Commonwealth v. McGann

• Decision Date: 07 November 2019
• Docket Number: SJC-12742
• Citation: 484 Mass. 312,141 N.E.3d 405
• Parties: COMMONWEALTH v. Skye A. MCGANN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

484 Mass. 312

141 N.E.3d 405

COMMONWEALTH

v.Skye A. MCGANN.

SJC-12742

Supreme Judicial Court of Massachusetts, Franklin..

November 7, 2019.

March 17, 2020.

Cara M. Cheyette for the defendant.

Nicholas Shareef Atallah, Assistant District Attorney (Thomas H. Townsend, Assistant District Attorney, also present) for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

This is an appeal by the defendant, Skye A. McGann, from her convictions of assault and battery on a family or household member and assault by means of a dangerous weapon. We granted her application for direct appellate review. Before trial, the victim, the defendant's then boyfriend, invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and therefore did not testify at trial. The defendant argues on appeal that, for various reasons, her right to a fair trial was violated and that the judge improperly ordered the defendant to pay restitution to the victim's mother, who was a third party and nonvictim. To determine whether the defendant received a fair trial, we address whether (1) the trial judge properly admitted the victim's statements he made over the telephone to his mother; (2) a judge who heard the defendant's pretrial motion to redact the victim's medical record (motion judge) properly admitted a statement contained in that record; (3) a line of questioning by the Commonwealth during cross-examination of the defendant was improper and, if so, whether it created a substantial risk of a miscarriage of justice; and (4) the evidence presented by the Commonwealth was sufficient to allow a reasonable jury to conclude that the defendant did not act in self-defense. We hold that the defendant received a fair trial and that a trial judge may order a defendant to pay restitution to a third party in certain circumstances. We therefore affirm the defendant's convictions and the judge's restitution order.

Background. We recite the facts as the jury could have found them, reserving certain details for later discussion.

1. The incident. The defendant and the victim lived together in an apartment (apartment). At some time during the night of January 15, 2017, the defendant and the victim got into an argument.¹ Around 11 P.M. , the victim called his mother (first telephone call). The victim's mother testified² that the victim told her, "[The defendant] just punched me in both of my eyes. I can barely see." The victim's mother described the victim's tone of voice as "screaming and crying." She testified that when she told the victim to call the police, he responded, "I'm gonna call the cops."³ The victim's mother called the police several times after speaking with her son.

At some point after the first telephone call, the defendant left the apartment and drove to her father's house. The victim's mother testified that after the first telephone call, she called the defendant to address the victim's accusations. The victim's mother testified that when she told the defendant, "[The victim] told me you beat him up pretty bad and you stole his car," the defendant responded, "You should see what he did to me." The defendant spent about an hour at her father's house and then returned to the apartment. After the defendant returned to the apartment, the police arrived at the apartment, spoke to the victim, and left thereafter.

At 1:30 A.M. on January 16, the victim again called his mother (second telephone call). The victim's mother testified that during this telephone call, the victim was "screaming," "[h]e was crying," and his tone of voice was "hysterical." She testified that the victim said to her, "She tried to kill me. She pulled out a knife." A neighbor living in the apartment next to the victim and defendant testified that around 1:30 A.M. she heard⁴ the defendant state, "I'm going to kill you, and I want you dead," from the apartment. Another neighbor testified that during the night she heard the defendant state, "I'm gonna F'ing kill you," from the apartment.

As the victim concluded the second telephone call with his mother, the police arrived. When Officer Corey Brown and Sergeant Randall Stange of the Athol police department arrived at the scene, they observed blood on the back of the victim's head. Brown testified that he noticed blood around the victim's mouth and nose and bite marks on the victim's arm and shoulder, and that the victim's demeanor was "excited," his voice was "loud," and he was "very boisterous with his hands." Both officers testified that they did not observe injuries or marks on the defendant. The victim was transported to the hospital by ambulance.

As detailed infra, the defendant testified at trial, raising the issue of self-defense.

