Commonwealth v. Gonsalves , 445 Mass. 1 ( 2005 )

Spina, J.

Hermany Gonsalves is charged with assault and battery and assault and battery by means of a dangerous weapon. The complainant is unavailable to testify at trial and previously has not been subject to cross-examination. A judge in the District Court determined in a pretrial ruling that out-of-court statements made by the complainant in response to questioning by a police officer and questioning by her mother were testimonial in nature and therefore inadmissible under the recent United States Supreme Court decision in Crawford v. Washington, 541 U.S. 36 (2004) (Crawford). The Commonwealth sought review of that ruling before a single justice, who thereafter reserved and reported the matter to the full court.

The Crawford case reestablished the principle that testimonial out-of-court statements are inadmissible under the confrontation clause of the Sixth Amendment to the United States Constitution, regardless of local rules of evidence, unless the declarant is available at trial or the declarant formally is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Although the Supreme Court deferred articulating “a comprehensive definition of ‘testimonial,’ ” it did determine that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68. The Court also noted that certain out-of-court statements are “by their nature . . . not testimonial — for example, business records or statements in furtherance of a conspiracy.” Id. at 56. This case represents our first opportunity to interpret the confrontation clause in light of Crawford.

We hold that statements made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care. Further, out-of-court statements that are not testimonial per se must be examined to determine if they are nonetheless testimonial in fact by evaluating whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime.

1. Background. On March 16, 2003, the twenty year old complainant was in her bedroom with the defendant, her boy friend at the time. The complainant’s mother was two rooms away, in her own bedroom. The mother is prepared to testify that she heard an argument between the complainant and the defendant with yelling, screaming, and crying. The mother went to the complainant’s room to see what was wrong. The defendant had left and the complainant was lying on her bed, crying.

The mother would further testify that she asked the complainant what had happened and if the defendant had hit her. The complainant answered that she and the defendant had argued, that he had grabbed the front of her shirt so tight she could not breathe, and that he had hit her.

Neither the complainant nor her mother telephoned anyone for assistance, but about ten to fifteen minutes after the mother first heard the argument, the police arrived at the apartment. Two responding officers had received a dispatch for a domestic disturbance and arrived within a couple of minutes. They went straight to the second floor of the apartment building and spoke with the mother and the complainant.

As the defendant already had left, there was no active conflict at the time the officers arrived. Although upset, the complainant was verbal, mobile, and had no obvious injuries. The officers found the complainant crying and hysterical, ranting, loud, hyperventilating, and pacing around the room. One officer asked the complainant what happened and spoke with her about the situation for “probably not more than five minutes.” In response to the officer’s questioning, the complainant stated that her boy friend had grabbed her by the neck, lifted her off the ground, choked her, and hit her head on the floor. The complainant identified her boy friend by name and described him as a “medium-skinned black male,” six feet, two inches tall, and weighing 275 pounds. After an ambulance arrived to take the complainant to a hospital, the officer remained at the scene and spoke to the mother for “a brief period,” asking her what she saw. Any exchange that occurred between the second officer and the complainant or the mother is not in the record before us. The record similarly does not disclose what medical treatment the complainant received or whether the ambulance was part of the initial dispatch or summoned separately.

A complaint issued against the defendant and he was arraigned on charges of assault and battery and assault and battery by means of a dangerous weapon. On December 16, 2003, the Commonwealth filed a motion in limine seeking to be allowed to introduce the out-of-court statements made by the complainant, pursuant to the “spontaneous utterance” exception to the hearsay rule.¹ At that time, the complainant was available to testify, so the confrontation clause was not implicated. The mother and one of the officers testified at the hearing on the Commonwealth’s motion in limine. The other officer’s proffered testimony was postponed until the day of trial, which has not yet occurred. Based on the preliminary hearing, the Commonwealth’s motion to admit the out-of-court statements was allowed.

