Commonwealth v. Rodriguez

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15-P-131 Appeals Court
COMMONWEALTH vs. CARLOS RODRIGUEZ.
No. 15-P-131.
Hampden. March 18, 2016. - September 22, 2016.
Present: Milkey, Agnes, & Maldonado, JJ.
Assault and Battery. Evidence, Spontaneous utterance, Hearsay,
Unavailable witness. Constitutional Law, Confrontation of
witnesses. Practice, Criminal, Hearsay, Confrontation of
witnesses. Witness, Unavailability.
Complaint received and sworn to in the Springfield Division
of the District Court Department on March 7, 2014.
A motion in limine was heard by Robert A. Gordon, J., and
the case was tried before William P. Hadley, J.
S. Anders Smith for the defendant.
Thomas R. Worger (Amal Bala, Assistant District Attorney,
with him) for the Commonwealth.
AGNES, J. The defendant, Carlos Rodriguez, was convicted
on August 14, 2014, of assault and battery following a two-day
jury trial. He was sentenced to a term of six months in a house
of correction. The Commonwealth's case was based principally on
2
the testimony of West Springfield police Officer Paulina Hannah,
the second officer to respond to the scene of a domestic
violence incident. She testified to certain statements made to
her by the victim, who did not testify at the trial. On appeal,
the defendant argues that the trial judge improperly admitted
those statements because they did not fall within any exception
to the hearsay rule, and they violated his independent
constitutional right under the Sixth Amendment to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights to confront the witnesses against him.
We agree with the judges1 below that the statements in
question made by the victim to Officer Hannah were admissible as
excited utterances. However, we agree with the defendant that
those initial statements were testimonial, and thus were subject
to the confrontation clause. Finally, we conclude that despite
the testimonial character of those statements, the defendant's
confrontation rights were not violated and the statements were
properly admitted, because the victim was unavailable to testify
at trial and the defendant had an adequate prior opportunity to
cross-examine her at a pretrial dangerousness hearing.
1
The question whether the victim's statements to Officer
Hannah were testimonial was the subject of rulings by two
judges: the motion judge who acted on the defendant's pretrial
motion in limine and the trial judge who acted on the
defendant's objection at trial.
3
Background. Prior to trial, the defendant filed a motion
in limine to exclude all of the statements made by the victim to
the first police officer at the scene, Officer Robert Wise, and
to Officer Hannah. Following an evidentiary hearing, at which
both officers testified, the motion judge ruled that all of the
statements were excited utterances and not subject to the rule
against hearsay. However, the motion judge ruled that the
statements made to Officer Wise were inadmissible under the
confrontation clause because they were made in response to his
questions and therefore were testimonial. For the same reason,
the motion judge also ruled that all of the statements that
followed Officer Hannah's request to "tell [her] exactly what
happened" were testimonial and not admissible through the
testimony of Officer Hannah. However, the motion judge ruled
that the initial statements the victim made to Officer Hannah
when she first entered the home (the statements after the
conversation with Officer Wise ended and until Officer Hannah
asked the victim to tell her what happened) were admissible, as
they were neither "testimonial per se" nor testimonial in fact.
At trial, the jury were warranted in finding the following
facts. On the afternoon of October 14, 2013, Officer Wise was
dispatched to a residence to investigate a report of a domestic
disturbance. Upon arriving, Officer Wise met the victim in the
hallway of the apartment building and observed her to be "very
4
upset." The victim had "[t]ears running down her face," "red
eyes," and "disheveled" hair, and her "[s]hirt was torn."
Officer Wise also observed marks on her arms as well as the
front and side of her neck. He did not see the defendant on the
premises. Officer Wise did not testify to any statements made
by the victim.
