Opinion
20-P-1271
01-03-2022
COMMONWEALTH v. GERMAINE WRAY.
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 was convicted of one count of assault (G. L. c. 265, § 13A [a.]), two counts of assault by means of a dangerous weapon (G. L. c. 265, § 15B [b]), and one count of threat to commit a crime (G. L. c. 275, § 2). In this, his direct appeal, he argues that the trial judge erred in admitting statements of the two victims made in a 911 call, as well as a conversation between dispatchers which repeated an allegation made in an earlier 911 call that was admitted and to which the defendant does not object.
Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Tavares, 484 Mass. 650, 651 (2020), the finder of fact could have found that the defendant had placed a deposit on a room for rent that had been advertised by the female victim. He later asked for the money back, claiming a family emergency. The victim told him that she did not have the money, but that she would refund some of it when she had some.
On December 31, 2018, the defendant's codefendant called the victim and claimed to have an interest in renting the room which had been advertised anew. The codefendant came to look at the room. The defendant was immediately behind her, and he entered the building and followed the codefendant up the stairs to the victim's apartment on the second floor. The defendant was masked. He went to the apartment and drew a silver revolver from his waistband and brandished it, demanding money. The female victim recognized the voice of the defendant, called him by name, and told him that she had no money but would return part of the deposit when she had some.
While this was going on, the male victim called 911. A recording was entered in evidence. Because he was using a cellphone, the call was directed to the State police. Whispering, he stated the address and said that there was a man with a gun in his apartment. The operator attempted to transfer the call to the Springfield police department. The call was disconnected. The defendant makes no argument that the statement by the male victim in that initial call, was inadmissible.
At the end of the recording, the State police dispatcher recounts to a Springfield dispatcher the statement of the male victim, that a man with a gun was in his apartment. That recording ends. A second recording was also admitted. At its beginning, it also includes the statement by the State police dispatcher. The Springfield dispatcher then calls back the phone from which the 911 call was made and reaches the male victim.
On this second recording the male victim states that the man with a gun has now left the apartment. He describes what happened and stated that the man had gotten into a yellow taxicab, that he was wearing a mask, and that he had a gun. He then hands the phone to the female victim who also describes what has happened.
The defendant argues that these statements of the two victims in the second call were erroneously admitted as spontaneous utterances. Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). To determine whether a statement is a spontaneous utterance requires us to examine all of the facts and circumstances. Commonwealth v. Baldwin, 476 Mass. 1041, 1043 (2017). A nonexhaustive list of some of the factors that may be relevant include (1) the degree of excitement displayed by the person making the statements; (2) whether the statement is made at the place where the traumatic event occurred or at another place; (3) the temporal closeness of the statement to the act it explains; and (4) the degree of spontaneity. Commonwealth v. Wilson, 94 Mass.App.Ct. 416, 421-423 (2018). These statements challenged by the defendant were made in a 911 call immediately after the startling events of the defendant entering the victim's apartment with a gun. Although it may be argued that the voices of the two victims do not themselves reveal a great deal of stress, having listened to the recordings, we conclude that, on all on the facts and circumstances, it was not an abuse of discretion for the motion judge to have concluded that these were, indeed, spontaneous utterances. We therefore see no error in their admission. As for the statement of the dispatcher, to which the defendant also objects, repeating the statement made by the male victim during the first call, we do not think it was offered for its truth, and therefore we do not think it is hearsay. We conclude it was admissible to show the state of mind of the dispatcher in initiating a phone call to the male victim, something that would have been useful for the judge to know to understand the context of the call.
Finding no error, we affirm the judgments.
Judgments affirmed.
The panelists are listed in order of seniority.