Opinion
19-P-716
10-29-2020
COMMONWEALTH v. ANTONIO MARRERO-MIPANDA.
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
The defendant appeals from his convictions, after a Superior Court jury trial, of assault with intent to rape and indecent assault and battery on a person fourteen years of age or older. On appeal, he contends that the trial judge abused her discretion or otherwise erred in admitting in evidence, as an excited utterance, the victim's statement to an emergency medical technician (EMT). The defendant further contends that admission of the statement violated his constitutional right to confront the witnesses against him. Seeing no error, we affirm.
Background. We discuss the facts the jury could have found, limiting ourselves to those relevant to an understanding of the issues on appeal. Shortly after 9 P.M. on a February evening, several residents of a Boston neighborhood called 911 to report the sounds of an argument between a man and a woman in an alley. Both voices sounded impaired and the woman's voice sounded like she was in distress. The woman's voice said "ow," "no," "stop," "don't touch," and "you're hurting me." The man's voice said "I'm out." One caller saw the silhouette of a man shoving the silhouette of a woman against a building in the alley.
To the extent that the defendant challenges findings of fact explicitly or implicitly made by the judge in connection with admitting the EMT's statement in evidence, we see no clear error or abuse of discretion in those findings, as discussed infra.
Two police officers arrived, heard noises from a shed in the alley, looked inside, and saw a man with his pants down lying on top of a woman who was naked from the waist down. The woman had abrasions and was bleeding from cuts on her legs. Both appeared to be under the influence of alcohol. They were separated and questioned. The male officer questioned the man, who was later identified as the defendant; he was uncooperative and so was handcuffed, put in a cruiser, and later formally arrested.
The female officer helped the victim put on her clothes and observed that the victim seemed confused, was unsteady on her feet, and was slurring her speech. The officer asked her what had happened; the victim replied that she had had the day off from work and had been out drinking. The officer asked if the victim was there against her will, and the victim said she was not. The officer asked if the victim wanted medical attention, and she declined; nevertheless, based on the victim's apparent condition and injuries, the officer decided to call an ambulance. While they awaited the ambulance's arrival, the officer continued to speak to the victim but had "a difficult time getting clear answers from [her] about what had transpired [that] day." Throughout their interaction, the victim appeared confused.
The ambulance arrived, staffed by a female EMT and two male recruits. The EMT saw the victim sitting with her head in her hands, crying and shaking. The EMT asked the victim to step into the back of the ambulance so that she could be assessed. The victim did so but asked the two male recruits to leave the ambulance, which they did. At this point, according to the EMT's later testimony, the victim's demeanor became "a little more comfortable," but she was still "scared" and "shaking," and her "voice was shaky," "crying and sobbing."
The EMT began her assessment by asking the victim what had happened. The victim responded with the statement at the center of this appeal: that she had been "forced up against a wall and thrown to the ground and that the male's fingers penetrated her vagina." She also stated that, before that, she had been drinking and smoking marijuana with the male. The EMT noted that the victim's legs had an abrasion, a scraped shin, and two lacerations, one of which the victim said was painful and which required sutures. She also had a scrape and dried blood on her cheek. She was transported to a hospital for treatment.
On the first day of trial, the Commonwealth moved in limine for a ruling that the victim's statement to the EMT was an excited utterance admissible through the EMT. The defendant opposed the motion, arguing (1) that the statement was not an excited utterance, and (2) that even if it were, the victim's asserted complete lack of memory -- both of making the statement and of the circumstances of the assault -- would prevent the defendant from effectively cross-examining her at trial, thus depriving him of his confrontation rights. The judge held a voir dire of the EMT, in which she testified substantially as set forth above. The judge allowed the motion, and the EMT repeated her testimony, including the victim's statement, at trial.
Discussion. 1. Excited utterance. Under the excited utterance (or spontaneous utterance) exception to the rule against hearsay, "[a] spontaneous utterance will be admitted in evidence 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'" (citation omitted). Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). A judge's decision to admit a statement as an excited utterance is reviewed for an abuse of discretion. Id. at 624, 627. Here, the defendant properly concedes that a startling event occurred. But, citing three pieces of evidence, he disputes the judge's conclusion that the statement was not the result of reflective thought. We are unpersuaded.