On March 31, 2004, the defendant filed a motion for reconsideration in light of the Supreme Court’s Crawford decision (statement made by unavailable coconspirator was testimonial and therefore inadmissible under confrontation clause, notwithstanding its admissibility under statement against penal interest exception to State’s hearsay rule). On April 2, 2004, the complainant invoked her privilege under the Fifth Amendment to the United States Constitution and therefore became unavailable to testify at trial. See Commonwealth v. Galloway, 404 Mass. 204, 208 (1989). At a hearing on the motion for reconsideration, the judge received further filings, but no testimony, and took the matter under advisement. On May 24, 2004, the judge vacated his prior ruling. He found, “These statements were clearly ‘testimonial’ and were made in response to interrogation.” Therefore, based on the Crawford case he concluded “that these statements should not be admitted into evidence.”

The Commonwealth sought review of that ruling through a petition pursuant to Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996), and a petition for relief pursuant to G. L. c. 211, § 3. The single justice thereafter reserved and reported the matter to the full bench.

2. Legal framework, a. The Crawford decision. The Sixth Amendment’s confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” Despite this language, under previous Supreme Court jurisprudence an unavailable witness’s out-of-court statements were sometimes admissible at trial. Admissibility was determined by whether the statements displayed “adequate ‘indicia of reliability’,” similar to the rationale behind the rules of evidence related to hearsay. Ohio v. Roberts, 448 U.S. 56, 66 (1980).

The Supreme Court’s recent decision in Crawford rejects the use of this reliability test for out-of-court statements that are “testimonial” in nature. The Court held that the Sixth Amendment imposes a complete bar to the admission of out-of-court statements that are determined to be testimonial unless (1) the declarant is available at trial or (2) the declarant is formally unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. With certain historic exceptions, all other out-of-court testimonial statements are barred, regardless of whether they possess any indicia of reliability. Crawford, supra at 68. The admissibility of nontestimonial out-of-court statements remains governed largely by State hearsay rules. Id. at 61, 68. See, e.g., Commonwealth v. Whelton, 428 Mass. 24, 29 (1998) (under Massachusetts law, proof of declarant’s unavailability not required for admission of spontaneous utterance); Commonwealth v. Fuller, 399 Mass. 678, 682-683 (1987) (statement may be spontaneous exclamation, even if made in response to questions).

In Crawford, the Supreme Court declined to define precisely what statements are testimonial. Instead, it discussed various formulations of the “core class” of testimonial statements:

“[1] ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially’; [2] ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions’, White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment); [or, 3] ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ”

Crawford, supra at 51-52. The Supreme Court suggested these formulations share a “common nucleus,” but did not define what that nucleus is. Id. at 52. Instead, it found that the statement before it fit easily within any potential formulation of testimony, because it was “knowingly given in response to structured police questioning,” id. at 53 n.4, and the Court left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68. Contrary to the suggestion of the concurring opinion, post at 31-32, the Supreme Court did not suggest that the three formulations, which are distinct alternatives, should be blended or harmonized.

The Crawford Court did conclude that certain statements are always testimonial. “Whatever else the term [‘testimonial’] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to [statements procured through] police interrogations.” Crawford, supra. Such statements are per se testimonial and no further analysis is necessary.

b. Interrogation. The exact meaning of “police interrogations” — a question central to the matter before us — remains unclear from the Crawford decision alone. The Court noted:

“Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse — a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modem hearsay exception, even if that exception might be justifiable in other circumstances.”

Id. at 56 n.7. As to “interrogation” by law enforcement officers, the Crawford Court cautioned that it “use[d] the term ‘interrogation’ in its colloquial, rather than any technical legal, sense. . . . Just as various definitions of ‘testimonial’ exist, one can imagine various definitions of ‘interrogation,’ and we need not select among them in this case.” Id. at 53 n.4.