Shortly after Officer Wise arrived, he was joined by
Officer Hannah. The victim left her conversation with Officer
Wise and "went running right over to Officer Hannah." The
victim, who was "crying hysterically [and in a] [v]ery
disheveled [condition]," gave Officer Hannah a "big hug." The
victim felt more comfortable with Officer Hannah because they
had known one another for years, and they could speak to each
other in Spanish. After giving Officer Hannah a hug and calling
her by a specific term of endearment,2 the victim told Officer
Hannah that "Carlos had done this to her." The victim told
Officer Hannah that Carlos had grabbed her by the hair and
dragged her down the hallway. The victim made motions to
demonstrate how he had grabbed her. At that point the defendant
objected on the ground that the admission of the statements made
by the victim to Officer Hannah violated his rights under the
2
That term is repeatedly transcribed in the record as
"mommy," but we take this as a reference to the term "mami,"
which Officer Hannah testified is a term of endearment in the
Hispanic culture that is similar to the term "sweetie" or
"honey."
5
confrontation clause. A lengthy sidebar discussion ensued. The
judge initially sustained the objection. The judge then
conducted a voir dire hearing, at which Officers Wise and Hannah
testified. After the hearing, the judge overruled the
objection, stating that he agreed with the motion judge's
ruling.3
Officer Hannah then resumed her testimony regarding the
initial statements the victim made to her. The victim had
disclosed to Officer Hannah that the defendant had done this to
her, and that he had grabbed her by her hair and dragged her
across the floor. Officer Hannah also testified that the victim
said the defendant had "grabbed her by the neck" and she "was
having a hard time breathing because [the defendant] was
squeezing her neck."
As a result of a prior hearing where the victim had
asserted her rights under the Fifth Amendment to the United
States Constitution and, as found by the motion judge, was no
longer available to testify, the victim did not testify at the
trial. Whether the victim had a basis to assert the privilege
is not an issue on appeal. The defendant presented no
3
The voir dire concerned the foundational requirements of
the excited utterance exception, namely, temporal proximity. In
finding that the foundational requirements were met and in
admitting the victim's initial statements to Officer Hannah, the
trial judge implicitly accepted the motion judge's finding that
those statements were not testimonial, and did not conduct an
independent confrontation clause analysis.
6
witnesses, but defense counsel read into the record portions of
the victim's prior sworn testimony from a pretrial dangerousness
hearing pursuant to G. L. c. 276, § 58A. At that hearing, the
victim testified that she did not remember what happened on
October 14, 2013; that the injury to her hand had happened
before that day; that the defendant never grabbed her by the
hair, pinned her down, or choked her; and that she never sought
a restraining order against the defendant. The victim also
testified that she had been under the influence of prescription
medications and alcohol on that day.
In his closing argument, the defendant relied heavily on
the victim's prior sworn testimony from the dangerousness
hearing as evidence that her statements made to the police
officers at the scene were not credible. The Commonwealth, in
its closing, urged the jury to rely instead on the victim's
statements that were made contemporaneous to the event and were
the subject of Officer Hannah's testimony. The jury convicted
the defendant of assault and battery.
