Opinion
20-P-1086
12-20-2021
COMMONWEALTH v. Quinton WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Dorchester Division of the Boston Municipal Court, the defendant, Quinton Williams, was convicted of assault and battery on a family or household member. On appeal the defendant contends that the admission of the victim's excited utterance to a responding police officer violated the confrontation clause, and that the admission of a hearsay statement constituted prejudicial error. We affirm.
The jury found the defendant not guilty on charges of unlawful possession of a firearm, unlawful possession of ammunition, and possession of a firearm with a defaced serial number. Additional charges of strangulation and assault and battery by means of a dangerous weapon were dismissed before trial upon motion of the Commonwealth.
Background. On November 1, 2019, Boston Police Officer Shawn Harris drove to a home in Dorchester in response to a 911 call. Upon arrival, he met with a woman in the front foyer of the home. He could hear "loud screaming in the background ... it was another female's voice, and it was coming from a back bedroom." He moved to the back bedroom and saw the defendant and the woman's daughter (the victim) arguing. The victim was "[h]ighly agitated" and "screaming." The victim said to the defendant, "Tell them what you did to me," and then stated to Officer Harris, "he punched me in my face." At the time she made these statements, she was "[e]xtremely agitated, and angry." The defendant "may have made some allegations" to Officer Harris to the effect that the victim had "struck him." The victim told Officer Harris that "she was defending herself."
Shouting can be heard in the background of the audio of the 911 call, which was admitted in evidence.
Following the victim's statements, Officer Harris arrested the defendant and placed him in handcuffs. Officer Harris observed some bruising on the victim's chest area, and noted that the victim's hair was disheveled, as "if someone took their finger and placed it into a socket."
Within one or two minutes after Officer Harris placed the defendant in handcuffs, the victim opened a drawer which contained a firearm, and told Officer Harris that the defendant had choked her and smashed her head against a wall. This information was not admitted in evidence at trial due to the ruling on the Commonwealth's motion in limine discussed infra.
Prior to trial, the Commonwealth moved in limine to introduce the victim's statements to Officer Harris pursuant to the excited utterance exception to the rule against hearsay. Following voir dire of Officer Harris, at which he testified consistently with the above-described facts, the judge ruled that the victim's initial statement to Officer Harris was admissible at trial. He further ruled that all other statements by the victim "after the handcuffs are on" (see note 3, supra ) were excluded. The defendant objected, before and during trial, to the admission of any of the victim's statements.
The judge who ruled on the pretrial motion in limine was not the trial judge.
The victim did not testify at trial.
Discussion. The defendant argues that the victim's statement -- "tell them what you did to me, ... he punched me in my face" -- was testimonial hearsay, and that the admission of the statement violated the confrontation clause of the Sixth Amendment and art. 12 of the Massachusetts Declaration of Rights. The claim is unavailing.
"Out-of-court statements offered for the truth of the matter and asserted by a declarant who does not testify at trial must pass two ‘distinct but symbiotic’ tests to be admitted." Commonwealth v. Rand, 487 Mass. 811, 815 (2021), quoting United States v. Brito, 427 F.3d 53, 60 (1st Cir. 2005), cert. denied, 548 U.S. 926 (2006). "First, the statement must be admissible under our common-law rules of evidence as an exception [or exemption] to the hearsay rule.... Second, the statement must be nontestimonial for purposes of the confrontation clause of the Sixth Amendment." Rand, supra at 815 (quotations omitted). Here, the defendant does not dispute that the statement fell under the excited utterance exception to the rule against hearsay. Thus, the sole issue on appeal is whether the statements were testimonial.
"Testimonial statements are those made with the primary purpose of ‘creating an out-of-court substitute for trial testimony.’ " Commonwealth v. McGann, 484 Mass. 312, 316 (2020), quoting Commonwealth v. Wardsworth, 482 Mass. 454, 464 (2019). "[T]he question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’ " McGann, supra at 317, quoting Ohio v. Clark, 576 U.S. 237, 245 (2015). Courts consider a range of factors to help determine whether the "primary purpose" of a statement is testimonial. See Rand, 487 Mass. at 816 ; Commonwealth v. Middlemiss, 465 Mass. 627, 633-634 (2013). Specifically, courts consider:
"(1) whether the declarant was speaking about events as they were ‘actually happening, rather than describ[ing] past events’; (2) whether any reasonable listener would recognize that the declarant was facing an ‘ongoing emergency’; (3) whether what was asked and answered was necessary to resolve the present emergency rather than simply to learn what had happened in the past; and (4) the level of formality of the interview."
