Opinion
19-P-1372
12-04-2020
COMMONWEALTH v. TIMOTHY PRINS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a two-day jury trial, the defendant was convicted of assault and battery on a family member, his wife (victim), pursuant to G. L. c. 265, § 13M (a). On appeal, the defendant argues (1) that statements made by the victim to a neighbor, and on a 911 call, were improperly admitted as excited utterances, (2) that a statement by the defendant on a telephone call from jail was improperly admitted, and (3) that the prosecutor misrepresented facts during closing argument. We affirm.
Background. On March 13, 2018, during a snowstorm, the victim was sent out of her house by the defendant following an argument. She approached her neighbor's house across the street, shoeless and in socks, and was quickly ushered in by her neighbor's husband. Her neighbor stated that she appeared to be "[s]tunned. Upset. A little dazed. And had horrible red marks around her neck. . . . Distraught, crying, upset. Very upset." The victim told her neighbor that "her husband tried to strangle her" and the neighbor promptly called 911, speaking to the dispatcher briefly before handing the telephone to the victim. The victim repeated to the dispatcher that her husband had tried to strangle her and that she needed "him removed from the house." Officers from the Lowell Police Department responded to the scene and spoke with the defendant, who claimed that he had merely put the victim out in the snowstorm so that she could "cool off" after an argument. The defendant was placed under arrest, and held in a house of correction pending a dangerousness hearing under G. L. c. 276, § 58A.
In subsequent legal proceedings the victim testified on behalf of the defendant, and essentially recanted the statements that she made to the neighbor, and on the 911 call. The Commonwealth went forward with the prosecution nonetheless, and moved in limine to admit the victim's statements on the night of the attack. After a voir dire, the judge determined to admit the victim's statements to the neighbor and the 911 dispatcher as excited utterances. She reached this conclusion despite the victim's testimony that she had calmed down prior to making any statements to the neighbor.
At trial, the Commonwealth called the neighbor, and also introduced the audiotape of the 911 call. The Commonwealth also presented testimony from Officer Westaway, who responded to the scene on the night of the incident. Westaway testified to his observations of the victim, but was not allowed to testify about statements the victim made to him.
The Commonwealth also called a third witness, a keeper of records for the house of correction, to authenticate an excerpt of a call that the defendant made two days after the incident, while being held pending the dangerousness hearing. The Commonwealth sought to introduce the entire fifteen-second excerpt, in which the victim first stated, "You shouldn't be grabbing me at all," and to which the defendant replied, "You shouldn't be antagonizing me knowing that I have a temper. And yet you do, you continue to antagonize me, and antagonize me, and antagonize me, and antagonize me, and you know it's wrong, and you do it on purpose."
The defendant objected to this call excerpt, and the judge ruled that while the defendant's statement was admissible, the statement that preceded it was not admissible because there was no authentication that the preceding voice was the victim's. Through inadvertent error, however, the prosecutor initially played the entire excerpt to the jury. The defendant objected and moved for a mistrial. The judge denied the mistrial motion, struck from the record what had already been played, and instructed the jury to disregard it. The prosecutor then replayed the defendant's statement, only, for the jury.
The defendant presented testimony from the victim, who testified that she did not remember telling her neighbor, the dispatcher, or the officer about being strangled, and that the strangling did not actually occur. She testified that she had been intoxicated, and angry at her husband that night. The Commonwealth cross-examined the victim on the content of several additional telephone calls between the victim and the defendant, which had occurred while the defendant was detained. The victim confirmed that in one such call, the defendant had threatened to divorce her if she "press[ed] charges." The victim also testified that she and the defendant discussed the content of her upcoming testimony -- and how she would need to explain the marks on her neck as originating from someone other than the defendant. The victim was asked, "Is it possible that you spoke [on the telephone with the defendant while he was detained] over 200 times?" to which the victim responded, "It's definitely possible." The jury returned a verdict of guilty.
Discussion. 1. Excited utterances. As noted, the Commonwealth moved in limine to admit the victim's statements on the night of the incident, and the judge conducted a voir dire prior to trial. The neighbor, Officer Westaway, and the victim all testified. The neighbor testified that the victim "was crying. She was distraught. She had horrible red marks on her neck . . . she said that she had been thrown out of the house and strangled." The 911 call was authenticated by the neighbor and played for the judge. Officer Westaway testified that the victim was crying and that he "had to try to keep getting her to calm down just to talk to her." The victim then testified that she had promptly crossed the street after the incident and approached her neighbors' house, but that she "didn't tell them what happened before [she] calmed down."