We take this statement to mean that we are not to rely on the definitions of interrogation found throughout the Miranda v. Arizona, 384 U.S. 44 (1966), case law, but rather on everyday, common understandings of the term, both in the general public and the legal community. Webster’s Third New Int’l Dictionary 1182 (1993) defines interrogation as “questioning] typically with formality, command, and thoroughness for full information and circumstantial detail.” Black’s Law Dictionary 838 (8th ed. 2004) offers definitions for three kinds of police interrogation: (1) custodial interrogation — “[pjolice questioning of a detained person about the crime that he or she is suspected of having committed”; (2) noncustodial interrogation — “[pjolice questioning of a suspect who has not been detained and can leave at will”; and (3) investigatory interrogation — “[r]cutine, nonaccusatory questioning by the police of a person who is not in custody.”

In light of the Supreme Court’s direction to regard “interrogation” in its colloquial sense, rather than any technical legal sense, we hold that interrogation must be understood expansively to mean all law enforcement questioning related to the investigation or prosecution of a crime. At least one court has understood “interrogation” to include investigative police questioning of a complainant at a hospital following an alleged assault:

“[T]he officers asked specific, purposeful questions and were in turn provided with detailed descriptions of the events that transpired and the defendant’s involvement. These investigative, evidence producing actions bore statements which, if used to convict the defendant, would implicate the central concerns underlying the confrontation clause.”

People v. West, 355 Ill. App. 3d 28, 35 (2005), citing Crawford, supra at 52-53.

If testimonial statements were limited to formal, solemnized, recorded accounts, Crawford would be a recipe to circumvent the confrontation clause by encouraging law enforcement personnel to take elaborate statements informally, as far from the court and the station house as possible.² Instead, Crawford represents a return to first principles in protecting the fundamental constitutional right to confront one’s accusers.

We conclude that questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense. This includes “investigatory interrogation,” such as preliminary fact gathering and assessment whether a crime has taken place.³ Under our reading of Crawford, statements elicited by such interrogation are per se testimonial and therefore implicate the confrontation clause. No further analysis is needed. The statements are inadmissible unless the declarant testifies at trial or formally is unavailable and was previously subject to cross-examination.

Questioning by law enforcement agents to secure a volatile scene⁴ or establish the need for or provide medical care is not colloquially understood as interrogation — it is not commonly understood as related to the investigation or prosecution of a crime. Rather, such questioning is considered part of the government’s peacekeeping or community caretaking function, “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Commonwealth v. Evans, 436 Mass. 369, 372 (2002), quoting Cady v. Dombrowski, 413 U.S. 433, 441 (1973). “[T]he community caretaking function is implicated if there is an objectively reasonable basis for believing that the safety of an individual or the public is jeopardized.” Commonwealth v. Brinson, 440 Mass. 609, 615 (2003), citing Commonwealth v. Evans, 436 Mass. 369 (2002) (police may inquire if driver needs assistance when car parked in breakdown lane); Commonwealth v. Murdough, 428 Mass. 760, 762 (1999) (police permitted to inquire about physical condition of driver asleep while parked at rest stop in cold weather); Commonwealth v. Leonard, 422 Mass. 504 (1996), cert. denied, 519 U.S. 877 (1996) (police permitted to open door of car parked in breakdown area if driver unresponsive). Cf. Commonwealth v. Smigliano, 427 Mass. 490, 492-493 (1998) (caretaking function inapplicable in absence of need for immediate assistance).

We do not agree with the views of the concurrence, post at 23-25, concerning the community caretaking function, or the need to secure a volatile scene. We also do not agree that judges will have difficulty distinguishing these functions from investigative functions. Both the community caretaking function and the need to secure a volatile scene are familiar to judges, and judges are well equipped to identify them. The community caretaking function does not depend, as the concurrence states, on answers to police questions, but on the existence of objective circumstances. See Commonwealth v. Brinson, supra; Commonwealth v. Murdough, supra at 762, 765. The need to secure a volatile scene also is analyzed under an objective standard. Cf. Maryland v. Buie, 494 U.S. 325, 327 (1990) (protective sweep of premises for safety of officers justified by objective standard).

