Commonwealth v. King

• Citation: 763 NE 2d 1071,436 Mass. 252
• Parties: COMMONWEALTH v. SCOTT B. KING.
• Decision Date: 05 November 2001
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

436 Mass. 252

763 NE 2d 1071

COMMONWEALTH v. SCOTT B. KING.

Supreme Judicial Court of Massachusetts, Franklin.

November 5, 2001.

March 11, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Paul C. Brennan for the defendant.

Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

Following a jury-waived trial in the District Court, the defendant was convicted of assault and battery. The Appeals Court affirmed the judgment in a memorandum and order pursuant to its rule 1:28. Commonwealth v. King, 50 Mass. App. Ct. 1113 (2001). We granted his application for further appellate review. He contends that the victim's statements to police in the immediate aftermath of the incident should not have been admitted as spontaneous utterances because the victim's later recantation of the accusations rendered her spontaneous utterances unreliable. He also argues that the judge erroneously allowed the victim to invoke her privilege under the Fifth Amendment to the United States Constitution after she had waived that privilege by testifying at a voir dire, thus preventing him from presenting the victim's live testimony as part of his defense at trial. We find no error in the admission of the victim's spontaneous utterances. However, we agree that the judge applied an incorrect standard in concluding that the victim had not waived her Fifth Amendment rights in the course of her voir dire testimony. We therefore remand the matter for further proceedings to determine whether the victim had waived her privilege against self-incrimination.

1. Admission of victim's spontaneous utterances. a. Voir dire. Immediately prior to the start of trial, the judge conducted an evidentiary hearing on the defendant's motion to exclude the victim's statements to police. At that hearing, two police officers and the victim testified as follows.

On March 14, 1998, at approximately 3 A.M., Officer Kevin Rowell of the Greenfield police department was dispatched to a gasoline station on Bernardston Road, a few miles from the interstate highway. There he found the victim, accompanied by one Orlando Soto. The victim was crying and shaking. Officer Rowell described her as "[u]pset, excited, speaking rapidly, just blurting things out as she spoke." He detected an odor of alcohol on her breath, but characterized it as "[v]ery little, nothing major." The victim told Officer Rowell that she and the defendant had been riding in the back seat of Soto's vehicle, returning home from a nightclub in Springfield. She and the defendant were arguing. During the course of the argument, the defendant grabbed her and choked her three times. She showed Officer Rowell some red, puffy marks on her neck where the defendant had held her. Near the gasoline station, Soto had pulled the vehicle over, at which time the victim had jumped out and run to the gasoline station. She said that the incident had occurred "just moments" before the police arrived.

Sergeant Gary Magnan arrived at the scene shortly after the victim had spoken to Officer Rowell. Officer Magnan testified that the victim was still shaking, crying and "visibly upset." He needed to calm her down and reassure her "that things were okay" before she could speak to him. The victim repeated to Sergeant Magnan essentially the same version of events she had given to Officer Rowell.¹

The defendant then called the victim to testify. She testified that she was the defendant's former girl friend, and that she remembered the events of March 14, 1998, only "[s]lightly." She acknowledged that she had made statements to the police on that occasion, accusing the defendant of choking her, but testified that those statements were only "[p]artially" true. She testified that she was "very angry" and "very intoxicated" at the time she had spoken to the police. Some months after the incident, she had given another version, stating that the defendant had been trying to calm her down and had had to use force to restrain her and prevent her from hurting herself. She testified that that later statement was the true version of what had happened.

b. Discussion. A statement is admissible under the spontaneous utterance exception to the hearsay rule if the proponent shows that the statement was made under the influence of an exciting event, before the declarant had time to contrive or fabricate the statement, and that the statement tended to qualify, characterize and explain the underlying event. See Commonwealth v. Nunes, 430 Mass. 1, 3-4 (1999); Commonwealth v. Whelton, 428 Mass. 24, 26 (1998); Commonwealth v. DiMonte, 427 Mass. 233, 236, 239 (1998); Commonwealth v. Brown, 413 Mass. 693, 695-696 (1992); Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990). The underlying exciting event may be proved by the excited utterance itself. Commonwealth v. Nunes, supra at 4. As with any other witness, the declarant must have personal knowledge of the event in question, and must be competent. See Commonwealth v. Crawford, 417 Mass. 358, 362-363 (1994),S.C., 430 Mass. 683 (2000), and cases cited.

In the present case, the tests for admitting the victim's statements as excited utterances were plainly met. She was still under the influence of a very recent traumatic event, and her statements explained that event. She had personally observed the event and, although she had apparently been drinking, there was nothing to suggest a level of intoxication that rendered her incompetent.

The defendant argued that the victim's statements to the police should not be admitted as spontaneous utterances because, in light of her later recantation, they were not "reliable." The judge, finding that the requirements for admission of a spontaneous utterance had been met, denied the motion. He explained that, once the foundational requirements had been met, he did not have discretion to decide that the spontaneous utterances were unreliable and thereby exclude them.

The judge was correct. A judge has broad discretion to determine whether the foundational requirements of the exception have been met. See Commonwealth v. Whelton, supra at 26; Commonwealth v. Grant, 418 Mass. 76, 81 (1994), quoting Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197 (1960); Commonwealth v. Zagranski, supra.

Thus, a judge's determination that, in light of the timing and all other surrounding circumstances, the declarant was still under the influence of the exciting event will only be disturbed for abuse of discretion. Compare Commonwealth v. DiMonte, supra at 236-240 (judge abused discretion in admitting facsimile transmission as spontaneous utterance where transmission was sent more than eight hours after alleged assault and contained unrelated information about concert schedules), with Commonwealth v. Crawford, supra at 360-363 (child's statement made five hours after mother's murder but at child's "first safe opportunity" to speak properly admitted as spontaneous utterance).

Our recognition of that broad discretion to determine whether the prerequisites for the exception are met does not suggest that a trial judge has the authority to exclude a spontaneous utterance that meets those prerequisites on the ground that, in light of other evidence, the statement no longer appears reliable. Rather, it is the circumstances of the excited utterance that confer the requisite reliability. The excited utterance exception to the hearsay rule "is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker's belief as to the facts just observed by him; and may therefore be received as testimony to those facts." Commonwealth v. McLaughlin, 364 Mass. 211, 222 (1973), quoting J. Wigmore, Evidence § 1747 (3d ed. 1940). "For the purpose of the spontaneous utterance exception to the hearsay rule, an 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" (emphasis added). Commonwealth v. Zagranski, supra at 285.

Of course, the substance of the declarant's excited utterance may be controverted by other evidence. For example, it may be contradicted by the testimony of other eyewitnesses; it may be refuted by forensic evidence; or, as here, it may be contradicted by the declarant herself. See Commonwealth v. Napolitano, 42 Mass. App. Ct. 549, 552-553 (1997) (where victim's excited utterances met tests for admissibility, judge did not err in admitting them despite victim's later recantation). Such contrary evidence goes to the weight to be given the spontaneous utterance by the finder of fact, not to its admissibility. The defendant's suggestion that the judge has independent discretion to determine whether, in light of other evidence, the utterance is "reliable" would effectively require the judge to hear the entirety of the other proposed trial evidence and would have the judge usurp the fact finder's function and decide whether the spontaneous utterance was outweighed by more credible, reliable evidence. The judge's broad discretion to determine whether the prerequisites for the spontaneous utterance exception have been satisfied does not suggest such a broad ranging inquiry into the weight to be given to...