Commonwealth v. Rand

• Decision Date: 29 June 2020
• Docket Number: No. 18-P-845,18-P-845
• Citation: 149 N.E.3d 1279,97 Mass.App.Ct. 758
• Parties: COMMONWEALTH v. Roy RAND.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 758

149 N.E.3d 1279

COMMONWEALTH

v.Roy RAND.

No. 18-P-845

Appeals Court of Massachusetts, Norfolk..

Argued July 9, 2019.

Decided June 29, 2020.

Geraldine C. Griffin for the defendant.

Marguerite T. Grant, Assistant District Attorney (Elizabeth Walston McLaughlin, Assistant District Attorney, also present) for the Commonwealth.

Present: Henry, Sacks, & Ditkoff, JJ.

HENRY, J.

Following a jury trial in the Superior Court, the defendant, Roy Rand, was convicted of assault and battery in violation of G. L. c. 265, § 13A, and strangulation in violation of G. L. c. 265, § 15D.¹ The principal question on appeal is whether it was error to admit in evidence the 911 call made by the defendant's girlfriend, Susan,² or parts of that call, and the statements she made to the police officers who responded to the call. We conclude that while some of the statements were admissible as nontestimonial excited utterances, many were not. Because we are not convinced beyond a reasonable doubt that the evidence admitted against the defendant in violation of his right to confrontation -- under the Sixth Amendment to the United States Constitution³ and art. 12 of the Massachusetts Declaration of Rights -- did not contribute to his convictions, we reverse.

Background. Shortly after the defendant was arraigned, Susan stopped cooperating with the Commonwealth. Anticipating that Susan would not be available to testify at trial, the Commonwealth filed two motions in limine: one to admit Susan's statements made during her 911 call, and one to admit her statements made to the police officers who responded to her call. The defendant opposed both motions. The judge listened to the 911 call and ruled that he would admit the call in its entirety. Defense counsel started to object to the ruling and the judge interrupted, assuring him there was no need to object further and that "[a]ll of your rights are fully protected here."

In addition, the two responding police officers testified at a voir dire hearing. Officer John Connolly testified that while they were waiting for medical help to arrive, Susan explained to them what had happened. The officers spoke to Susan for "medical purposes because she was presenting with obvious injuries, and also because [they] didn't know where her alleged attacker was." Sergeant Philip Yee testified that the officers tried to speak with her initially "to find out if she was hurt and why [the police] were there." The motion judge, who also was the trial judge, ruled that they could testify about Susan's statements until she left her home to be transported in an ambulance, "but without any detail because [the motion judge] understood the officers to say there was no detail." The motion judge excluded testimony by the officers about any of Susan's statements in the ambulance or hospital.

The jury could have found the following facts. The defendant and Susan had an off-and-on dating relationship for approximately five years. They had a child together and the defendant visited regularly.

On July 25, 2015, at approximately 12:45 A.M., Susan called 911. The jury heard the 911 call, which was approximately five minutes and twenty seconds long.⁴ The call started with Susan saying, "I need somebody to come to my house," and, sobbing, "My boyfriend just beat me up." The dispatcher asked whether the boyfriend was still present and dispatched police. She asked the caller's name and the name of her boyfriend. Susan named the defendant and said that he had left but she did not know what kind of car he was driving. The dispatcher announced on the police radio, "Boyfriend's no longer on scene. He fled in an unknown vehicle."

The dispatcher asked, "What exactly happened tonight?" Susan stated that her boyfriend had arrived at midnight and that her sister "was causing trouble and stuff like that." Susan stated that she instructed her boyfriend to remove her sister from the house, but he took her sister's side and "knocked [Susan] out a couple of times." The dispatcher then communicated with police officers. After the dispatcher finished, Susan added, "And then he punched me in the face."

The dispatcher asked Susan, "He punched you in the face?" When Susan confirmed this, the dispatcher immediately asked Susan if she needed an ambulance, and she answered, "I don't know." When asked if she was bleeding, Susan answered, "No. But my face is swollen." The dispatcher sent an ambulance.

When the dispatcher informed Susan that she had called an ambulance, Susan said that her sister left with her boyfriend "[a]fter he beat me up and stuff." The dispatcher then asked questions about when the boyfriend left, to which Susan replied, "Like two minutes ago, since I called you guys."⁵ The dispatcher next asked questions about Susan's residence. Susan then volunteered, "He tried to kill me."

