Opinion
14-P-56
12-09-2014
COMMONWEALTH v. DENVILLE BEMBRIDGE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Denville Bembridge, appeals from his conviction of aggravated assault and battery. He argues that the judge erred by admitting two testimonial hearsay statements, admitting another hearsay statement as an excited utterance, and refusing to allow the defendant to note, in closing argument, the absence of a witness. We affirm.
Confrontation clause. A defendant's confrontation clause rights are violated when out-of-court, testimonial statements of a declarant are admitted, unless the declarant was "unavailable to testify [at trial], and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 54 (2004). "[S]tatements 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." Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005). The inquiry is an objective one, focusing on whether "the primary purpose of the [questioning by responding officers] is to enable police assistance to meet an ongoing emergency," rather than "to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006). See Michigan v. Bryant, 131 S.Ct. 1143, 1158 (2011).
Here, the judge did not err in admitting the two out-of-court statements at issue because circumstances objectively indicated that the statements were made in the midst of a fluid, emergency situation such that the statements were properly considered nontestimonial. When the police officers first responded to the defendant's home, it was unclear who the suspect was and whether he still was in the house. This factor alone suggests that an emergency situation existed, especially in light of the seriousness of the victim's injuries. Given the severity of the victim's injuries, the suspect, even if not armed with a dangerous weapon, posed a threat to both the public and the police, and possibly still to the victim and others in the home. See Bryant, supra at 1158-1159. Consequently, the officer's question to the victim concerning who inflicted the victim's injuries, when viewed objectively and in context, was reasonably posed to determine what was happening in order to resolve the emergency presented.
A police officer who responded to the scene testified that he asked the victim, "Did your husband or boyfriend do this?" and that she responded affirmatively by "basically [shaking] her head yes." A different responding officer testified that when he spoke to the couple's son, the son "started crying, explaining . . . that he saw his daddy hitting mommy." Neither the victim nor the couple's son testified at trial.
One responding police officer testified that he initially was not sure whether the victim was alive and noticed that she was making only "gurgling" sounds; another officer testified that the victim was so injured that she could not "communicate very well."
We recognize that domestic violence incidents might present "a narrower zone of potential victims than cases involving threats to public safety." Bryant, 131 S.Ct. at 1158. However, given the severity of the victim's injuries here, and the fact that the defendant also injured his stepson, it would have been objectively reasonable at the time the police arrived at the defendant's home to consider the defendant a threat not only to the victim, but to others as well.
In addition, neither that officer, nor any other police officer, asked the victim about circumstances leading up to the assault, and, in fact, likely could not have elicited such answers given her medical state.
As to the out-of-court statement made by the couple's son, this statement, too, constituted nontestimonial hearsay. Although the defendant's stepson had just told a police officer that the defendant was the person who assaulted his mother, it was reasonable, in light of the fact that the defendant had fled and his whereabouts were unknown, for that same police officer to also ask the couple's son what had happened in order to resolve the emergency situation at hand.
In sum, when the police arrived at the scene and for the duration of the time that they were there, there was a fluid, ongoing emergency situation because the suspect was unknown and then unable to be located, and, to a lesser extent, because the victim was in need of medical assistance. The police's questioning of the victim and the couple's son was quick and, by all accounts, informal. Moreover, there is nothing in the police's interaction with either the victim or the son to suggest testimonial intent. See Commonwealth v. Middlemiss, 465 Mass. 627, 636 (2013). In fact, the victim was basically incapacitated, and the son, a child, was too upset to engage in further conversation with police.
Hearsay exception. Admission of a statement as an excited utterance will only be disturbed for abuse of discretion. Commonwealth v. Brown, 413 Mass. 693, 696 (1992). A witness's out-of-court statements are admissible if they were "spontaneous to a degree which reasonably negated premeditation or possible fabrication and if [they] tended to qualify, characterize and explain the underlying event." Id. at 695, quoting from Blake v. Springfield St. Ry., 6 Mass. App. Ct. 553, 556 (1978). The "test is whether or not the declarant was in fact under the stress of the exciting event at the time he or she made the statement." Commonwealth v. Tracy, 50 Mass. App. Ct. 435, 438 (2000).
Here, the judge did not abuse his discretion in admitting the stepson's hearsay statements, made to a responding police officer only minutes after the police arrived at the scene. Every police officer who responded to the scene testified that the stepson appeared upset. Although one police officer testified that the stepson was in control of his voice at the time he made the statements, the judge specifically found, after observing the stepson's demeanor during his testimony at trial, that he was "low-key," thereby explaining why he appeared both upset and under control to the responding police officers. In light of these factors, the judge did not abuse his discretion in admitting the statements.
Closing argument. Even if, based on language contained in Commonwealth v. Saletino, 449 Mass. 657, 672 (2007), the defendant is correct that he was entitled to observe in closing argument that the couple's son did not testify, we discern no prejudice resulting from the judge's refusal to allow the defendant this argument. It was already clear to the jury that the son was at the scene of the crime, yet did not testify at trial. Moreover, evidence of the defendant's guilt was powerful, based on the out-of-court statements of the victim and her son, and her son's testimony at trial. Therefore, mere mention of the couple's son's absence at trial, to suggest deficiency of proof, would have had minimal to no discernible impact on the jury.
Judgment affirmed.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: December 9, 2014.