Opinion
16–P–980
05-19-2017
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Marvin Dumay, appeals from his conviction of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M(a ). The defendant argues that the judge abused her discretion by admitting a recording of an eye-witness's 911 call at trial and that the admission constituted prejudicial error. We affirm.
The judge allowed the defendant's motion for required findings of not guilty for the remaining charges against the defendant.
Background. On June 13, 2015, Patricia Donnelly was at work on Belgrade Avenue when she heard "commotion outside" and observed "a man, [later identified as the defendant], punch a woman in the face and [cause] her [to] fall on the ground." She saw that the man then "pick[ed] the [victim] up off the ground," and the victim proceeded to follow the defendant up the street, where they continued arguing.
The witness telephoned 911 and informed the dispatcher that "[t]here's a man beating up a woman by the Citizen's Bank right now" and that the man "just punched [the victim] and knocked her to the ground."
Officer Patrick Creavin responded to the radio dispatch "for an assault in progress at [6] Belgrade Ave." He encountered the defendant near a bank on Corinth Street. Officer Creavin questioned the defendant, who informed him that he had "a verbal argument with a friend of his, because the friend threw some water on him" but denied any physical altercation. Though the defendant said that he did not know his friend's name, he told Officer Creavin that "he knew her all his life ... [and he] gave [the officer] her cell phone number."
Later that day, Officer Creavin spoke with the victim. The officer asked her what had happened and the victim told him that "she got beat up by her boyfriend." She explained that "he punched her and knocked her to the ground because—she admitted[ly] thr[ew] some water at him." The victim said that she received "[s]crapes and bruises throughout her body ... [o]n her shoulder, on her elbow, her wrist and her thigh." The police took pictures of the victim's injuries.
Discussion. The defendant argues that the judge erred in admitting the recording of the witness's 911 call in evidence. We disagree.
Despite the defendant's contentions, the evidence was properly admissible under the excited utterance exception to the rule on hearsay. See Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 42–43 (2016). "In order for a declarant's statement to qualify as an excited utterance, the statement must be made in response to an event that is sufficiently startling to render the declarant's normal reflective thought processes inoperative, and the declarant's reaction must actually be spontaneous." Commonwealth v. Middlemiss, 465 Mass. 627, 631 n.4 (2013). See Mass. G. Evid. § 803(2) (2017). "[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." Guaman, supra at 42 n.3, quoting from Commonwealth v. McLaughlin, 364 Mass. 211, 223 (1973).
It is not dispositive that the judge here failed to disclose her reasoning for admitting the evidence. See Commonwealth v. Tennison, 440 Mass. 553, 563 (2003), quoting from G.E.B. v. S.R.W., 422 Mass. 158, 168 (1996) ("If there is any basis for upholding the admissibility of the evidence, the reason on which the decision rests is immaterial and the lower court's ruling is sustained").
"To determine whether a statement meets this test, a judge may consider ‘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].’ " Guaman, 90 Mass. App. Ct. at 42 n.3, quoting from Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 415 (2002).
Here, the witness telephoned 911 in the immediate aftermath of her observations of "a man punch[ing] a woman in the face and [causing] her [to] fall on the ground." Such evidence sufficiently meets the excited utterance exception to the hearsay rule. See Guaman, supra at 42–43. Even assuming that the defendant's claims are correct, that the witness had a "calm and reflective" demeanor at some instances during the phone call, " ‘on balance’ [the witness's] motivation to make the call was her concern that [the woman] was in peril." Id. at 42. This is evidenced by the witness's initial statement explaining to the dispatcher the assault that she had just witnessed. Therefore, the judge did not abuse her discretion. See ibid.; Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015). See also Commonwealth v. Baldwin, 476 Mass. 1041 (2017).
Further, any alleged error from the admission of the 911 recording did not result in unfair prejudice to the defendant. See Guaman, supra at 43. The defendant alleges that there was prejudicial error because the witness's reliability was a central issue at trial because the victim testified that the defendant did not assault and batter her. However, in this case, the Commonwealth produced ample evidence that the defendant assaulted the victim, including the witness's in-court testimony of her observations of the assault. See ibid. In addition to the witness's testimony, the Commonwealth presented testimony of Officer Creavin, offered to impeach the victim's testimony denying the assault, stating that the victim told him on the day of the incident that the defendant had beat her and caused her injuries. The judge found the victim's testimony not to be credible. Therefore, the admission of the witness's 911 call "had little, if any, effect on the verdict." Ibid., citing Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
"Because the defendant preserved his hearsay objection at trial, ‘[w]e evaluate whether the admission of this information, if classified as hearsay, could constitute prejudicial error.’ " Guaman, 90 Mass. App. Ct. at 43 n.4, quoting from Commonwealth v. McLaughlin, 79 Mass. App. Ct. 670, 680 (2011).
The defendant's argument that the lack of a limiting instruction caused reversible prejudice to him is meritless because this was a bench trial and "[w]e can presume that [the judge] instructed [herself], in accordance with the Massachusetts case law...." Commonwealth v. Hollister, 75 Mass. App. Ct. 729, 734 (2009).
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Judgment affirmed.