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Commonwealth v. Wilson

Appeals Court of Massachusetts, Worcester

November 7, 2018


          Heard: June 21, 2018.

         Complaint received and sworn to in the Fitchburg Division of the District Court Department on September 29, 2015.

         The case was heard by Christopher P. LoConto, J.

          Brian J. Anderson for the defendant.

          Rose-Ellen El Khoury, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Blake, & Sacks, JJ.

          AGNES, J.

         The 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.[1] A confrontation clause violation is constitutional error.[2] The required remedy for a confrontation clause violation is a new trial unless the error was harmless beyond a reasonable doubt.[3]

         Here, 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).


         The 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).

         1. 911 call.

         The judge listened to an audio recording of the six-minute 911 call. This panel has listened to the same recording.[4] 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."

         The 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.

         The 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.[5]

         2. Statements made outside marital home.

         The 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 were admissible.[6]

         3. Evidence at trial.

         The 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 "bed downstairs."

         The 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.


         1. Admissibility of recorded 911 call.

         In 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) .

         a. Excited utterances.

         In 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).

         In the 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 excited ...

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