Two police officers arrived at Susan's home and found her on the telephone with the dispatcher. Susan did not seem to realize who they were, and the dispatcher had to tell her to hang up. The officers found Susan very upset, hysterical, and sobbing uncontrollably. Officer Connolly testified that he saw swelling on Susan's face and he noticed her eyes were bloodshot. Sergeant Yee noted that her eyes were red, bloodshot, and "veiny," although he did not observe facial swelling.

In the context of the judge's ruling that what Susan said at the apartment was admissible, the prosecutor asked the open-ended question, "And then what happened?" Sergeant Yee testified that they asked Susan "what's was going on, what happened" and why she needed them to respond. She responded that her boyfriend, the defendant, whom she identified as "Roy," had beaten her. When the officers asked how Roy beat her up, Susan said that he had punched her several times in the head and choked her with his knee, causing her to lose consciousness, hit the back of her head, and urinate on herself. When she regained consciousness, the defendant again hit her and choked her, this time with his hands. Susan also told the officers that her sister slapped her face two or three times. Susan complained of pain so Yee also called for an ambulance.

Officer Connolly testified next. He testified that when the officers saw Susan's injuries, Yee requested an ambulance. The prosecutor asked what Susan told the officers in the apartment. Connolly repeated Susan's statement that the defendant attacked her and all of the aforementioned details.

The jury saw photographs of Susan's injuries and heard testimony about them. The injuries to her face were consistent with her having been struck by a fist, arm, elbow, or object, "[s]omething more than a slap." The redness near her throat was consistent with a person's hands or other objects having been on her throat.

Susan had broken blood vessels in her eyes, which were consistent with strangulation rather than intoxication. At the hospital, she had urine on her pants and was hoarse. Incontinence, hoarseness, and lost consciousness are additional signs of a person having been strangled.

Discussion. 1. Standard of review. The defendant opposed the Commonwealth's motions in limine on the constitutional ground he raises on appeal. That was sufficient to preserve the issue. See Commonwealth v. Grady, 474 Mass. 715, 719, 54 N.E.3d 22 (2016) (defendant was not required to "object at trial to something that he ... had previously sought to preclude on constitutional grounds").⁶

"With respect to preserved constitutional error, we must vacate the conviction unless we are satisfied that the error was harmless beyond a reasonable doubt." Commonwealth v. Wardsworth, 482 Mass. 454, 465, 124 N.E.3d 662 (2019). It is the Commonwealth's burden to show the error was harmless beyond a reasonable doubt. Commonwealth v. Tyree, 455 Mass. 676, 701, 919 N.E.2d 660 (2010). This standard "is not satisfied simply because the erroneously admitted evidence is cumulative of other properly admitted evidence." Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 432, 113 N.E.3d 902 (2018). Instead, "[w]e consider several factors to determine whether the error was harmless: ‘the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.’ " Commonwealth v. Vardinski, 438 Mass. 444, 452, 780 N.E.2d 1278 (2003), quoting Commonwealth v. DiBenedetto, 414 Mass. 37, 40, 605 N.E.2d 811 (1992), S.C., 427 Mass. 414, 693 N.E.2d 1007 (1998). "We resolve all ambiguities and doubts in favor of the defendant." Vardinski, supra at 452-453, 780 N.E.2d 1278.

2. Admissibility of Susan's statements. When the Commonwealth offers out-of-court statements made by a declarant who is not available to testify at trial, as here, there is a two-step inquiry: (1) whether the statements are admissible under the rules of evidence, typically an exception to the hearsay rule; and (2) whether admission of the statements violates the defendant's confrontation rights. Commonwealth v. Nesbitt, 452 Mass. 236, 243, 892 N.E.2d 299 (2008). Here, the defendant concedes that Susan's statements during the 911 call and to the officers in her home were excited utterances. Id. at 246, 892 N.E.2d 299. Accordingly, we turn to whether the admission of Susan's statements violated the defendant's confrontation rights.

Whether admission of Susan's statements during the 911 call and to the officers in her home violated the defendant's right to confront the witnesses against him depends on whether the statements were testimonial or nontestimonial. "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." Davis v....