Com. v. Joyner

• Decision Date: 10 July 2002
• Docket Number: No. 00-P-739.,00-P-739.
• Parties: COMMONWEALTH v. Frederic JOYNER.
• Court: Appeals Court of Massachusetts

771 N.E.2d 193

55 Mass. App. Ct. 412

COMMONWEALTH v. Frederic JOYNER.

No. 00-P-739.

Appeals Court of Massachusetts, Suffolk.

Argued November 19, 2001.

Decided July 10, 2002.

COPYRIGHT MATERIAL OMITTED

Katherine M. Schelong for the defendant.

Louis N. Schulze, Jr., Assistant District Attorney, for the Commonwealth.

Present: PERRETTA, DREBEN, & GELINAS, JJ.

GELINAS, J.

Frederic Joyner was convicted of assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A) by a jury of six in the Dorchester District Court. The victim, Derek Moore, did not testify, nor did his girlfriend, Joyce O'Neil. Neither appeared at trial, despite efforts of the Commonwealth to locate them and to require their attendance by a subpoena. On his appeal, the defendant argues that the trial judge erred in permitting the jury to hear certain statements made by Moore and O'Neil, introduced by the Commonwealth through police officers, as excited utterances. He also claims that the trial judge committed reversible error in denying his request for a "missing witness" instruction at the close of trial. We affirm the conviction.

At a hearing in limine with regard to the admissibility of the statements, the judge was warranted in finding the following facts. Dispatched to the scene of a disturbance, Officer Shawn Marando of the Boston police department soon¹ encountered Moore running down Fessenden Street. Moore was screaming, with blood on his hand and face. According to Marando, Moore was "really afraid" and "shaken up." Moore related to Marando that he and O'Neil had gone to 30 Fessenden Street and knocked on the door, whereupon the defendant and his brother, Chico Joyner (Chico), came out and chased them away from the house with a baseball bat and a knife. Moore stated that he was caught and beaten with fists, feet, and the bat. Moore then told Marando that he escaped the beating and ran to his car and that the defendant followed and smashed the car window with the bat. Moore, continuing his conversation with the officer, stated that he then ran from the vehicle and encountered Marando. Following this initial conversation with Moore, Marando and other officers went to 30 Fessenden Street and arrested the defendant and Chico. Moore returned to 30 Fessenden, where he was treated by emergency medical technicians (EMTs), who had arrived with an ambulance. After treatment, some ten minutes after the attack, Moore had further conversation with the officers. He reiterated the original description of events as given to Marando. O'Neil, now also present at 30 Fessenden Street and participating in conversations with the police, was also shaken up and angry. O'Neil stated that she had been hit on the arm by a beer bottle thrown by Chico and that she had observed the defendant kick Moore and hit him with the bat. Neither knife nor bat were recovered by the police after a search of the premises and outside area at 30 Fessenden Street. At the hearing in limine, and on appeal here, the defendant's attorney contends that, at the time of the incident, there were warrants outstanding for Moore, that Moore had a lengthy criminal record and that Moore was not a truthful person.² As Moore was cognizant of the outstanding warrants and would want to evade arrest, his statements, the attorney argued, were unreliable and should be excluded regardless of whether they qualified as excited utterances. At the hearing in limine, the attorney also set the stage for requesting the missing witness instruction, suggesting that he should be allowed to comment on the absence of Moore and O'Neil should they fail to appear at trial.

1. The excited utterances. Trial judges are given broad discretion³ in determining whether a statement qualifies as an excited utterance, admissible as an exception to the rule barring hearsay and thus frustrating a defendant's right of confrontation.⁴ See Commonwealth v. McLaughlin, 364 Mass. 211, 223, 224, 303 N.E.2d 338 (1973). The matter is one "peculiarly within the judge's province and only in clear cases ... of an improper exercise of discretion should his ruling be revised." Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197, 163 N.E.2d 157 (1960).

