Commonwealth v. Hart ( 2023 )

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SJC-13217
COMMONWEALTH vs. JOSHUA HART.
Franklin. September 15, 2023. - December 8, 2023.
Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement, Fair trial, Confrontation of
witnesses, Sentence, Cruel and unusual punishment. Fair
Trial. Evidence, Admissions and confessions, Voluntariness
of statement, Hearsay, Testimonial statement. Practice,
Criminal, Capital case, Motion to suppress, Admissions and
confessions, Voluntariness of statement, Venue, Fair trial,
Hearsay, Confrontation of witnesses, Sentence.
Indictments found and returned in the Superior Court
Department on December 19, 2016, and March 31, 2017.
A pretrial motion to suppress evidence was heard by John A.
Agostini, J., and the cases were tried before him.
Stephen Paul Maidman for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
LOWY, J. The defendant and his girlfriend entered an
elderly couple's home through an unlocked door, stabbed and
suffocated the two occupants of the house, and stole their
2
valuables. They then fled the Commonwealth in the victims' car.
One of the victims died immediately, and the other died
approximately one month later. Following a jury trial, the
defendant was convicted of two charges of murder in the first
degree.1
In this appeal, the defendant argues that his convictions
should be reversed on three bases: (1) the defendant's
confession to law enforcement was involuntary and should have
been suppressed; (2) the trial should have been transferred to
another venue due to pretrial publicity; and (3) a victim's out-
of-court statement should have been excluded from evidence
because it was inadmissible hearsay and the victim did not
testify at trial. The defendant further contends that,
considering his age at the time of the crimes, his sentences of
life without the possibility of parole constitute cruel or
unusual punishment. Lastly, the defendant asks us to exercise
our authority under G. L. c. 278, § 33E, to order a new trial or
remand the case for resentencing. We find no reversible error
in any issue raised by the defendant and, after plenary review,
no cause to exercise our powers under G. L. c. 278, § 33E. We
therefore affirm the defendant's convictions.
1 The defendant was also convicted of attempted murder, two
counts of armed robbery, larceny of a motor vehicle, and
fraudulent use of a credit card.
3
1. Background. We recite the facts the jury could have
reasonably found, reserving certain details for our analysis of
the issues.
a. The attack on Thomas Harty and Joanna Fisher. On
October 5, 2016, the defendant and his girlfriend, Brittany
Smith, decided that they would leave town in light of pending
criminal charges and that they would break into a house to steal
a car and money to effectuate their escape. At around 7:30
P.M., they chose a specific house in Orange because the garage
contained an older car, which they believed would be less likely
to have a tracking system. The defendant and Smith knew that
there were two individuals inside the house, and they intended
to intimidate the occupants of the house into providing money
and the keys to the car.
The defendant and Smith both entered the garage of the
house through an unlocked door, collected a socket wrench from
the garage, and proceeded into the house. As they walked
through the kitchen towards the living room, each also picked up
a knife from the kitchen counter.
Thomas Harty, the ninety-five year old homeowner, stood up
from an armchair in the living room to confront the two
intruders. The defendant entered the living room, where he
stabbed Harty in the neck and multiple times in the chest. The
4
defendant then put a pillow over Harty's face until Harty ceased
breathing.
Next, the defendant turned to Joanna Fisher, Harty's
seventy-seven year old wife, who was nonambulatory and a full-
time wheelchair user. Smith had already assaulted Fisher, and
Fisher was lying on the ground. The defendant stabbed Fisher
numerous times, stood on her stomach in an attempt to take the
air out of her body, and put a pillow over her face to suffocate
her.
The defendant and Smith proceeded to steal credit and debit
cards, approximately $200, a cell phone, and a car. They then
disabled the house telephones and fled.
b. Fisher's statements. At approximately 9:10 A.M. the
following day, October 6, 2016, Cindy Sumner-Moryl arrived at
the house. Sumner-Moryl was Fisher's nurse and had a scheduled
appointment to assist Fisher with physical therapy exercises and
other personal care needs. She and another care worker found
the house in disarray, Harty motionless in the armchair in the
living room, and Fisher on the floor in her bedroom. Fisher had
a blanket over her legs, she was lying in a pool of blood, and
there was blood on the side of her face. Sumner-Moryl testified
as follows at trial:
"I heard her moaning, so I went over to her right away.
And she said, [']Cindy, is that you?['] And I said
[']yes['] and she said [']invasion, ambulance.['] And I
5
reassured her that we had help coming and that she was
safe. . . . I directed [the other care worker] to call
911. . . . And I stayed with Ms. Fisher to comfort her.
. . . She wanted to know if she had a black eye and I said
yes, she did. And she told me that they tried to kill her,
that they kept putting a pillow over her face and tried to
smother her[;] she said, [']But, I'm tough.['] Then she
told me that she dragged herself out onto the porch and
tried to call for help, but no one heard her."
