Heard: June 21, 2018.
received and sworn to in the Fitchburg Division of the
District Court Department on September 29, 2015.
case was heard by Christopher P. LoConto, J.
J. Anderson for the defendant.
Rose-Ellen El Khoury, Assistant District Attorney, for the
Present: Agnes, Blake, & Sacks, JJ.
defendant, Lester J. Wilson, Jr., appeals from his conviction
of assault and battery on a family or household member, G. L.
c. 265, § 13M, following a jury-waived trial in the
District Court. The principal question he presents is whether
the judge erred in ruling that statements made by the
defendant's wife (1) to a police dispatcher during a 911
call to report that the defendant had assaulted and
threatened her, and (2) to one of the first responding police
officers were admissible at the defendant's trial where
his wife asserted spousal privilege. For the reasons that
follow, we conclude that even if the statements qualified as
excited utterances, most of them were testimonial in nature
and therefore not admissible under the jurisprudence of the
confrontation clause in the Sixth Amendment to the United
States Constitution. A confrontation clause violation is
constitutional error. The required remedy for a confrontation
clause violation is a new trial unless the error was harmless
beyond a reasonable doubt.
the incriminating character of the statements in question
went far beyond the scope of the brief thirty-one-second
portion of the 911 call that was properly admitted. Because
we are not satisfied beyond a reasonable doubt that the
improperly admitted evidence did not contribute to the
judge's finding that the defendant was guilty, there must
be a new trial. See Commonwealth v.
Rodriguez, 445 Mass. 1003');">445 Mass. 1003, 1004 (2005).
essential facts relating to the judge's rulings that are
the subject of this appeal are not in dispute. Prior to
trial, the judge conducted a hearing on the
Commonwealth's motion in limine to admit the contents of
a six-minute 911 call to the Fitchburg police department on
September 27, 2015, and statements made by the
defendant's wife to Fitchburg police Officer Keith Barnes
ten to twenty minutes later when he arrived at the Fitchburg
address that was associated with the 911 call. At the outset
of this hearing, defense counsel informed the judge that the
defendant's wife intended to assert spousal privilege and
to decline to testify. See Mass. G. Evid. § 504(a)
(2018). The judge conducted a voir dire with the
defendant's wife and concluded that her decision to
assert spousal privilege was voluntary. See
Commonwealth v. Szerlong, 457
Mass. 858, 864 n.10 (2010), citing Commonwealth
v. Fisher, 433 Mass. 340, 350 (2001).
judge listened to an audio recording of the six-minute 911
call. This panel has listened to the same
recording. It consists of two segments. During the
first minute or so, the defendant's wife requested that a
police officer be sent to her home; she gave her name,
address, and telephone number, and stated that she and her
husband had argued. She continued by stating that he
"choked me out," and that he said he would be back
in fifteen minutes to kill her. After the dispatcher informed
the caller that a police officer would be dispatched to her
address, the caller was put on hold for about ninety seconds.
When the conversation resumed, the dispatcher asked whether
the defendant told her how he planned to kill her. The caller
responded in the negative. She then provided the dispatcher
with the defendant's name. After telling the caller that
officers were on the way, the dispatcher asked her to
"start from the beginning."
caller then explained that there was an "ongoing thing
for a long time" based on the defendant's belief
that she is a "heroin junkie." The defendant's
wife strenuously denied that she uses drugs. She added that
one week earlier, she and the defendant "got into a
fight," and he "choked" her almost to the
point of "suffocation." When the dispatcher asked
her about the events of that day, the caller informed him
that today was their anniversary. She said the defendant was
angry because he said a person she was with in a photograph
posted on the social media Web site Facebook was a heroin
user. She also informed the dispatcher that the defendant
grabbed her by her throat, tried to suffocate her in a
pillow, and tried to "shove a handful" of her
migraine headache pills down her throat. The call ended after
the defendant's wife told the dispatcher that the
defendant was not present, but rather was "out on the
road" driving her son's red Honda CRV sport utility
vehicle, which had one of the old "green"
Massachusetts license plates.
defendant argued that the statements made by his wife on the
911 call were not admissible as excited utterances because at
the time she made them she was no longer under the stress of
an exciting event. See Commonwealth v.
Burnett, 417 Mass. 740, 743-744 (1994). Also, the
defendant argued that the admission of these statements would
violate his confrontation clause rights because the declarant
was not available to cross-examine. The judge ruled that the
first portion of the recorded 911 call was admissible (until
the point where the caller is put on hold), but that the
remainder of the recorded call was not.
Statements made outside marital home.
judge appropriately conducted a voir dire of Officer Barnes.
He testified that he was dispatched to the marital home on
the night in question where he found the defendant's wife
outside the home, talking to other officers. In describing
his interaction with the defendant's wife, Officer Barnes
stated, "She was hysterical. She was scared."
