Opinion
14-P-835
04-17-2015
COMMONWEALTH v. LUIS PINDER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of carrying a firearm without a license and possessing ammunition without a firearm identification (FID) card. He raises two issues on appeal. First, he contends that the judge erred in admitting a recording of a 911 call because it contained hearsay that was testimonial and therefore violated his confrontation right where the caller was not available for cross-examination at trial. Second, he argues that the judge abused her discretion in failing to give a missing witness instruction. We affirm.
1. 911 call. "[T]he admissibility of out-of-court statements is determined using a two-step inquiry." Commonwealth v. Simon, 456 Mass. 280, 295 (2010). "First, the statement must be admissible pursuant to the rules of evidence." Ibid., citing Commonwealth v. Nesbitt, 452 Mass. 236, 243 (2008). "Second, the statement must be admissible under the confrontation clause." Commonwealth v. Simon, supra. Because defense counsel objected to the admission of the 911 call, we review for prejudicial error.
a. Excited/spontaneous utterance. "A spontaneous utterance is admissible if the 'utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.'" Commonwealth v. McCoy, 456 Mass. 838, 848 (2010), quoting from Commonwealth v. Fuller, 399 Mass. 678, 682 (1987). See Mass. G. Evid. § 803(2) (2014) (An excited or spontaneous utterance is not excluded by the hearsay rule "if (A) there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought"). "The Commonwealth must show that 'there was an exciting event that would give rise to the exception' and that 'the declarant displayed a degree of excitement sufficient to conclude that her statement was a spontaneous reaction to the exciting event, rather than the product of reflective thought.'" Commonwealth v. McCoy, supra at 849, quoting from Commonwealth v. Santiago, 437 Mass. 620, 624-625 (2002). "The judge's determination that [the caller's] statement qualified as a spontaneous utterance is entitled to great deference and will only be overturned if there was an abuse of discretion." Commonwealth v. Smith, 460 Mass. 385, 391 (2011).
The 911 call at issue in this case began as the defendant, who was carrying a loaded gun, was "going in the hallway . . . with it" from the hotel room in which he had threatened to hit the caller with the gun. The call ended approximately ten minutes later, when police officers reached the scene where they found the caller agitated and distraught. For the duration of the call, the defendant was in the public hall of the hotel with, in the caller's view, no ability to leave since he was wearing only shorts and a tee shirt, and was not wearing shoes. The incident took place in February with snow on the ground. He did not have a car, having arrived at the hotel with the caller. At one point during the middle of the call, the defendant returned to the room, pounded on the door, and asked to be let in. The caller refused, heeding the dispatcher's instructions to her. In short, for the duration of the call, the defendant, who had immediately before threatened to strike the caller with the gun, was reported to be at loose with a loaded gun in a public hallway of a hotel.
The defendant argues that despite these circumstances, the judge erred in admitting the transcript of the 911 call as an excited utterance because the caller's voice lacked sufficient emotion on the call. Although "the degree of excitement displayed by the person making the statements" is certainly a factor to be considered, it is only one of "[s]everal factors," including: "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." Commonwealth v. Hardy, 47 Mass. App. Ct. 679, 682 (1999) (citations omitted). See Commonwealth v. Simon, 456 Mass. at 282, 296 (finding spontaneous utterance even though 911 caller at times "recounted the events of the shooting calmly, while at other times he was clearly in dire distress and on the verge of losing consciousness"). Here, a traumatic event had just occurred in the hotel room from which the caller was calling. When the call began, the defendant was in the process of leaving the room. The event was ongoing and volatile; the armed defendant knocked on the door during the 911 call, asking to be let back in.
We have obtained the recording of the 911 call from the trial court and listened to it. Our independent assessment is that the caller, while not hysterical or incoherent, is recounting tense and dangerous events as they were occurring, and that she was doing so without premeditation or deliberation.
The defendant also argues the caller's statements were not spontaneous given the question and answer format of the 911 call. However, a question and answer format is not incompatible with spontaneous utterances. See Commonwealth v. Simon, 456 Mass. at 296 ("[T]he victim's 911 telephone call and his responses to the dispatcher's questions were a spontaneous reaction to those events").
Finally, we are not persuaded by the defendant's argument that the statements were not spontaneous because the caller provided substantial information to the police during the ten-minute call. The caller's exclamation that she did not want to "die," her statements that the defendant was trying to return to the room, and that he had immediately before threatened her -- all contributed to the impression of immediacy and spontaneity in the face of ongoing and evolving events.
b. Confrontation clause. We are equally unpersuaded by the defendant's argument that the statements during the 911 call were per se testimonial and, therefore, their admission without the ability to cross-examine the caller at trial violated his confrontation rights.
"[W]hen the Commonwealth in a criminal case seeks to admit the excited utterance of a declarant who is not a witness at trial or has completed his testimony at trial, the judge should conduct a careful voir dire, evidentiary if needed, before admitting the excited utterance in evidence." Commonwealth v. Hurley, 455 Mass. 53, 68 n.14 (2009). The judge did so here.
"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." Commonwealth v. Hurley, 455 Mass. 53, 64-65 (2009), quoting from Davis v. Washington, 547 U.S. 813, 822 (2006). We consider four factors to determine whether the statements were made to meet an ongoing emergency: "(1) whether the 911 caller was speaking about 'events as they were actually happening rather than describ[ing] past events'; (2) whether any reasonable listener would recognize that the caller was facing an 'ongoing emergency'; (3) whether what was asked and answered was, viewed objectively, 'necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past,' including whether it was necessary for the dispatcher to know the identity of the alleged perpetrator; and (4) the 'level of formality' of the interview." Commonwealth v. Simon, 456 Mass. at 297, quoting from Commonwealth v. Galicia, 447 Mass. 737, 743-744 (2006). All four factors were met here.
2. Missing witness instruction. The defendant argues that he was entitled to a missing witness instruction because the Commonwealth did not call the 911 caller as a witness at trial. Passing whether the issue is preserved, we find no error. "A missing witness instruction is appropriate when a party 'has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,' and the party, without explanation, fails to call the person as a witness." Commonwealth v. Salentino, 449 Mass. 657, 667 (2007), quoting from Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991). "The decision whether to provide a missing witness instruction to the jury is within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable." Commonwealth v. Saletino, supra.
The defendant orally objected (but did not object in writing) to the lack of a missing witness instruction before the charge, but did not renew his objection afterwards. See, e.g., Commonwealth v. White, 452 Mass. 133, 138 (2008) ("In general, our cases have held that if a party brings to the judge's attention a specific written request for instruction, and the judge denies the request or gives an instruction inconsistent with the requested one, we consider the issue preserved, and the party need not object a second time after the instructions are given").
There was no abuse of discretion here. The Commonwealth gave a plausible explanation for the caller's absence; she lived out of State, frequently moving around the country. See Commonwealth v. Ivy, 55 Mass. App. Ct. 851, 860 (2002). The Commonwealth's evidence was strong, and corroborated by several witnesses. The caller's testimony was likely to be cumulative of the information on the 911 recording which, as we have held above, was properly admitted. See Commonwealth v. Keniston, 423 Mass. 304, 314 (1996). See generally Commonwealth v. Rollins, 441 Mass. 114, 118 (2004), quoting from Commonwealth v. Alves, 50 Mass. App. Ct. 796, 802 (2001) (outlining factors to be considered in deciding whether to give missing witness instruction).
For the reasons set out above, the judgments are affirmed.
Judgments affirmed.
By the Court (Kafker, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 17, 2015.