Commonwealth v. Moquette

• Decision Date: 10 July 2003
• Docket Number: SJC-08767.
• Parties: COMMONWEALTH v. Rafael MOQUETTE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH

v. Rafael MOQUETTE.

SJC-08767.

Supreme Court of Massachusetts.

March 3, 2003.

July 10, 2003.

Evidence, Spontaneous utterance, Corroborative evidence, Prior inconsistent statement.

Complaint received and sworn to in the Roxbury Division of the District Court Department on October 21, 1998.

The case was tried before R. Peter Anderson, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.

Astrid H. afKlinteberg for the defendant.

The following submitted briefs for amici curiae:

Nona E. Walker, Committee for Public Counsel Services, for Committee for Public Counsel Services.

William M. Bennett, District Attorney, Jane Davidson Montori & Katherine E. McMahon, Assistant District Attorneys, for the District Attorney for the Hampden District & others.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

SOSMAN, J.

The defendant was convicted of assault and battery by means of a dangerous weapon (two counts), assault and battery, and violation of a protective order, in connection with an incident of domestic violence against his girl friend and her two children. On appeal, the Appeals Court reversed the conviction with respect to one count of assault and battery by means of a dangerous weapon, and affirmed the remaining convictions. Commonwealth v. Moquette, 53 Mass.App.Ct. 615, 625 (2002). In reversing that one conviction, the Appeals Court held that the evidence was insufficient because the Commonwealth's case relied entirely on spontaneous utterances made at the scene, later recanted by the declarants at trial, without any corroboration that the striking of the child victim described in the spontaneous utterances had occurred. Id. at 619-623. We granted the Commonwealth's application for further appellate review, and we now affirm the conviction.

1. Facts. At approximately 4:30 A.M. on August 17, 1997, security officers at a housing project in the Roxbury section of Boston observed a woman and a boy run out of one of the apartment buildings. The woman, Rosaline Motero, was clad only in her nightgown. She appeared "really shaken up, scared." The boy, Motero's nine year old son, Joel, was crying. He told the officers that his "father"[¹] had hit his mother, himself, and his sister and that they had fled the apartment in fear. The defendant ran outside a few minutes later, knife in hand, and was quickly apprehended.

After the defendant was handcuffed, Joel further explained to the security officers that his mother had been fighting with the defendant, that the defendant had hit her twice, and that the defendant had beaten him and his sister with a belt. He said that his sister's hand had been struck with the belt buckle. Joel showed the officer a cut on his right hand, saying that that cut had been caused by the defendant's hitting him with the belt buckle.[²] The officers also observed red marks on Motero's face and neck.

The security officers, one of the Boston police officers who had been called to the scene, Motero, and Joel went inside the apartment, where they found Motero's eleven year old daughter Aneri. Aneri reported to the officers that she and Joel had attempted to intercede in a fight between her mother and the defendant. The defendant had taken his belt off and struck both of them with it. She gave the officers the belt in question, and displayed marks on her hand and leg that she claimed were caused by the blows with the belt. She stated that Joel had also been hit on the hand and on the leg. During this exchange, Aneri was visibly upset. While Joel had been upset at the time of his initial encounter with the security officers, he became "very withdrawn" and "sullen" when they were back in the apartment, declined to answer questions, and then claimed that he had not been hurt.

An ambulance was summoned, and both of the children were seen by an emergency medical technician (EMT). Aneri explained that she had been injured when the defendant struck her with the belt, and the EMT observed injuries to her left thumb and right thigh. The EMT also examined Joel. Joel told the EMT that he had been struck on his right hand and right lower leg. When Motero was examined, she complained of shoulder and neck pain, but the EMT saw "[n]o visible signs of trauma." These observations and complaints were noted on the ambulance report forms, with a separate form for the examination of each victim. Motero rejected the EMT's offer to have herself and her children transported to the hospital for further evaluation.

