Commonwealth v. Santiago

• Citation: 774 NE 2d 143,437 Mass. 620
• Parties: COMMONWEALTH v. PLACIDO SANTIAGO.
• Decision Date: 04 September 2002
• Court: United States State Supreme Judicial Court of Massachusetts

437 Mass. 620

774 NE 2d 143

COMMONWEALTH v. PLACIDO SANTIAGO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 5, 2002.

September 4, 2002.

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

Rua M. Kelly, Special Assistant District Attorney, for the Commonwealth.

Ronald J. Ranta for the defendant.

MARSHALL, C.J.

On April 15, 1998, a grand jury returned two indictments charging the defendant with rape of a child under the age of sixteen years in violation of G. L. c. 265, § 23, and indecent assault and battery on a child under the age of fourteen years, in violation of G. L. c. 265, § 13B. Both incidents were alleged to have occurred in December, 1990. A jury convicted the defendant of the indecent assault and battery, but acquitted him on the rape charge.

On appeal, the defendant claimed that a statement made by the victim's mother to the police at the time of his arrest in 1998 was improperly admitted as a spontaneous utterance. He also challenged other evidentiary rulings of the trial judge described below. The Appeals Court reversed his conviction, holding that the mother's statement was improperly admitted, and that its admission might have affected the outcome of the trial. Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 678 (2001). We granted the Commonwealth's application for further appellate review. We now affirm the defendant's conviction.

Facts. The jury could have found that, in October, 1990, the victim, thirteen years old at the time, lived in Lawrence with her mother, her siblings, and her mother's boy friend — the defendant in this case. Around that time, the defendant sexually assaulted the victim by kissing her and touching her breasts. The victim immediately told her uncle, who lived upstairs. The uncle told the victim's mother and confronted the defendant, who thereupon moved out of the house. A short time later the victim's mother moved with her children, including the victim, to the defendant's new home in Lowell.

In the early morning hours of December 13, 1990, the victim awoke to find the defendant lying next to her. He placed his hand over her mouth, threatened to kill her if she screamed, and undressed her. The victim testified that the defendant touched her breasts and inserted his penis into her vagina, but "it didn't [go] all the way in." After the defendant left, the victim cried, spent the remainder of the night sleepless, and then showered and went to school.

That day, the victim told her school guidance counsellor about the previous night's assault. The guidance counsellor telephoned the victim's mother and the police. When they arrived at the school, the victim, speaking in Spanish, recounted the incident, with the guidance counsellor acting as her translator. Accompanied by the guidance counsellor, the victim's mother took the victim to a hospital.

The defendant arrived at the hospital a short while later, while the victim was undergoing a medical examination. He agreed to speak to the police, with the guidance counsellor again serving as a translator. After receiving Miranda warnings in English and in Spanish, the defendant, who gave an assumed name, told the police that the victim had a long-standing "crush" on him and, the previous night, had asked him to come to her bedroom. He went, he said, to the doorway, but did not enter.

The police then arrested and handcuffed him. According to the trial testimony of an arresting officer and the guidance counsellor, as the defendant was being escorted from the hospital, the victim's mother, who had seen the defendant speaking with the police and had witnessed his arrest, ran over and, crying out in Spanish, said that the defendant had told her that he "went into [the victim's] bedroom and kissed her ... only put his finger into her vagina, but did not have intercourse [with her]." The guidance counsellor translated the mother's statements for the police.

The defendant was booked at a police station (he again gave the police an assumed name) and was later released. The defendant did not return to court on December 27 as ordered, and a default warrant issued. He had fled the Commonwealth. In the ensuing years he lived in New York City and Connecticut using an assumed name. Eventually he married the victim's mother.

