Commonwealth v. Beatrice

• Decision Date: 29 July 2011
• Docket Number: SJC–10657.
• Citation: 460 Mass. 255,951 N.E.2d 26
• Parties: COMMONWEALTHv.Joseph BEATRICE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 255

951 N.E.2d 26

COMMONWEALTH

v.Joseph BEATRICE.

SJC–10657.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Sept. 8, 2010.Decided July 29, 2011.

OPINION TEXT STARTS HEREDavid M. Skeels, Cambridge, Committee for Public Counsel Services, for the defendant.Kristen Stone, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.GANTS, J.

On April 7, 2006, the victim telephoned the Brockton police department's 911 emergency line and told the police operator that her “ boy friend,” the defendant, had “just beat [her] up.” The defendant was charged in the District Court with two counts of assault and battery in connection with the April 7 incident.¹ After the victim invoked her constitutional rights against self-incrimination, the defendant moved in limine to suppress the tape recording of the telephone call, contending that, without the victim's testimony, the admission of the tape recording would violate his right to confrontation under the Sixth Amendment to the United States Constitution.² The judge denied the motion, and over objection, another judge admitted the tape recording in evidence at trial. The defendant was found guilty of one count of assault and battery of the victim, and the defendant appealed. The Appeals Court affirmed the judgment of conviction, concluding that “the victim's 911 call was admissible, as it was an excited utterance and was not testimonial.” Commonwealth v. Beatrice, 75 Mass.App.Ct. 153, 158, 912 N.E.2d 504 (2009).³ We granted the defendant's application for further appellate review, “limited to issues relating to the April 7, 2006, 911 call.” After oral argument, we stayed the appeal pending a decision by the United States Supreme Court in Michigan v. Bryant, ––– U.S. ––––, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), which considered a confrontation clause challenge to the admissibility in evidence of hearsay statements made to the police by a homicide victim before he died, and invited the parties to file supplemental memoranda after that case was decided on February 28, 2011. We conclude that the victim's 911 call was an excited utterance and was not testimonial because we can infer from the victim's statements during the call that the victim had just been assaulted, that the victim was still in the same apartment building as the assailant, and that the victim was in danger until the police came or the defendant fled. Therefore, we affirm.

Discussion. Because further appellate review is limited to the admission of the tape recording of the 911 telephone call, and because the judge rested its admission solely on inferences arising from the contents of that call, we turn directly to it.⁴ While no transcript of the telephone call was offered in evidence, we have listened to the tape recording and set out the audible portions of the conversation:

The 911 operator: “911 ... Hi.”

The caller: “I'm using my neighbor's phone. I live at [street address and apartment number]. My boy friend just beat me up. He beat the shit out of me. I need a cruiser.”

The 911 operator: “What's his name?”

The caller: “Joseph Beatrice.”

The 911 operator: “Joseph?”

The caller: “Yup. Joseph Beatrice.”

The 911 operator: “Beatrice?”

The caller: “Yup.”

The 911 operator: “Ok. Is he still in your apartment?”

The caller: “He's still there, he's packing his stuff now.”

The 911 operator: “Do you need an ambulance?”

The caller: “Umm. Please. And I, I need you to send the cops now, before he leaves.”

The 911 operator: “Ok. We'll send someone out. Ok?”

The caller: “Yup.”

The 911 operator: “Ok....”

In Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the confrontation clause of the Sixth Amendment bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” The victim here was unavailable to testify because of her invocation of the right against self-incrimination and the defendant had no prior opportunity to cross-examine her regarding the incident. Accordingly, her hearsay statements in the tape-recorded telephone call properly are admissible only if they pass two tests. First, the statement must be admissible under our common-law rules of evidence as an exception to the hearsay rule. See Commonwealth v. Simon, 456 Mass. 280, 295, 923 N.E.2d 58, cert. denied, ––– U.S. ––––, 131 S.Ct. 181, 178 L.Ed.2d 108 (2010); Commonwealth v. Nesbitt, 452 Mass. 236, 243, 892 N.E.2d 299 (2008). Second, the statement must be nontestimonial for purposes of the confrontation clause of the Sixth Amendment. See Commonwealth v. Simon, supra; Commonwealth v. Nesbitt, supra.