Despite the broad scope of the confrontation clause as interpreted by Crawford, emergency questioning by law enforcement officers to secure a volatile scene or determine the need for or provide medical care cannot be said to be interrogation. Because the questioning is not interrogation, any out-of-court statements it elicits are not testimonial per se and must be evaluated on a case-by-case basis to determine whether they are testimonial in fact.⁵

c. Statements not testimonial per se. Statements made in response to emergency questioning by law enforcement to secure a volatile scene or determine the need for or provide medical care are not per se testimonial. The same is true for out-of-court statements made in response to questions from people who are not law enforcement agents, and statements offered spontaneously, without prompting, regardless of who heard them. While the Supreme Court was able to set aside developing a test with which to analyze the testimonial qualities of out-of-court statements that do not fall into one of the per se categories, we need such a tool to resolve the matter before us.

Crawford offers some guidance on how to identify whether a statement is testimonial in fact through its review of the history and function of the confrontation clause and through its discussion of the “core class” of testimonial statements, outlined above. Crawford, supra at 43-52. Although the Court did not define the “common nucleus” of the various formulations of testimonial statements to which it referred, id. at 52, one court has understood the common nucleus to be whether a declarant would reasonably believe that his or her statement might be used at trial. See United States v. Saget, 377 F.3d 223, 228-229 (2d Cir. 2004), cert. denied, 543 U.S. 1079 (2005) (“Crawford at least suggests that the determinative factor in determining whether a declarant bears testimony is the declarant’s awareness or expectation that his or her statements may later be used at a trial”). But see Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004), vacated, 829 N.E.2d 444 (Ind.), cert. denied, 126 S. Ct. 552 (2005) (“It appears to us that the common denominator underlying the Supreme Court’s discussion of what constitutes a ‘testimonial’ statement is the official and formal quality of such a statement”).

Questions concerning the meaning of “common nucleus” aside, other courts have focused on the purpose for which the statement is made or procured, that is, whether the statement is made or procured to prove or establish facts in judicial proceedings. See, e.g., People v. West, 355 Ill. App. 3d 28 (2005) (specific content, purpose, and facts surrounding each statement inseparable from analysis); People v. Cortes, 4 Misc. 3d 575 (N.Y. Sup. Ct. 2004) (discussing importance of purpose of statement in determining whether testimonial).

The United States Court of Appeals for the Sixth Circuit, in its direct review of a Crawford-type case similar to this, offers the following test:

“If the judicial system only requires cross-examination when someone has formally served as a witness against a defendant, then witnesses and those who deal with them will have every incentive to ensure that testimony is given informally. The proper inquiry, then, is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime” (emphasis added).

United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004). See United States v. Pugh, 405 F.3d 390, 399 (6th Cir. 2005) (applying Cromer test). See also United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005) (“a statement is testimonial if a reasonable person in the position of the declarant would objectively foresee that his statement might be used in the investigation or prosecution of a crime” [emphasis added]⁶).

The Cromer formulation does not rely on the declarant’s knowledge of trial procedure or the formality of the statement.⁷ Rather, it focuses on the declarant’s intent by evaluating the specific circumstances in which the out-of-court statement is made. Therefore, it is a formulation that would find testimonial all statements the declarant knew or should have known might be used to investigate or prosecute an accused. Barring further instruction from the Supreme Court, we adopt this articulation as the approach most consistent with Crawford and the historical purpose of the confrontation clause. An out-of-court incriminating statement that is not per se testimonial still may be testimonial in fact. The proper inquiry is whether a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting a crime.⁸

In light of our definition of “testimonial statements,” the judges of the Commonwealth must remain engaged gatekeepers, evaluating any out-of-court statements offered without benefit of confrontation. First, the judge must determine whether the statement is part of an affidavit, deposition, confession, or prior testimony at a preliminary hearing, before a grand jury, or at a former trial, or if it was procured through law enforcement interrogation (which does not include emergency questioning by law enforcement to secure a volatile scene or determine the need for or provide medical care). If so, it is per se testimonial and the confrontation clause applies. The statement is inadmissible unless the declarant testifies at trial or formally is unavailable and previously was subject to cross-examination.