Fisher was brought to the hospital for medical attention
for stab wounds, loss of blood, rib fractures, and other
abrasions and lacerations. Harty was declared deceased; Fisher
died weeks later from complications arising from the attack.
c. The police investigation. Shortly after Sumner-Moryl
found Fisher, police arrived at Harty and Fisher's home. There
was evidence of an attack throughout the house. Harty lay
lifeless in the armchair in the living room, and there were
bloodstains across the living room –- on the floor, on multiple
pillows, and on the chair in which Harty was found dead –- as
well as in the rest of the house. The police found a socket
wrench and a disabled cordless telephone on the dining room
table, and a disabled cordless telephone in the living room.
Within hours of the attack, the police were notified that
someone attempted to use Harty's credit card at a store in
Worcester. The police then obtained photographs showing the
defendant and Smith attempting to use Harty's credit card and
successfully using Fisher's debit card there. A photograph and
a video recording also showed the defendant and Smith in the
6
store's parking lot with Harty and Fisher's car. The police
were first able to identify the defendant and Smith based on
these photographs.
The police proceeded to speak with witnesses who stated
that they saw the defendant and Smith together immediately
before the attack. Surveillance footage from a small market
further placed the couple together near the victims' house
around the time of the attack, and the local police's bloodhound
tracked Smith from the market to the victims' home based on the
scent of a shirt Smith had been wearing shortly before the
attack.
Forensic and physical evidence also tied the defendant and
Smith to the crime scene. Rosary beads, matching a description
from a rosary worn by the defendant on the night of the attack,
were discovered on the living room floor and in the chair in
which Harty was found. The defendant's fingerprint was found on
a window shade behind Harty's body, and Smith's fingerprints
were found on various windows around the house. A footwear
impression consistent with the heel print of a Nike Air Jordan,
the type of sneaker the defendant wore on the night of the
attack, was found on the floor of the living room.
Massachusetts law enforcement tracked the defendant and
Smith over the following days as the two assailants fled down
the east coast. On October 8, 2016, Rockbridge County,
7
Virginia, deputy sheriffs (Virginia officers) arrested the
defendant and Smith. The victims' car was found in a nearby U-
Haul parking lot. The police later learned that the defendant
and Smith had rented a U-Haul motor vehicle after the car had
broken down. The defendant's and Smith's fingerprints were
found in the car, along with Smith's pocketbook, a wallet with
the defendant's MassHealth card, receipts showing purchases with
Fisher's debit card, and an identification card for Harty.
d. The defendant's interrogations with law enforcement.
Once in custody, the defendant immediately indicated that he
wanted to speak with the Virginia officers. The Virginia
officers, after consultation with Massachusetts law enforcement
officers, agreed to meet with the defendant and brought him from
his cell to an interview room. During an approximately one-hour
long audio-recorded conversation, the defendant confessed to the
attack on Harty and Fisher. The defendant also provided a
sketch of the victims' house and a written confession.
The next day, two Massachusetts State police troopers
(Massachusetts officers) met with the defendant in the
Rockbridge County, Virginia, sheriff's office. This
conversation was also audio recorded and lasted approximately
two hours and ten minutes. The defendant again made numerous
admissions detailing the crimes that he and Smith committed.
8
e. The defendant's convictions and sentencing. On April
13, 2018, following a jury trial, the defendant was convicted of
murder in the first degree for Harty's death based on the theory
of felony-murder; murder in the first degree for Fisher's death
based on the theories of deliberate premeditation, extreme
atrocity or cruelty, and felony-murder; and other charges.2 The
defendant was sentenced to life without the possibility of
parole for each conviction of murder in the first degree, to be
served consecutively.
The defendant's codefendant, Brittany Smith, was
subsequently and separately tried for and convicted of two
charges of murder in the first degree for killing Harty and
Fisher, among other charges. See Commonwealth v. Smith, 492
Mass. 604, 604-605 (2023).
2. Discussion. a. Voluntariness of confession. The
defendant argues that his rights under art. 12 of the
Massachusetts Declaration of Rights and the Fifth Amendment to
the United States Constitution were violated because the trial
judge improperly denied the defendant's motion to suppress his
2 As stated, the defendant was also convicted of attempted
murder, two counts of armed robbery, larceny of a motor vehicle,
and fraudulent use of a credit card.
9
allegedly involuntary confession to the Virginia officers.3 When
reviewing a trial judge's denial of a motion to suppress, we
"conduct an independent review of [the trial judge's] ultimate
findings and conclusions of law." Commonwealth v. Tremblay, 480
Mass. 645, 652 (2018). We review subsidiary findings of fact
with differing deference based on the type of evidence from
which the findings are drawn. See id. at 655. "[F]indings
drawn partly or wholly from testimonial evidence are accorded
deference and are not set aside unless clearly erroneous." Id.That is, such findings are set aside only if, although evidence
supports such findings, we are nonetheless "left with the
definite and firm conviction that a mistake has been committed"
after review of all the evidence (citation omitted). Id. at 655
n.7. On the other hand, we review de novo any findings based
entirely on documentary evidence. Id. at 655. Where we are
solely reviewing an audio recording of an interrogation, for
example, "we are in the same position as the motion judge to
determine what occurred during the interview." Commonwealth v.
