Com. v. Napolitano

• Decision Date: 30 April 1997
• Docket Number: No. 96-P-783,96-P-783
• Citation: 678 N.E.2d 447,42 Mass.App.Ct. 549
• Parties: COMMONWEALTH v. Mark NAPOLITANO.
• Court: Appeals Court of Massachusetts

Page 447

678 N.E.2d 447

42 Mass.App.Ct. 549

COMMONWEALTH v. Mark NAPOLITANO.

No. 96-P-783.

Appeals Court of Massachusetts Middlesex.

Argued Nov. 13, 1996.

Decided April 30, 1997.

Further Appellate Review Denied July 3, 1997.

Edward B. Gaffney, Wayland, for defendant.

Marian T. Ryan, Assistant District Attorney, for Commonwealth.

Before DREBEN, GREENBERG and LAURENCE, JJ.

LAURENCE, Justice.

The defendant, Mark Napolitano, was convicted by a jury of assault and battery by means of a dangerous weapon and assault and battery on Jennifer Botto. He contends that his trial was tainted by two unpreserved errors that created a substantial risk of a miscarriage of justice: (1) the trial judge allowed the Commonwealth to introduce damaging testimony regarding Botto's out-of-court statements against him under the "excited utterance" (or "spontaneous exclamation") exception to the hearsay rule, even though the statements did not properly fall within that exception; and (2) those out-of-court statements should not have been admitted, even if they were within the exception, because the Commonwealth failed to establish the unavailability of Botto, who was physically available (and in fact testified for the defendant) but was not made a prosecution witness. That failure, the defendant claims, violated his right of confrontation under article 12 of the Massachusetts Declaration of Rights, which guarantees a defendant the right "to meet the witnesses against him face to face." We see no merit in the defendant's arguments and affirm.

The defendant's convictions arose out of an incident at Horn Pond, Woburn, on the evening of August 21, 1995. At approximately 9:30 P.M., Joan Belair, who lived across the street from the pond, heard "a lot of screaming," loud and prolonged, from the area of the pond. The screams sounded as if made by a female. Walking toward the location of the continued screaming, Belair heard the same high-pitched voice scream "Help me" several times. Peering down toward the direction of the screams, Belair saw two figures at the edge of the pond, about thirty feet away. She saw the larger figure's arms move quickly up and down. The smaller person, whose body was between the arms as they went up and down, again screamed for help as Belair watched. She also heard the two figures yelling about "a chain." Apprehensive about what appeared to be a violent situation, Belair returned home and called the Woburn police.

At the same time, Charles King, sitting at a picnic table next to the pond parking lot with a friend, heard several loud female screams from the pond area, about a quarter-mile away. He ran toward the screaming, which continued for at least two minutes. As he approached the pond, he saw a man and a woman standing next to the water's edge, face to face, apparently having a vehement argument. The woman, who turned out to be Botto, was wet, dirty, crying, very upset, and tugging and pulling at the man. As King drew near the couple to ask what they were doing and what was wrong, the woman continued screaming, intelligibly shouting at one point, "he's got my baby's ring." King heard the man say he would return the ring when he got his chain back. The man then ran away through the bushes, apparently upon observing King's approach.

After the man (who was identified by Botto soon thereafter as the defendant) fled, King and his friend walked Botto to an area under a street light. There King saw that Botto's head and shirt were soaked and blood was running from her head down the side of her face onto her shirt. She was extremely agitated and on the verge of hysteria. Leaving Botto with his friend, King ran to the nearest house, which was Belair's, to ask the occupants to call "911." Informed that it had already been done, King ran back to help Botto across the street to the Belair home. As they proceeded, King asked Botto what had happened to her. She replied, crying and stuttering, that her boy friend (the defendant) had tried to drown her. She haltingly described how, as she struggled with the defendant, she had twisted her head to pull it out of the water so she could breathe. As she did so, the defendant had, she said, grabbed her head and "bashed it" on a rock.

