Commonwealth v. Irene
| Decision Date | 26 June 2012 |
| Docket Number | SJC–10882. |
| Citation | 970 N.E.2d 291,462 Mass. 600 |
| Parties | COMMONWEALTH v. Herman IRENE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Jennifer H. O'Brien, Billerica, for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
Dana Alan Curhan, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
A taxicab driver in Lawrence was robbed at knifepoint by a passenger wearing a hat that covered most of his face; the driver fired his pistol at the fleeing robber, wounding him in the back. Police located the defendant near the scene of the robbery suffering from an apparent gunshot wound to his back, but no witness was able to identify him as the robber. The defendant testified at trial, denying that he was the robber and claiming to have been shot in an unrelated incident by unknown assailants. A Superior Court jury convicted the defendant of armed robbery, G.L. c. 265, § 17. On appeal, the defendant argues that certain statements allegedly made by the fleeing robber were hearsay and should not have been admitted; that a statement attributed to the defendant contained in his medical records (“he was in a taxicab when he got shot”) was inadmissible as hearsay; and that, even if not hearsay, the admission of the medical records violated his right to confrontation under the Sixth Amendment to the United States Constitution. We transferred the case to this court on our own motion.
Because we conclude that the trial judge erred in admitting the defendant's medical records under the statutory exception for business records, G.L. c. 233, § 78 (§ 78), and that the disputed portion of the records was not shown to be admissible under the hospital records statute, G.L. c. 233, § 79 (§ 79), we do not reach the defendant's constitutional claim. Determining that the erroneous admission did not prejudice the defendant, however, and that his other claims of error are without merit, we affirm the conviction.1
Background. We summarize the facts the jury could have found, reserving certain details for later discussion. In the early morning hours of January 28, 2007, Bienvenido Rodriguez was driving his taxicab, a minivan, when he responded to a dispatch call for a frequent passenger, David Christian, a bartender at a local tavern. Rodriguez picked up Christian, who sat in the first row of seats behind Rodriguez, and drove toward Christian's destination. As he was turning off Springfield Street, Rodriguez saw a man waving and stopped to pick him up. The man was wearing a dark jacket and a hat that covered his ears and most of his face; he asked to be taken to Lowell Street and got into the front passenger seat.
After driving a few blocks, the man told Rodriguez in Spanish to stop. He then grabbed Rodriguez's head, brandished a knife, and demanded that Rodriguez show him where he kept his money. A brief struggle ensued before Rodriguez brought the taxicab to an abrupt stop. At some point, Rodriguez gestured to the driver's side visor, where he kept his money secured by an elastic band. The robber took the money from the visor; he then left the taxicab and ran in the direction of a bridge underpass located at the intersection of Parker and Market Streets.
Rodriguez got out and pulled a .40 caliber pistol from his waistband. 2 He struggled with the weapon for a moment, ejecting one live round from the chamber while attempting to disengage the safety. He then fired at least one shot in the direction of the fleeing robber.3
Christian, who initially did not realize what was happening, remained in the taxicab throughout the encounter and attempted to reach Lawrence police on his cellular telephone. Michael Caraballo, another taxicab driver who worked for the same company as Rodriguez, drove by Rodriguez'staxicab just after it had come to a stop. Caraballo and Wilfredo Colon, Caraballo's passenger, both saw Rodriguez struggling with the front-seat passenger. Caraballo pulled over near the bridge at Parker and Market Streets to make radio contact with the taxicab company, then drove back to Rodriguez's taxicab.
Caraballo and Colon observed Rodriguez get out of his taxicab and fire his gun at the robber as the man ran toward the bridge. Rodriguez, Caraballo, and Colon each heard the man exclaim and indicate that he had been hit.4 He stumbled and momentarily fell to the ground, dropping his hat; he then continued running down Parker Street before turning left onto Market Street.