Hammond, 477 Mass. 499, 502 (2017). We conclude, based upon the
judge's findings of fact from the evidentiary hearing, and our
It is uncontested that the defendant was in custody and
3
that the conversation between the defendant and the Virginia
officers constituted interrogation.
10
independent review of the recording here, that the trial judge
properly determined the defendant's statements to be voluntary.
A statement is presumed voluntary until a defendant
produces any evidence showing otherwise.4 Commonwealth v.
Tremblay, 460 Mass. 199, 206 (2011). Once a defendant presents
such evidence through a motion, affidavit, or proffer, the
burden shifts to the Commonwealth to prove beyond a reasonable
doubt that the statement was made voluntarily. Id. A voluntary
statement is "the product of a 'rational intellect' and a 'free
will,' and not induced by physical or psychological coercion"
(citation omitted). Hammond, 477 Mass. at 502. More
specifically, "[t]he test for voluntariness . . . is 'whether,
in light of the totality of the circumstances surrounding the
making of the statement, the will of the defendant was overborne
to the extent that the statement was not the result of a free
and voluntary act'" (citation omitted). Id. "Under this
'totality of the circumstances' test, we consider all of the
relevant circumstances surrounding the interrogation and the
individual characteristics and conduct of the defendant"
4 The rights to due process and against self-incrimination
afforded to defendants under the Massachusetts Declaration of
Rights are at least as protective as, if not even more expansive
than, those afforded under the United States Constitution.
Kligler v. Attorney Gen., 491 Mass. 38, 60 (2022). Commonwealth
v. Mavredakis, 430 Mass. 848, 858-859 (2000).
11
(citation omitted). Id. The nonexhaustive list of relevant
factors includes
"promises or other inducements, conduct of the defendant,
the defendant's age, education, intelligence and emotional
stability, experience with and in the criminal justice
system, physical and mental condition, the initiator of the
discussion of a deal or leniency (whether the defendant or
the police), and the details of the interrogation[,
including the recitation of Miranda warnings]" (citation
omitted).
Id. at 502 n.3.
The totality of the circumstances here demonstrates that
the will of the defendant was not overborne when he confessed to
the Virginia officers. The interrogation lasted only
approximately one hour, and the tone during the entirety of the
interview was conversational rather than adversarial: no one
raised his or her voice, the Virginia officers never harassed
the defendant, and the defendant never appeared agitated or
intimidated by the Virginia officers. Additionally, the
defendant did not appear particularly vulnerable to coercion.
He was an adult with a postsecondary education; he appeared
physically healthy and mentally coherent; and he had had
significant experience with the criminal justice system. The
defendant was able to recite the Miranda warnings himself --
saying that "[he knew] them very well" -- prior to the Virginia
officers formally providing those warnings and obtaining a
voluntary waiver. The defendant initiated the conversation with
12
the Virginia officers and displayed an obvious desire to speak
and confess to them. Indeed, the defendant specifically
mentioned to the Massachusetts officers that he had "volunteered
to talk" to the Virginia officers.
The defendant nonetheless contends that his statements were
involuntary because the police (i) used a "now or never"
interrogation tactic; (ii) used language minimizing the crimes;
(iii) appealed to the defendant's religious beliefs; and
(iv) made a promise to facilitate leniency for the defendant's
girlfriend. We disagree.
i. "Now or never." A "now or never" interrogation tactic
is one that "lead[s] a defendant to believe that the
conversation with police will be his or her sole opportunity to
tell his or her story." Commonwealth v. Miller, 486 Mass. 78,
92 (2020). The "now or never" tactic "casts substantial doubt
on the voluntariness of a subsequent confession and on the
integrity of the interrogation process leading up to it," and
"[t]his doubt would be extremely difficult for the Commonwealth
to overcome in any case." Id. at 93, quoting Commonwealth v.
Novo, 442 Mass. 262, 269 (2004). This tactic was not used here,
however. The Virginia officers encouraged the defendant to
"take advantage of this opportunity to talk with [them]," but at
no time insinuated that this was the defendant's "sole
opportunity" to tell his story. Further, our prior cases have
13
found the "now or never" tactic problematic particularly in
circumstances that have an impact on a defendant's right to
counsel or right to testify before a jury. See Commonwealth v.