At trial, Motero testified that the incident had occurred during a dispute with the defendant about playing loud music that had awoken the children. When the children came out of the bedroom, Motero testified that the defendant "got the belt and he hit them so that they would go to sleep." On cross-examination, she testified three more times to the same effect, i.e., that the defendant had hit "them" with the belt. On redirect examination, she testified that the defendant only "threw" the belt, but again testified that the belt had been thrown "at them," i.e., at both children. Finally, on recross-examination, she was asked, "[H]e never hit Joel with the belt though, did he?," to which she responded, "No." She also testified that Joel had not been examined by the EMT. She further testified that, during the incident, she had tried to telephone security personnel. The defendant had grabbed the telephone from her, striking her unintentionally as he did so, but not hurting her.

At trial, Joel testified that he had come out of his room in response to the loud music and had found his mother and the defendant arguing. When asked whether anything happened to him that night, he responded, "No." He did testify that Aneri had been injured with a belt buckle, but did not say how her injuries had occurred or who had inflicted them. On brief cross-examination, defense counsel asked, "[The defendant] never hit you with a belt that night, did he?" Joel gave "[n]o verbal response," and was excused from the witness stand.

Aneri testified that she had not seen the defendant hit anyone other than herself. When asked specifically whether she remembered anyone else being hit, she gave "[n]o verbal response." On cross-examination, defense counsel asked, "[The defendant] never hit Joel with the belt, did he?" Again, Aneri gave no response. She similarly failed to answer many other questions put to her.

The defendant testified that he had not struck either child, but had only "snapped" the belt in their direction because they had not obeyed his instruction to return to bed. He claimed that Joel returned to bed, but that Aneri was still up. He then "snapped" the belt at her two more times, not intending to hit her with it, but she grabbed at the belt with her left hand on the last snap. He claimed that Aneri's leg injury was due to a fall earlier that night.

2. Discussion. The Appeals Court held that the various statements made by the three victims to the security officers, police officers, and the EMT were properly admitted as spontaneous utterances. However, with respect to the charge of assault and battery by means of a dangerous weapon on Joel, the Appeals Court held that the evidence was insufficient to support the conviction because the only evidence of that assault came from the children's spontaneous utterances at the scene, yet the eyewitnesses had all testified at trial that Joel had not been struck.[³] Commonwealth v. Moquette, 53 Mass.App.Ct. 615, 619-620 (2002). Because of the circumstances in which the spontaneous utterances had been made, "[t]he chance for lack of precision or misstatement as to any one part of the incident, or for confusion as to the details of what was said, is obvious." Id. at 622. And, because the children testified as to the defendant's commission of other crimes, the Appeals Court was of the view that the children's recantation with respect to the defendant's striking Joel could not have been the product of bias. Id. The Appeals Court thus concluded that where a "trial witness, whose extrajudicial statement is admitted as a spontaneous utterance, refutes the accuracy of the reports of his prior statements, in circumstances in which the witness has no apparent motive to lie and where the hearsay evidence is the sole proof of an essential element of the offense charged," the conviction cannot stand. Id. at 623 n. 7. Analogizing to cases involving substantive use of a witness's inconsistent grand jury testimony, the Appeals Court added a requirement of corroboration before recanted spontaneous utterances, absent any evidence that some bias brought about the recantation, could suffice to support a conviction. Id. at 620-621, 623, citing Commonwealth v. Noble, 417 Mass. 341, 345-347 (1994), Commonwealth v. Berrio, 407 Mass. 37, 45 (1990), and Commonwealth v. Daye, 393 Mass. 55, 74 (1984). For the following reasons, we decline to add any requirement of corroboration to the spontaneous utterance exception to the hearsay rule.

A spontaneous utterance is sufficient, by itself, to support a conviction. See Commonwealth v. Whelton, 428 Mass. 24, 29-30 (1998); Commonwealth v. Alvarado, 36 Mass.App.Ct. 604, 607 (1994). See also Commonwealth v. Joyner, 55 Mass.App.Ct. 412, 417 (2002). In Whelton, the Commonwealth's only witness was the police officer who responded to the scene following the victim's daughter's emergency call. The daughter, visibly distraught, told the officer that the defendant had just hit, kicked, and pushed her mother. The victim told the officer that the defendant had pushed her off the sofa, intending that she would hit a table as she fell. The officer's testimony laid a sufficient foundation for introducing the daughter's statement as a spontaneous utterance, but did not include any description...