If the statement is not per se testimonial, the judge still must conduct a further fact-specific inquiry regarding whether a reasonable person in the declarant’s position would anticipate the statement’s being used against the accused in investigating and prosecuting the crime. As we have indicated above, judges are well suited to conduct this inquiry with respect to statements made to a police officer engaged in the community care-taking function or while securing a volatile scene. If the judge concludes the statement is testimonial, the confrontation clause governs its admissibility. The statement is inadmissible unless the declarant testifies at trial or formally is unavailable and previously was subject to cross-examination. If judge finds that an out-of-court statement is not testimonial, then the Commonwealth’s rules of evidence alone govern admissibility, usually in relation to hearsay.

We recognize the ground shift this means for the prosecution of crimes, in strategy and method. The remedy of calling out-of-court declarants to the stand will not always be available, although it should be noted that they need only appear, not affirm their previous statement. See Commonwealth v. Moquette, 439 Mass. 697 (2003) (declarants’ spontaneous utterances recanted at trial were sufficient, without other corroboration, to support conviction). Likewise, we recognize the particular impact this decision may have on the prosecution of domestic violence, as well as some gang-related crimes, which have been prosecuted not infrequently based on out-of-court statements in the absence of the initial complaining witness. See, e.g., Commonwealth v. Whelton, 428 Mass. 24, 28-30 (1998). In such cases, however, the prosecution can still present powerful evidence that a crime has occurred and that the defendant was the perpetrator. In the case at bar, the Commonwealth could offer the responding officer’s testimony as to the complainant’s physical appearance, her screams, her medical records, and photographs, as well as testimony from the mother as to the complainant’s screams and the fact that no one else was in a position to have inflicted her injuries. There will be an unavoidable adjustment period as past practices are modified and new approaches are developed. With full awareness of the challenges, we see no other way to be true to the dictates of the confrontation clause as it is now understood. The system, over time, must adjust.

Nothing in what we decide today is meant to change the Commonwealth’s laws regarding the admissibility of spontaneous utterances under the hearsay rules. Despite the Commonwealth’s assertion to the contrary, this case is not about spontaneous exclamations. The constitutional provision of the confrontation clause trumps the common-law rules of evidence, but a statement can be both testimonial in nature and a spontaneous utterance. Whether some out-of-court statements are admissible under exceptions to the hearsay rule does not change whether admitting them would violate the confrontation clause as newly articulated by Crawford.

Nothing in Crawford indicates the two are mutually exclusive. In fact, quite the contrary. In dicta in a footnote, the Court suggested such utterances can be testimonial, depending on the applicable State’s hearsay law.

“One case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial is White v. Illinois, 502 U.S. 346 (1992), which involved, inter alla, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Id. at 349-351. It is questionable whether testimonial statements would ever have been admissible on that ground in 1791; to the extent the hearsay exception for spontaneous declarations existed at all, it required that the statements be made ‘immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.’ Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K.B. 1694). In any case, the only question presented in White was whether the [confrontation [c]louse imposed an unavailability requirement on the types of hearsay at issue. See 502 U.S. at 348-349. The holding did not address the question whether certain of the statements, because they were testimonial, had to be excluded even if the witness was unavailable. We ‘[took] as a given . . . that the testimony properly faW .within the relevant hearsay exceptions.’ Id. at 351, n.4.”

Crawford, supra at 58 n. 8.

In the White case, the applicable law of spontaneous utterances was that of Illinois, which, unlike the law quoted in Crawford from 1694, did not require the statements be made “immediately upon the hurt received.” Indeed, those spontaneous utterances were made forty-five minutes afterward. White v. Illinois, supra at 349-350. The footnote in Crawford thus suggests that, at least under a view of spontaneous utterances as broad as that at issue in White, a spontaneous utterance sometimes may be testimonial in nature. The same would be true in Massachusetts, because the Commonwealth similarly has broad rules regarding what may be admissible under our spontaneous exclamation exception to the hearsay rule. See P.J. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence § 8.16 (7th ed. 1999 & Supp. 2004).

