Commw. v. Tracy, P-522

• Decision Date: 05 November 1999
• Docket Number: P-522
• Citation: 737 N.E.2d 930,50 Mass. App. Ct. 435
• Parties: (Mass.App.Ct. 2000) COMMONWEALTH vs. PATRICK W. TRACY 98- Norfolk County Argued:
• Court: Appeals Court of Massachusetts

737 N.E.2d 930 (Mass.App.Ct. 2000)

COMMONWEALTH vs. PATRICK W. TRACY

98-P-522

Massachusetts Court Of Appeals

Norfolk County

Argued: November 5, 1999

Decided: November 6, 2000

Assault with Intent to Maim. Evidence, Spontaneous utterance. Interstate Agreement on Detainers. Practice, Criminal, Speedy trial.

Indictments found and returned in the Superior Court Department on November 17, 1991.

The cases were tried before Julian T. Houston, J.

Elliot R. Levine for the defendant.

Courtney Linnehan, Assistant District Attorney, for the Commonwealth.

Armstrong, C.J., Smith, & Kass, JJ.

SMITH, J.

On April 17, 1992, the defendant was indicted for the crimes of armed assault with intent to murder (G. L. c. 265, 18[b]); assault and battery by means of a dangerous weapon (G. L. c. 265, 15A[b]); unlawfully carrying a firearm (G. L. c. 269, 10); and assault with intent to maim (G. L. c. 265, 14). Following a jury trial, he was found guilty on all of the indictments.

On appeal, the defendant argues that the judge committed error in (1) allowing in evidence as an excited utterance a statement made by his mother to a police officer and (2) denying his motion to dismiss the case for lack of a speedy trial and (3) that he made various other errors during the trial. The defendant also claims that certain of his convictions are duplicative and therefore cannot stand.

Facts. The jury could find the following facts from the Commonwealth's evidence. On March 1, 1991, the victim was in the White Dove Restaurant and Bar (White Dove) in Dedham at about 9:00 P.M. The defendant approached the victim and another man and asked if he could buy them a drink. The victim declined and the other man walked away.

The defendant then asked the victim if he had been in the White Dove the previous evening with a woman named "Claire." The victim said he had been, and then the defendant repeatedly asked him if he was a police officer. The victim denied being a police officer and asked the defendant if he had a problem. The defendant replied that he should "beat [the victim's] head in." The two men then proceeded outside the lounge, where a fight ensued. The police arrived at about 9:30 P.M., the fight broke up, and the police placed the defendant in protective custody. As the police were leaving, the victim heard the defendant say, "I'm going to kill you." In the presence of the police who transported him to the police station, the defendant made threats regarding the victim and "said that it was not over [and] [h]e'd be back to finish it . . . ."

The defendant was taken to the police station in Dedham and booked. At about 10:30 P.M. he was released into the custody of his mother. At 11:18 P.M., the defendant's mother returned to the police station and told an officer that "her son was in possession of a firearm" and that "he may return to the White Dove Restaurant" and "he might injure someone." As the officer was listening to the defendant's mother, he overheard a radio dispatch stating that there had been a shooting at the White Dove.

At about ll:15 P.M., the defendant had returned to the White Dove. The victim was talking to a woman when suddenly she said to him, "Oh my God, he's back. He has a gun."

The victim saw the defendant entering the lounge with a coat over a gun. The defendant looked for the victim, saw him, and walked directly toward him and fired the gun twice. One of the bullets went through the victim's arm, causing a disabling injury. The defendant then walked up to the victim, stuck the gun into his back, said something, and pulled the trigger, shooting the victim in the side. The victim called the defendant a "mother f[]." The defendant shot him again. The victim again called him a "mother f[]," and the defendant shot him once more. That shot grazed the victim's skin. The defendant then left the White Dove. On May 18, 1991, he was arrested in Maine after committing an armed robbery.

The defendant did not testify at trial. His defense consisted of a claim that at the time of the incident in the White Dove he was suffering from posttraumatic stress disorder (PTSD) caused by his active service in the Vietnam war and that at the time of the shooting he was in an acute state of PTSD triggered by the events of the then ongoing Gulf war.

