Com. v. Hurley

• Citation: 913 N.E.2d 850,455 Mass. 53
• Decision Date: 29 September 2009
• Docket Number: SJC-10345.
• Parties: COMMONWEALTH v. Peter HURLEY.
• Court: United States State Supreme Judicial Court of Massachusetts

913 N.E.2d 850

455 Mass. 53

COMMONWEALTH v. Peter HURLEY.

SJC-10345.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 9, 2009.

Decided September 29, 2009.

Sharon Dehmand for the defendant.

Kenneth Bresler, Assistant District Attorney, for the Commonwealth.

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

GANTS, J.

The defendant, Peter Hurley, was convicted by a Superior Court jury of assault and battery of Rose Bovio, but acquitted of assault and battery of Arthur Kluge. Because both Bovio and Kluge had died before trial, the Commonwealth offered in evidence portions of prior recorded testimony of Bovio at the defendant's pretrial detention hearing, as well as excited utterances made to the police by Bovio and Kluge. Represented by new counsel on appeal, the defendant argues (1) error in the admission of the prior recorded testimony of Bovio; (2) error in the admission of the statements Bovio made to police officers; (3) error in the denial of his motion for a required finding of not guilty at the close of the Commonwealth's case based on the failure of any witness to identify him at trial; (4) that he was denied effective assistance of trial counsel; and (5) that the cumulative effect of errors created a substantial risk of a miscarriage of justice. We transferred this case here on our own motion to address the defendant's claims that the admission of Bovio's prior recorded testimony and statements to police, in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford), violated his right of confrontation as protected by the Sixth Amendment to the United States Constitution and by art. 12 of the Massachusetts Declaration of Rights. We reject the defendant's arguments and affirm his conviction.

Background. According to the evidence at trial, viewed in the light most favorable to the Commonwealth, at around 12:30 A.M. on March 22, 2005,¹ Officers James Christman and Brian Colella of the Peabody police department were separately dispatched to Kluge's apartment at 75 Central Street in Peabody, and arrived at approximately the same time. When they approached Kluge's apartment, Kluge, who had no legs, was in the hallway without his wheelchair using his arms to get back to his apartment. Kluge told the officers that he had been struck in the head and knocked out of his wheelchair by a man who had just left through a side entrance. The officers walked through the open front door of Kluge's apartment to retrieve his wheelchair and encountered Bovio in the living room.

Bovio was visibly upset, walking around with her hands flailing, and repeatedly stating, "I can't take it anymore." She told Officer Christman that she had been sitting in a chair against a wall in the living room of Kluge's apartment when her boy friend, the defendant, "had just beat on her," hitting her in the head and face. She stated that, when Kluge tried to stop him, the defendant stopped hitting her and turned to Kluge, striking him in the head hard enough to knock him out of his wheelchair and "so hard that he made an indentation in the wall." Bovio pointed to the chair in which she had been sitting, as well as to what Officer Christman observed was a "clear indentation" in the wall. Throughout this approximately two-minute conversation with Officer Christman, Bovio was crying, excited, and upset.

While Officer Colella went to look for the defendant, Officer Christman retrieved and started to fix Kluge's wheelchair, so that Kluge could sit in it. As he was doing so, Kluge suddenly fell forward, face first, to the ground, and did not appear to be breathing. Officer Christman radioed for an ambulance and for assistance from Officer Colella. Officer Colella responded seconds later with a defibrillator. Emergency medical technicians (EMTs) arrived within minutes, relieving the officers of their attempt to resuscitate Kluge.

Bovio had started screaming when she saw Kluge slump over, so Officer Christman moved her to a place in Kluge's apartment where she could not see the efforts to resuscitate Kluge and told her that she needed to calm down. About five to ten minutes after the end of her first conversation with Officer Christman, she recounted to him in more detail what had occurred. In this second conversation, she stated that, at approximately 5 P.M. on March 21, 2005, she and the defendant had met at the defendant's mother's house, which also was in Peabody,² and, started drinking in the garage. At some point after they arrived at Kluge's apartment, Bovio sent the defendant out for more beer. He was gone for about one and one-half hours. After the defendant returned to the apartment, he started to hit Bovio in the head. When Kluge tried to stop him, the defendant hit Kluge and knocked him out of his wheelchair. Bovio said the indentation in the wall was made by Kluge's body. After hitting Kluge, the defendant hit her in the head a couple more times and then left. Kluge telephoned 911 and left the line open. Bovio said that the defendant had produced a bruise and a large bump to the rear of her head. Officer Christman felt what he described as an "admirable bump on her head." Bovio stated that she and the defendant had each consumed four forty-ounce beers and a pint of hard alcohol that evening.