Discussion. a. Admissibility as excited utterances. A
spontaneous or excited utterance is admissible "if (1) there is
an occurrence or event 'sufficiently startling to render
inoperative the normal reflective thought processes of the
observer,' and (2) if the declarant's statement was 'a
spontaneous reaction to the occurrence or event and not the
7
result of reflective thought.'" Commonwealth v. Santiago, 437
Mass. 620, 623 (2002), quoting from 2 McCormick, Evidence § 272,
at 204 (5th ed. 1999). See Mass. G. Evid. § 803(2) (2016).4 We
review a judge's decision to admit or exclude evidence based on
whether it falls within an exception to the hearsay rule, such
as the excited utterance exception, under the abuse of
discretion standard. "We defer to the judge's exercise of
discretion unless the judge has made '"a clear error of judgment
in weighing" the factors relevant to the decision, . . . such
that the decision falls outside the range of reasonable
alternatives' (citations omitted)." Commonwealth v. Alleyne,
474 Mass. 771, 779 (2016), quoting from L.L. v. Commonwealth,
470 Mass. 169, 185 n.27 (2014).
Here, the trial judge heard evidence, during the voir dire
hearing, that Officer Hannah arrived on the scene within five to
ten minutes of the radio call dispatching officers to the
residence. Prior trial testimony revealed that when Officer
4
Factors of importance to the analysis include "the degree
of excitement displayed by the person making the statement[];
whether the statement is made at the place where the traumatic
event occurred or at another place; the temporal closeness of
the statement to the act it explains; and the degree of
spontaneity [shown by the declarant]." Commonwealth v. Joyner,
55 Mass. App. Ct. 412, 414–415 (2002) (citations and footnote
omitted). "[T]he statements need not be strictly
contemporaneous with the exciting cause; they may be subsequent
to it, provided there has not been time for the exciting
influence to lose its sway and to be dissipated." Commonwealth
v. McLaughlin, 364 Mass. 211, 223 (1973), quoting from Rocco v.
Boston-Leader, Inc., 340 Mass. 195, 197 (1960).
8
Hannah arrived, the victim was "crying hysterically,"
"disheveled," and "trembling." Her hair was in disarray, her
eyes were red, her shirt was torn, and she had visible bruises
on her body. The temporal closeness of the statements to the
startling event (being physically beaten), and the evidence of
the victim's condition as upset, in distress, and highly
emotional, provided the trial judge with a firm basis for his
conclusion that her initial statements to Officer Hannah were
the product of the ordeal she had just experienced and not the
result of conscious reflection. See Commonwealth v. Robinson,
451 Mass. 672, 680-681 (2008).
b. Admissibility under the confrontation clause. The more
difficult question is whether the initial statements to Officer
Hannah were testimonial within the meaning of the confrontation
clause.5 The reasoning of the judges below was grounded in the
framework set forth in Commonwealth v. Gonsalves, 445 Mass. 1,
17-18 (2005). The judges reasoned that those statements were
not "testimonial per se" because Officer Hannah did not pose any
questions and they were made "voluntarily and without prodding."6
5
It is unnecessary for us to address whether it was error
to exclude as testimonial the victim's statement to Officer Wise
and other statements she made to Officer Hannah, which were also
deemed excited utterances, because their exclusion is not
challenged on appeal.
6
"Statements made in response to emergency questioning by
law enforcement to secure a volatile scene or determine the need
9
The judges also considered whether the statements were
testimonial in fact.7 The judges considered whether a reasonable
person in the victim's position would have anticipated that her
spontaneous statements to Officer Hannah would be used against
the defendant in investigating and prosecuting a criminal case.
The motion judge, whose reasoning was followed by the trial
judge, determined, "based upon the relationship between [the
victim] and Officer Hannah and the circumstances that resulted
in unsolicited statements," that a reasonable person would not.
The motion judge also considered it important that the victim
"viewed Officer Hannah as a person to provide her comfort,
compassion, and protection based upon her immediate emotional
and physical condition without concern for a prospective
criminal prosecution."8
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." Gonsalves, supra at 10-11.
7
A statement that is not testimonial per se may
nevertheless be testimonial in fact if the court determines that
"the declarant knew or should have known [it] might be used to
investigate or prosecute an accused. . . . 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." Gonsalves, supra at 12-
13.
8
The factual findings made by the motion judge and the
trial judge regarding the statements by and the conduct of the
two police officers who responded to the scene in this case are
10
The confrontation clause establishes as a bedrock principle
of constitutional law the common law's guarantee, subject only
to limited exceptions, that in a criminal case the accused has
the right to meet the witnesses against him face-to-face. See
Commonwealth v. Bergstrom, 402 Mass. 534, 544-545 (1988);
Commonwealth v. Dorisca, 88 Mass. App. Ct. 776, 776-777 (2016).