The Commonwealth argues that admission of the statements on the 911 tape recording was proper because the victim's statements during the telephone call were excited utterances. “A statement will be considered a spontaneous [or excited] utterance ‘if (1) there is an occurrence or event “sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (2) if the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.” ’ ” Commonwealth v. Nesbitt, supra at 246, 892 N.E.2d 299, quoting Commonwealth v. Santiago, 437 Mass. 620, 623, 774 N.E.2d 143 (2002). See Commonwealth v. Simon, supra at 296, 923 N.E.2d 58; Mass. G. Evid. § 803(2) (2011). Both prongs were satisfied in this case.⁵ The statements to the police operator were made “in circumstances that reasonably negated premeditation.” Commonwealth v. Santiago, supra at 625, 774 N.E.2d 143. The victim's voice on the telephone reflected that she was very upset and breathing heavily, and she reported that she had “just” been assaulted by the defendant and agreed that she needed an ambulance. We conclude that the statements were excited utterances.

Turning to the question whether the statements were testimonial, the Supreme Court declared in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006):

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Consequently, for a statement to be nontestimonial, there must be an ongoing emergency, and the primary purpose of the interrogation must be to meet that emergency, not to prove past events that may be relevant to criminal investigation or prosecution.⁶ Because these are preliminary facts that determine the admissibility of evidence, its proponent, here the prosecution, bears the burden of proving them by a preponderance of the evidence. See Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011); Mass. G. Evid., supra at § 104(a) & note, at 10. “We accept the judge's findings of fact unless clearly erroneous but independently apply constitutional principles to the facts found.” Commonwealth v. Simon, supra at 296, 923 N.E.2d 58.

“The existence of an ongoing emergency must be objectively assessed from the perspective of the parties to the interrogation at the time, not with the benefit of hindsight. If the information the parties knew at the time of the encounter would lead a reasonable person to believe that there was an emergency, even if that belief was later proved incorrect, that is sufficient for purposes of the Confrontation Clause.” Michigan v. Bryant, supra at 1157 n. 8.⁷ “[W]hether an emergency exists and is ongoing is a highly context-dependent inquiry.” Id. at 1158. The circumstances may reflect an ongoing emergency where the victim is seriously injured and requires medical assistance, see id. at 1159, 1165 (victim bleeding from life-threatening gunshot wound); Commonwealth v. Simon, supra at 299–300, 923 N.E.2d 58 (same); where the victim's safety is at substantial risk, see Davis v. Washington, supra at 817, 126 S.Ct. 2266 (victim being beaten during 911 call); Commonwealth v. Galicia, 447 Mass. 737, 745, 857 N.E.2d 463 (2006) (same); where the dispatched police officers responding to the scene may be at risk from an armed assailant, see Commonwealth v. Simon, supra at 300, 923 N.E.2d 58; or where an armed assailant poses a substantial risk to the public at large. See Michigan v. Bryant, supra at 1158.

Here, based on the victim's report to the 911 operator, she had “just” been severely beaten by her boy friend and agreed she wanted an ambulance, but there is no suggestion that her injuries were serious or life threatening, that her boy friend was armed with a dangerous weapon, or that her boy friend posed any risk to the public at large. Nor does she suggest that she was being beaten at the time of her telephone call or that her boy friend was presently where she was. In these circumstances, a reasonable person would believe there was an ongoing emergency only if there was a continuing risk to the victim, that is, a substantial risk that her assailant may find her and continue his assault on her before the police arrived on the scene. See Michigan v. Bryant, supra (in domestic violence cases, Supreme Court “focused only on the threat to the victims and assessed the ongoing emergency from the perspective of whether there was a continuing threat to them”).

The motion judge rested his denial of the motion in limine solely on the content of the tape recording of the 911 telephone call, and the trial judge admitted the tape recording in evidence based on the motion judge's ruling, so we similarly limit our examination of the relevant circumstances in determining whether ...