Com. v. Ivy

• Decision Date: 16 September 2002
• Docket Number: No. 00-P-1608.,00-P-1608.
• Citation: 774 N.E.2d 1100
• Parties: COMMONWEALTH v. Queshon IVY.
• Court: Appeals Court of Massachusetts

Page 1100

774 N.E.2d 1100

COMMONWEALTH v. Queshon IVY.

No. 00-P-1608.

Appeals Court of Massachusetts, Suffolk.

Argued March 12, 2002.

Decided September 16, 2002.

Thomas J. Chirokas, Roslindale, for the defendant.

Alex G. Philipson, Assistant District Attorney, for the Commonwealth.

Present: PORADA, BERRY, & McHUGH, JJ.

BERRY, J.

The defendant challenges his conviction for assault and battery upon his then girlfriend. G.L. c. 265, § 13A.¹ The defendant's appellate claims concern: (1) the admission as excited utterances of the complainant's statements to a police officer describing the assault; (2) that the admission of the victim's out-of-court identification as within the excited utterance evidence violated the defendant's confrontation rights — an issue of first impression (3) the exclusion of impeachment evidence concerning the nonappearing declarantvictim's prior conviction; (4) impermissible burden shifting in the Commonwealth's cross-examination of the defendant concerning his failure to produce certain documents; and (5) the trial judge's failure to give an absent witness instruction.

1. Factual background. The trial evidence may be summarized thusly. On the morning of February 17, 1999, Officer Lisa Venus, responding to a radio bulletin, proceeded to the emergency room at the New England Medical Center, where the victim was being treated. The victim was curled up in a fetal position and whimpering. Her right eye was red and swollen. She appeared frightened and "exhaust[ed] from the crying." The victim described the defendant's assault upon her to the officer.

The victim did not appear at trial, and her statements to Officer Venus at the hospital, admitted as excited utterances, provided the following evidence of the assault and the extrajudicial identification of the defendant.²

Officer Venus testified that the victim identified the defendant by name, stating that her boyfriend, Queshon Ivy, had beaten her. When the officer asked the victim to describe her boyfriend the victim displayed a picture taken from her wallet and said the man in the photograph with her was Queshon Ivy. She related how the defendant had punched her in the face and stomach, and then had kicked her in the stomach. The victim was three months pregnant.³ The beating occurred during the evening of February 16, but she could not leave the apartment until early the next morning, when the defendant went out. Later that morning, she went to the hospital.

Officer Venus further testified that the victim had provided the defendant's work address. She described how, following the interview, she and another officer went to the defendant's workplace and arrested him. While being transported to the police station, the defendant admitted that he and the victim had an argument, but he claimed he had left the apartment at around 11:00 P.M. and stayed at the Pine Street Inn. According to the defendant, the victim, was playing a "game."

The defendant's trial testimony concerning the night's events was markedly different from the victim's account. The defendant testified that he and the victim were together in the apartment early that night. She "went to an AA meeting." He stayed behind. He found a "crack" cocaine pipe in the apartment, and when the victim returned he confronted her with the pipe. She denied ownership or any knowledge of why it was in the apartment. An argument ensued. Around 10:30 P.M., the defendant packed his bags and went to the Pine Street Inn, where, he testified, a person at the front desk signed him in and told him "to find a spot and go to sleep." On cross-examination, the prosecutor, over objection, was allowed to inquire why the defendant did not produce the Inn's sign-in log.

In rebuttal, the Commonwealth called the Pine Street Inn supervisor who testified that the sign-in log for February 16, 1999, was reviewed and the defendant's name was not on it. She also explained that the Inn's doors normally close around 7:30 P.M.

2. Admission of the excited utterance evidence. The defendant levels a broadside challenge against the admission of any and all of Wheeler's statements under the excited utterance exception to the hearsay rule. It is not necessary to restate at length the evidentiary standards governing that hearsay exception. For a comprehensive analysis, see generally Commonwealth v. King, 436 Mass. 252, 254-255, 763 N.E.2d 1071 (2002). Briefly summarized to provide the legal landscape against which to analyze the defendant's claim in this case, the excited utterance doctrine works as follows. A witness's out-of-court statements are admissible if the "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." Commonwealth v. Brown, 413 Mass. 693, 695, 602 N.E.2d 575 (1992) (internal quotation omitted). Statements have been determined reliable when made by a witness "under the stress of extreme trauma ... and in a context where she would be expected to be truthful." Id at 696, 602 N.E.2d 575.