See also Commonwealth v. Mulgrave, 472 Mass. 170, 180 (2015).9
This right of a person accused of a crime is also protected by
the Sixth Amendment. See Crawford v. Washington, 541 U.S. 36,
50-51 (2004). Over the past twelve years, since the United
States Supreme Court untangled the evidentiary exceptions to the
hearsay rule and the confrontation clause,10 the Supreme Court
and other Federal and State courts around the country have
attempted to define as precisely as possible the test for
classifying an out-of-court statement by a nontestifying witness
entitled to substantial deference. Our task is to make an
independent determination whether the judges correctly applied
constitutional principles to the facts found. See Commonwealth
v. Pena, 462 Mass. 183, 192 n.10 (2012). The victim did not
testify before the motion judge or the trial judge. Thus, we
are in as good a position as those judges to determine the
understanding and purpose of a reasonable person in the shoes of
the victim at the time she spoke to the police. See
Commonwealth v. Haley, 413 Mass. 770, 773 (1992).
9
See generally Herrmann & Speer, Facing the Accuser:
Ancient and Medieval Precursors of the Confrontation Clause, 34
Va. J. Intl. L. 481 (1994).
10
The one exception to the independence between exceptions
to the rule against hearsay and the confrontation clause is the
dying declaration. See Crawford, supra at 56 n.6.
11
as testimonial or nontestimonial. See, e.g., Mass. G. Evid.
Art. VIII, Introductory Note (2016) (collecting cases).
In Davis v. Washington, 547 U.S. 813 (2006), the Court
recognized that the statements involved in Crawford --
statements made during a police interrogation by an individual
who had received Miranda warnings and was in police custody --
easily qualified as testimonial because any reasonable person
would expect that such statements would be used or available for
use at a trial. Davis, supra at 822, 826-827. The Davis Court
added precision to the test for determining whether a statement
is testimonial by stating that judges should consider the
function that the police are performing when the statements are
made -- the so-called primary purpose test:
"Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal
prosecution."
Id. at 822.
In Davis, the Court applied that test to two fact patterns
involving domestic violence. In the lead case from the State of
Washington, the victim of a domestic violence attack called 911
and told the police that she had just been physically assaulted
in her home by the defendant whom she identified and reported
12
had just left the scene. Id. at 817-818. In concluding that
those statements by the victim were not testimonial, the Court
relied on three considerations: the statements related events
to the police as they were happening; the statements were made
in an attempt to resolve an ongoing emergency; and the
statements made were necessary to resolve the present emergency.
Id. at 827.
In the companion case from Indiana,11 on the other hand, the
Court concluded that the victim's statements were testimonial
because when they were made the emergency had ended, there was
no immediate threat to the victim, and the primary purpose of
the questioning was to learn what had happened. Id. at 829-832.
Even though the victim was not at a police station when the
statements were made, the Court reasoned that the statements
11
In the companion case, the police responded to the
victim's home based on a report of a "domestic disturbance."
Davis, supra at 819. The victim was alone on the front porch
and appeared to be frightened. Ibid. Once inside, the police
observed broken glass on the floor from a damaged gas heater
that had flames coming out of it and a man, later identified as
the defendant, in the kitchen. Ibid. The defendant, who
identified himself as the victim's husband, told the police that
he and the victim had argued, but that "everything was fine,"
and that the argument had not been physical. Ibid. The
defendant then became "angry" and had to be restrained in order
to permit the police to speak privately with the victim. Id. at
819-820. The victim gave the police an oral account of what had
happened and then wrote the following statement: "Broke our
Furnace & shoved me down on the floor into the broken glass.
Hit me in the chest and threw me down. Broke our lamps & phone.
Tore up my van where I couldn't leave the house. Attacked my
daughter." Id. at 820.
13
were made in the context of an investigation into past criminal
conduct, and not in an effort to resolve an ongoing emergency.
Ibid.The primary purpose test was applied again in Michigan v.
Bryant, 562 U.S. 344 (2011). There, the Court had occasion to
apply the test in the setting of statements made to the police
by the victim of a gunshot wound to the abdomen, who was lying
on the ground in a gasoline station parking lot. Id. at 349.
