Com. v. Whelton

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

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.

Page 543

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,[428 Mass. 25] 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 [428 Mass. 26] 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

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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 [428 Mass. 27] 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,...