However, the second phase during which Officer Barnes told the defendant's wife, "[G]ive me the rundown of exactly how it happened" and the declarant's response consisting of a detailed account of the incident and what led up to it (an account that involved facts not contained in the 911 call or any other evidence admitted at trial) was part of Officer Barnes's criminal investigation and was not designed to address an ongoing emergency. In Commonwealth v. Gonsalves, 445 Mass. 1, 10, 833 N.E.2d 549 (2005), the Supreme Judicial Court defined the parameters of the confrontation clause in terms of statements that are "testimonial per se" and those that are "testimonial in fact." The former category described statements that are the result of interrogation by law enforcement officers who are performing an investigative function.

The defendant's remaining arguments in support of his motion relate to three alleged errors in his trial which he raised on direct appeal, but now reframes as violations of his federal constitutional rights. I have conducted three hearings on the motion, the final one to receive arguments in the aftermath of the Supreme Judicial Court's interpretation of Crawford in Commonwealth v. Gonsalves, 445 Mass. 1 (2005). After an examination of the transcripts from the trial and pre-trial motions as well as consideration of the arguments and materials presented at the hearings on the motion for new trial, the Court denies the defendant's motion.

The more difficult question is whether the initial statements to Officer Hannah were testimonial within the meaning of the confrontation clause. The reasoning of the judges below was grounded in the framework set forth in Commonwealth v. Gonsalves, 445 Mass. 1, 17–18, 833 N.E.2d 549 (2005). The judges reasoned that those statements were not “testimonial per se” because Officer Hannah did not pose any questions and they were made “voluntarily and without prodding.”

This two-step framework requires that we first determine whether the statement is testimonial per se and, second, even if it is not testimonial per se, whether the statement is "testimonial in fact." Commonwealth v. Gonsalves, 445 Mass. 1, 12 (2005), cert. denied, 548 U.S. 926 (2006) (Gonsalves). Under the two-step Gonsalves test,

In deciding whether an out-of-court statement is testimonial, “[f]irst, we determine whether the statement is testimonial per se,” that is, whether it was “made in a formal or solemnized form (such as a deposition, affidavit, confession, or prior testimony) or in response to law enforcement interrogation.” Simon, supra at 297, 923 N.E.2d 58, citing Commonwealth v. Gonsalves, 445 Mass. 1, 13, 833 N.E.2d 549 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2980, 2982, 165 L.Ed.2d 990, 989 (2006). “[I]f a statement is not testimonial per se, we consider whether the statement is nonetheless testimonial in fact.”

In deciding whether an out-of-court statement is testimonial, “[f]irst, we determine whether the statement is testimonial per se,” that is, whether it was “made in a formal or solemnized form (such as a deposition, affidavit, confession, or prior testimony) or in response to law enforcement interrogation.” Id. at 297, 923 N.E.2d 58, citing Commonwealth v. Gonsalves, 445 Mass. 1, 13, 833 N.E.2d 549 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2980, 2982, 165 L.Ed.2d 989, 990 (2006). “[I]f a statement is not testimonial per se, we consider whether the statementis nonetheless testimonial in fact.”

On appeal, the defendant asserts reversible error in two respects. First, he claims that the boy's out-of-court statements to police, offered without benefit of confrontation, were testimonial in nature and therefore inadmissible under Crawford v. Washington, 541 U.S. 36 (2004), and Commonwealth v. Gonsalves, 445 Mass. 1 (2005). Second, in reliance upon Commonwealth v. King, 436 Mass. 252, 254 (2002), the defendant maintains that the trial judge erred in admitting the statements as spontaneous utterances without first conducting a voir dire examination of the boy to ascertain his testimonial competency.

See id. Following the Supreme Court's decision in Crawford, supra, we decided Commonwealth v. Gonsalves, 445 Mass. 1, 3, 833 N.E.2d 549 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2980, 165 L.Ed.2d 990 (2006)( Gonsalves ), in which we held that “statements made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care.” Following our decision in Gonsalves, the United States Supreme Court decided Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)( Davis ), in which the Court held:

He argues that his convictions must be reversed because, among other reasons, (1) a substitute medical examiner and another medical expert were permitted to testify, over objection, to the contents and factual findings contained in the autopsy report prepared by a different medical examiner who had conducted the autopsy of the victim; (2) evidence was introduced at trial of a statement made by the defendant about throwing the toy shark, even though that statement had earlier been ordered suppressed because it was found to be involuntary; and (3) evidence of statements made by the defendant to police during two interviews should have been suppressed and not admitted at trial. We conclude that the testimony concerning the factual contents of the autopsy report prepared by a nontestifying medical examiner violated the defendant's constitutional right of confrontation, see Crawford v. Washington, 541 U.S. 36, 53-54 (2004); Commonwealth v. Gonsalves, 445 Mass. 1, 5-10 (2005), cert. denied, 548 U.S. 926 (2006), and that in the circumstances of this case the error was not harmless beyond a reasonable doubt. Accordingly, we reverse the defendant's conviction of murder.

The inquiry focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement was made. See Commonwealth v. Gonsalves, 445 Mass. 1, 833 N.E.2d 549, 562 (2005) ("We see no reason why a reasonable person in the [20-year-old] complainant's position would anticipate that her statement, made in her own bedroom, to her mother . . . would be used [in] prosecuting the alleged assault."). Applying this standard, it defies logic to think that T.C., as a three-year-old child, or any reasonable three-year-old child, would have an expectation that her statements about alleged sexual abuse could be used for prosecutorial purposes.