Officer Barnes further testified that it was difficult for
him to calm her down; "she would start talking, and then
she would start crying." It took Officer Barnes ten
minutes to get her to respond to questions about what had
happened. Although she was still upset during their
conversation, she was "more composed" than she was
when he arrived and was not crying. When questioned about
what he asked her, Officer Barnes testified, "I asked
her how the whole thing started. I asked her, you know, why
this happened, what he [the defendant] was upset about, what
exactly he said, questions like that." The
defendant's wife told Officer Barnes that the defendant
had left the residence and said he would return in fifteen
minutes. She gave Officer Barnes information about the
vehicle the defendant was using and Officer Barnes issued a
BOLO ("Be On the Lookout") bulletin to other
officers. The defendant's wife told him that earlier that
day, the defendant came home from work and accused her and a
friend with whom she had appeared in a photograph posted on
Facebook of being heroin addicts. "Then she told me that
he attempted to choke her out and shove her head into a
pillow. He went upstairs. He came back downstairs with a
handful of pills." The judge ruled that all the
statements made by the defendant's wife to Officer Barnes
Evidence at trial.
Commonwealth's case at trial consisted of the testimony
of Officer Barnes and the first thirty-one seconds of the
recorded 911 call. Officer Barnes testified that it took ten
minutes for the defendant's wife to calm down. Officer
Barnes further testified that he asked her where the
defendant was in order to ensure that he had left the scene
and was not in the house. The defendant's wife informed
Officer Barnes that the defendant left the premises and said
that he would be back in fifteen minutes to kill her. Officer
Barnes then testified, "I asked her to give me the
rundown of exactly how it happened." He continued as
follows: "She told me that she came home, that her
husband - or she was home. Her husband came home, and he was
extremely upset right when he walked in, that he had seen a
picture of her with a friend that he thought to be a drug
addict. He accused her of being a drug addict. She went
downstairs. He followed. He attempted to strangulate her and
stick her head into a pill (sic) and suffocate her.
He then went upstairs. He grabbed a handful of pills, tried
to shove them down her throat, and said[, ] 'If you want
to be a drug addict, I'm going to make you a drug
addict.'" On cross-examination, Officer Barnes added
that the defendant's wife told him that the strangulation
and the attempt to force her to ingest pills occurred on a
defendant did not testify. The sole witness for the defendant
was his son who testified that he was at home in the
downstairs bedroom with the door locked during the time of
the alleged crime. He added that his bedroom was the only
bedroom on the first floor.
Admissibility of recorded 911 call.
circumstances in which the Commonwealth offers out-of-court
statements made by a declarant who does not testify at trial,
both the rule against hearsay and the confrontation clause
come into play and require a "two-step inquiry."
Commonwealth v. Simon, 456 Mass.
280, 295 (2010). The hearsay issue should be addressed first.
Commonwealth v. Linton, 456 Mass.
534, 548 (2010) .
determining whether an out-of-court statement qualifies as an
excited utterance, 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.
Baldwin, 476 Mass. 1041, 1042 (2017), quoting
Commonwealth v. Zagranski, 408
Mass. 278, 285 (1990). See Mass. G. Evid. § 803(2)
(2018). There is no requirement that the statement explain or
qualify the underlying startling event. See
Commonwealth v. Santiago, 437
Mass. 620, 625 (2002) (critical inquiry is what effect, if
any, startling event had on declarant). The startling event
that gives rise to the declarant's statement may be
established by the excited utterance itself.
Commonwealth v. Nunes, 430 Mass.
1, 4 (1999). The relevant factors to consider include whether
the statement was made in the same location as the startling
event; the amount of time between the startling event and the
making of the statement; and the age, spontaneity, and degree
of excitement of the declarant. Baldwin,
supra. "The circumstances enumerated are
neither exhaustive nor mandatory; rather, the judge is to
consider the particular circumstances in each case. . . .
Further, the judge should not inquire as to whether the
statement is in fact credible. . . . That task falls to the
finder of fact." Commonwealth v.
Joyner, 55 Mass.App.Ct. 412, 415 (2002). Finally,
the mere fact that the declarant's statement is in
response to questions does not necessarily disqualify it as
an excited utterance. See Simon, 456 Mass. at 296
(shooting victim's answers to police dispatcher's
questions during 911 call were "spontaneous
reaction" to earlier home invasion and shooting).
Contrast Commonwealth v. McCoy,
456 Mass. 838, 849 (2010) (statements made by victim of
sexual assault during interview by sexual assault nurse
examiner at hospital lacked requisite degree of spontaneity
to qualify as excited utterances).
present case, the defendant argues that the portion of the
911 call admitted in evidence does not qualify as an excited
utterance because there was no medical emergency, his wife
did not exhibit "the characteristics of someone
frantically calling 911," and his wife was
"reflecting on the details of a past event." We
disagree. Although the existence of a medical emergency may
contribute to a finding that the declarant was under the
stress of an exciting event, it is not a foundation
requirement for the hearsay exception. As for the
declarant's demeanor, the judge made a specific finding
that the defendant's wife was crying during the initial
portion of the 911 call. In any event, a declarant may be
under the stress of a startling event without appearing to be
frantic or excited. See Baldwin, 476 Mass. at 1042.
Finally, in order to meet the foundation requirements for the