3. Standard of review. Because the judge’s order effectively prevents the Commonwealth’s case against the defendant from proceeding, our review of the order is proper under Mass. R. Crim. P. 15 (a), as appearing in 422 Mass. 1501 (1996), as the equivalent of the allowance of a motion to suppress. Commonwealth v. Anderson, 401 Mass. 133, 135 (1987), citing Mass. R. Crim. P. 15 (b) (2), as amended, 397 Mass. 1225 (1986). When reviewing such a motion on appeal, “we adopt the motion judge’s subsidiary findings of fact absent clear error, but we independently determine the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Catanzaro, 441 Mass. 46, 50 (2004), citing Commonwealth v. Haas, 373 Mass. 545, 550 (1977), S.C., 398 Mass. 806 (1986), and cases cited.

4. Application to the complainant’s statements. The transcript of the hearing on the motion in limine is the record before us. The mother and only one of the two responding officers testified, and their testimony was solicited before Crawford was decided. There is sufficient evidence in the record to support a determination that the complainant’s statements qualified under the Commonwealth’s spontaneous exclamations exception to the hearsay rule, but it is the confrontation clause issues that ultimately will decide this matter. It is possible that, with the benefit of this opinion, the Commonwealth or the defense will be able to elicit a more comprehensive and favorable record after remand, when further evidence may be presented. Today, we offer guidance by applying Crawford to the testimony as it currently stands.

a. Complainant’s statements to the police officers. The officer’s questioning and the statements he attributed to the complainant in response related to the identity of the perpetrator, including his name, race, height, and weight, and the details and circumstances of the assault. He spoke with her for more than a few minutes, gamering specific details that he recorded in his incident report.

The transcript indicates that, by the time the officers arrived, although the complainant remained upset, the situation had diffused. The testifying officer stated that he was informed the assailant was no longer present. Nothing in the record indicates that his questioning of the complainant was designed to secure the scene. Although the complainant reported being physically attacked, the officer’s testimony did not mention inquiry about any medical needs. The complainant was mobile, verbal, and responsive, and no one reported seeing any marks on her. Although apparently an ambulance arrived not long after the police did, there is no indication who summoned the ambulance or what treatment the complainant received.

Were the record before us complete and final, we would have to conclude that the statements the complainant made to the police were made in response to investigatory interrogation. The officer appears to have procured information about the nature of the alleged crime and the identity of the accused in order to begin to build a criminal prosecution. The questioning does not appear intended or necessary to secure a volatile scene or procure needed medical attention, so the statements elicited were per se testimonial and their admission is governed by confrontation clause principles.⁹ Because the complainant was not previously subject to cross-examination, if she remains unavailable, her statements made to the police would be inadmissible on this record.

b. Complainant’s statements to her mother. It will be rare for a statement made by one private citizen to another to be considered to be police interrogation. See, e.g., Commonwealth v. Snyder, 413 Mass. 521, 531-532 (1992) (private citizen not acting as agent of police for purposes of eliciting statements is not involved in police interrogation). This is not one of those occasions. The statements all were made in response to the mother’s questions before the police arrived. Neither the mother nor the complainant telephoned the police, nor apparently were they aware that the police had been contacted. The complainant’s statements to her mother therefore were not per se testimonial (not part of an affidavit, deposition, confession, or prior testimony at a preliminary hearing, before a grand jury, or at a former trial, or procured through law enforcement interrogation) and therefore must be evaluated on a fact-specific basis.