Thomas, 469 Mass. 531, 541-542 (statement that "[t]his is your
only opportunity to tell your story to us so that we can help
you" would be improper "where a suspect has invoked her right to
counsel"); Novo, supra at 268-269 (statement that if defendant
did not speak to officers as to reason for his conduct, "a jury[
were] never going to hear a reason" was improper
"misrepresentation of the defendant's right to defend himself at
trial"). Here, the Virginia officers did not suggest in any way
that not speaking now would have an impact on his right to
counsel, his right to testify on his own behalf, or his right to
represent himself.
ii. Minimization. We have explained that "the standard
interrogation tactic of minimization is problematic" because
describing a crime repeatedly "as understandable, justifiable,
and not particularly serious" could imply a promise of leniency
(citation omitted). Commonwealth v. Harris, 468 Mass. 429, 436
(2014). "Use of the tactic by itself, however, does not
compel[] the conclusion that a confession is involuntary"
(quotation and citation omitted). Id. See Hammond, 477 Mass.
at 503-504 ("Minimization, combined with other factors, may
render a confession involuntary . . ."). When analyzing the
14
impact of minimization on voluntariness, we look not only to
whether law enforcement utilized minimization tactics, but also
to whether the tactics caused the defendant to be "misled as to
the severity of his situation." Commonwealth v. Newson, 471
Mass. 222, 231 (2015).
Here, the defendant's statements demonstrate that he was
not misled into somehow believing the situation was not serious.
The Virginia officers interrogating the defendant twice used
minimizing language, categorizing the defendant's crimes as "a
mistake" and "a lapse in judgment." But the defendant
immediately disagreed with the Virginia officers: when one
Virginia officer characterized the crimes as "a mistake," the
defendant replied, "Well this is bigger than a little mistake."
The Virginia officers also later stated to the defendant that
"this is a pretty severe, heinous incident," to which the
defendant agreed. Any minimization tactic employed here did not
coerce the defendant to confess because "the defendant's actions
reveal that he was able to decide what to tell the officers and
could further identify the officers' tactics for what they
were." Commonwealth v. Durand, 457 Mass. 574, 596-598 (2010),
S.C., 475 Mass. 657 (2016), cert. denied, 583 U.S. 896 (2017).
Indeed, even had the defendant been misled, the Virginia
officers' use of minimization, without more, would not affect
the outcome of our analysis here in the face of significant and
15
considerable evidence that the defendant sought to speak to law
enforcement and then voluntarily did so consistent with his
desire. See Commonwealth v. Cartright, 478 Mass. 273, 289
(2017), quoting Commonwealth v. DiGiambattista, 442 Mass. 423,
438-439 (2004) (explaining we "expressly disclaimed the
suggestion that an officer's use of the standard interrogation
tactic of minimization, by itself, compels the conclusion that a
confession is involuntary" [quotations omitted]).
iii. Appeal to religion. In Cartright, we adopted the
approach of some jurisdictions that "condemn 'the tactic of
exploiting a suspect's [specific] religious anxieties,' but [do]
not order suppression where the commentary on religion is
limited and not 'calculated to exploit a particular
psychological vulnerability of the defendant.'" Cartright, 478
Mass. at 289-291, quoting People v. Kelly, 51 Cal. 3d 931, 953
(1990), cert. denied, 502 U.S. 842 (1991). Here, the reference
to religion was extremely limited, if present at all. The
Virginia officers referenced Smith's "soul" only once.5
5 The Virginia officer testified at the hearing on the
motion to suppress that he was not seeking to invoke religion
when he mentioned Smith's "soul," but instead was only
attempting to reference Smith's "being." Cf. Merriam-Webster
Online Dictionary, https://www.merriam-webster.com/dictionary
/soul [https://perma.cc/ZZY8-RUG7] (defining soul as "the
immaterial essence, animating principle, or actuating cause of
an individual life"). Further, the defendant stated that he was
not very religious at the time of the interrogation, and it is
16
Moreover, there was no evidence that the Virginia officers were
attempting to exploit the defendant's religious sensibilities or
that the defendant's religious sensibilities were affected. The
trial judge, in denying the defendant's motion to suppress,
found that "the police were unaware of any religious affiliation
of the defendant or of any personal religious sensibilities,
particularly those that would be a means to break his will," and
we have no reason to disagree with this finding. Accordingly,
the singular reference to Smith's "soul" is insufficient to
upend our conclusion that the defendant's statement was freely
and voluntarily made.
iv. Promise of leniency. The defendant's remaining
contention is that the Virginia officers promised leniency for
his girlfriend in exchange for his confession. Officers may not
make a threat concerning a person's loved one, such as
threatening arrest and charging a loved one without any basis to
do so or "expressly bargain[ing] with the defendant over the
release of other individuals." Commonwealth v. Raymond, 424
Mass. 382, 396 (1997), S.C., 450 Mass. 729 (2008). See
Commonwealth v. Colon, 483 Mass. 378, 389 (2019). However, this
is not a case where the Virginia officers threatened the
defendant as to his relationship with a loved one, contrast
therefore less likely that he would have interpreted the word
"soul" in the spiritual sense.