In considering whether to qualify statements as admissible, the trial judge must determine whether, under the particular circumstances of the case, the statement "was spontaneous to a degree which reasonably negated premeditation or possible fabrication and ... tended to qualify, characterize and explain the underlying event." Commonwealth v. Crawford, 417 Mass. 358, 362, 629 N.E.2d 1332 (1994), quoting from Blake v. Springfield St. Ry., 6 Mass.App.Ct. 553, 556, 379 N.E.2d 1112 (1978). See Commonwealth v. King, 436 Mass. 252, 254, 763 N.E.2d 1071 (2002). At bottom, the determination is based on whether the statement "[was] made [while the declarant] was under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus .. has sufficient indicia of reliability." Commonwealth v. Zagranski, 408 Mass. 278, 285, 558 N.E.2d 933 (1990). Our cases identify certain circumstances that the trial judge might consider in determining whether a statement meets this test. They include the following: "the degree of excitement displayed by the person making the statements, Commonwealth v. McLaughlin, [supra at 222, 303 N.E.2d 338]; whether the statement is made at the place where the traumatic event occurred or at another place, see Commonwealth v. Zagranski, [supra at 284-286, 558 N.E.2d 933]; the temporal closeness of the statement to the act it explains,[⁵] see Commonwealth v. Giguere, 420 Mass. 226, 233-234 (1995); and the degree of spontaneity [shown by the declarant]. See Commonwealth v. Hampton, 351 Mass. 447, 449-450 (1966); Commonwealth v. Burden, 15 Mass.App.Ct. 666, 676-677 (1983)." Commonwealth v. Hardy, 47 Mass.App.Ct. 679, 682, 716 N.E.2d 109 (1999). The circumstances enumerated are neither exhaustive nor mandatory; rather, the judge is to consider the particular circumstances in each case. See ibid. Further, the judge should not inquire as to whether the statement is in fact credible. See Commonwealth v. King, supra at 255-256, 763 N.E.2d 1071. That task falls to the finder of fact. See ibid. The trial judge need determine only whether the fundamental requirements for admission have been met, i.e., whether the circumstances of the statement's making are such as reasonably negate premeditation. Once admitted, the credibility of the statement may, of course, be controverted by other evidence. Commonwealth v. King, supra at 256-257, 763 N.E.2d 1071. Here, the trial judge had before her ample circumstances supporting her ruling that the statements were admissible. Moore's first statements were made within moments of the event, as Moore was intercepted by a police officer while fleeing the scene. Moore was described as screaming, injured, bleeding, and excited, all factors indicating that he was under the influence of the traumatic event. His statement tended to "qualify, characterize and explain the underlying event." Commonwealth v. Stroyny, 435 Mass. 635, 643, 760 N.E.2d 1201 (2002). The fact that Moore's statements here, and the subsequent statements of Moore and O'Neil, were made in response to questions by the officers, does not render them inadmissible. See Commonwealth v. Fuller, 399 Mass. 678, 682-683, 506 N.E.2d 852 (1987). Further independent evidence of the EMT on the scene, regarding the type of wounds suffered by Moore and his demeanor, was consistent with his being in a traumatized state. Moore repeated his statement at the ambulance some ten minutes after the event, at which time he was still described as injured (with a large visible "knot" or bump on his head), and excited and shaken up, though less so than at the time of the conversation with Officer Marando. Moore's girlfriend, O'Neil, corroborated his description of events, adding only the additional fact that she had been struck once on the arm.⁶ She was described at this time as a little shaken up but more angry. On evidence of her demeanor and of the proximity to the time and place of the event, the trial judge was warranted in determining, in her discretion, that O'Neil, as well, was under the influence of the traumatic event and that her statements also were admissible as excited utterances.

The defendant argues that Moore's evidence should have been excluded because he had a motive to lie since he was wanted on outstanding warrants and he had a criminal record. We conclude that motive to lie goes to the weight to be accorded the statements, rather than to their admissibility, and that a victim's motive or lack thereof should play no part in the calculus of determining admissibility of the statements. McCormick, Evidence § 270, at 198-199 (5th ed. 1999), explains as follows: "[t]he Federal Rules[ covering hearsay exceptions for spontaneous statements, ... make no special provision for self-serving statements .... The rules give no authorization to such considerations ...."⁷ See People v. Fratello, 92 N.Y.2d 565, 571, 684 N.Y.S.2d 149, 706 N.E.2d 1173 (1998), cert. denied, 526 U.S. 1068, 119 S.Ct. 1462, 143 L.Ed.2d 548 (1999) (bias not a factor in determining whether a declaration is an excited utterance). See also 6 Wigmore, Evidence §§ 1745-1764 (Chadbourn rev. ed. 1976) (motive to lie not mentioned as a consideration for admissibility of a spontaneous utterance; reliability of spontaneous utterance derives from fact that startled, unexpected nature of statement divorces the statement from deliberative thought or reason). But see McCormick, Evidence § 270, at 199 ("Judicial...