Com. v. Whelton

• Decision Date: 17 July 1998
• Citation: 696 N.E.2d 540,428 Mass. 24
• Parties: COMMONWEALTH v. William J. WHELTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 540

696 N.E.2d 540

428 Mass. 24

COMMONWEALTH v. William J. WHELTON.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued May 7, 1998.

Decided July 17, 1998.

Richard M. Russell, Falmouth, for defendant.

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

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

ABRAMS, Justice.

Convicted of one count of assault and battery on his longtime companion, Janet Whelton, ¹ the defendant appeals. The defendant argues that the hearsay statements of the victim and her daughter were not admissible as spontaneous utterances, that admitting these statements without a showing that the declarants were unavailable violated his confrontation rights, and that, because the Commonwealth's case consisted solely of hearsay statements, the evidence against him was insufficient as a matter of law. We transferred the case to this court on our own initiative. We affirm.

1. Facts. Before trial, the defendant moved in limine to exclude the victim's and the daughter's statements to a police officer. After a voir dire hearing, the judge denied the motion and at trial admitted the statements. The police officer, who was the Commonwealth's only witness, testified that, in response to an emergency call, she arrived at the defendant's home in Dedham, where she spoke with the daughter, who was thirteen years old at the time.

The daughter, who appeared to be very nervous, pacing, and on the verge of crying, told the officer that she had just had an argument with the defendant regarding her bedtime. Her mother, the victim, was asleep on a nearby sofa. The daughter said that the defendant, trying to awaken the victim, kicked the victim in the lower back, hit her in the upper back, and pushed her off the sofa, and that, at that point, the daughter called the police. She also told the officer that the relationship between the defendant and the victim was abusive.

The officer also spoke with the victim, who told her that she and the defendant had been out that evening and had had a few drinks and that she had fallen asleep on the sofa. She said that the defendant had pushed her to the floor with the intention that she hit the cocktail table on the way down. The officer found no bruises or red marks on the victim's back, however.

The victim testified for the defendant, stating that the defendant gently pushed or rolled her off the couch and that she had not felt anyone hitting or kicking her. She also testified that she told the officer that she had not been hit. The daughter did not testify.

2. Motion in Limine. Before we consider the defendant's arguments that the victim's and the daughter's extrajudicial statements to the police officer were inadmissible, we review the steps that a party must take to preserve his or her appellate rights. It is well established that a motion in limine, seeking a pretrial evidentiary ruling, is insufficient to preserve appellate rights unless there is an objection at trial. Commonwealth v. Keniston, 423 Mass. 304, 308, 667 N.E.2d 1127 (1996). The denial of a motion to suppress evidence on constitutional grounds, however, is reviewable without further objection at trial. See Commonwealth v. Acosta, 416 Mass. 279, 284 n. 1, 627 N.E.2d 466 (1993); Commonwealth v. Sherman, 389 Mass. 287, 290 n. 2, 450 N.E.2d 566 (1983); Commonwealth v. Jacobs, 346 Mass. 300, 310-311, 191 N.E.2d 873 (1963). Insofar as the defendant's motion in limine argued that admission of the statements would violate his constitutional rights under art. 12 of the Massachusetts Declaration of Rights, we treat it as a motion to suppress and it is properly before us on that ground. As to the evidentiary grounds for exclusion, because the defendant did not object at trial, we review the claim to determine whether there was a substantial risk of a miscarriage of justice.

3. Spontaneous Utterances. The defendant argues that the victim's and the daughter's extrajudicial statements were not spontaneous utterances and therefore should not have been admitted under this exception to the rule against hearsay. We disagree as to the daughter's statements and perceive no substantial risk of a miscarriage of justice in the admission of the victim's statements.

A statement is admissible under the spontaneous utterance exception "if its 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. Crawford, 417 Mass. 358, 362, 629 N.E.2d 1332 (1994). Commonwealth v. Brown, 413 Mass. 693, 695-696, 602 N.E.2d 575 (1992). "[A]n utterance is spontaneous if it is made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus it has sufficient indicia of reliability." Commonwealth v. Zagranski, 408 Mass. 278, 285, 558 N.E.2d 933 (1990). "Particularly when the declarant is a young child who remains in the company of the alleged perpetrator after a traumatic event, precise contemporaneousness is not required." Commonwealth v. Crawford, supra, quoting Commonwealth v. Brown, supra at 695, 602 N.E.2d 575. The trial judge has broad discretion to determine whether a statement meets the requirements for admissibility. Commonwealth v. Zagranski, supra.

