Suzanne L. Renaud for the defendant.
E. DeRosa, Assistant District Attorney, for the Commonwealth.
defendant, Shawn A. Baldwin, is awaiting trial in the
District Court on charges involving alleged domestic
violence. Both the Commonwealth and the defendant filed
motions in limine concerning the admissibility of a recording
of a 911 call placed by the six year old son of the defendant
and the alleged victim. The Commonwealth argued that the
boy's statements -- including, "my dad just choked
my mom" -- were admissible as nontestimonial excited
utterances. The defendant asserted that the statements were
not excited utterances and that their admission would violate
his right of confrontation. After a hearing at which the
recording was played, the judge ordered that the recording be
excluded on the ground that the boy's voice appeared
"calm, " and that the statements on the recording
therefore were not "excited" utterances.
single justice of this court granted the Commonwealth's
petition for relief pursuant to G. L. c. 211, § 3,
vacated the judge's order excluding the recording, and
remanded the case to the District Court for further
proceedings. The defendant appeals. We affirm.
single justice has granted relief under G. L. c. 211, §
3, "we will not disturb the judgment absent an abuse of
discretion or clear error of law."
Commonwealth v. Narea, 454 Mass.
1003, 1004 (2009). See Commonwealth v.
Lucero, 450 Mass. 1032, 1033 (2008) (affirming single
justice's grant of relief on Commonwealth's G. L. c.
211, § 3, petition, where judge improperly entered
required finding of not guilty). In this case, the single
justice, citing Commonwealth v.
Alcantara, 471 Mass. 550, 558 (2015), correctly
concluded that the motion judge erred because, although the
"degree of excitement displayed by the declarant is one
factor suggestive of a spontaneous reaction, it is not the
only factor." Because it appears that the motion judge
failed to consider other factors relevant to the
determination whether an out-of-court statement qualifies as
an excited utterance, her order relative to the 911 recording
must be vacated.
statement meets the test for admissibility as an excited
utterance 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.'" Alcantara, 471 Mass.
at 558, quoting Commonwealth v.
Santiago, 437 Mass. 620, 623 (2002). See
Commonwealth v. McLaughlin, 364
Mass. 211, 222-223 (1973). While the degree of excitement
exhibited by the declarant is one factor relevant to that
determination, see Commonwealth v.
Beatrice, 460 Mass. 255, 258-259 (2011), the
essential issue is whether the statement was made under the
stress of an "exciting event and before the declarant
has had time to contrive or fabricate the remark, and thus .
. . has sufficient indicia of reliability."
Commonwealth v. Zagranski, 408
Mass. 278, 285 (1990) . See Commonwealth v.
Mulgrave, 472 Mass. 170, 179 (2015) (applying
spontaneous utterance exception to written text message). In
addition to demeanor, our cases have identified other factors
relevant to the inquiry, such as whether the declaration is
made in the same location as the traumatic event,
Zagranski, supra at 284-286; the
circumstances of the statement, including its temporal
proximity to the event, Mulgrave, supra at
177; the young age of a 911 caller, Commonwealth
v. Guaman, 90 Mass.App.Ct. 36, 42 (2016);
and the degree of spontaneity demonstrated by the declarant,
Commonwealth v. Joyner, 55
Mass.App.Ct. 412, 416-417 (2002). In short, the question is
not simply whether the declarant shows any particular form of
"excitement, " but rather whether the declarant was
acting spontaneously under the influence of the incident at
the time the statements were made, and not reflexively. See
generally Commonwealth v.
Crawford, 417 Mass. 358 (1994) (hours after killing,
four year old child remained under stress of event).
therefore affirm the judgment of the single justice, vacating
the orders denying the Commonwealth's motion in limine
and allowing the defendant's motion. On remand, the
motion judge must consider, as the single justice indicated,
whether, based on all the circumstances, the
statements on the 911 tape have sufficient indicia of
reliability to meet the foundational requirements for
admission and, if so, whether their admission would violate
the defendant's right to confrontation under the Sixth
Amendment to the United States Constitution and art. 12 of
the Massachusetts Declaration of Rights. See Commonwealth
v. Middlemiss, 465 Mass. 627, 632-636 (2013). We express
no view as to how these questions should be answered; that is
for the motion judge to decide in the first instance.
 The Commonwealth's G. L. c. 211,
§ 3, petition sought relief from the District Court
judge's orders denying the Commonwealth's motion in
limine to admit the 911 recording and her order allowing the
defendant's motion to exclude the recording. The single
justice's intent to vacate both orders is implicit to her
 Pursuant to G. L. c. 211, § 3,
the single justice reviewed the substantive merits of the
Commonwealth's petition. She was within her discretion to
do so. See Commonwealthv.Hernandez, 471 Mass. 1005, 1006-1007 (2015). "A
single justice, in his or her discretion, may also properly
decline to employ the court's extraordinary power of
general superintendence where exceptional circumstances are
not present." Commonwealthv.Narea, 454 Mass. 1003, 1004 n.l (2009). See, e.g.,
Commonwealthv.Yelle, 390 Mass.
678, 686-687 (1984) (G. L. c. 211, § 3, ...