The victim, who was in great pain and spoke with difficulty,
responded to police questions about what had happened, who had
shot him, and where the shooting had occurred. Ibid. Within
five to ten minutes when emergency medical services arrived, the
police stopped speaking with the victim. Ibid. The victim was
transported to the hospital and died shortly thereafter. Ibid.In reversing the Michigan Supreme Court, which had ruled that
the victim's statements were testimonial despite their
admissibility as excited utterances, the Court stressed the need
for an objective assessment of the circumstances and the purpose
that a reasonable party in the shoes of the declarant had when
the statements were made. Id. at 350-351, 360.
In concluding that the statements made by the victim were
not testimonial, the Bryant Court offered the following:
"We distinguished the statements in Davis from the
testimonial statements in Crawford on several grounds,
including that the victim in Davis was 'speaking about
14
events as they were actually happening, rather than
"describ[ing] past events,"' that there was an ongoing
emergency, that the 'elicited statements were necessary to
be able to resolve the present emergency,' and that the
statements were not formal. In Hammon [v. Indiana, the
companion case in Davis], on the other hand, we held that,
'[i]t is entirely clear from the circumstances that the
interrogation was part of an investigation into possibl[e]
criminal past conduct.' There was 'no emergency in
progress.' The officer questioning [the victim] 'was not
seeking to determine . . . "what is happening," but rather
"what happened."' It was 'formal enough' that the police
interrogated [the victim] in a room separate from her
husband where, 'some time after the events described were
over,' she 'deliberately recounted, in response to police
questioning, how potentially criminal past events began and
progressed.' Because her statements 'were neither a cry
for help nor the provision of information enabling officers
immediately to end a threatening situation,' we held that
they were testimonial."
Bryant, supra at 356-357 (citations omitted).12
The primary purpose test has been applied by the Supreme
Judicial Court in a number of cases in a manner that is
consistent with the Crawford-Davis-Bryant trilogy.13 For
12
In Bryant, the Court also identified factors to consider
when determining whether an emergency exists: "(1) whether an
armed assailant poses a substantial threat to the public at
large; (2) the type of weapon that has been employed; (3) the
severity of the victim's injuries; (4) the formality of the
interrogation; and (5) the involved parties' statements and
actions. Additional considerations include whether the victim's
safety is at substantial imminent risk." Commonwealth v. Smith,
460 Mass. 385, 392-393 (2011) (citations omitted).
13
Until the plurality opinion in Williams v. Illinois, 132
S. Ct. 2221 (2012), the Supreme Judicial Court had indicated
that the jurisprudence of the confrontation clause under the
Sixth Amendment to the United States Constitution was
"coextensive" with that under art. 12 of the Massachusetts
Declaration of Rights. Commonwealth v. Barbosa, 457 Mass. 773,
780 n.7 (2010). Whether that remains so is an open question.
15
example, statements made during a 911 telephone call by an
individual who was assaulted only a short time earlier and is
seeking emergency police or medical assistance are not
testimonial, even when some of those statements (including those
that identify the perpetrator) are the result of questions by an
agent of law enforcement who is attempting to resolve the
emergency. See, e.g., Commonwealth v. Galicia, 447 Mass. 737,
745 (2006); Commonwealth v. Nesbitt, 452 Mass. 236, 247-248
(2008); Commonwealth v. Beatrice, 460 Mass. 255, 259-261 (2011);
Commonwealth v. Middlemiss, 465 Mass. 627, 635-636 (2013). See
also United States v. Brito, 427 F.3d 53, 61-62 (1st Cir. 2005),
cert denied, 548 U.S. 926 (2006). However, even in the case of
a 911 telephone call initiated by the victim of a crime to deal
with an ongoing emergency, some statements made during the
course of the conversation may be classified as testimonial.
See Commonwealth v. Simon, 456 Mass. 280, 300 (2010) ("The
victim's two statements [made during 911 call] describing the
shooting in great detail related to past events; they were not
relevant to resolving the medical emergency, securing the crime
scene, or protecting emergency personnel responding to the
See Commonwealth v. Tassone, 468 Mass. 391, 404 n.3 (2014).
However, the Supreme Judicial Court consistently has followed
the primary purpose test as enunciated in Davis and Bryant,
which we apply in this case, subject only to the idiosyncratic
distinction between statements that are testimonial per se and
testimonial in fact.