17
Commonwealth v. Monroe, 472 Mass. 461, 469 (2015) (threats to
defendant's ability to maintain contact with daughter
characterized as coercion); or a case where the Virginia
officers threatened to charge the defendant's girlfriend without
any basis to do so, contrast Commonwealth v. Hunt, 12 Mass. App.
Ct. 841, 842-843 (1981) (confession found to be involuntary
where officers promised leniency for defendant's wife in
exchange for defendant's confession even though officers never
had probable cause to hold wife); or a case where the Virginia
officers expressly assured the defendant that his girlfriend
would be released if he confessed.
Instead, the Virginia officers simply provided a truthful
response to the defendant's inquiry. Both the defendant and
Smith were taken into custody by the Virginia officers under
warrants based on probable cause. The defendant then requested
to speak with the Virginia officers and, with urgency, raised
the issue of his girlfriend's innocence and stated multiple
times at the beginning of the interrogation that Smith was not
responsible for what had occurred. Only after raising the issue
of his girlfriend's lack of responsibility did the defendant, in
reference to his girlfriend's then-alleged innocence, ask, "[D]o
you think after we talk there's a way we could try to contact
the police department down there and arrange something?" The
18
Virginia officer responded, If you're honest with me and you're
telling me everything that's going on."
In this context, the Virginia officer's response was a
truthful explanation of what he believed would be the benefit of
the defendant's confession: if the defendant was being honest
when he stated that Smith was not involved in the killings, then
leniency for Smith would likely result. Explaining the
truthful, natural result of a suspect's statement is
permissible. See Commonwealth v. Berg, 37 Mass. App. Ct. 200,
205-206 (1994); United States v. Hufstetler, 782 F.3d 19, 24
(1st Cir.), cert. denied, 577 U.S. 884 (2015) ("Without more, an
officer's truthful description of the family member's
predicament is permissible since it merely constitutes an
attempt to both accurately depict the situation to the suspect
and to elicit more information about the family member's
culpability"); United States v. McWhorter, 515 Fed. Appx. 511,
518 (6th Cir.), cert. denied, 570 U.S. 912 (2013) (confession
was voluntary where officer stated to suspect "that if he was
responsible for all the criminal activity, the state would not
be interested in prosecuting his wife"); United States v. Jones,
32 F.3d 1512, 1517 (11th Cir. 1994) (where agents truthfully
told defendant that "unless [he] explained the participation of
his girlfriend, she would continue to be considered a suspect,"
confession was found to be voluntary); Bruno v. State, 574 So.
192d 76, 79-80 (Fla.), cert. denied, 502 U.S. 834 (1991) ("Even
taking into account that [the detective] later testified at the
trial that he had told [the defendant] that if he gave a sworn
statement exculpating his son, his son would not be charged, the
record supports the conclusion that the confession was freely
and voluntarily made[;] [t]he police legitimately believed that
[the defendant's] son was involved but recognized that if [the
defendant] gave a sworn statement exculpating his son there
would be no basis upon which his son could be charged"); Bailey
v. State, 473 N.E.2d 609, 610 (Ind. 1985) (confession was
voluntary where defendant "was merely advised that [friend's
release] would not be forthcoming without some basis for
believing that, although the two were caught in the car with the
goods, the friend had no knowledge of the burglary").
Indeed, the defendant's motivation for speaking with law
enforcement, at its core, can be reduced to one driving force:
his desire to protect his girlfriend. This desire, absent any
illegitimate police tactics, does not render a confession
involuntary. See Commonwealth v. Scott, 430 Mass. 351, 355
(1999) ("The defendant's concern for his sister is not enough to
tip the balance where all other factors indicate that the
defendant made his statement voluntarily"); Raymond, 424 Mass.
at 396 ("a motive to protect his mother is not sufficient to
find [the defendant's] confession involuntary" [citation
20
omitted]). We thus conclude that the response of the Virginia
officers to the defendant's inquiry concerning his potential
cooperation did not detract from the voluntariness of his
confession.
Under the totality of the circumstances, the defendant's
statements to the Virginia officers were made freely and
voluntarily.6
b. Fair and impartial jury. The defendant argues that his
right to a fair and impartial jury as violated when the trial
judge declined to change the venue of the trial despite local
pretrial publicity of the crimes. A trial judge "should
exercise [the] power to change the venue of a trial with great
caution" and only after the defendant has met his or her burden
"to establish the 'solid foundation of fact' necessary to
support a grant of the motion" (citation omitted). Commonwealth
v. Bateman, 492 Mass. 404, 430 (2023). "The mere existence of
pretrial publicity, even if it is extensive, does not constitute
a foundation of fact sufficient to require a change in venue"
(citation omitted). Id. Rather, the defendant must establish
that the pretrial publicity created presumptive prejudice or
6 As the defendant makes no independent claim of coercion
during his interview with the Massachusetts officers, and as we
find that no coercion occurred upon our own review of the
interrogation, the defendant's statements to the Massachusetts
officers were likewise voluntary.