Responding to a radio broadcast regarding the incident, Officer Eric Cerullo of the Lawrence police department reached the area less than five minutes after the shooting. He drove around the area in search of the robber, who had been described as a light-skinned Hispanic male in a black leather jacket. Cerullo passed Market Street and turned onto Springfield Street. He had traveled between thirty yards and forty yards when he observed the defendant emerge from an alley between two houses and wave for help. The defendant was wearing a light shirt and no jacket. A Lawrence detective, who also had been in the area, drove down Springfield Street at the same time as Cerullo. The officers approached the defendant, who told Cerullo that he had been shot. Cerullo noticed “a dark blood spot” on the back of the defendant's shirt; when the defendant opened his shirt, Cerullo saw blood “pouring out” from an apparent gunshot wound.
The defendant was transported by ambulance to Lawrence General Hospital, where he denied that he had been in a taxicab before being shot.5 The defendant was transferred to Brigham and Women's Hospital in Boston for surgery.6 Following the surgery,7 another detective and a police lieutenant interviewed the defendant at the hospital; the defendant consented to audio recording of the interview and signed an acknowledgment of his Miranda rights. The defendant told the detective that he had argued with his wife and left their apartment wearing a black leather shearling jacket and matching hat, and went for a long walk. He first said he had been shot on Market Street. He then said that he had been approached on Parker Street near Market Street by a car full of “punks,” and that one of the passengers said he wanted the defendant's jacket. The defendant heard a “pow,” fell, then got up and ran.
Police recovered one spent shell casing and one live round of ammunition from the ground near Rodriguez's taxicab. Police also found the robber's fur-lined hat on a sidewalk approximately ten feet behind the taxicab.8 Deoxyribonucleic acid (DNA) collected from the exterior of the hat was later found to be a match for the defendant's DNA.9 Witnesses described the robber as a light-skinned, clean-shaven Hispanic male of average height and medium build, who had been wearing a dark coat and a hat.10
The defendant's trial testimony as to where he was shot placed him several blocks away from the location he had described to the detectives and, consequently, away from the location of the robbery. He denied having been in a taxicab that night, having robbed a taxicab driver, or having been shot by one. He also denied owning the fur-lined hat found at the scene of the robbery and introduced in evidence at trial.
The defendant argues that evidence of the fleeing robber's statements constituted inadmissible hearsay. He claims also that the statement, recorded in his medical records, that he was in a taxicab when he was shot was improperly admitted as a business record and, in any event, violated his right to confront the doctor who authored the report. The defendant contends that, without the erroneously admitted evidence, the Commonwealth's evidence is insufficient to sustain a conviction.
Discussion. 1. The robber's statements. The defendant challenges testimony from three witnesses regarding statements or exclamations made by the robber just after Rodriguez fired his gun, each to the effect that the robber reacted to having been shot. The defendant argues that the statements or exclamations constitute inadmissible hearsay admitted substantively to establish that the robber was in fact hit by the bullet fired from Rodriguez's gun.
Caraballo testified, without objection, that the robber said, “ ‘He hit me, he hit me’ or ‘crap’ or something like that.” 11Colon testified, also without objection, that the robber said, “I got hit, I got hit.” Rodriguez answered a series of questions regarding the sequence of events that began with the robber running from the taxicab and continued to the point that Rodriguez fired his gun. When the prosecutor asked, “Did you see anything occur as [the robber] was running?” Rodriguez was permitted to respond, over the defendant's objection, “I heard that he said, ‘Oh, my mother, my mother.’ ”
The defendant argues that the phrase “I heard that he said,” suggests that Rodriguez heard about the robber's statement from another person and was therefore not testifying from personal knowledge. See Commonwealth v. Harbin, 435 Mass. 654, 657, 760 N.E.2d 1216 (2002) (). See also Mass. G. Evid. § 602 (2012).
We do not agree with the defendant's characterization of Rodriguez's testimony. The question asked Rodriguez to recount a personal observation; based on his answer, provided through a Spanish language interpreter, it may fairly be inferred that Rodriguez was testifying from personal knowledge to what he heard the robber exclaim.12 We conclude that the testimony of all three witnesses was properly admitted as an exception to the hearsay rule, either as a spontaneous utterance, see Mass. G. Evid., supra at § 803(2), or as an expression of a “present physical condition such as pain.” 13Id. at § 803(3)(A).
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