreme Court's recent decision in Crawford rejects the use of this reliability test for out-of-court statements that are "testimonial" in nature. The Court held that the Sixth Amendment imposes a complete bar to the admission of out-of-court statements that are determined to be testimonial unless (1) the declarant is available at trial or (2) the declarant is formally unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. With certain historic exceptions, all other out-of-court testimonial statements are barred, regardless of whether they possess any indicia of reliability. Crawford, supra at 68, 124 S.Ct. 1354. The admissibility of nontestimonial out-of-court statements remains governed largely by State hearsay rules. Id. at 61, 68, 124 S.Ct. 1354. See, e.g., Commonwealth v. Whelton, 428 Mass. 24, 29, 696 N.E.2d 540 (1998) (under Massachusetts law, proof of declarant's unavailability not required for admission of spontaneous utterance); Commonwealth v. Fuller, 399 Mass. 678, 682-683, 506 N.E.2d 852 (1987) (statement may be spontaneous exclamation, even if made in response to questions).

In Crawford, the Supreme Court declined to define precisely what statements are testimonial. Instead, it discussed various formulations of the "core class" of testimonial statements:

"[1] `ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially'; [2] `extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions', White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J., concurring in part and concurring in judgment); [or, 3] `statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later...