First, the defendant argues that the victim's statement to the EMT contradicted what she had told the female police officer ten to fifteen minutes earlier. The officer testified, "I asked [the victim] if she was there against her will and she said no" (emphasis added). On cross-examination, the officer repeated this testimony, but then agreed with counsel's suggestion that the victim had said "the defendant had not done anything 'against her will'" (emphasis added). The defendant now argues that this latter version of the victim's statement differed from the victim's statement to the EMT -- which asserted, in essence, that she had been sexually assaulted -- and showed that the statement to the EMT was the product of reflection.
Even if the defendant had made this argument to the judge, and even if the judge were somehow required to credit the officer's second version of the victim's statement rather than her first, the judge would not have abused her discretion in rejecting the argument. Given (1) the evidence that the victim was intoxicated, (2) the officer's testimony that the victim was confused throughout their interaction, and (3) the EMT's observation that the victim was scared, shaking, and crying at the time she made her statement, the judge could reasonably have concluded that any variation between the victim's two statements was the result of her confused and upset state of mind rather than the product of reflection.
At the time the officer was cross-examined, the judge had allowed the Commonwealth's motion in limine to admit the victim's statement to the EMT, but the EMT had not yet testified. When she did so, the defendant again "object[ed] for the record" to the admission of the victim's statement, but did not assert that the officer's testimony should cause the judge to revisit her earlier ruling.
Whether the victim's statement to the EMT qualified as an excited utterance presented several preliminary questions of fact for the judge, and it was for her to decide any issues of credibility in connection therewith. See Commonwealth v. Lyons, 426 Mass. 466, 470-471 (1998). See also Mass. G. Evid. § 104 (a) & note (2020).
Second, the defendant argues that because the victim made no disclosure to the female officer, and had what he terms "the presence of mind" to ask the male recruits to step out of the ambulance before making her statement to the EMT, that statement was necessarily the product of reflective thought. The judge did not abuse her discretion in concluding otherwise. A person who has just been sexually assaulted might well feel inhibited from disclosing the assault until she was in a private space, with a person of her own gender, who was focused solely on her condition and needs rather than on the various tasks that concern a police officer responding to a 911 call. The judge could reasonably view the timing and circumstances of the victim's statement as a product of her emotional state and embarrassment rather than as an indication of conscious reflection.
Third, the defendant points to evidence that a toxicology screen of the victim was negative for marijuana as proof that the victim's statement to the EMT about having smoked marijuana earlier that evening was a "lie" that "necessarily require[d] reflection." From this the defendant argues that the remainder of her statement was likewise the product of reflection. But the judge was not required to treat the victim's statement as a deliberate lie, as opposed to a mistake born, once again, of the victim's confused mental state. Nor was the judge required to view the discrepancy between one aspect of the victim's statement and the toxicology screen as tainting the entirety of the statement. In short, the discrepancy did not make the statement inadmissible. It could, of course, affect the weight the statement should be given, as defense counsel skillfully argued in his closing.
The defendant did not make this argument to the judge until after the close of all the evidence. The judge declined to alter her ruling that the victim's statement was an excited utterance. We will assume without deciding that the defendant has preserved the issue for appeal.
2. Confrontation right. The defendant next contends that admission of the victim's statement, even if permissible as an excited utterance, violated his right to confront a witness testifying against him. The defendant argues that the statement was testimonial and that, although the victim testified at trial, her memory of the statement and the circumstances was so poor that he could not effectively cross-examine her, rendering the statement inadmissible. We conclude that the statement was not testimonial and therefore do not consider the adequacy of the defendant's opportunity for cross-examination.
Confrontation rights under art. 12 of the Declaration of Rights of the Massachusetts Constitution are coextensive with those under the Sixth Amendment to the United States Constitution. See Commonwealth v. Nardi, 452 Mass. 379, 388 n.10 (2008).