The voir dire testimony of all three witnesses largely mirrored that of their trial testimony, with slight differences in phrasing and word choice.
The judge determined that the victim's statements to the neighbor, and the victim's statements to the 911 dispatcher, qualified as excited utterances, but excluded the victim's statements to Officer Westaway. The defendant contends that the judge abused her discretion in admitting the statements.
Excited, or spontaneous, utterances are 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 result of reflective thought.'" Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017), quoting Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015). The "essential issue is whether the statement was made under the stress of an 'exciting event and before the declarant has had time to contrive or fabricate the remark, and thus . . . has sufficient indicia of reliability.'" Baldwin, supra, quoting Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990). "The relevant factors to consider include whether the statement was made in the same location as the startling event; the amount of time between the startling event and the making of the statement; and the age, spontaneity, and degree of excitement of the declarant." Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018).
Because the judge must weigh all the circumstances, none of the above factors is dispositive. There is no hard and fast time period, for example, within which the statement must be made. See Commonwealth v. Burnett, 417 Mass. 740, 744 (1994), citing Commonwealth v. Brown, 413 Mass. 693, 696 (1992). There is no "particular form of 'excitement'" that must be shown; rather the question is whether the circumstances show "the declarant was acting spontaneously under the influence of the incident . . . and not reflectively." Baldwin, 476 Mass. at 1042. If the statement pertains to the exciting event, such can indicate the required nexus between the event and the statement. See Commonwealth v. Santiago, 437 Mass. 620, 625 (2002). The demeanor, tone of voice, and emotional state of the declarant are all relevant. See, e.g., Commonwealth v. Beatrice, 460 Mass. 255, 259 (2011) (victim's voice on 911 call indicated "that she was very upset and breathing heavily" while reporting that she had "just" been assaulted by defendant); Santiago, supra at 625-626 (declarant was "very, very upset and agitated" and "speaking rapidly and loudly").
We review the decision that a statement qualifies as an excited utterance under the abuse of discretion standard. See Wilson, 94 Mass. App. Ct. at 423. "We defer to the judge's decision unless we conclude that [s]he failed to weigh properly the relevant factors, such that the decision was outside the range of reasonable alternatives." Id.
On the record before us, there was no abuse of discretion. The judge heard testimony that the victim was crying and distraught, and the judge was able to listen to the victim on the 911 call, in which the victim is breathing heavily and has difficulty speaking clearly. All of the victim's out-of-court statements directly related to the assault and battery, and all of them were made close in time to the event, which apparently had occurred only moments before the victim approached the neighbors' house, directly across the street. The judge was not obliged to credit the victim's testimony that she had calmed down before making the statements, particularly in light of the testimony of disinterested witnesses and the evidence of the 911 call itself. There was more than sufficient evidence to conclude that the victim made the statements under the influence of the exciting event.
2. The defendant's statements in the jail calls. The defendant next challenges the admission of his statement in the jail call excerpt. The defendant argues primarily that his statement, standing alone and without the victim's prior statement, amounted to no more than propensity or character evidence that is both inadmissible and unfairly prejudicial. See Commonwealth v. Bonds, 445 Mass. 821, 829-830 (2006). The defendant further argues that once the prosecutor played the entire excerpt, including the victim's statement, the judge abused her discretion by denying the defendant's motion for a mistrial.
We conclude that regardless of any errors in the presentation of this evidence, the defendant was not unfairly prejudiced in the overall context of the trial. It may be that standing alone, the defendant's statement -- "You shouldn't be antagonizing me knowing that I have a temper" -- speaks more to the defendant's general character than to the specifics of this case. But when considered together with the victim's preceding statement -- "You shouldn't be grabbing me at all" -- the defendant's statement becomes an adopted admission that he did "grab" the victim in some way, as well as being relevant to consciousness of guilt and motive. The difficulty, of course, is that only the defendant's statement was admitted, as the judge excluded the victim's preceding statement.
We are of the view that if the judge committed any error here, it was not the admission of the defendant's statement, but the exclusion of the victim's. The defendant's statement was an admission of a party, and admissible under the hearsay rules unless excludable on other grounds. See Commonwealth v. Spencer, 465 Mass. 32, 46 (2013). The Commonwealth argued that the victim's statement also should have been admitted, under the rule of completeness -- it was necessary to "clarify the context" for the defendant's statement, to avoid "presenting a fragmented and misleading version of events" to the jury. Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). The judge never rejected the rule of completeness argument; instead, the judge concluded that no one could authenticate that the voice on the jail call was the victim's:
"[I]f you were able to authenticate her voice, if you were able to authenticate that it was her, but you can't do that. I can't just put a statement in there for completeness to this conversation unless you have an ability to put that in."