By the time Botto was brought to the Belair home, about five to ten minutes had elapsed since Belair had witnessed the two figures at the water's edge. While awaiting the police, Belair, a nurse, saw that Botto, who was "very petite," was visibly shaken and crying; her head and clothes were wet; her face and arms had blood on them; her shirt was soiled with blood, sand, and wet leaves; there was a puncture wound over her left eye; and she had scrapes and abrasions on one arm and one leg. While administering first-aid, Belair asked Botto how she had been injured. Still shaking and crying, Botto told her that her boy friend (the defendant) had tried to kill her by attempting to drown her three times.

Police officers and emergency medical technicians (EMTs) arrived at approximately 10:00 P.M., removing Botto from the Belair home a few minutes thereafter. Throughout her conversations with the officers and the EMTs, Botto was crying and screaming in pain. Botto continued to be very distraught in the emergency room of Boston Regional Medical Center, where she was examined and treated at approximately 10:40 P.M. Having learned from Botto that the defendant was her attacker and where he lived, the responding police officers twice searched the pond area and nearby streets for him in vain. Returning to the defendant's address after an initially unsuccessful visit, they discovered the defendant hiding in the attic and arrested him.

Prior to trial, the defendant moved "for a voir dire and to exclude in ... statements of Jennifer Botto." The bases for the motion were that "Ms. Botto presently indicates that at the time she made certain statements, she was enraged at the defendant, [and] made statements which she now asserts are untrue," and that the statements did not qualify as spontaneous or excited utterances. After a hearing and review of memoranda, the trial judge denied the motion, ruling that the statements by Botto to King and Belair, which the Commonwealth had disclosed would be offered in its case-in-chief, were admissible under the hearsay exception for excited utterances. (The defendant made no reference to his constitutional right of confrontation in his argument on the motion and later failed to object to King's and Belair's hearsay testimony at trial; our review is limited, therefore, as the defendant acknowledges, to ascertaining whether the challenged errors, if errors they be, created a substantial risk of a miscarriage of justice.)

After the Commonwealth had completed introducing its evidence--the highlights of which were King's and Belair's testimony regarding Botto's statements at the scene incriminating the defendant--the defendant presented a single witness in his defense. That witness was Botto, who abjured her charges against the defendant. She admitted screaming at and arguing with the defendant, over the defendant's interest in another woman, and admitted making the statements reported by King and Belair. She denied however, that the defendant had assaulted her. Her injuries, she claimed, resulted from her own attempts to attack the defendant, during which she slipped and fell several times, scraping her hands and knees and hitting her head on a rock. In her version, the defendant was trying to pull her out of the water and assist her after she fell. She stated that she had lied when she made the statements testified to by King and Belair because she was so angry at the defendant at the time that she wanted to get him into trouble.

Botto was confronted on cross-examination with numerous other statements she had made attributing a murderous assault to the defendant and consistent with the recollections of King and Belair. Those included statements to one of the officers who came to the Belair home, to a nurse at the hospital, to her own physician the day after the assault, in an affidavit filed with the Woburn District Court for the purpose of obtaining an abuse prevention order that same day, and to a police investigator three days after the incident. Botto claimed she did not remember making such statements and that, if she had, they were also lies fueled by her jealous rage at the defendant.

The Commonwealth then called, as rebuttal witnesses, one of the EMTs who had been in the ambulance that transported Botto to the hospital the evening of the incident and the police investigator who had interviewed Botto three days thereafter. The EMT recounted that Botto, who was upset to the point of hysteria, told him that her boy friend had banged her head against the rocks and tried to force her head into the water while she screamed for help. The investigator recounted similar revelations by Botto, elaborating that Botto had also told her that the defendant, while holding her head underwater, had yelled that "he wanted her to die ... and her daughter to die."

We need not dwell upon the defendant's essentially conclusory argument that the trial judge abused his broad discretion, Commonwealth v. Hampton, 351 Mass. 447, 449, 221 N.E.2d 766 (1966), when he determined that the Botto statements testified to by King and Belair met the tests of admissibility for the excited utterance exception to the hearsay rule. On the evidence before him, the judge properly determined that Botto's out-of-court statements satisfied both the "spontaneity" and the "explanatory" tests under the pertinent authorities. The statements did not have to be strictly contemporaneous with the exciting cause, Commonwealth v. Brown, 413 Mass. 693, 695-696, 602 N.E.2d 575 (1992), and were made within moments of an independently observed hostile event that left the declarant visibly injured and agitated to the point of hysteria and while the declarant...