The defendant's argument to the trial judge, in contrast, implicitly assumed that the statement was testimonial and asserted only the inadequacy of his opportunity to cross-examine. The judge rejected that argument. We affirm the judge's decision to admit the statement on a ground different from the one she relied upon. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
"Testimonial statements are those made with the primary purpose of 'creating an out-of-court substitute for trial testimony'" (citation omitted). Commonwealth v. Wardsworth, 482 Mass. 454, 464 (2019). "The test is an objective one; we examine 'the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances'" (citation omitted). Id. In reviewing a judge's determination whether a statement was testimonial, "[w]e accept the judge's findings of fact unless clearly erroneous but independently apply constitutional principles to the facts found" (quotation and citation omitted). Commonwealth v. McGann, 484 Mass. 312, 317 (2020).
As recognized in Wardsworth, the court previously used a different test, which, at least for statements not made to law enforcement personnel, asked whether "a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting a crime." 482 Mass. at 464 n.18, quoting Commonwealth v. Gonsalves, 445 Mass. 1, 3 (2005), cert. denied, 548 U.S. 926 (2006). The defendant asks us to apply the Gonsalves test here. But, in response to the decision in Michigan v. Bryant, 562 U.S. 344, 358 (2011), the Wardsworth court "clarif[ied] that the appropriate method of analysis is the 'primary purpose' test." Wardsworth, supra. See Commonwealth v. Lopez, 485 Mass. 471, 474 n.4 (2020) (applying primary purpose test to joint venturer's statements to defendant at time of crime); Commonwealth v. McGann, 484 Mass. 312, 316-317 (2020) (same, for victim's statements to mother). Courts still occasionally observe that, in particular circumstances, the result might be the same if the question were (as in Gonsalves) how a reasonable person in the declarant's position would have anticipated her statement being used. See McGann, supra, at 318; Commonwealth v. Rand, 97 Mass. App. Ct. 758, 763 & n.7 (2020). We need not reach that issue here.
Here, we have no difficulty concluding that the primary purpose of the victim's statement to the EMT was to assist the EMT in assessing the victim's need for medical care. Each of the three parts of the victim's statement -- that she had been "forced up against a wall," "thrown to the ground," and "the male's fingers penetrated her vagina" -- described the application of force to her body in a manner that could have resulted in a need for medical treatment. That the victim herself had not reported or shown signs of vaginal pain or discomfort was beside the point. The EMT asked an open-ended question for the purpose of evaluating what the victim's medical needs might be, and the victim's answer was directly responsive to that question. That the victim might have observed the police handcuffing the defendant and placing him in a cruiser, and that she made the statement to the EMT while the police were still on the scene, did not require the conclusion that she made the statement for the primary purpose of creating an out-of-court substitute for trial testimony, or of otherwise aiding a police investigation.
The defendant is not aided by the decision in Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315 (2016), where a victim's statements to a police officer shortly after a domestic violence incident, including that "Carlos had done this to her," were held to be testimonial. Id. at 317, 325-327. The Rodriguez court discussed the primary purpose test at length, see id. at 321-324, and also determined that the victim's statements were testimonial where "[a] reasonable person standing in [her] shoes . . . would have understood . . . that the statements she made to a uniformed police officer -- even one she knew as a friend and trusted -- who responded to her home where a domestic violence incident had just occurred, would be used in the investigation and prosecution of the defendant." Id. at 327. Whatever the precise test the court applied, among the factors the court deemed most significant in that case was that the statements were not necessary to enable the police to understand or control an ongoing emergency or to obtain medical care for the victim. See id. at 326, 327. Here, in contrast, the victim's statement was made to assist an EMT in assessing the victim's need for medical care. Thus Rodriguez does not govern.
Rodriguez was decided prior to the Wardsworth court's clarification of the applicable test. See note 7 supra.
Judgments affirmed.
By the Court (Meade, Sullivan & Sacks, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: October 29, 2020.