Middlemiss, supra at 633-634, quoting Davis v. Washington, 547 U.S. 813, 827 (2006). Courts also look to whether there is an ongoing emergency at the time the statements were made. See Rand, 487 Mass. at 817. That notwithstanding, "[a]n ongoing emergency is not necessary for a statement to be nontestimonial," id., and determining whether a statement is testimonial is a "highly context-dependent inquiry." Id., quoting Middlemiss, supra at 634.
In the present case, we discern no abuse of discretion in the judge's decision to admit the victim's initial statements in evidence. Officer Harris responded to the scene within five minutes of receiving a call or dispatch about the incident. Upon arrival he met with the victim's mother, who had called 911, heard "loud screaming" from a woman in the back bedroom, saw the victim and defendant engaged in an ongoing argument, and saw the victim in a "[h]ighly agitated" and "anxious" state. She was "screaming," and, at the moment Officer Harris entered the doorway, she stated, "Tell them what you did to me, ... he punched me in the face." The victim appeared "disheveled" and had injuries to her chest. Under these facts, the judge properly ruled that the primary purpose of the victim's statements to the officer were not to create a substitute for trial testimony. Rather, they were made in the immediate aftermath of the assault, during an ongoing emergency, and to an officer arriving upon the scene and trying to assess the situation and concurrent safety considerations. Moreover, the statements were not made in response to law enforcement inquiry. This case mirrors the facts and analysis delineated in Rand, 487 Mass. at 822-824. For the reasons stated therein, we agree that the admitted statements were nontestimonial and thus properly admitted. See Commonwealth v. Beatrice, 460 Mass. 255, 259 (2011).
The defendant also argues that the admission of the victim's statement that she was defending herself was error. While we agree that there was error, we disagree that it warrants reversal of the conviction.
Initially, we note that the issue was not properly preserved for appeal. The prosecutor asked Officer Harris, "Did the defendant ever tell you that [the victim] attacked him?" The defendant objected to the question and the judge overruled the objection because the question sought to elicit admissible testimony concerning the defendant's statement. Officer Harris responded, in relevant part, "I recall she said she was defending herself." Officer Harris's testimony was nonresponsive, went beyond the scope of the question, and involved inadmissible hearsay. That notwithstanding, the defendant neither objected nor moved to strike the testimony. Commonwealth v. Almele, 474 Mass. 1017, 1018 (2016) (issue not preserved where "the defendant objected to the initial question from the prosecutor" but "did not move to strike [the witness's] answer as improper"). See Mass. G. Evid. § 103, note to subsection (a)(1) (2021) ("When an answer is nonresponsive and objectionable, a subsequent objection or a motion to strike is necessary to preserve the issue"). Accordingly, our review is limited to whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Here, we discern no such risk. First, the improper testimony was brief and was not repeated or highlighted in the Commonwealth's closing argument. Second, the Commonwealth's case was strong, including not only the victim's excited utterance, but also witness observations of the victim's injuries, photographs of the victim's injuries admitted in evidence, and the emergency medical services records admitted in evidence. Third, the defense centered on a claim of self-defense, and thus the statement was not prejudicial here. Although the defendant did not testify and did not call any witnesses to testify at trial, defense counsel argued that the parties participated in a dispute, the victim was the aggressor, and the defendant defended himself. Viewed in this context, the victim's hearsay statement that she was defending herself was the only evidence, apart from the officer's brief observation of the ongoing verbal argument, that corroborated part of the defendant's version of events. See generally McGann, 484 Mass. at 322 (discussing considerations in substantial risk analysis). Finally, we note that the jury acquitted the defendant of various other charges, which may provide some indication that the jurors were not unduly swayed by the one improper reference. See Commonwealth v. Lassiter, 80 Mass. App. Ct. 125, 132 (2011) (that jury acquitted defendant of certain charges suggests they were not swayed by improper comments by prosecutor).
Judgment affirmed.