March 18, 2016.
received and sworn to in the Springfield Division of the
District Court Department on March 7, 2014.
motion in limine was heard by Robert A. Gordon, J.,
and the case was tried before William P. Hadley, J.
Anders Smith for the defendant.
R. Worger (Amal Bala, Assistant District Attorney, with him)
for the Commonwealth.
Present: Milkey, Agnes, & Maldonado, JJ.
defendant, Carlos Rodriguez, was convicted on August 14,
2014, of assault and battery following a two-day jury trial.
He was sentenced to a term of six months in a house of
correction. The Commonwealth's case was based principally
on the testimony of West Springfield police Officer Paulina
Hannah, the second officer to respond to the scene of a
domestic violence incident. She testified to certain
statements made to her by the victim, who did not testify at
the trial. On appeal, the defendant argues that the trial
judge improperly admitted those statements because they did
not fall within any exception to the hearsay rule, and they
violated his independent constitutional right under the Sixth
Amendment to the United States Constitution and art. 12 of
the Massachusetts Declaration of Rights to confront the
witnesses against him.
agree with the judges below that the statements in question made
by the victim to Officer Hannah were admissible as excited
utterances. However, we agree with the defendant that those
initial statements were testimonial, and thus were subject to
the confrontation clause. Finally, we conclude that despite
the testimonial character of those statements, the
defendant's confrontation rights were not violated and
the statements were properly admitted, because the victim was
unavailable to testify at trial and the defendant had an
adequate prior opportunity to cross-examine her at a pretrial
to trial, the defendant filed a motion in limine to exclude
all of the statements made by the victim to the first police
officer at the scene, Officer Robert Wise, and to Officer
Hannah. Following an evidentiary hearing, at which both
officers testified, the motion judge ruled that all of the
statements were excited utterances and not subject to the
rule against hearsay. However, the motion judge ruled that
the statements made to Officer Wise were inadmissible under
the confrontation clause because they were made in response
to his questions and therefore were testimonial. For the same
reason, the motion judge also ruled that all of the
statements that followed Officer Hannah's request to
"tell [her] exactly what happened" were testimonial
and not admissible through the testimony of Officer Hannah.
However, the motion judge ruled that the initial statements
the victim made to Officer Hannah when she first entered the
home (the statements after the conversation with Officer Wise
ended and until Officer Hannah asked the victim to tell her
what happened) were admissible, as they were neither
"testimonial per se" nor testimonial in fact.
trial, the jury were warranted in finding the following
facts. On the afternoon of October 14, 2013, Officer Wise was
dispatched to a residence to investigate a report of a
domestic disturbance. Upon arriving, Officer Wise met the
victim in the hallway of the apartment building and observed
her to be "very upset." The victim had
"[t]ears running down her face, " "red eyes,
" and "disheveled" hair, and her "[s]hirt
was torn." Officer Wise also observed marks on her arms
as well as the front and side of her neck. He did not see the
defendant on the premises. Officer Wise did not testify to
any statements made by the victim.
after Officer Wise arrived, he was joined by Officer Hannah.
The victim left her conversation with Officer Wise and
"went running right over to Officer Hannah." The
victim, who was "crying hysterically [and in a] [v]ery
disheveled [condition], " gave Officer Hannah a
"big hug." The victim felt more comfortable with
Officer Hannah because they had known one another for years,
and they could speak to each other in Spanish. After giving
Officer Hannah a hug and calling her by a specific term of
endearment,  the victim told Officer Hannah that
"Carlos had done this to her." The victim told
Officer Hannah that Carlos had grabbed her by the hair and
dragged her down the hallway. The victim made motions to
demonstrate how he had grabbed her. At that point the
defendant objected on the ground that the admission of the
statements made by the victim to Officer Hannah violated his
rights under the confrontation clause. A lengthy sidebar
discussion ensued. The judge initially sustained the
objection. The judge then conducted a voir dire hearing, at
which Officers Wise and Hannah testified. After the hearing,
the judge overruled the objection, stating that he agreed
with the motion judge's ruling.
Hannah then resumed her testimony regarding the initial
statements the victim made to her. The victim had disclosed
to Officer Hannah that the defendant had done this to her,
and that he had grabbed her by her hair and dragged her
across the floor. Officer Hannah also testified that the
victim said the defendant had "grabbed her by the
neck" and she "was having a hard time breathing
because [the defendant] was squeezing her neck."
result of a prior hearing where the victim had asserted her
rights under the Fifth Amendment to the United States
Constitution and, as found by the motion judge, was no longer
available to testify, the victim did not testify at the
trial. Whether the victim had a basis to assert the privilege
is not an issue on appeal. The defendant presented no
witnesses, but defense counsel read into the record portions
of the victim's prior sworn testimony from a pretrial
dangerousness hearing pursuant to G. L. c. 276, § 58A.
At that hearing, the victim testified that she did not
remember what happened on October 14, 2013; that the injury
to her hand had happened before that day; that the defendant
never grabbed her by the hair, pinned her down, or choked
her; and that she never sought a restraining order against
the defendant. The victim also testified that she had been
under the influence of prescription medications and alcohol
on that day.
closing argument, the defendant relied heavily on the
victim's prior sworn testimony from the dangerousness
hearing as evidence that her statements made to the police
officers at the scene were not credible. The Commonwealth, in
its closing, urged the jury to rely instead on the
victim's statements that were made contemporaneous to the
event and were the subject of Officer Hannah's testimony.
The jury convicted the defendant of assault and battery.
Admissibility as excited utterances.
spontaneous or excited utterance is admissible "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.'"
Commonwealth v. Santiago, 437 Mass. 620, 623 (2002),
quoting from 2 McCormick, Evidence § 272, at 204 (5th
ed. 1999). See Mass. G. Evid. § 803(2)
(2016). We review a judge's decision to admit
or exclude evidence based on whether it falls within an
exception to the hearsay rule, such as the excited utterance
exception, under the abuse of discretion standard. "We
defer to the judge's exercise of discretion unless the
judge has made '"a clear error of judgment in
weighing" the factors relevant to the decision, . . .
such that the decision falls outside the range of reasonable
alternatives' (citations omitted)."
Commonwealth v. Alleyne, 474 Mass. 771, 779
(2016), quoting from L.L. v. Commonwealth,
470 Mass. 169, 185 n.27 (2014).
the trial judge heard evidence, during the voir dire hearing,
that Officer Hannah arrived on the scene within five to ten
minutes of the radio call dispatching officers to the
residence. Prior trial testimony revealed that when Officer
Hannah arrived, the victim was "crying hysterically,
" "disheveled, " and "trembling."
Her hair was in disarray, her eyes were red, her shirt was
torn, and she had visible bruises on her body. The temporal
closeness of the statements to the startling event (being
physically beaten), and the evidence of the victim's
condition as upset, in distress, and highly emotional,
provided the trial judge with a firm basis for his conclusion
that her initial statements to Officer ...