Commonwealth v. Middlemiss, 989 N.E.2d 871

Defendant Middlemiss and Morgan planned a home invasion to rob Cintron and hid in his downstairs neighbor apartment until Cintron returned.
Cintron arrived home with a friend; upon entering, he identified Middlemiss; a struggle ensued and Cintron was shot five times and died on the way to the hospital.
Middlemiss and Morgan were tried separately; on May 27, 2010, Middlemiss was convicted of first-degree murder under felony-murder theory with armed robbery as the predicate felony and unlawful firearm possession.
The trial judge sentenced Middlemiss to life imprisonment for murder and an 18-month concurrent term for firearm possession.
Middlemiss challenged the admission of the victim’s statements to a 911 operator and to a responding officer, arguing hearsay and confrontation concerns, and challenged the judge’s handling of judicial estoppel and potential relief under c. 278, § 33E.
The appellate court affirmed, rejecting the hearsay and confrontation-clause challenges, the judicial-estoppel claim, and denial of c. 278, § 33E relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of victim's 911 and police statements	Middlemiss argues 911 statements were testimonial and inadmissible; police statements were hearsay without an exception.	Middlemiss argues 911 statements were not excited utterances and the police statements were hearsay; confrontation concerns apply.	911 statements are excited utterances; police statements are dying declarations; no confrontation violation.
Confrontation clause applicability to 911 statements	Statements to the 911 operator were testimonial and violated confrontation when uncross-examined.	Statements were nontestimonial under ongoing-emergency framework and Bryant factors.	Statements were nontestimonial; no Crawford/Bryant violation.
Judicial estoppel applicability	Commonwealth was inconsistent between trials; should be estopped from arguing reliability of identifications.	Positions at the trials were not mutually exclusive; not estopped.	Not mutually exclusive; no judicial estoppel.
Relief under c. 278, § 33E	Court should grant a new trial or reduce the verdict if errors occurred.	No basis for relief after review of the record.	No basis for c. 278, § 33E relief.

Commonwealth v. Beatrice, 460 Mass. 255 (Mass. 2011) (excited utterance and Beatrice framework for hearsay exceptions)
Commonwealth v. Burgess, 450 Mass. 422 (Mass. 2008) (confrontation-clause analysis after Crawford)
Commonwealth v. Smith, 460 Mass. 385 (Mass. 2011) (confrontation analysis in context of excited utterances)
Commonwealth v. Gonsalves, 445 Mass. 1 (Mass. 2005) (statements to law enforcement generally testimonial except for certain emergencies)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (testimonial vs. nontestimonial analysis; ongoing emergency framework)
Michigan v. Bryant, 131 S. Ct. 1143 (U.S. 2011) (multifactor framework for ongoing emergency and primary purpose analysis)
Commonwealth v. Nesbitt, 452 Mass. 236 (Mass. 2008) (dying declaration admissibility and confrontation clause scope)
Commonwealth v. Santiago, 437 Mass. 620 (Mass. 2002) (excited utterances admissibility in homicide context)