Opinion
No. 11–P–2036.
2012-12-3
COMMONWEALTH v. Juan PEREZ.
By the Court (CYPHER, GREEN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of two counts of assault and battery, and witness intimidation. On appeal, he contends that the trial judge erroneously admitted out-of-court statements and that he was unduly prejudiced by irrelevant evidence. We affirm.
Background. We summarize the evidence as follows. On June 17, 2010, the defendant and his girlfriend, Linda Wynn, were involved in a physical altercation in her apartment. Shortly thereafter, Wynn went to her neighbor's downstairs apartment and the defendant exited the apartment building. The neighbor testified that Wynn came to her door “crying” and said “her boyfriend choked her”; that Wynn's “neck was red, and her face was like somebody hit her or something”; and that Wynn “was very nervous” and did not calm down. Prior to trial, the Commonwealth moved, in limine, to admit these statements. The trial judge conducted a voir dire of the neighbor and determined the statements were admissible as nontestimonial spontaneous utterances. Within minutes after entering her neighbor's apartment, Wynn telephoned 911. She reported the following: “I'm sorry. I've been calling about a half an hour in Dorchester, MA. He choked me, he punched me. He's outside. He took my husband's BB gun and he's walking around with it and he just-He's outside going crazy and I'm scared”; “He's outside. [Inaudible] shooting me with pellets and he's outside trying to kick the door in. Oh my god”; “He said if I call you people he's gonna kill me”; “He's gonna kill me”; “[H]e punched me in the face and he choked me literally where I like, blacked out and I can't even swallow.” Near the end of the conversation, Wynn said that the defendant had left and was walking toward Blue Hill Avenue. The operator's questions primarily focused on the identity, description, and location of the defendant, the nature of the BB gun, and whether he had any other weapons. The Commonwealth also moved, in limine, to admit the audio recording (tape) of the 911 call. The trial judge listened to the tape and determined it was nontestimonial and admissible as a spontaneous utterance.
The neighbor testified that Wynn had dated the neighbor's deceased son for five years or more. She described her and Wynn's relationship as being like a “mother-daughter relationship.”
Officer Trull, who responded to the 911 call, testified that upon arrival at the scene, his attention was drawn to a woman who was crying. The woman had bruises on her neck and marks on her face. He later testified that he recognized the voice on the 911 tape as that of Wynn.
During the trial, the judge instructed the Commonwealth not to refer to a knife that was seized at the scene, as it was irrelevant to the charges. However, in responding to a question by the prosecutor, Officer O'Brien, an additional responding officer, stated, “I ended up seizing a knife from within the apartment.” Defense counsel's objection was sustained. The judge then instructed the jury to disregard the answer and ordered the statement stricken from the record.
The transcript makes plain that the prosecutor did not intend to elicit this response.
Discussion. 1. Neighbor's statements. The defendant argues that Wynn's out-of-court statements to her neighbor, though not testimonial per se, were testimonial in fact and, under Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), were inadmissible because Wynn was not available for cross-examination. However, when Wynn made the statements, she had just been choked and punched in the face. She was “crying” and “very nervous.” Furthermore, the defendant was forcibly trying to gain entry to the apartment. The judge did not err in treating the statements as nontestimonial (in view of Wynn's evident purpose of seeking refuge), and as admissible excited utterances. See Commonwealth v. Linton, 456 Mass. 534, 549, 924 N.E.2d 722 (2010).
2. 911 call. Similarly, the defendant argues that, under Crawford, the 911 tape was inadmissible because it contained testimonial statements (there being no “ongoing emergency”) and Wynn was not available for cross-examination; and because her statements were not “spontaneous” and thus did not meet the hearsay exception. The trial judge listened to the 911 tape and determined the “incident [was] ongoing.” We agree. Wynn told the 911 operator numerous times that the defendant was going to kill her. She reported that he had just choked her, punched her, and was outside the apartment with a BB gun trying to kick the door down. Clearly, there was an ongoing emergency. See Commonwealth v. Beatrice, 460 Mass. 255, 259–261, 951 N.E.2d 26 (2011). For similar reasons, we conclude the judge did not err in finding the statements admissible under the excited utterance exception to the rule against hearsay.
Further, we conclude the 911 tape was sufficiently authenticated. See Commonwealth v. Loach, 46 Mass.App.Ct. 313, 316–317, 705 N.E.2d 642 (1999). Officer Trull testified that he recognized Wynn's voice on the 911 tape.
Because we conclude the statements were nontestimonial and were admissible via a hearsay exception, we need not reach the defendant's claim that the Commonwealth's efforts fell short of establishing Wynn's unavailability. See Commonwealth v. Nesbitt, 452 Mass. 236, 244, 892 N.E.2d 299 (2008) (nontestimonial statements do not invoke the right to confrontation and may be admitted under Massachusetts evidence law).
3. Reference to knife. The defendant contends that Officer O'Brien's reference to the knife he found at the scene was unduly prejudicial and that the trial judge's instructions did not cure the error. The trial judge sustained defense counsel's objection, immediately ordered the statement stricken from the record, and instructed the jury “not to consider it in any way in your deliberations.” Given the overwhelming evidence of guilt and the judge's curative instruction, we perceive this single reference to the discovery of a knife as having no effect on the verdicts.
Judgments affirmed.