16
call"). In another case, all of the statements made by a crime
victim during a 911 telephone call were classified as
testimonial because they were made in circumstances in which
there was no ongoing emergency. See Commonwealth v. Lao, 450
Mass. 215, 225-226 (2007).
The Supreme Judicial Court also has reviewed cases in which
statements were made to the police by victims at the scene of a
crime in order to determine whether they should be classified as
testimonial notwithstanding their character as excited
utterances. In Commonwealth v. Burgess, 450 Mass. 422, 425,
430-431 (2008), the court explained that based on the facts of
the case -- an officer had responded to a 911 hang-up call,
heard what appeared to be an argument in progress at the home,
and observed a person (later identified as the victim) who
appeared to be in distress -- the victim's response ("No, it's
not") in reply to the officer's question ("if everything was
okay") was not testimonial. "In these circumstances, the
officer's query and the victim's response were part of an
attempt by the police to comprehend and deal with what appeared
to be a volatile situation." Id. at 431.14 However, the court
14
In Burgess, the court described the victim's statement as
neither "testimonial per se," because even though in response to
police questioning, it was made in the context of an ongoing
emergency, nor "testimonial in fact," because "a reasonable
person in the victim's position would not anticipate that his
response regarding whether the general situation was 'okay'
17
described the statements made by the victim following the
initial question by the police officer as testimonial. Ibid.
"[T]he officer's subsequent questions and the victim's responses
were testimonial per se, as it was then visible to the officer
that the defendant was not behaving dangerously; the victim was
providing more extended answers to the officer's inquiries; and
it was reasonable to conclude that his responses could
subsequently be used in a prosecution of the defendant." Ibid.15
Similarly, in Galicia, 447 Mass. at 740, the police arrived at
would be used against a specific defendant in investigating and
prosecuting a crime." Burgess, supra at 431.
15
See Commonwealth v. DeOliveira, 447 Mass. 56, 60-61, 64-
65 (2006) (statements made by six year old child to physician at
hospital about where she had been unlawfully touched were held
not testimonial because they reasonably would be viewed by child
as part of medical examination and not in contemplation of
prosecution); Commonwealth v. Tang, 66 Mass. App. Ct. 53, 54-55,
59-61 (2006) (five year old child's answers to questions put to
him at scene by police officers were not testimonial because
they "were posed on an emergency basis while the police were
securing a volatile scene," and it was not plausible that the
young child "could have spoken in contemplation of a future
legal proceeding"); Commonwealth v. Patterson, 79 Mass. App. Ct.
316, 320 (2011) (child's statement made without police
questioning, "as the officers walked into a volatile and
unstable scene of domestic disturbance," was not testimonial;
"[t]here [was] nothing to suggest that the statement was made
for any purpose other than to secure aid, let alone that the
five year old child had in mind that the statement would or
could be used to prove some fact at a future criminal trial");
Commonwealth v. Figueroa, 79 Mass. App. Ct. 389, 397-399 (2011)
(statements made by eighty-six year old victim, who suffered
from dementia and was a patient in nursing home, were not
testimonial because they "were related to medical care even
though they were made in an effort to determine what had
occurred").
18
the victim's home five minutes after she telephoned 911 to
report that she was being beaten by her husband. The court
explained that statements made by the victim during the 911 call
were not testimonial because she was reporting an ongoing
emergency, but her statements made to the police at her home,
minutes later, were testimonial:
"Viewed objectively, the victim's statements to officers
occurred separate and apart from the danger she sought to
avert, both temporally and physically. [The responding
officer] testified at the motion in limine hearing that,
when he arrived, he 'determined that the scene was safe.'
By the time the testifying officers had arrived, the
assault had ended and urgency had subsided. While the
victim may have been 'upset' and visibly 'tearful,' we
cannot say that the 'primary purpose' of her statements,
objectively viewed, was to 'enable police assistance to
meet an ongoing emergency.'"
Galicia, 447 Mass. at 745-746. See Commonwealth v. Foley, 445
Mass. 1001, 1002 (2005).