The Commonwealth was correct that the victim's statement was admissible under the rule of completeness; it was not being offered for its truth, but rather to provide context so that the jury could better understand the defendant's statement -- "You shouldn't be antagonizing me." See Commonwealth v. Mullane, 445 Mass. 702, 711 (2006) (statements from recipient of telephone call properly admitted for limited purpose of providing context to conversation); Commonwealth v. Mejia, 88 Mass. App. Ct. 227, 237-238 (2015) (no error to admit statements from telephone call recipient where statements provided context for defendant's admissions and were not offered for their truth). As for authentication, the neighbor had already authenticated the victim's voice once, in connection with the 911 call. See Mass. G. Evid. 901(b)(5) (2020); Commonwealth v. Williams, 8 Mass. App. Ct. 283, 291 (1979), quoting Commonwealth v. Lykus, 367 Mass. 191, 201 n.4 (1975) ("Identification of telephone voices by witnesses familiar with the voice of the identified person has long been permitted by the law of the Commonwealth"). Passing that point, the jurors had just heard the victim's voice on the 911 call, and could have reached their own conclusion as to the voice on the jail call excerpt. See Mass. G. Evid. 901(b)(3) (2020); Commonwealth v. O'Connell, 438 Mass. 658, 662-663 (2003) (jurors allowed to draw inferences as to authenticity of defendant's signature where record contained authenticated exemplar that could be used to compare specimens). The victim's statement accordingly was admissible, and relevant, and should not have been excluded on authentication grounds.
In short, the defendant's statement was properly admissible, and any evidentiary error here favored only the defendant, who benefited from the exclusion of the victim's statement. We accordingly do not conclude that the defendant suffered undue prejudice from the introduction of his statement at trial. See Commonwealth v. Wood, 469 Mass. 266, 284 (2014) (no prejudice from testimony "ambiguous, at worst, and helpful to the defendant, at best," even if improperly admitted). For similar reasons, there was no error in the denial of the motion for mistrial, as the victim's statement was admissible in any event.
3. Prosecutor's closing argument. Finally, the defendant argues that the prosecutor argued facts not in evidence and also misstated the evidence several times in closing. The defendant avers that the prosecutor's statement that the victim "couldn't get back in her house because she was afraid," was unsupported by the evidence and even contradicted by the victim's trial testimony, where she stated that she was not afraid that night and that she could have gone back home. The defendant further argues that the prosecutor stated additional facts not in evidence when she stated that there had been "over 200" telephone calls between the defendant and the victim, and overstepped by characterizing this as months of pressure exerted by the defendant to secure favorable testimony from the victim at trial. The defendant objected to this latter point, after which the judge instructed the jury that their "collective memory of the evidence . . . governs, not what either lawyer says."
The Commonwealth argues that each of the challenged statements was a reasonable inference drawn from the evidence. We agree that there was no error here. A prosecutor may argue "forcefully for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). "Remarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
The prosecutor's remark that the victim "couldn't get back in her house because she was afraid" is a reasonable inference from the evidence that the victim was outside in a snowstorm in only her socks, that she sought out a neighbor for help and refuge rather than going back into her own house, and that she told the 911 dispatcher that she "needed [the defendant] removed from the house." The jury plainly could infer that the victim left her house in a hurry, and did not wish to return while the defendant remained. Those inferences are reasonable, notwithstanding the victim's testimony at trial, which the jury were free to discredit.
The remark that the defendant had called the victim "over 200 times," and the accompanying argument that this indicated that the defendant had pressured the victim to testify favorably on his behalf, also were fair inferences from the evidence at trial. The victim, when asked whether it was possible that she had spoken with the defendant over 200 times, replied, "It's definitely possible." The argument that the defendant had pressured the victim for her favorable testimony also was supported by the evidence. The victim testified that the content of some of the early calls between her and the defendant focused on her testimony at the upcoming hearings, and that during those calls the defendant urged her to provide innocuous explanations for the marks on her neck and threatened her with divorce if she pressed charges.
Judgment affirmed.
By the Court (Rubin, Desmond & Englander, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 4, 2020.