As Officer Christman was finishing his conversation with Bovio, he was informed that Kluge was breathing on his own, but was unconscious. Another officer told Officer Christman that the defendant had returned to the building. The defendant appeared, saw Kluge, and asked what had happened to him. The defendant smelled of alcohol. His eyes were bloodshot and glassy, and he was unsteady on his feet. Officer Christman and other officers then arrested the defendant.

Officer Christman went back to Kluge's apartment and spoke a third time with Bovio. She was still upset and appeared to be intoxicated. Her eyes were bloodshot and glassy, and she smelled of alcohol. At around 1:30 A.M., Officer Christman asked Bovio if she could write a statement detailing what had occurred. Bovio was reluctant until Officer Christman informed her that the defendant was in custody. Bovio stated that she had never gone to court before but would be going this time. In Officer Christman's presence, she wrote by hand a short, legible statement of approximately thirteen lines, with only four to six words on any given line. The statement began, "I saw [the defendant] hit him then I really didn't see anything else. They were both gone, or I hid."³

Detective Katrina Mazzie of the Massachusetts State police interviewed Bovio in Bovio's home later that morning at around 10 A.M. and spoke with her for about twenty to thirty minutes. The detective wrote down what Bovio said verbatim but did not testify as to the contents of Bovio's statement.⁴

On March 28, 2005, Bovio was scheduled to testify at the defendant's pretrial detention hearing, but called in sick. Detective Mazzie went to Bovio's house, and knocked on the door. Bovio did not answer the door for five minutes. When she did, she explained that she had just awakened. The detective drove Bovio to the court house, and accompanied her while Bovio met with the prosecutor and victim witness advocate before she testified in court. While Bovio appeared to be nervous, she did not appear to be physically impaired, confused, or under the influence of any drug or alcohol.

Most of Bovio's testimony from the pretrial detention hearing was admitted in evidence and read to the jury.⁵, ⁶ Because her testimony at the pretrial detention hearing is so important to this decision, we describe in detail the portions admitted in evidence at trial, at the risk of some repetition.

Bovio testified that she had dated the defendant, whom she identified in the court room at the pretrial detention hearing, for about one and one-half years. The defendant and Kluge, whom she knew as "Teddy," were acquaintances and "drinking buddies." At about 7 P.M. on the night of the incident, Bovio and the defendant started drinking beer at his mother's house, then left to walk downtown to buy vodka and rum. They arrived at Kluge's apartment around 9 P.M. and began drinking "the hard stuff." The defendant got drunk; she was getting drunk. The defendant "gets violent when he drinks [the hard stuff]," and he began pinching her. She hit him "as a reflex to get him to stop hitting me," and "[h]e got angry, louder, animated, and just started hitting me repeatedly in the head" with his fist. Kluge screamed for the defendant to stop and threatened to telephone the police. The defendant then jumped up, hit Kluge in the head, grabbed the telephone from him, and threw it. Kluge was "yelling back and forth" with the defendant and wanted him to leave. Bovio yelled at the defendant to stop, and both the defendant and Kluge left the apartment. Bovio said that Kluge left in his wheelchair; she did not see him come out of the wheelchair. Bovio next saw Kluge on the floor of the hallway; "he looked dead."

Bovio recalled that she had told the police officers who responded that night what had occurred, but was drunk and did not know what she had said. She recalled that she also had written a statement that night and that it was correct.

When the questioning at the pretrial detention hearing turned to Bovio's relationship with the defendant prior to the incident and his becoming violent when he drank, the judge gave the jury a limiting instruction concerning prior bad acts of the defendant. Bovio stated that she previously had seen the defendant become violent after drinking and that his conduct was "different every time." "We usually fight," she said. She said that he had hit her before on "[t]oo many" occasions. The defendant had punched her in the lip and in the head, and had left scars on her, including a scar on her mouth that the defendant inflicted "last summer." Bovio stated that, on three...