Opinion
No. 15–P–679.
06-08-2016
COMMONWEALTH v. Jose CRISTALES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of various assault and battery offenses following a jury trial. His sole argument on appeal challenges the admission of hearsay statements made by the victim to police officers who arrived at the apartment shared by the victim and the defendant in response to a 911 call. Discerning no error, we affirm.
Two counts of assault and battery on a police officer; two counts of assault by means of a dangerous weapon; one count of assault and battery; and one count of resisting arrest.
Background. Officers Michael DeLuca and Eric Craig of the Leominster police department were dispatched to a residence, shared by the defendant and the victim, following an anonymous 911 call on February 23, 2014. The defendant answered the door and stated that he and the victim, his wife, had been sleeping. Officer DeLuca told the defendant that he needed to check on the victim's well-being, and the defendant agreed that the officers could enter the home. The defendant went to a rear bedroom and spoke to the victim and then sat at the kitchen table at Officer DeLuca's direction. Officer Craig went to the rear bedroom to speak with the victim. Officer Craig asked the victim whether she was okay, and she nodded “yes.” Officer Craig asked a follow-up question, at which point the victim “burst into tears” and began shaking. Officer Craig testified that the victim “motioned ... with her hand towards her neck,” indicating “that she had been possibly assaulted or strangled.” Officer Craig noticed redness around the victim's neck and chest.
The victim is described in the record as both the defendant's “girlfriend” and his “wife.” Although their marital status is unclear, it has no bearing upon the issues on appeal.
Officer Craig reported this information to Officer DeLuca. Officer DeLuca then asked the victim, who was “crying” and “visibly shaken,” what happened. The victim pulled down the collar of her shirt, allowing Officer DeLuca to observe “deep red marks” around her throat, and stated, “He choked me.” Both officers approached the defendant and Officer DeLuca informed him that he was under arrest. The defendant stood up from the kitchen table and began to repeat, “No, no, no.” When Officer DeLuca went to handcuff him, the defendant lunged at the officer, and eventually both officers and the defendant were knocked to the ground. In the struggle that ensued, the defendant “latched on” to Officer DeLuca's firearm, attempting to pull it out of its holster. Officer DeLuca struck the defendant repeatedly in the face using the handcuffs fashioned as brass knuckles. The defendant continued to grab and pull at Officer DeLuca's gun, and defeated two of the three levels of security on the gun holster. Officer Craig attempted to deploy the probes of his Taser but was unable to subdue the defendant. While continuing to struggle with the defendant, at some point, Officer DeLuca called for backup on his radio and several officers arrived. Officer DeLuca was then able to deliver “drive stuns” to the defendant using the Taser, but they were unsuccessful, and the defendant continued to reach for the officers' firearms. The officers eventually were successful in placing the defendant in handcuffs.
One of the backup officers, Carlos Cintron, who spoke to the victim after the defendant's arrest, testified that the victim was “shaking,” “hugging her daughter,” and “trembling and crying.” She told Officer Cintron that she and the defendant had an argument in which he accused her of seeing someone else. Officer Cintron testified that the victim told him that the defendant put his “hands to her neck and started shaking her against the wall, breaking her necklace,” and that she screamed for someone to call the police. Officer Cintron advised the victim of her right to seek a restraining order.
The victim testified at trial that she and the defendant had argued before the police arrived, but that he never physically touched her. She denied having any injuries or red marks on her neck. Over objection by the defendant, the Commonwealth attempted to impeach the victim by introducing an audio recording of her testimony at a G.L. c. 209A hearing in support of the restraining order she obtained the day after the defendant's arrest. The judge repeatedly instructed the jury that the evidence regarding the restraining order was not admissible substantively. In this appeal, the defendant does not challenge the admission of that evidence.
In a pretrial hearing, the judge ruled that the victim's verbal and nonverbal hearsay statements, indicating to the officers that the defendant had choked her, were admissible under the excited utterance exception. The defendant made contemporaneous objections during the testimony of Officer DeLuca and Officer Cintron. He did not make a contemporaneous objection during Officer Craig's testimony regarding the victim's nonverbal hearsay statement. The judge, in his final charge, instructed the jury that the statements the victim made to the officers who arrived on the scene were admissible for any purpose, if the jurors believed those statements were made.
Discussion. A spontaneous utterance is 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. Santiago, 437 Mass. 620, 623 (2002), quoting from 2 McCormick, Evidence § 272, at 204 (5th ed.1999). See Mass. G. Evid. § 803(2) (2016). A statement in response to a question may be a spontaneous utterance. See Commonwealth v. Simon, 456 Mass. 280, 296 (2010).
Factors of importance to the analysis include “the degree of excitement displayed by the person making the statements ...; 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 [shown by the declarant].” Commonwealth v. Joyner, 55 Mass.App.Ct. 412, 414–15 (2002). “[T]he statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated.” Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973), quoting from Rocco v. Boston–Leader, Inc., 340 Mass. 195, 197 (1960).
The defendant argues that the victim's statements cannot be spontaneous utterances because when Officer Craig initially asked her whether she was “okay,” the victim responded by nodding affirmatively, and at that point there was no evidence that she was still under the influence of the startling event. We disagree. Although the victim first indicated that she was “okay,” she responded to Officer Craig's next question by bursting into tears. Both officers who responded to the 911 call observed the victim immediately afterwards and described her as visibly shaken and crying; Officer Cintron also described her as shaking, trembling, and crying. When she interacted with and spoke to the officers, the victim was still inside the apartment where she had just experienced an argument with the defendant that resulted in physical violence. The statements were temporally close to the startling event because they were made to Officers DeLuca and Craig within approximately twelve minutes of the officers' arrival at the apartment, and to Officer Cintron shortly thereafter. We see no basis to disturb the judge's determination that the foundational requirements of the exception were met. See Commonwealth v. King, 436 Mass. 252, 255 (2002).
Judgments affirmed.