Admission of a statement as an excited utterance "will only be disturbed for abuse of discretion." King, 436 Mass. at 255, 763 N.E.2d 1071. There was no such abuse of discretion here, and there was no error.⁴ The circumstances in which the statements were given fall well within the existing evidentiary standards for excited utterances. The victim was lying on a medical table in an emergency room, being treated for her injuries, and experiencing the pain and stress of the incident. The statements were spoken "while the victim remained in pain and emotional distress." Commonwealth v. Tevlin, 433 Mass. 305, 319, 741 N.E.2d 827 (2001). The victim's state of distress, whimpering and fear demonstrate that she remained under the stress of the exciting event, the beating. Her distraught condition, like that of the victim in Tevlin, had not markedly dissipated at the time she spoke to the officer.

The defendant contends that the time lapse from when she escaped the apartment, estimated at approximately 4:00 A.m., to the time of the interview at the hospital, approximately 8:30 A.m., was too long. However, it is not the passage of time, but rather whether the declarant remains under the influence and sway of the exciting event that is of paramountcy. See King, supra at 255, 763 N.E.2d 1071. "The time lapse between the exciting event and the utterance of the statement is not determinative of the statement's reliability; rather, the test is whether or not the declarant was in fact under the stress of the exciting event at the time he or she made the statement." Commonwealth v. Tracy, 50 Mass.App.Ct. 435, 438, 737 N.E.2d 930 (2000). "[T]here can be no definite and fixed limit of time. Each case must depend upon its own circumstances." Commonwealth v. DiMonte, 427 Mass. 233, 239, 692 N.E.2d 45 (1998), quoting from Commonwealth v. McLaughlin, 364 Mass. 211, 223, 303 N.E.2d 338 (1973). Compare Commonwealth v. Johnson, 54 Mass.App.Ct. 224, 226-230, 764 N.E.2d 905 (2002) (statements of victim of beating to officers and nurse at hospital given at times ranging from one and one-half to four and one-half hours after escape from assailant admitted where victim still under trauma of beating); with Commonwealth v. Hardy, 47 Mass.App.Ct. 679, 680-685, 716 N.E.2d 109 (1999) (although a close determination, statements of victim of beating, made three hours after beating, not properly admitted as excited utterances because victim, although in pain, had calm demeanor and related details of assault with clarity and lucidity). Finally, to the extent the defendant argues that the statements were improperly admitted because given in response to questions, "[a] statement may be spontaneous even if made in response to a question." Commonwealth v. Nunes, 430 Mass. 1, 4 n. 3, 712 N.E.2d 88 (1999). See Commonwealth v. Fuller, 399 Mass. 678, 682-683 & n. 8, 506 N.E.2d 852 (1987).

3. Confrontation and the out-of-court identification. The defendant also challenges the introduction under the excited utterance doctrine of Wheeler's extrajudicial identification. Two points are raised: first, that the admission of the out-of-court identification was inconsistent with the requirements set out in Commonwealth v. Daye, 393 Mass. 55, 61-62, 469 N.E.2d 483 (1984); and second, that the substantive admission of an identification by a nontestifying declarant violated confrontation rights.⁵

We need only briefly address the initial contention that the admission of the extrajudicial identification was inconsistent with Daye because the issue was determined adversely to the defendant's claim by our holding in Commonwealth v. Mendrala, 20 Mass.App.Ct. 398, 401, 480 N.E.2d 1039 (1985). By way of background, Daye set as preconditions for the admission of an out-of-court identification under the prior inconsistent statement hearsay exception that the identifying declarant must testify at trial, be subject to cross examination, and acknowledge the prior identification. See Daye, supra at 61, 469 N.E.2d 483. As Mendrala made clear, Daye, is distinguishable because that case involved a hearsay exception wholly different from the one at bar in which the out-of-court identification was admitted as an excited utterance exception. "Nothing in Daye suggests that an identification whose reliability is established by another exception to the hearsay proscription is to be excluded. The judge admitted the [identification] evidence as a spontaneous exclamation and could well have concluded within his broad discretion that the complainant's statements fell within this recognized exception." Mendrala, supra (internal citations and quotations omitted). Thus, in this case there was no error in admission of the identification under this evidentiary doctrine.

We turn then to the defendant's second constitutionally based challenge, which presents an issue not...