21
actual prejudice. Id. The trial judge has "substantial
discretion" to decide the motion, and we review the trial
judge's decision for abuse of discretion (citation omitted).
Id. at 431. Indeed, "[i]n evaluating the risk of prejudice
posed by pretrial publicity, we give careful attention to the
evaluation of the trial judge, especially one who, as here,
presides in the county where the crime occurred and is familiar
with the nature and pervasiveness of the pretrial publicity."
Id. We conclude that the trial judge did not abuse his
discretion because the pretrial publicity caused neither
presumptive nor actual prejudice.
Presumptive prejudice "exists only in truly extraordinary
circumstances" and where the trial atmosphere had become
"'utterly corrupted' by media coverage." Bateman, 492 Mass. at
431, quoting Commonwealth v. Toolan, 460 Mass. 452, 463 (2011),
S.C., 490 Mass. 698 (2022), and Commonwealth v. Entwistle, 463
Mass. 205, 221 (2012), cert. denied, 568 U.S. 1129 (2013).
There are two factors that are central to this analysis:
(1) whether the nature of the pretrial publicity was "both
extensive and sensational;" and (2) "whether the judge was in
fact able to empanel jurors who appear impartial" (citation
omitted). Bateman, supra. First, the defendant referenced only
eleven news reports in his motion to change venue, almost all of
which were in the immediate aftermath of the crimes themselves
22
(i.e., almost one and one-half years prior to the trial) and
only contained factual descriptions of the relevant events.
This publicity was insufficiently "all-consuming and constant"
to be even close to extensive. Id. at 432. See Commonwealth v.
Hoose, 467 Mass. 395, 406-407 (2014) (sixteen articles "did not
constitute pervasive publicity because they appeared in a small
number of local news sources and the intensity of the reporting
decreased over time with no articles appearing between January,
2010, and the time of the judge's ruling in April, 2010"). Nor
was the publicity sufficiently sensational. See Bateman, supra,
quoting Hoose, supra at 407 ("Publicity is sensational when it
contains emotionally charged material that is gratuitous or
inflammatory, rather than a factual recounting of the case").
Second, less than twenty percent of potential jurors were
excused during voir dire due to pretrial publicity exposure. We
have required a "high percentage of the venire" to be prejudiced
as a result of pretrial publicity to show that the judge could
not have empanelled an impartial jury. Hoose, 467 Mass. at 407-
408. Twenty percent of the venire does not meet this
requirement for presumptive prejudice. See Commonwealth v.
Morales, 440 Mass. 536, 541-542 (2003) (claim of presumptive
prejudice rejected where approximately twenty-five percent of
venire was disqualified for exposure to media coverage);
Commonwealth v. Angiulo, 415 Mass. 502, 515 (1993) (claim of
23
presumptive prejudice rejected where forty-two percent of venire
was excused). We thus find no presumptive prejudice.
"To demonstrate actual prejudice, a defendant must show
that, in the totality of the circumstances, pretrial publicity
deprived . . . him of his right to a fair and impartial jury."
Hoose, 467 Mass. at 408. "[T]he voir dire procedures utilized
by the judge are particularly important" in this analysis. Id.Here, the trial judge was cognizant of the issue and took
careful, deliberate, and extensive steps to protect the
defendant's right to a fair and impartial jury. The judge
conducted a thorough and individual voir dire of each potential
juror, allowed both counsel and the prosecutor to ask questions
during the individual voir dire, on a daily basis reminded
seated jurors not to discuss the case with anyone and not to
come into contact with any media accounts of the case, inquired
when the jurors returned to the court whether anyone had come
into contact with any information related to the case, and noted
on each trial day their lack of affirmative responses for the
record. These guardrails were sufficient. See Hoose, supra at
409. See also Smith, 492 Mass. at 610-611 (no actual prejudice
from pretrial publicity in codefendant's trial). We therefore
find no actual prejudice.
24
Accordingly, the trial judge did not abuse his discretion
in denying the defendant's motion to change venue, and the
defendant's right to a fair and impartial jury was not violated.
c. Fisher's statements. The defendant contends that
Sumner-Moryl's testimony, communicating Fisher's statements on
the morning after the attack, contained inadmissible hearsay and
was violative of his right to confront witnesses against him.
i. Spontaneous utterance.7 The defendant specifically
argues that the trial judge erred by allowing Fisher's out-of-
court statements in evidence as a spontaneous utterance. Where
a hearsay issue was properly preserved, as it was here,8 we
review the issue for prejudicial error. Commonwealth v.