On the limited record before us, it appears that the purpose for which the mother procured the statements from the complainant was to understand what had happened, not to establish a basis for prosecution. Nothing in the record indicates the complainant offered the statements in order to establish the facts for later use by law enforcement. We see no reason why a reasonable person in the complainant’s position would anticipate that her statement, made in her own bedroom, to her mother, apparently without any knowledge that the police would become involved, would be used against the defendant in investigating and prosecuting the alleged assault. Therefore, the complainant’s statements to her mother, on this record, would not be testimonial. Only the Commonwealth’s rules of evidence would apply. Any finding to the contrary would represent an error of law.

5. Conclusion. In light of Crawford v. Washington, 541 U.S. 36 (2004), and this opinion, the parties must be given the opportunity to reopen the evidence regarding admissibility of the out-of-court statements before the matter proceeds to trial. The rulings of the District Court judge on the motion in limine and the motion to reconsider the motion in limine are vacated and the matter is remanded for further pretrial proceedings consistent with this opinion.

So ordered.

1 The general exception involves a statement variously described as a “spontaneous exclamation,” “spontaneous declaration,” “spontaneous utterance,” and “excited utterance.” We use the term “spontaneous utterance” most recently appearing in cases and publications. See PJ. Liacos, M.S. Bro-din, & M. Avery, Massachusetts Evidence § 8.16 (7th ed. 1999 & Supp. 2004).

2 The Supreme Court has said, “We find it implausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK” (emphasis in original). Crawford v. Washington, 541 U.S. 36, 52 n.3 (2004) (Crawford). In view of the Court’s broad use of the term “interrogation,” id at 53 n.4, it is similarly implausible that unsworn ex parte oral responses to police interrogation are “perfectly OK.”

3 There can be no doubt that interrogation involving preliminary fact finding is part of a criminal investigation. A criminal investigation may begin as soon as an officer turns her head, and some criminal trials have been defended successfully on a theory that the investigation focused prematurely on the wrong person.

4 Although not the facts before us, we acknowledge that situations may occur in which the “volatile scene” is no longer restricted to the scene of the original incident, such as when law enforcement officers become aware that a fleeing party to the incident is driving while under the influence of alcohol or drugs, or if such a person is armed and known to be seeking to carry out specific threats, or certainly if a hostage is involved. These situations pose immediate danger to the safety of the community. In contrast, the volatilé scene exception to the definition of interrogation does not encompass questioning meant to apprehend the perpetrator without a more concrete concern of impending harm. This case does not ask us to consider statements made during 911 telephone calls. We leave for a future appropriate case the treatment of emergency 911 telephone calls, and we do not accept the analysis of the concurrence, post at 32 n.7, concerning 911 telephone calls.

5 While the current facts before us may not implicate this exception, the record remains open. Further, the issue arises squarely in a case decided today. See Commonwealth v. Foley, post 1001, 1002 (2005).

6 We see no appreciable difference between the phrase “investigating and prosecuting the crime,” United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004), and “investigation or prosecution of a crime” in United States v. Summers, 414 F.3d 1287, 1302 (10th Cir. 2005).

7 Formal statements are per se testimonial under Crawford.

8 In determining the circumstances in which the statement was made, and therefore what a reasonable person in the declarant’s position would anticipate, a judge may consider evidence of the purposes for which the statement was made or procured and thus take into account potential manipulations by the questioner or declarant. As mentioned in note 4, supra, we leave for an appropriate case the treatment of emergency 911 telephone calls.

9 The complainant’s motives for offering the information to the police officer are unknown, especially given the unique dynamics of domestic violence cases. See State v. Wright, 686 N.W.2d 295, 303 (Minn. Ct. App. 2004) (majority concluded 911 call indicates request for immediate intervention); id. at 309 (Hudson, J., concurring specially in part and dissenting in part) (discussing mixed motives in domestic violence cases). Because the statements were offered in response to police interrogation, however, the complainant’s motivation, and whether a reasonable person in her position would anticipate her statement’s being used against the defendant in investigating and prosecuting the crime, are irrelevant to our inquiry. Her statements were per se testimonial.