In the present case, the characteristics of the victim's
statements to Officer Hannah that are relevant to a
determination of whether those statements are testimonial are as
follows: (1) they were spontaneous, not the product of police
questioning, and made while the victim was upset and shaken; (2)
they were made after the commission of a crime, when the
defendant was no longer on the scene, and after a brief
conversation with a different police officer; (3) they were not
necessary to enable the police to understand or control an
ongoing emergency or to obtain medical care for the victim; and
19
(4) they related exclusively to past events, and were not made
to enable the police to secure the scene or to apprehend the
defendant.
With regard to the first characteristic, in Davis, the
Court indicated that our focus must be on the declarant's
statement, and explained that the question whether a statement
is testimonial cannot be answered simply on the basis of whether
it was procured by police questioning. Davis, 547 U.S. at 822
n.1 ("The Framers were no more willing to exempt from cross-
examination volunteered testimony or answers to open-ended
questions than they were to exempt answers to detailed
interrogation"). Even if the spontaneous quality of her
statements and her condition support the view that the
statements were made in an atmosphere of informality,16 that is
16
An understanding of the relationship between the hearsay
exception for excited utterances and the confrontation clause,
consistent with the analysis set forth in the Crawford-Davis-
Bryant trilogy of cases, is that excited utterances are neither
automatically exempt from the requirements of the confrontation
clause based on their spontaneous nature nor automatically
subject to the confrontation clause as out-of-court statements.
The United States Court of Appeals for the First Circuit
reviewed the debate prior to Davis over how best to harmonize
the two doctrines in Brito, 427 F.3d at 60-61. The court noted
that some courts have taken the view that excited utterances can
never be testimonial, while others "discount the excited nature
of the utterance and focus instead on the declarant's
objectively reasonable expectations." Id. at 60. The Brito
court rejected both approaches in favor of the view that the two
inquiries are "distinct but symbiotic":
20
not a decisive factor. As the court observed in Gonsalves,
"[i]f 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." Gonsalves, 445 Mass. at 8.
We think the second, third, and fourth characteristics of
the victim's statements lead ineluctably to the conclusion that
they are testimonial, just as portions of the victim's 911 call
in Simon, and the victim's statements made within five minutes
of her 911 call in Galicia, were deemed testimonial. A
reasonable person standing in the shoes of the victim in this
case would have understood, we think, that the statements she
made to a uniformed police officer -- even one she knew as a
friend and trusted -- who responded to her home where a domestic
"[W]e conclude that the excited utterance and testimonial
hearsay inquiries are separate, but related. While both
inquiries look to the surrounding circumstances to make
determinations about the declarant's mindset at the time of
the statement, their focal points are different. The
excited utterance inquiry focuses on whether the declarant
was under the stress of a startling event. The testimonial
hearsay inquiry focuses on whether a reasonable declarant,
similarly situated (that is, excited by the stress of a
startling event), would have had the capacity to appreciate
the legal ramifications of her statement."
Id. at 60-61. The Sixth Circuit Court of Appeals has cited the
Brito analysis with approval. See United States v. Hadley, 431
F.3d 484, 504-505 (6th Cir. 2005) (opinion of Rosen, D.J.).
21
violence incident had just occurred, would be used in the
investigation and prosecution of the defendant.
c. Adequate opportunity to cross-examine. A testimonial
statement by a nontestifying witness will nonetheless be
admissible if, on another occasion, the opposing party had an
adequate opportunity to cross-examine the witness. See
Crawford, 541 U.S. at 53-54; Gonsalves, 445 Mass. at 3. It is
undisputed in this case that the victim, who was the declarant,
was unavailable at trial because she had invoked her privilege
against self-incrimination. The question, then, is whether the
defendant was afforded an adequate opportunity to cross-examine
her on the admitted hearsay statements at the pretrial
dangerousness hearing. See Hurley, 455 Mass. at 66.
