Opinion
16-P-513
04-11-2017
COMMONWEALTH v. Guarionex FIGUEROA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant was convicted of assault and battery on a family or household member in violation of G. L. c. 265, § 13M(a ). On appeal, the defendant claims that the judge abused his discretion by (1) denying his motion for mistrial, (2) admitting in evidence a recording of the victim's 911 call, and (3) refusing to instruct the jury regarding omissions in police investigations. We affirm.
Background. We summarize the relevant facts. On September 8, 2014, the defendant, the victim's live-in boy friend, returned home intoxicated. He smelled of alcohol, slurred his speech, and screamed in a nonsensical fashion. He cornered the victim between a bed and a wall, pushed her against the wall, grabbed her, scratched her chest, and struck her in the head. When the defendant left the room, the victim telephoned 911 to report the attack. The victim was waiting outside when two police officers arrived. The officer who testified at trial observed redness on the victim's forehead. The defendant testified at trial that the victim had been the aggressor. He denied touching the victim in any way.
Discussion. 1. Mistrial. Defense counsel cross-examined the victim regarding an affidavit she wrote in support of an application for a restraining order the day after the assault and battery. Counsel impeached the victim with inconsistencies between her affidavit and her trial testimony. On redirect examination, over the defendant's objection, the judge permitted the prosecutor to rehabilitate the victim by eliciting prior consistent statements from her affidavit. Later, the judge revisited his ruling, reversed his decision, and informed counsel that he would instruct the jury to disregard the testimony regarding prior consistent statements. Defense counsel then moved for a mistrial, which the judge denied. The judge immediately instructed the jury that the victim's testimony on redirect examination regarding her affidavit was "stricken from the record, and is not to be considered by [them] in any way, shape, or form."
The general rule is that prior consistent statements are not admissible even after the admission of prior inconsistent statements. Commonwealth v. Zukoski, 370 Mass. 23, 26 (1976). The exception to this general rule is if there is a claim that the witness's in-court statement is of recent contrivance or the product of bias. Id. at 26-27. Upon reflection, the judge concluded that the exception to the general rule did not apply in this case.
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"Whether to declare a mistrial is within the trial judge's discretion." Commonwealth v. Gallagher, 408 Mass. 510, 517 (1990). When the motion for a mistrial is based on the jury's exposure to inadmissible evidence, a curative instruction is adequate to remedy any prejudice, "as long as the judge's instruction[ ] [is] prompt and the jury do not hear the inadmissible evidence again." Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997). Here, the judge gave a timely and forceful instruction striking the testimony from the record and informing the jury that they were to disregard it. The prior consistent statements did not come before the jury again and the judge repeated in his final charge his instruction that the jury disregard the stricken evidence. In these circumstances, we discern no abuse of discretion in the denial of the motion for a mistrial.
2. Excited utterance. The Commonwealth moved in limine to admit in evidence a recording of the victim's 911 call to the police, pursuant to the excited utterance exception to the rule against hearsay. Following a pretrial hearing, including a voir dire examination of the victim, the judge allowed the motion over the defendant's objection, concluding that the recorded statements were "spontaneous, contemporaneous with the event, and sufficiently startling to negate reflective thought, and it was a reaction to the occurrence." The defendant challenges this ruling on appeal.
The excited utterance exception to the hearsay rule applies when the statement was a spontaneous reaction to a startling event and not the result of reflective thought. Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). Mass. G. Evid. § 803(2) (2017). In considering the application of this exception, a judge considers (1) the degree of excitement displayed by the speaker, (2) whether the statement was made at the same location as the startling event, (3) whether the statement was close in time to the event, and (4) the degree of spontaneity. Commonwealth v. Mills, 54 Mass. App. Ct. 552, 556-557 (2002). Here, there was evidence that the victim made the telephone call from the location of the assault for the purpose of requesting help from the police, the call was relatively close in time to the event while the defendant was still in the home, and the victim was "[t]errified" at the time she made the call. Considering all of this evidence, the judge acted within his discretion in admitting the recording of the 911 call. See Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973) (trial judge given broad discretion in determining admissibility of excited utterance).
3. Instruction on omission in police investigation. The defendant claims that the judge should have given the so-called "Bowden instruction," see Commonwealth v. Bowden, 379 Mass. 472 (1980), informing the jury that they could consider the failure of the police to take photographs in determining whether reasonable doubt existed as to the defendant's guilt. "Bowden simply holds that a judge may not remove the issue from the jury's consideration." Commonwealth v. O'Brien, 432 Mass. 578, 590 (2000). The judge was not required to instruct on the inadequacy of the police investigation. See Commonwealth v. Boateng, 438 Mass. 498, 506-507 (2003). Here, the defendant was permitted to cross-examine the investigating officer regarding the absence of photographs, and to argue the point to the jury. There was no error.
Judgment affirmed.