Cheremond, 461 Mass. 397, 411 (2012). An error is not
prejudicial if it "did not influence the jury, or had but very
slight effect" (citation omitted). Commonwealth v. Cruz, 445
Mass. 589, 591 (2005).
Here, we need not decide whether the trial judge erred in
admitting Fisher's statements because, even assuming error,
7 Courts and litigants alike have used various terms to
describe this hearsay exception, including "spontaneous
exclamation," "spontaneous utterance," "excited utterance," and
others. We reiterate that we will use the term "spontaneous
utterance." Commonwealth v. Gonsalves, 445 Mass. 1, 4 n.1
(2005), cert. denied, 548 U.S. 926 (2006).
8 The defendant filed a motion in limine to exclude this
testimony, which is sufficient to preserve the issue.
Commonwealth v. Grady, 474 Mass. 715, 719 (2016).
25
there was no resulting prejudice. Fisher's statements contained
only three inculpatory facts: there was an invasion into her
home, she had a black eye, and multiple individuals attempted to
suffocate her. The Commonwealth presented other compelling
admissible evidence of all these facts in various forms:
forensic and physical evidence showed that the defendant invaded
the victims' home, a police officer and a doctor each testified
as to Fisher's injuries, and the defendant himself confessed to
all these facts in detail. Fisher's statements were thus
duplicative and, at most, had "but very slight effect" on the
jury (citation omitted). See Cheremond, 461 Mass. at 411 (no
prejudice where, even though it was error to admit victim's
statements to prove motive and nature of parties' relationship,
abundance of admissible evidence was presented to prove these
two facts). The Commonwealth presented a strong case, and the
defendant therefore suffered no prejudice even if Fisher's
statements were admitted in error. Accordingly, we find no
reversible error.
ii. Confrontation clause. The defendant also asserts that
admitting Fisher's statements violated his right to
confrontation under the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights. See Commonwealth v. Linton, 456 Mass. 534, 550 n.11
(2010), S.C., 483 Mass. 227 (2019). In contrast to our review
26
of hearsay evidence, if we do find error, "we evaluate the
admission of constitutionally proscribed evidence to determine
whether it was harmless beyond a reasonable doubt" (citation
omitted). Commonwealth v. Rand, 487 Mass. 811, 814-815 (2021).
We have interpreted the confrontation clause to "bar[] the
admission of testimonial hearsay by a declarant who does not
appear at trial, unless the declarant is unavailable to testify
as a matter of law and the defendant had an earlier opportunity
to cross-examine him or her." Commonwealth v. McGann, 484 Mass.
312, 316 (2020). Nontestimonial hearsay, however, does not
violate the United States Constitution or the Declaration of
Rights. Rand, 487 Mass. at 815. We conclude that Fisher's
statements were nontestimonial and that, therefore, there was no
constitutional violation despite Fisher being unable to appear
at trial.
"Testimonial statements are those made with the primary
purpose of 'creating an out-of-court substitute for trial
testimony'" (citation omitted). Commonwealth v. Brum, 492 Mass.
581, 596 (2023). "The inquiry is objective, asking not what
that particular declarant intended, but rather 'the primary
purpose that a reasonable person would have ascribed to the
statement, taking into account all of the surrounding
circumstances'" (citation omitted). Id. Although "[a]n ongoing
emergency is not necessary for a statement to be nontestimonial,
27
. . . when one is present it takes a central place in our
analysis." Rand, 487 Mass. at 817. "The reason for this is
straightforward: when preoccupied by an ongoing emergency, a
victim is unlikely to have the presence of mind to create a
substitute for trial testimony." Id. "Factors bearing on the
existence of an ongoing emergency include (1) whether an armed
assailant poses a continued threat to the victim or the public
at large, (2) the type of weapon that has been employed, and (3)
the severity of the victim's injuries or medical condition"
(citation omitted). Id. A victim's medical condition, in
particular, "sheds light on the ability of the victim to have
any purpose at all in responding to police questions and on the
likelihood that any purpose formed would necessarily be a
testimonial one." Id. at 824, quoting Michigan v. Bryant, 562
U.S. 344, 365 (2011).
Fisher unquestionably had extreme and near-fatal injuries
when she made her statements: she was stabbed with multiple
knives, suffocated, brutally beaten, and left on the ground to
die. After repeatedly crying out for help without any response
for over twelve hours, Fisher finally had an opportunity to
speak to someone who could assist her. We find that Fisher's
statements were made in the throes of an ongoing emergency in
light of these circumstances.
28
The defendant contends that, even if the conversation
between Fisher and Sumner-Moryl had begun during an ongoing
emergency, Fisher's statements turned testimonial once she was
told that "help was on the way." The emergency did not end in
the middle of the conversation, however: "[j]ust because an
ambulance has been called does not mean that any potential
medical emergency has dissolved." Rand, 487 Mass. at 825. In
particular, "it was prudent for [Sumner-Moryl] to continue
collecting medical information from the victim in case [she]
needed to relay it to paramedics upon their arrival." Id. at
825-826.