A psychiatrist and psychologist testified on behalf of the defendant. Both experts testified that the defendant told them he went back to the White Dove with the intention of killing himself but, upon seeing the victim, he had a flashback to his commanding officer in Vietnam who, according to the defendant, personified the evils and violence of that war. The experts testified that, in their opinion, at the time of the shooting the defendant's mental illness was such as to cause him to lack the substantial capacity either to appreciate the wrongfulness of his act or to conform his behavior to the requirements of the law.

On rebuttal, the Commonwealth called its own expert witness who opined that the defendant did not suffer from any mental disease or defect.

1. The admission of the mother's statement under the excited utterance exception to the hearsay rule. The defendant claims that the judge committed error in admitting, under the excited utterance exception to the hearsay rule, a police officer's testimony relating the statement the defendant's mother made to him at the police station.

"The excited utterance exception to the hearsay rule ?is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties . . . 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. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy . . . and may therefore be received as testimony to those facts.'" Commonwealth v. Grant, 418 Mass. 76, 80-81 (1994), quoting from Commonwealth v. McLaughlin, 364 Mass. 211, 222 (1973). "The trial judge in determining whether an utterance meets the tests of admissibility ought to be given broad discretion. . . . [O]nly in clear cases . . . of an improper exercise of discretion should [the judge's] ruling be revised." Commonwealth v. Grant, supra at 81, quoting from Rocco v. Boston-Leader, Inc., 340 Mass. 195, 197 (1960).

The defendant argues, first, that his mother's statement lacked the necessary spontaneity required under the excited utterance exception.

We reject the argument.

The time lapse between the exciting event and the utterance of the statement is not determinative of the statement's reliability; rather, the test is whether or not the declarant was in fact under the stress of the exciting event at the time he or she made the statement. Commonwealth v. Brown, 413 Mass. 693, 696 (1992). See Liacos, Massachusetts Evidence 8.16, at 553 (7th ed. 1999) ("Statements need not be strictly contemporaneous with the exciting cause to be admissible, provided that the underlying event has not lost its sway and been dissipated").

Here, the defendant's mother made her statement to the police officer some forty-eight minutes after the defendant had been released to her custody. At some time while the defendant was with her, the underlying event took place, i.e., she became aware that the defendant was in possession of a gun and that he intended to return to the White Dove, the scene of his fight. Upon the mother's return to the police station and at the time she made the statement there was evidence that she was "visibly upset," "pale," and "[h]er voice was quivering, cracking." Thus, the judge was warranted in concluding that at the time the mother made the statement she was still under the influence of the underlying event.

The defendant also argues that the judge committed error because the mother's personal knowledge regarding a portion of the statement, i.e., "that he may return to the White Dove Restaurant" and "that he might injure someone," had not been established. See Commonwealth v. Crawford, 417 Mass. 358, 363 (1994) ("when an extrajudicial statement is offered in court for its truth, the proponent of the statement may be required to establish that the declarant had personal knowledge of the information contained in the statement").

The trial judge specifically addressed the question of the mother's personal knowledge and concluded that it might be inferred from the evidence that the mother did indeed have personal knowledge that her son had a gun and might be returning to the White Dove, the place where the mother knew that he had been involved in a fight. We agree with the judge's conclusion. The mother was not hostile to her son; she had gone earlier to the police station to have him released into her custody. A reasonable inference may be drawn that the mother returned to the police station to seek the assistance of the police to stop her son before he might injure someone.¹

In any event, even if the statement were inadmissible, it was not so prejudicial as to require reversal because it was cumulative of other evidence demonstrating that the defendant had formed the required mental state for the crimes with which he was charged. At no time did the defendant deny that he returned to the White Dove with a gun and shot the victim. Further, there was evidence that, at the time the defendant was placed in protective custody, he told the victim he was going to kill him and told the police that it was not over and that "[h]e'd be back to finish it. " Further, there was strong evidence from numerous witnesses regarding the defendant's conduct at the time he returned to the lounge with a gun. All of the evidence supported the...