In order to make such a determination regarding a
defendant's prior opportunity to cross-examine a witness who
does not testify, but, as in this case, whose testimonial
hearsay statements made during a pretrial dangerousness hearing
conducted under G. L. c. 276, § 58A, are admitted at the
defendant's trial, we must decide "whether the defendant's
motive to cross-examine at the earlier proceeding [was] similar
to his motive to cross-examine at the current trial." Id. at
61, quoting from Commonwealth v. Roberio, 440 Mass. 245, 253
(2003). In the present case, a transcript of the pretrial
dangerousness hearing is part of the record on appeal. The
22
victim testified on direct examination that on the day in
question, she was at home with the defendant, her boyfriend.
When asked what happened that day, she testified that she had
drank a large quantity of alcohol and had taken medications, and
had no memory of the events. The witness acknowledged that she
knew Officer Hannah, and remembered that Officer Hannah was at
her home that day. On cross-examination, the victim testified,
without qualification or equivocation, that on that day the
defendant did not grab her by her hair, choke her, drag her
across the floor, or pin her down on the ground with his knees
to her chest. She added that she could only speak and write in
Spanish. With regard to a written statement attributed to her
and bearing what appeared to be her signature (marked only for
identification), she denied writing it and stated that no one
explained to her what it was. She testified that she was not
afraid of the defendant and had never obtained a restraining
order against him. Finally, on redirect examination, the
witness clarified her testimony on cross-examination and stated
that she did not remember the events of the day in question.
We agree with the Commonwealth that in this case, the
defendant's motive in cross-examining the victim at the
dangerousness hearing was similar to what his motive would have
been had she testified at trial. In view of the statements
attributed to the victim by the police and her subsequent
23
testimony recanting some things and expressing a lack of memory
of other things, the defendant's motive at the dangerousness
hearing was to depict her as a credible witness just as it would
have been had she testified at the trial. See Commonwealth v.
Housewright, 470 Mass. 665, 677-678 (2015). In a case such as
this, in order for the victim's out-of-court statements to be
admissible, it was not necessary for the Commonwealth to
demonstrate at the dangerousness hearing that defense counsel
covered every single detail of the witness's out-of-court
statements that were admitted at trial. See Commonwealth v.
Sena, 441 Mass. 822, 833 (2004). The confrontation clause does
not require that the earlier opportunity to cross-examine meet
any particular standard of effectiveness. See Commonwealth v.
Cong Duc Le, 444 Mass. 431, 438 (2005) ("the witness's memory
loss about prior events would not impermissibly undermine the
opportunity to cross-examine the witness").17
Conclusion. The "primary purpose" test developed by the
Supreme Court in Davis and Bryant, and applied by the
Massachusetts appellate decisions cited in this opinion, for
determining whether an out-of-court statement is testimonial
17
The defendant's reliance on then Justice Liacos's dissent
in Commonwealth v. Canon, 373 Mass. 494, 511-513 (1977), is
misplaced. The basis for the dissent was the view that the
motive of a civil plaintiff, who later becomes a criminal
defendant, to cross-examine a witness during the civil case was
markedly different from the defendant's motive to cross-examine
if the witness had testified at the criminal trial.
24
will undoubtedly continue to evolve as the law moves forward.
What endures, however, is the insight expressed by Justice
Scalia, who authored Crawford, that notwithstanding the concern
over trustworthiness that underlies all exceptions to the
hearsay rule, including excited utterances, "[d]ispensing with
confrontation because testimony is obviously reliable is akin to
dispensing with jury trial because a defendant is obviously
guilty. This is not what the Sixth Amendment prescribes."
Crawford, 541 U.S. at 62. The statements made by the victim in
this case to Officer Hannah were properly ruled as falling
within the excited utterance exception to the hearsay rule, but
nonetheless were made in circumstances in which a reasonable
person in the victim's position would have appreciated that they
would have legal consequences, including the arrest and
prosecution of the defendant. However, the defendant's
opportunity to cross-examine the victim at the pretrial
dangerousness hearing was adequate and served to render her
initial out-of-court statements admissible at trial.
Judgment affirmed.