2. Evidentiary holdings. As relevant to the defendant's appeal, the judge accepted the victim's assertion of Fifth Amendment privilege, allowed the Commonwealth's motion to admit statements the victim made to his mother on the telephone as nontestimonial spontaneous utterances, and denied the defendant's motion to redact certain statements in the victim's medical records.

3. The restitution order. After the verdicts, the prosecutor requested, inter alia, that the defendant pay restitution. At a later restitution hearing, the judge ordered the defendant to pay restitution to the victim's mother.⁵

The defendant appealed from her convictions and from the restitution order, and we granted her application for direct appellate review.

Discussion. 1. Admissibility of the victim's statements to his mother.⁶ We first address whether the trial judge properly admitted the statements the victim made over the telephone to his mother. The defendant argues that the victim's statements were testimonial because he knew or should have known that his statements were translating into police action. She further argues that the judge should not have admitted the victim's statements to his mother as spontaneous utterances because the statements failed to bear sufficient indicia of reliability. She encourages this court to "take this opportunity to revisit [ Commonwealth v. King, 436 Mass. 252, 763 N.E.2d 1071 (2002),] and to empower and, indeed, require, that judges act as ‘engaged gatekeepers’ to ensure that the presumptive reliability of spontaneous utterances offered without benefit of confrontation is not rebutted by other credible, reliable evidence."⁷ The Commonwealth contends that the victim's statements to his mother were not testimonial because they were all made to resolve ongoing medical emergencies, and that "the limitations required by Commonwealth v. King did not violate the defendant's due process rights, as the court still evaluated the statements themselves for reliability." For the reasons that follow, we hold that the judge properly admitted the statements the victim made to his mother as excited utterances.

a. Confrontation clause. The first issue is whether the confrontation clause barred the victim's out-of-court statements to his mother from being admitted. In a criminal case, to be admissible as a spontaneous utterance, the out-of-court statement made by a declarant who does not testify at trial must satisfy the confrontation clause and must be admissible pursuant to the rules of evidence.⁸ See Commonwealth v. Beatrice, 460 Mass. 255, 258, 951 N.E.2d 26 (2011). The confrontation clause bars the admission of testimonial hearsay by a declarant who does not appear at trial, unless the declarant is unavailable to testify as a matter of law and the defendant had an earlier opportunity to cross-examine him or her. See id., citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). "Testimonial statements are those made with the primary purpose of ‘creating an out-of-court substitute for trial testimony’ " (citation omitted).⁹ Commonwealth v. Wardsworth, 482 Mass. 454, 464, 124 N.E.3d 662 (2019). "[T]he question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’ " Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173, 2180, 192 L.Ed.2d 306 (2015), quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). "[W]hen the Commonwealth in a criminal case seeks to admit the excited utterance of a declarant who is not a witness at trial ..., the judge should conduct a careful voir dire, evidentiary if needed, before admitting the excited utterance in evidence." Commonwealth v. Hurley, 455 Mass. 53, 68 n.14, 913 N.E.2d 850 (2009). "We accept the judge's findings of fact unless clearly erroneous but independently apply constitutional principles to the facts found." Commonwealth v. Simon, 456 Mass. 280, 296, 923 N.E.2d 58, cert. denied, 562 U.S. 874, 131 S.Ct. 181, 178 L.Ed.2d 108 (2010).

The judge conducted a voir dire, before the trial, during which the victim's mother and a police officer who responded to the scene testified. See Hurley, 455 Mass. at 68 n.14, 913 N.E.2d 850. The victim's mother testified during the voir dire that at approximately 11 P.M. on January 15, the victim called her and said that the defendant punched him in both his eyes, that he could "barely see," and that the defendant stole his car. The victim's mother further testified that during this telephone call, the victim was "very, very, very upset," and that he was "crying," "screaming," and "hysterical." She said she told him to call the police and that he responded, "I will." There is no evidence to suggest that the victim called the police, and the defendant does not argue that he did so.

The victim called his mother a second time, again conveying the defendant's actions to his mother. The victim's mother testified during voir dire that the victim called her around 1:30 A.M. on January 16 and told her, "[The defendant] pulled out a knife. She's tried to kill me." She testified that...