At the voir dire hearing, the officer testified that she arrived at the defendant's home only a few minutes after receiving the emergency call. She said that the daughter appeared nervous, worried for her mother's safety, and looked as if she had been crying or was on the verge of crying. The judge could readily conclude from this testimony that the daughter was under the influence of the assault on her mother she had witnessed minutes before. See Commonwealth v. Alvarado, 36 Mass.App.Ct. 604, 606, 634 N.E.2d 132 (1994) (statement itself may be taken as proof of exciting event). The daughter's statements to the officer, including her statement that the relationship had been abusive in the past, ² also qualified, characterized, or explained the incident. We conclude that the daughter's statements met the requirements for this exception to the hearsay rule and were properly admitted.

There was no evidence at the voir dire hearing, however, that the victim was under the influence of the exciting event when she spoke to the officer. See Commonwealth v. O'Connor, 407 Mass. 663, 670, 555 N.E.2d 865 (1990). The officer did not testify as to whether the victim appeared upset, spoke nervously, or otherwise behaved in a manner showing that she was under the stress of an exciting event. Her statements therefore did not bear the indicia of reliability that justifies the admission of spontaneous utterances. We conclude that the victim's hearsay statements did not meet the requirements and were therefore inadmissible.

Nevertheless, reversal is not required. The defendant called the victim to the stand and therefore had ample opportunity to cross-examine her about the statements. See Commonwealth v. Napolitano, 42 Mass.App.Ct. 549, 555-556, 678 N.E.2d 447 (1997) (defendant called hearsay declarant as witness; questioning served goals of cross-examination); P.J. Liacos, Massachusetts Evidence § 8.4.3, at 448 (6th ed.1994) (stating that allowing this sort of questioning "seems essentially consistent with common practice"). There was no substantial risk of a miscarriage of justice.

4. Constitutional Claim Based on Art. 12. In Commonwealth v. Crawford, 417 Mass. 358, 366, 629 N.E.2d 1332 (1994), we left open the question whether art. 12 requires a showing of unavailability before a spontaneous utterance can be admitted against a criminal defendant. The defendant, relying principally on Commonwealth v. Colin C., 419 Mass. 54, 62-63, 643 N.E.2d 19 (1994), and having raised the issue below, argues that it does. However, in Colin C., we were interpreting a statute that specifically required a showing of unavailability for certain hearsay statements of children. Similarly, the dictum in Commonwealth v. Bergstrom, 402 Mass. 534, 545, 524 N.E.2d 366 (1988), that "[a]bsent a showing of unavailability ... even reliable hearsay evidence is inadmissible," does not support the defendant's contention, as it relies for support on Commonwealth v. Bohannon, 385 Mass. 733, 744-749, 434 N.E.2d 163 (1982), which involved only prior recorded testimony and not other exceptions to the hearsay rule. These cases should not be read to mean that art. 12 always imposes an unavailability requirement whenever hearsay is admitted pursuant to an exception. See Commonwealth v. Jones, 400 Mass. 544, 547, 511 N.E.2d 17 (1987) (Commonwealth need not demonstrate unavailability for adoptive admissions).

The United States Supreme Court has held that the admission of hearsay under a "firmly rooted" exception, such as an excited or spontaneous utterance, without a showing of unavailability does not violate the confrontation clause of the Sixth Amendment to the United States Constitution. White v. Illinois, 502 U.S. 346, 353-358, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992). Although some of our cases do extend the confrontation right under art. 12 beyond its Federal counterpart, these cases have involved the physical configuration of the courtroom and the defendant's ability literally "to meet" testifying witnesses "face to face" as required by the plain language of art. 12. See Commonwealth v. Amirault, 424 Mass. 618, 677 N.E.2d 652 (1997); Commonwealth v. Bergstrom, supra. They did not involve confrontation rights as applied to hearsay.

In cases involving the hearsay rule and its exceptions, we have stated that art. 12 provides no greater protection than the Sixth Amendment. See Mendonza v. Commonwealth, 423 Mass. 771, 787, 673 N.E.2d 22 (1996); Commonwealth v. Siegfriedt, 402 Mass. 424, 430-431, 522 N.E.2d 970 (1988). The defendant offers no basis for concluding that the ...