While the ongoing emergency here, in and of itself, was
enough for Fisher's statements to constitute nontestimonial
hearsay, we mention two additional factors present here:
"(1) the formality [or informality] of the statements, and
(2) the nature of 'the statements and actions of both the
declarant and interrogators'" (citation omitted). Id. at 817.
These factors only further support a finding that Fisher's
statements were nontestimonial. The exchange between Fisher and
Sumner-Moryl "was informal and very brief, which was consistent
with an interview whose purpose was to respond to an emergency
rather than to develop a case for prosecution." Commonwealth v.
Beatrice, 460 Mass. 255, 263 (2011). Indeed, far from being a
formal account of what transpired, Fisher's statements were
29
devoid of any identification of the assailants -- information
that a reasonable person who intended to provide a substitute
for trial testimony might have provided. See Commonwealth v.
Mulgrave, 472 Mass. 170, 180 (2015) ("Further, she did not name
the defendant, a fact likely to be communicated by a declarant
attempting to establish her perpetrator's identity");
Commonwealth v. Middlemiss, 465 Mass. 627, 636 (2013)
(statements "were concerned primarily with assessing the
victim's medical condition and collecting as much information as
possible to prepare first responders for what they would soon
encounter" and were, therefore, not testimonial).
Lastly, that Fisher was speaking with a health care
professional rather than law enforcement weighs heavily in favor
of her statements being nontestimonial. Although the United
States Supreme Court has declined to adopt a categorical rule
excluding statements to individuals other than law enforcement
from the reach of the confrontation clause, "such statements are
much less likely to be testimonial than statements to law
enforcement officers." Ohio v. Clark, 576 U.S. 237, 246 (2015).
In sum, for twelve hours, Fisher was lying on the ground on
the verge of death near her husband, who had been viciously
murdered in front of her. She was without any ability to
contact the outside world despite crawling outside and
attempting to attract help. When she was finally given a chance
30
to speak to a health care professional through her pain and
anguish, she provided only the most basic of details. The
ability for a reasonable person in Fisher's position to think
about anything other than obtaining medical assistance or the
horror of what she continued to endure, such as creating trial
testimony, is remote in the extreme. We conclude that Fisher's
statements were nontestimonial and that, accordingly, there was
no confrontation clause violation.
d. Sentencing. The defendant contends that his two
sentences of life without the possibility of parole are cruel or
unusual punishment under art. 26 of the Massachusetts
Declaration of Rights because he was less than twenty-five years
old at the time of the offenses. In Diatchenko v. District
Attorney for the Suffolk Dist., 466 Mass. 655, 671 (2013), S.C.,
471 Mass. 12 (2015), we declared that the Legislature's
authorization of life sentences without the possibility of
parole for juveniles (i.e., those under eighteen years of age)
was unconstitutional. The defendant, however, "has provided no
evidence of any circumstance that plausibly could suggest that
the known research on adolescent brain development, and its
impact on adolescent behavior, ought to extend to individuals
who are [under the age of twenty-five]." Commonwealth v. Yat
Fung Ng, 491 Mass. 247, 271-272 (2023). We thus find no error
in the defendant's sentencing.
31
e. Review under G. L. c. 278, § 33E. Having reviewed the
entire record in accordance with our duty under G. L. c. 278,
§ 33E, we discern no reason to reduce the degree of guilt or to
order a new trial.9
Judgments affirmed.
9 Pursuant to our review under G. L. c. 278, § 33E, we note
that there may be an issue whether the convictions of attempted
murder and murder in the first degree resulting from the
defendant's attack of Fisher constitute inconsistent verdicts
and, if so, whether reversal of the conviction of murder in the
first degree for the killing of Fisher is required.
Inconsistent verdicts generally do not raise issues of concern.
See Commonwealth v. Resende, 476 Mass. 141, 147 (2017). Here,
however, there may be an issue of concern due to an error in the
trial judge's instruction on attempted murder. In particular,
the trial judge instructed the jury that they must find that
"the defendant's act did not result in the completed crime" in
order to find the defendant guilty of attempted murder. But
"nonachievement of murder is not an element of attempted murder"
(emphasis added). Commonwealth v. LaBrie, 473 Mass. 754, 765
(2016). The jury then found the defendant guilty of attempted
murder and murder in the first degree for the killing of Fisher.
Accordingly, due to the instruction error, the jury found that
the defendant's attack "did not result in [murder]." Yet the
jury also found the defendant guilty of murder in the first
degree and, therefore, found that the defendant's attack
resulted in Fisher's death. If these are legally inconsistent
verdicts, "[both verdicts] must be set aside." See Resende,
supra. Should the defendant choose to raise this issue, he may
do so directly in the Supreme Judicial Court due to potential
constraints involving gatekeeper petitions.