Commonwealth v. Rodriguez

• Citation: 90 Mass.App.Ct. 315,58 N.E.3d 1088
• Decision Date: 22 September 2016
• Docket Number: No. 15–P–131.,15–P–131.
• Parties: COMMONWEALTH v. Carlos RODRIGUEZ.
• Court: Appeals Court of Massachusetts

90 Mass.App.Ct. 315
58 N.E.3d 1088

COMMONWEALTH
v.
Carlos RODRIGUEZ.

No. 15–P–131.

Appeals Court of Massachusetts, Hampden.

Argued March 18, 2016.
Decided Sept. 22, 2016.

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S. Anders Smith for the defendant.

Thomas R. Worger (Amal Bala, Assistant District Attorney, with him) for the Commonwealth.

Present: MILKEY, AGNES, & MALDONADO, JJ.

AGNES, J.

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The defendant, Carlos Rodriguez, was convicted on August 14, 2014, of assault and battery following a two-day jury trial. He was sentenced to a term of six months in a house of correction. The Commonwealth's case was based principally on the testimony of West Springfield police Officer Paulina Hannah, the second officer to respond to the scene of a domestic violence incident. She testified to certain statements made to her by the victim, who did not testify at the trial. On appeal, the defendant argues that the trial judge improperly admitted those statements because they did not fall within any exception to the hearsay rule, and they violated his independent constitutional right under the

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Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights to confront the witnesses against him.

We agree with the judges¹ below that the statements in question made by the victim to Officer Hannah were admissible as excited utterances. However, we agree with the defendant that those initial statements were testimonial, and thus were subject to the confrontation clause. Finally, we conclude that despite the testimonial character of those statements, the defendant's confrontation rights were not violated and the statements were properly admitted, because the victim was unavailable to testify at trial and the defendant had an adequate prior opportunity to cross-examine her at a pretrial dangerousness hearing.

Background. Prior to trial, the defendant filed a motion in limine to exclude all the statements made by the victim to the first police officer at the scene, Officer Robert Wise, and to Officer Hannah. Following an evidentiary hearing, at which both officers testified, the motion judge ruled that all the statements were excited utterances and not subject to the rule against hearsay. However, the motion judge ruled that the statements made to Officer Wise were inadmissible under the confrontation clause because they were made in response to his questions and therefore were testimonial. For the same reason, the motion judge also ruled that all

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the statements that followed Officer Hannah's request to “tell [her] exactly what happened” were testimonial and not admissible through the testimony of Officer Hannah. However, the motion judge ruled that the initial statements the victim made to Officer Hannah when she first entered the home (the statements after the conversation with Officer Wise ended and until Officer Hannah asked the victim to tell her what happened) were admissible, as they were neither “testimonial per se” nor testimonial in fact.

At trial, the jury were warranted in finding the following facts. On the afternoon of October 14, 2013, Officer Wise was dispatched to a residence to investigate a report of a domestic disturbance. Upon arriving, Officer Wise met the victim in the hallway of the apartment building and observed her to be “very upset.” The victim had “[t]ears running down her face,” “red eyes,” and “disheveled” hair, and her “[s]hirt was torn.” Officer

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Wise also observed marks on her arms as well as the front and side of her neck. He did not see the defendant on the premises. Officer Wise did not testify to any statements made by the victim.

Shortly after Officer Wise arrived, he was joined by Officer Hannah. The victim left her conversation with Officer Wise and “went running right over to Officer Hannah.” The victim, who was “crying hysterically [and in a] [v]ery disheveled [condition],” gave Officer Hannah a “big hug.” The victim felt more comfortable with Officer Hannah because they had known one another for years, and they could speak to each other in Spanish. After giving Officer Hannah a hug and calling her by a specific term of endearment,² the victim told Officer Hannah that “Carlos had done this to her.” The victim told Officer Hannah that Carlos had grabbed her by the hair and dragged her down the hallway. The victim made motions to demonstrate how he had grabbed her. At that point the defendant objected on the ground that the admission of the statements made by the victim to Officer Hannah violated his rights under the confrontation clause. A lengthy sidebar discussion ensued. The judge initially sustained the objection. The judge then conducted a voir dire hearing, at which Officers Wise and Hannah testified. After the hearing, the judge overruled the objection, stating that he agreed with the motion judge's ruling.³

Officer Hannah then resumed her testimony regarding the initial statements the victim made to her. The victim had disclosed to Officer Hannah that the defendant had done this to her, and that he had grabbed her by her hair and dragged her across the floor. Officer Hannah also testified that the victim said the defendant had “grabbed her by the neck” and she “was having a hard time breathing because [the defendant] was squeezing her neck.”

As a result of a prior hearing where the victim had asserted her rights under the Fifth Amendment to the United States Constitution and, as found by the motion judge, was no longer available to testify, the victim did not testify at the trial.

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Whether the victim

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had a basis to assert the privilege is not an issue on appeal. The defendant presented no witnesses, but defense counsel read into the record portions of the victim's prior sworn testimony from a pretrial dangerousness hearing pursuant to G.L. c. 276, § 58A. At that hearing, the victim testified that she did not remember what happened on October 14, 2013; that the injury to her hand had happened before that day; that the defendant never grabbed her by the hair, pinned her down, or choked her; and that she never sought a restraining order against the defendant. The victim also testified that she had been under the influence of prescription medications and alcohol on that day.

In his closing argument, the defendant relied heavily on the victim's prior sworn testimony from the dangerousness hearing as evidence that her statements made to the police officers at the scene were not credible. The Commonwealth, in its closing, urged the jury to rely instead on the victim's statements that were made contemporaneous to the event and were the subject of Officer Hannah's testimony. The jury convicted the defendant of assault and battery.

Discussion. a. Admissibility as excited utterances. A spontaneous or excited utterance is admissible “if (1) there is an occurrence or event ‘sufficiently startling to render inoperative the normal reflective thought processes of the observer,’ and (2) if the declarant's statement was ‘a spontaneous reaction to the occurrence or event and not the result of reflective thought.’ ” Commonwealth v. Santiago, 437 Mass. 620, 623, 774 N.E.2d 143 (2002), quoting from 2 McCormick, Evidence § 272, at 204 (5th ed. 1999). See Mass. G. Evid. § 803(2) (2016).⁴ We review a judge's decision to admit or exclude evidence based on whether it falls within an exception to the hearsay rule, such as the excited utterance exception, under the abuse of discretion standard. “We defer to the judge's exercise of discretion unless the judge has made ‘ “a clear error of judgment in weighing” the factors relevant to the decision, ... such

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that the decision falls outside the range of reasonable alternatives' (citations omitted).” Commonwealth v. Alleyne, 474 Mass. 771, 779, 54 N.E.3d 471 (2016), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27, 20 N.E.3d 930 (2014).

Here, the trial judge heard evidence, during the voir dire hearing, that Officer Hannah arrived on the scene within five to ten minutes of the radio call dispatching officers to the residence. Prior trial testimony revealed that when Officer Hannah arrived, the victim was “crying hysterically,” “disheveled,” and “trembling.” Her hair was in disarray, her eyes were red, her shirt was torn, and she had visible bruises on her body. The temporal closeness of the statements to the startling event (being physically beaten), and the evidence of the victim's condition as upset, in distress, and highly emotional, provided the trial judge with a firm basis for his

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conclusion that her initial statements to Officer Hannah were the product of the ordeal she had just experienced and not the result of conscious reflection. See Commonwealth v. Robinson, 451 Mass. 672, 680–681, 888 N.E.2d 926 (200...