Opinion
No. 15–P–1403.
11-25-2016
COMMONWEALTH v. Benvindo M. ROCHA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of aggravated assault and battery on his pregnant girlfriend (victim). The victim did not testify at trial, because she asserted her Fifth Amendment privilege under the United States Constitution. However, statements that the victim made in a recorded 911 call placed after the incident, as well as statements that she made to a responding police officer, were admitted. That crucial evidence was the subject of two separate pretrial motions in limine by the Commonwealth. In one motion, the Commonwealth argued that the defendant forfeited his Sixth Amendment right under the United States Constitution to confront the victim in court by encouraging her absence. See Commonwealth v. Edwards, 444 Mass. 526, 532–545 (2005) (establishing the parameters of the doctrine of "forfeiture by wrongdoing"). In the other motion in limine, the Commonwealth argued that the statements qualified as "excited utterances." Following separate evidentiary hearings, the judge allowed both motions. Discerning no error in the judge's reasoning, we affirm.
We agree with the Commonwealth that the judge did not abuse her discretion in concluding that the statements that the victim made directly following the alleged assault (e.g., "My boyfriend just beat me up") qualified as excited utterances. The record reveals that the 911 call might have been placed as long as one-half hour after the incident, and that the responding officers arrived at the victim's location no more than ten minutes later. However, neither this short time lag nor the fact that the victim had escaped to a location "about a block and a half away" from where the crime occurred disqualifies the statements as excited utterances. See Commonwealth v. Brown, 413 Mass. 693, 696 (1992). Rather, the key question is whether "the statements were made under the stress of the exciting event." Ibid. There was ample evidence here establishing that they were. For example, as the defendant acknowledges, the victim can be heard crying at the beginning of the 911 call; and she remained visibly distraught while responding police officers conducted their interview with her. Moreover, her physical injuries were so fresh that they noticeably worsened while the interview took place.
For similar reasons, the statements at issue were nontestimonial, and therefore were not within the purview of the confrontation clause. See Davis v. Washington, 547 U.S. 813, 822 (2006) ("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"). Here, both the victim's 911 call reporting that her boyfriend had "just" beaten her up and her statements to the police during the initial emergency response to that call qualify as nontestimonial.
Even if the victim's out-of-court statements had been considered testimonial, they still were admissible because the defendant had forfeited his right to confront the victim. Recorded jailhouse telephone conversations between the defendant and the victim and between the defendant and a third party whom the defendant knew had spoken with the victim, evince that the defendant encouraged the victim not to testify and that he had expressed his intent to discontinue providing financial support to the victim if he did not "get out." Based on such evidence, the judge stated as follows:
The Commonwealth concedes that in obtaining those telephone records, it did not comply with Mass.R.Crim.P. 17, 378 Mass. 885 (1979). However, the defendant has never questioned the authenticity of the telephone records, nor has he claimed that he had insufficient time to review them before the relevant evidentiary hearing. In fact, the defendant's use of those documents at the hearing demonstrated his familiarity with them. With the defendant unable to show any prejudice from the Commonwealth's noncompliance with rule 17, suppression of the documents was not required. See Commonwealth v. Odgren, 455 Mass. 171, 188–189 (2009). The same reasoning applies to the victim's medical records. Those records were certified, but not delivered to the clerk as required by G.L. c. 233, § 79G. The defendant has alleged no prejudice from that noncompliance.
"While the defendant's conduct was consistent with the [victim's] own independent intent not to testify, see Commonwealth v. Edwards, 444 Mass. 526, 541 (2005), this court finds by a preponderance of the evidence that the defendant's actions ‘actively facilitate[d] the carrying out’ of the [victim's] own intent. Having acted to ensure that the [victim] asserted her Fifth Amendment privilege at trial, and so is unavailable to the Commonwealth as a witness, the defendant has forfeited his right of confrontation as to that witness. See id. "
The judge's reasoning is in accord with the case law, and the defendant has not demonstrated that any of her factual findings are clearly erroneous. See generally Commonwealth v. Bernard, 84 Mass.App.Ct. 771, 773 (2014) (A finding is clearly erroneous when it is not supported by the record or when the reviewing court is left with the firm conviction that a mistake has been made).
As the defendant correctly points out, even if he forfeited his right to confront the victim in court, allowing the victim's out-of-court statements to be introduced would still be improper if they were so unreliable as to violate due process. See Commonwealth v. Szerlong, 457 Mass. 858, 866 (2010). The defendant has not made such a showing. In this regard, we note that the fact that the statements were excited utterances supports their reliability. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990) ("Evidence ... admissible under standard evidentiary rules is presumptively reliable"); Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990). Moreover, the victim's statements were corroborated by the freshness of her injuries (which became visibly worse while the police interviewed her). By contrast, the defendant's alternative theory of how the injuries were caused (a fight the night before between the victim and another woman whom the victim suspected was having an affair with the defendant) was inconsistent with those injuries.
To support that alternative theory, the defendant put forth testimony from his landlord that she had witnessed that fight. That testimony did not render the victim's testimony about the altercation the following day unreliable; indeed, it is possible that both events occurred. Of course, it was ultimately up to the jury to determine the facts.
Judgment affirmed.