The victim, meanwhile, lived in a foster home for "a couple of days," and later with her maternal grandmother, who told her that the Massachusetts criminal case against the defendant had been dropped. The victim eventually moved to New York, married, and had two children. She later moved to Connecticut where she visited her mother and siblings, tolerating occasional contact with the defendant, she testified, to maintain her relationships with her family. In 1996, for financial reasons, the victim and her husband accepted her mother's offer to move to a separate apartment in her home, where the mother and the defendant lived. The victim testified that during this period she had little contact with the defendant until an incident that occurred on January 8, 1998. On that day, the defendant knocked on the victim's apartment door when she was home alone. When she answered, he pushed his way in and professed his love for her, while touching her breasts, and trying to touch her genitals. He said he had always loved her and "didn't want" her mother any longer. The victim became angry, rebuffed him, and the defendant left. She and her husband reported the incident to the police. The defendant was arrested and, as he was taken into custody, said to the victim, in Spanish, "I will hurt you."

After the defendant's arrest, the victim inquired into the status of the 1990 assault. Her inquiry led to the discovery of the 1990 default warrant (which had issued in the defendant's assumed name), and the defendant was returned to Massachusetts to face trial.

Spontaneous utterance. The modern test for the admissibility of a statement as a spontaneous utterance in exception to the hearsay rule was laid down in Commonwealth v. McLaughlin, 364 Mass. 211, 221-222 (1973). There the court explained that a statement is admissible if it is made "under certain external circumstances of physical shock ... 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." Id. at 222, quoting J. Wigmore, Evidence § 1747 (3d ed. 1940). Professor McCormick has stated this test succinctly: A spontaneous utterance will be admitted in evidence 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." 2 McCormick, Evidence § 272, at 204 (5th ed. 1999). Justice Kaplan has recently explained the principle underlying the admissibility of spontaneous utterances: "[I]t is supposed that a person under stress tends to speak what comes spontaneously to mind, without energy or disposition to invent lies; his excited utterance is likely to be truthful in that sense, and so the hearsay objection is overcome." Commonwealth v. Carrasquillo, 54 Mass. App. Ct. 363, 368 (2002), citing Commonwealth v. McLaughlin, supra at 222.

The defendant claims that the mother's comments to the police when he was arrested in 1990 do not meet this test. The Appeals Court agreed. While we concur with much of the reasoning of the Appeals Court on the question, we do not think that the decision of the judge was a "clear case[] ... of an improper exercise of discretion" warranting reversal. Commonwealth v. McLaughlin, supra at 223, quoting J. Wigmore, supra at § 1750. The judge's decision was sound.¹

We first consider whether there was an exciting event that would give rise to the exception. The Appeals Court assumed, correctly in our view, that the mother's observation of the defendant's arrest at the hospital so qualified. See Commonwealth v. Santiago, supra at 672, citing Commonwealth v. Zagranski, 408 Mass. 278, 286 (1990) (underlying exciting event was "the declarant's discovery of her handcuffed husband under arrest for murder in the kitchen of her home"), and Commonwealth v. Lawson, 46 Mass. App. Ct. 627, 630 (1999) (same).²

We next consider whether the declarant displayed a degree of excitement sufficient to conclude that her statement was a spontaneous reaction to the exciting event, rather than the product of reflective thought. By all accounts, the victim's mother reacted to the defendant's arrest and handcuffing with surprise, shock, and dismay. The arresting officer testified that the mother was "[v]ery, very upset and agitated," and was "more upset" when she made the remarks than she had been "at any point prior." She was speaking rapidly and loudly as she related to the police what the defendant had told her. The guidance counsellor testified that, as the mother called out to the police, "[she] was worr[ied] about [the defendant]." These are indicia that the victim's mother made the statement to the police in circumstances that reasonably negated premeditation. Here again, the Appeals Court concluded that this aspect of the test had been satisfied and, again, we agree. Commonwealth v. Santiago, supra at 672-673.

This should have been the end of the inquiry. See 2 McCormick, Evidence § 272, at 205-206 (5th ed. 1999) ("The courts look primarily to the effect upon the declarant, and if satisfied that the event was such as to cause adequate excitement, the inquiry is ended" [footnote omitted]). See also State v. Bonalumi, 127 N.H. 485, 488 (1985) (same). The Appeals Court, however, relying on Blake v. Springfield St. Ry., 6 Mass. App. Ct. 553, 556 (1978), and other cases to the same effect,³ went on to consider whether the statement "tended `to...